Amicus

The advancement of a women’s rights agenda depends heavily on court decisions for its success. Since its inception, CWL has devoted significant energy to an active amicus committee in which CWL prepares or joins others in presenting amicus briefs in cases relevant to CWL’s core issues.
  • In determining whether CWL will sign on to or file an amicus brief, we consider the following factors: Is the issue of importance to women? Is it an area of law directly relating to women? Will the resolution of the issue have a significant impact or effect on women even though the issue is not normally considered a “women’s issue?”;
  • Is the issue likely to be or has it already been adequately briefed by the parties in the lawsuit?;
  • Is CWL’s position likely to be of interest to the Court? Will the fact that CWL takes the time to file an amicus brief highlight the importance of the issue in a way that might not otherwise be evident?; and
  • Where does the issue fall among CWL’s overall priorities and amicus brief priorities for the year?

CWL has joined amicus briefs in the following recent cases:

Case  Outcome

Helen Doe v. Thomas Horne

CWL joined an amicus brief filed October 13, 2023, in Helen Doe v. Thomas Horne, Case No. 23-16030, in the Ninth Circuit U.S. Court of Appeals. The brief, filed by the National Women’s Law Center, was filed in support of two students who filed suit challenging Arizona’s law seeking to ban them from playing school sports because they are transgender girls. The girls and their families, represented by the National Center for Lesbian Rights, won a strong preliminary injunction at the district court level finding that Arizona’s anti-trans sports ban likely violates Title IX and the Equal Protection Clause, especially given controlling Ninth Circuit precedent in Hecox v. Little (striking down Idaho’s illegal ban targeting trans girls and women) and the Supreme Court’s Bostock v. Clayton County decision. The State of Arizona, along with two private defendant-appellants, appealed the preliminary injunction. The amicus brief highlighted how school policies fostering safety and inclusion for LGBTQ+ youth, especially transgender and nonbinary students, are both consistent with Title IX and a key aspect of creating gender equity in education. Access to school sports is an important part of education for all students, associated with lifelong academic, social, and health benefits, and rules scrutinizing whether girls are “feminine enough” perpetuate sexist and racist stereotypes that harm all girls and women.

Pending
LaRose v. King County

CWL joined an amicus brief filed June 22, 2023, in LaRose v. King County, Case No. 56455-6-II, in the Washington Court of Appeal. The brief, filed by the National Women’s Law Center and the Washington Employment Lawyers Association, was filed in support of Sheila LaRose, a former public defender who experienced sexual harassment, including stalking, by a former client. Her employer had no sex harassment policy and took no action for months after she reported the harassment. LaRose won a multi-million-dollar judgment against King County, and the County appealed. The amicus brief highlighted that employers are required to protect workers from workplace-related harassment by third parties, even if the harassment occurs outside the bounds of a physical place of employment. The brief emphasized that limiting protections solely to a physical place of employment ignores both the types of harassment workers face as well as the parameters of today’s work environments. The brief also underscored that requiring a more burdensome approach than informing a direct supervisor of workplace discrimination, such as informing top or “upper” management, would create even more barriers to reporting discrimination and frustrate the purpose of workplace civil rights laws.

Pending
Alliance for Hippocratic Medicine v. FDA

CWL joined two amicus briefs filed on behalf of more than 200 reproductive health, rights, and justice organizations, opposing a challenge to the abortion medication mifepristone, in Alliance for Hippocratic Medicine v. Food & Drug Administration. The National Women’s Law Center, American Civil Liberties Union, Center for Reproductive Rights, and Planned Parenthood Federation of America filed the briefs in the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court. Abortion opponents filed suit in the U.S. District Court for the Northern District of Texas, arguing that mifepristone is unsafe and should not have been approved by the FDA. The District Court granted a preliminary injunction April 7, 2023, barring the use of mifepristone nationwide. The FDA filed an emergency request for a stay in the Fifth Circuit, which partially granted the stay. The FDA filed an emergency application for a stay with the Supreme Court on April 14, 2023, and CWL joined an amicus brief filed with the Supreme Court in support of the stay the same day. The Supreme Court issued an order on April 21, 2023, staying the ruling pending appeal. CWL joined a second amicus brief, this one filed in the Fifth Circuit on May 1, 2023. In the brief, amici explained how the district court’s decision was contrary to the conclusion of the scientific and medical community that medication abortion is one of the safest medication regimens in the United States and around the world. Amici also explained the devastating consequences if the Court does not reverse the district court’s decision and reject plaintiffs’ unfounded claims of injury, including that the ban would restrict access to abortion care even in states where it is legal. On August 16, 2023, the Fifth Circuit affirmed in part the district court order regarding the 2000 FDA approval of mifepristone. The court vacated the district court’s stay of the 2000 approval of mifepristone and of the 2019 approval of a generic version of the drug. The court affirmed the district court’s stay of the FDA’s 2016 and 2021 actions that loosened restrictions on the use of mifepristone, such as increasing the maximum gestational age for use from 49 to 70 days, allowing telehealth visits, and allowing non-physicians to prescribe mifepristone. The Supreme Court granted cert December 13, 2023 in the consolidated cases, FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine.

Neutral
National Center for Public Policy Research v. Weber

CWL filed an amicus brief December 5, 2022, in National Center for Public Policy Research v. Weber, Case No. 22-15822, in the U.S. Court of Appeals for the Ninth Circuit. National Center for Public Policy Research v. Weber is one of three lawsuits challenging California SB 826, which was signed into law in 2018 and requires all publicly held corporations headquartered in California to have a minimum number of women on their boards of directors. The other lawsuits are Meland v. Weber, No. 2:19-cv-2288 JAM-AC (E.D. Cal.), No. 22-15149 (9th Cir.), and Crest v. Padilla, No. 19STCV27561 (Los Angeles Superior Court), No. B322276 (Cal. Ct. App., 2d Dist.). CWL’s amicus brief provided context on the discriminatory structural barriers that lead corporations to exclude women from their boardrooms, explained the need for governmental action to halt this discrimination against women at the highest levels of business leadership, and highlighted the many experienced and well-qualified women who are willing and able to serve on public company boards. San Diego appellate specialists Johanna Schiavoni and Melanie Gold, of Complex Appellate Litigation Group, drafted the amicus brief on behalf of CWL.

Pending

Billard v. Charlotte Catholic High School
CWL joined an amicus brief filed November 30, 2022, by the National Women’s Law Center in Billard v. Charlotte Catholic High School, Case No. 22-1440, in the U.S. Court of Appeals for the Fourth Circuit. The brief was filed in support of Lonnie Billard, a drama teacher at Charlotte Catholic High School who was fired after he announced on Facebook he was marrying his long-time partner. The school district had stipulated that Billard was not a minister for purposes of the “ministerial exception,” which shields religious institutions from certain employment law claims based on the First Amendment right of churches to decide matters of faith and doctrine without government intrusion. But the school district asserted that it was free to discriminate against LGBTQ+ employees based on a statutory exception to Title VII of the Civil Rights Act of 1964; the Religious Freedom Restoration Act of 1993; a general right to religious autonomy; and the right to freedom of association. Billard, represented by the ACLU, won summary judgment in the U.S. District Court for the Western District of North Carolina, and the school district appealed. The amicus brief highlighted leading relevant precedents in the Fourth Circuit and other courts that established that religious schools could not pay married women less than married men based on the religious belief that men should be head of household. The brief explained the harms that would result if the defendants’ arguments were accepted and religious employers were given a statutory or constitutional right to engage in sex discrimination whenever they were religiously motivated to do so.

Pending

AM v. Indianapolis Public Schools
CWL joined an amicus brief filed November 10, 2022, by the National Women’s Law Center in AM v. Indianapolis Public Schools, Case No. 22-2332, in the U.S. Court of Appeals for the Seventh Circuit. The brief was filed in support of a 10-year-old transgender girl who was kicked off her elementary school softball team after a sports ban targeting transgender girls and young women took effect in Indiana in the summer of 2022. The girl and her family, represented by the ACLU, won a preliminary injunction finding the anti-trans ban on sports participation likely violates Title IX of the Civil Rights Act of 1964, especially given the Supreme Court’s 2020 Bostock decision, which held that Title VII protects employees against discrimination because they are gay or transgender. The State of Indiana appealed the preliminary injunction. The amicus brief highlighted how inclusive school policies – like the local Indianapolis policy displaced by the anti-trans statewide ban – are consistent with Title IX and a key part of creating gender equity in education. The brief argued that the inequities girls face in K-12 sports are not due to inclusion of transgender girls and women. Rather, rules targeting some girls because they are not “feminine enough” perpetuate sexist and racist stereotypes that harm all girls, especially girls of color. After transferring to a charter school, Plaintiff dismissed her lawsuit as moot January 18, 2023. The parties filed a stipulation of dismissal of the appeal, and the Seventh Circuit entered an order of dismissal January 19, 2023. The dismissal resulted in the lifting of the preliminary injunction, allowing Indiana’s ban on transgender girls on girls’ school sports teams to go into effect.

Neutral

Boyer v. Wilkie
CWL joined an amicus brief filed on September 30, 2022, by the National Women’s Law Center and the Federal Practice Group in Boyer v. Wilkie, Case No. 22-1822, in the Federal Circuit Court of Appeals. The brief was filed in support of a female federal government employee who was paid less than her male colleagues for substantially similar work. The pay discrimination was due to the government’s reliance on prior salary history to determine her pay, without regard to experience or other job-related skills. The amicus brief argued that using prior salary history to determine pay rates for federal workers perpetuates sex discrimination and is prohibited under the Equal Pay Act. The brief urged the Federal Circuit to decide, as courts across the country have, that salary history should not be considered alone when determining an applicant’s pay rate because it maintains gender-based inequality.

Pending

303 Creative v. Elenis
CWL joined an amicus brief filed on August 18, 2022, by the National Women’s Law Center in 303 Creative v. Elenis, Case No. 21-476, in the U.S. Supreme Court. The case addresses whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment. Amici filed the brief in support of the Colorado Anti-Discrimination Act, which protects LGBTQ+ individuals and others from discrimination. The case arose when a website designer brought a pre-enforcement challenge to the state law, arguing that it violates her free speech rights because she objects to creating websites for same-sex weddings. The district court and Tenth Circuit U.S. Court of Appeals both ruled in favor of Colorado. The NWLC amicus brief focused on the harm women would face should such an exception be made to public accommodations laws. Amici highlighted the importance of public accommodations laws to the full participation of women and LGBTQ+ individuals in society. The brief also explained why the First Amendment does not exempt businesses from compliance with these laws, and the harms that would be caused if the Court allowed such an exemption. On June 30, 2023, the Supreme Court held that the designer may deny service to same-sex couples who seek to create websites for their weddings. The 6-3 majority opinion held that, because 303 Creative offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services.

Unfavorable
Students for Fair Admission v. Harvard/UNC

CWL joined an amicus brief filed in the U.S. Supreme Court on August 1, 2022, by the National Women’s Law Center in Students for Fair Admission v. Harvard, No. 20-1199, and Students for Fair Admission v. University of North Carolina, No. 21-707, consolidated cases challenging affirmative action admissions policies of Harvard and the University of North Carolina. The brief was filed in support of Harvard and UNC and their affirmative action policies, defending their interest in maintaining a diverse student body and ensuring that past discrimination and exclusion do not perpetuate ongoing exclusion. The brief specifically highlighted the ways that affirmative action policies are necessary for addressing race and sex discrimination based on stereotypes and the effects of historic and current discrimination that uniquely harm women of color. The brief highlighted how women of color continue to remain underrepresented in higher education and across various fields, focusing on the intersecting ways that racism and sexism create harms and the specific stereotypes tied to combined racial and sexual identities. By highlighting how vital it is for universities to combat these biases through affirmative action policies, amici hope to convince the Court not to overrule or otherwise narrow decades of precedent upholding such policies. On June 29, 2023, the Supreme Court held that the admissions programs at Harvard College and the University of North Carolina violate the equal protection clause of the 14th Amendment. The 6-3 majority opinion overruled 45 years of precedent established in prior Supreme Court decisions.

Unfavorable

Meland v. Weber (9th Circuit)
CWL filed its own amicus brief April 6, 2022, in Meland v. Weber, No. 22-15149, in the U.S. Court of Appeals for the Ninth Circuit, supporting the State of California in a challenge to SB 826, the statute signed into law in 2018 that requires all publicly held corporations headquartered in California to have a minimum number of women on their boards of directors. This was the second amicus brief CWL filed in this case; CWL previously filed an amicus brief Oct. 8, 2021, arguing for denial of a preliminary injunction against SB 826. The U.S. District Court for the Eastern District of California denied the preliminary injunction Dec. 27, 2021, and the plaintiff appealed. CWL’s second amicus brief again provided context on the discriminatory structural barriers that lead corporations to exclude women from their boardrooms, explained the need for governmental action to halt this discrimination against women at the highest levels of business leadership, and highlighted the many experienced and well-qualified women who are willing and able to serve on public company boards. CWL’s amicus brief, which was drafted by San Diego appellate specialists Johanna Schiavoni and Melanie Gold, was joined by 12 organizations: Bar Association of the Bay Area – Queen’s Bench, California Association of Black Lawyers, Latina Lawyers Bar Association, Lawyers Club of San Diego, Marin County Women Lawyers, Mexican American Bar Association of Los Angeles, National Conference of Women’s Bar Associations, National Women’s Law Center, Orange County Women Lawyers Association, Women’s Bar Association of the State of New York, Santa Barbara Women Lawyers, and Women Lawyers Association of Los Angeles.

Pending
Adams v. School Board of St. Johns County, Florida

CWL joined an amicus brief filed November 23, 2021, by the National Women’s Law Center and Lambda Legal, in Adams v. School Board of St. Johns County, Florida, No. 18-13592, in the Eleventh Circuit en banc. The brief was filed in support of a transgender male student who was denied access to the boys’ restroom at his middle school in Florida. CWL previously joined NWLC in an amicus brief filed in this case in March 2019, and received a decision in the student’s favor in August 2020, holding that the school board’s policy of prohibiting trans students from using restrooms corresponding to their gender identity violates the Equal Protection Clause and Title IX. In July 2021, the Eleventh Circuit vacated its decision and issued a revised opinion that watered down the Equal Protection and Title IX holdings, but still concluded that the student’s rights were violated. The Eleventh Circuit then decided to re-hear the case en banc, and CWL joined in the amicus brief supporting the student in the en banc proceeding. The brief challenged the Eleventh Circuit’s framing of the question presented, emphasizing that the issue was not whether sex-separated facilities are ever permissible, but whether schools violate the law when they exclude trans students from the sex-separated facility corresponding to their gender identity. The brief emphasized that the Eleventh Circuit’s first opinion in this case got it correct when it found that the school’s policy violates both the Equal Protection Clause and Title IX because it constitutes discrimination based on sex and transgender status. This argument, which was also presented in the March 2019 amicus brief, was strengthened by the since-decided 2020 Supreme Court opinion in Bostock v. Clayton County, which confirms that discrimination based on transgender status is sex discrimination under the law, as well as other recent decisions and social science research that have highlighted the harm that trans students face under exclusionary policies. On December 30, 2022, the Eleventh Circuit en banc held in a 7-4 decision that the school district policy barring transgender students from using bathrooms aligned with their gender identity did not violate equal protection or the Title IX prohibition on discrimination, reversing the panel decision.

Unfavorable

Meland v. Weber
CWL filed its own amicus brief October 8, 2021, in Meland v. Weber, No. 2:19-cv-2288, in the U.S. District Court for the Eastern District of California, supporting the State of California in a challenge to SB 826, the statute signed into law in 2018 that requires all publicly held corporations headquartered in California to have a minimum number of women on their boards of directors. The plaintiff, a shareholder of a publicly held corporation, argues that SB 826 requires shareholders to discriminate on the basis of sex when exercising their voting rights. The state argues that the plaintiff lacks standing and that, in any event, SB 826 passes the applicable intermediate scrutiny test because its flexible requirements are tailored to the important government interest in addressing gender discrimination and increasing diversity at the highest levels of business governance. CWL drafted and filed an amicus brief to provide additional context on the discriminatory structural barriers that lead corporations to exclude women from their boardrooms, to explain the need for governmental action to halt this discrimination against women at the highest levels of business leadership, and to highlight the many experienced and well-qualified women who are willing and able to serve on public company boards. San Diego appellate specialist Johanna Schiavoni drafted the brief on behalf of CWL. U.S. District Judge John A. Mendez issued an order December 27, 2021, denying a preliminary injunction against SB 826.

Favorable

Dobbs v. Jackson Women’s Health Organization
CWL joined the National Women’s Law Center and 71 other organizations in filing an amicus brief to the U.S. Supreme Court September 20, 201, in Dobbs v. Jackson Women’s Health Organization, supporting the right to abortion. In this case, the last remaining Mississippi abortion provider challenged a state law that would ban abortion after 15 weeks, defying nearly 50 years of Supreme Court precedent, going back to Roe v. Wade, that recognizes that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy. The amicus brief explains how gutting or overturning the right to abortion denies the liberty and equality of women and all people who can become pregnant, undermines their bodily integrity and personal autonomy, and limits their ability to participate equally in social and economic life. The brief also responds to Mississippi’s argument that advances in contraceptive access and gender equality obviate the need for the right to abortion, highlighting the continued systemic barriers to contraceptive care, the persistence of economic gender disparities, the high costs of childbirth and parenting, discrimination and other burdens imposed on pregnant and parenting workers and students, and barriers to accessing child care. On June 24, 2022, the Supreme Court issued a 5-4 opinion authored by Justice Samuel Alito, overturning the 1973 Roe v. Wade decision that protected a constitutional right to abortion, allowing states to ban the procedure. By a 6-3 vote, the Court upheld the Mississippi law banning abortions after 15 weeks.

Unfavorable

K.R. v. Duluth Edison Charter Schools
CWL joined an amicus brief filed September 10, 2021, by the National Women’s Law Center in K.R. v. Duluth Edison Charter Schools, Case No. 19-cv-00999, in the U.S. District Court for the District of Minnesota. The brief supports the plaintiffs, three Black and bi-racial children in Minnesota who claim they were frequently treated differently than white students, experienced ongoing race-based harassment, and were subject to a hostile learning environment at Duluth Edison Charter Schools (DECS), in violation of the Equal Protection Clause, Title VI of the Civil Rights Act of 1963, and the Minnesota Human Rights Act. The amicus brief argues that when educators discipline Black students more frequently and more harshly for behaviors they typically overlook with white students, such differential treatment leads to unequal educational opportunities for Black students. Amici also argue that schools commit race discrimination when they mistreat Black students in connection with how they wear their hair and explain the harms of dress codes, including uniform policies, which are steeped in race- and gender-based stereotypes and often lead schools to discriminatorily enforce them against Black girls. The District Court denied the school district’s summary judgment in an opinion issued March 16, 2022. The Court found that there were factual disputes preventing summary judgment on the plaintiffs’ discrimination, harassment, and equal protection claims.

 Favorable

Caryn Strickland v. U.S. (formerly Roe v. U.S.)
CWL joined an amicus brief filed August 26, 2021, by the National Women’s Law Center, Legal Momentum, and the Purple Campaign in Roe v. U.S., Case No. 21-1346, a sexual harassment case in the Fourth Circuit. The amicus brief supports Jane Roe, a former assistant federal defender who challenged the Fourth Circuit’s mandatory alternative dispute resolution process, which deprived her of constitutionally required due process and equal protection rights when she reported sexual harassment and retaliation that she experienced while working at the Federal Defender’s Office. The case involves the scope of protections for employees of the federal judiciary who report harassment and other discrimination, and the amicus brief asks the Fourth Circuit to hold the federal judiciary to the same standards as other employers when responding to employee reports of harassment and discrimination. The Fourth Circuit issued an opinion April 26, 2022, holding that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace, reversing in part and affirming in part the trial court’s ruling on the motion to dismiss.

 Favorable

Crisitello v. St. Theresa School
CWL joined an amicus brief filed August 4, 2021, by the National Women’s Law Center and Americans United for Church and State in Crisitello v. St. Theresa School, Case No. 085213, in the New Jersey Supreme Court, in support of Victoria Crisitello, an unmarried elementary school art teacher at a Catholic school who was fired after she told her employer she was pregnant. The school claims that the plaintiff is a “minister,” and therefore the ministerial exception allows the school to deny her workplace civil rights protections. This case represents continuing efforts by religiously affiliated employers to avoid complying with workplace civil rights. The amicus brief details the range of harms that could flow from deciding that the plaintiff – an art teacher who never taught religion, never prayed with her students, and never counseled them on doctrine or faith – is a “minister,” including, for example, losing protections against sexual harassment, unequal pay, disability discrimination, and claims for overtime pay. On August 14, 2023, the New Jersey Supreme Court held that the “religious tenets exception” to the New Jersey Law Against Discrimination provides an affirmative defense for religious employers facing claims of employment discrimination. This means that religious employers can use the exception as a way to avoid liability under state antidiscrimination law. In this case, the school claimed Victoria Crisitello was fired because she violated their Code of Ethics, which follows Catholic teachings on premarital sex. Here, the New Jersey Supreme Court ruled for the school, holding that the teacher did not show a genuine dispute as to whether the school’s decision to fire her relied solely on religious tenets. Because the Court decided the case based on the New Jersey antidiscrimination statute, it did not rule on the arguments regarding the ministerial exception.

 Unfavorable

Corbitt v. Taylor
CWL joined an amicus brief filed August 2, 2021, by the National Women’s Law Center in Corbitt v. Taylor, No. 21-10486, in the U.S. Court of Appeals for the Eleventh Circuit, challenging Alabama’s policy of denying transgender people driver’s licenses with accurate gender markers unless they undergo genital surgery and provide proof of such to the State. The amicus brief argues that Alabama’s policy – which requires transgender people to carry licenses with inaccurate gender markers – puts transgender people at heightened risk of discrimination and violence and violates protections against sex discrimination under the Constitution. The brief also argues that requiring all transgender people to have a particular kind of gender-affirming surgery before they can update their license is harmful and inconsistent with best practice care. Not all transgender people need or want surgery of any kind – and even those who do want it may not have access because it is costly, and still frequently not covered by insurance. There are also multiple forms of gender-confirming surgeries, but Alabama requires genital surgery, which many people do not need or have access to.

 Pending

Morgan v. U.S. Soccer Federation
CWL joined an amicus brief filed July 30, 2021, by the National Women’s Law Center and the Women’s Sports Foundation in Morgan v. U.S. Soccer Federation, Case No. 21-55356, an equal pay case pending in the Ninth Circuit. The amicus brief supports the professional soccer players on the U.S. Women’s National Team (“USWNT”) in an appeal of the dismissal of their Equal Pay Act claims. For years, the U.S. Soccer Federation paid players on the USWNT less than the players on the U.S. Men’s National Team. The district court granted summary judgment for the defendant on the equal pay claims and, in part, on Title VII discrimination claims, and the parties negotiated a settlement regarding the remaining discrimination claims. The plaintiffs argue that the district court made errors in analyzing their claims under the Equal Pay Act – including leaving out a comparison of the rate at which the women’s players were paid to the rate of pay for the men’s team. The U.S. Soccer Federation argues that it did not pay women players less when considering total compensation and focuses on the terms of the collective bargaining agreements, which provided the women players higher guaranteed base pay and lower bonuses than the men players, who received higher bonuses but less base pay. Plaintiffs argue that parties cannot negotiate terms that are discriminatory based on sex or any other protected basis, including through a collective bargaining agreement. The amicus brief discusses the importance of equal pay in this context and generally, and the importance of following the applicable legal standard for claims of equal pay for women. The parties reached a settlement Feb. 22, 2022. The case settled for a $24 million payment to the plaintiffs for back pay and other damages plus a pledge from U.S. Soccer to equalize pay between the men’s and women’s national teams in all competitions, including the World Cup, in the teams’ next collective bargaining agreements.

 Favorable

Hamilton v. Dallas County
CWL joined an amicus brief filed May 21, 2021, by the National Women’s Law Center and the ACLU Women’s Rights Project in Hamilton v. Dallas County, Case No. 21-10133, an equal pay case pending in the Fifth Circuit U.S. Court of Appeals. The amicus brief was filed in support of nine female detention service officers at the Dallas County Jail. The women were subjected to a facially discriminatory scheduling policy that allowed male officers to take off both weekend days but limited female officers to weekdays or a single weekend day off, on the grounds that more male officers were needed during weekdays for safety reasons. The county argued that “the disparate gender-based work scheduling policy does not violate Title VII because it is not an “ultimate employment action” and therefore not an “adverse employment action.” The amicus brief explained that the county’s policy fits within the history of women’s outright exclusion from male-dominated jobs like the ones at issue here. The brief also highlighted the harms to women who are caregivers – disproportionately Black and Brown women – that stem from inequitable work scheduling policies. On August 3, 2022, the Fifth Circuit affirmed the district court’s order dismissing the lawsuit. The Court acknowledged that the schedule policy was overtly gender-based, but affirmed the dismissal because the plaintiffs had not suffered an adverse employment action within the meaning of binding Fifth Circuit precedent, which held that only ultimate employment decisions such as hiring and firing constitute adverse employment actions. The Fifth Circuit explained that the “rule of orderliness” prohibited it from “overrul[ing] a prior panel decision absent an intervening change in the law, such as a statutory amendment or a decision from either the Supreme Court or our en banc court.” The Court invited en banc review: “The strength of the allegations here – direct evidence of a workforce-wide policy denying full weekends off to women in favor of men – … make this case an ideal vehicle for the en banc court to reexamine our ultimate-employment-decision requirement and harmonize our case law with our sister circuits’ to achieve fidelity to the text of Title VII.” On August 18, 2023, the Fifth Circuit Court of Appeals, sitting en banc, overruled the August 3, 2022, decision and eliminated the requirement that actionable claims of adverse employment decisions under Title VII must involve an “ultimate employment decision” such as hiring, firing, promotion, or pay. The court recognized that the text of Title VII contains no such limitation, and instead allows for liability for other discriminatory decisions. The court further ruled that an employee’s work schedules – which in this case, were restricted so women could not take full weekends off – are “quintessential” terms and conditions of employment.

 Favorable

B.R. v. F.C.S.B.
CWL joined an amicus brief filed April 22,2021 by the National Women’s Law Center in B.R. v. F.C.S.B., Case No. 21-01005, in the Fourth Circuit. The case involves a procedural issue regarding filing lawsuits under pseudonyms and the relation-back doctrine for purposes of the statute of limitations. The amicus brief was filed in support of a student sexual assault survivor against her school. B.R. was 12 years old when she was repeatedly sexually harassed, including raped, tortured, and threatened with death by her classmates. At age 20, B.R. filed a lawsuit against her school and former classmates alleging Title IX and other violations under the pseudonym “Jane Doe.” The district court denied defendants’ motion to dismiss, holding that B.R.’s failure to obtain permission from the court before filing under a pseudonym was not a jurisdictional defect and her amended complaint related back to the date of her original complaint for purposes of the statute of limitations. The amicus brief explains that plaintiffs’ ability to use pseudonyms in sexual assault and child sexual abuse cases is critical to ensure privacy and reduce the risk of re-traumatization and retaliation. The brief also highlights that sexual assault survivors already face many barriers to justice and that an error in initially seeking permission to file under a pseudonym should not result in dismissal of a lawsuit. The Fourth Circuit issued an opinion November 2, 2021, permitting the plaintiff to proceed under a pseudonym in the lawsuit against her school.

 Favorable

Mahanoy Area School District v. B.L.
CWL joined an amicus brief filed with the U.S. Supreme Court March 31, 2021, in Mahanoy Area School District v. B.L., Case No. 20-255, which involved a high school cheerleader who was disciplined for posting comments critical of her school on social media. The brief was filed by the National Women’s Law Center, Lambda Legal Defense and Education Fund, and Lawyers’ Committee for Civil Rights Under Law. The Supreme Court issued a favorable ruling June 23, 2021, holding that schools must be able to address some student speech that takes place outside the schoolhouse gates, but that the student in question engaged in speech that did not meet the justifications; thus, the school violated her First Amendment rights. The Court held that the key test for whether schools can act on student speech is not whether the speech occurred inside or outside school, but can include other key factors, including whether students are harassed or otherwise harmed. The Supreme Court’s ruling acknowledged issues raised in CWL’s amicus brief, which argued that the lower courts correctly concluded that the school district exceeded its authority in punishing the student for her Snapchat post, but underscored the importance of also preserving schools’ ability to address legitimately harmful speech, such as bullying, harassment, and threats of violence – whether or not it occurs on school grounds.

 Favorable

Chase v. Nodine’s Smokehouse, Inc.
CWL joined an amicus brief filed by the National Women’s Law Center March 23, 2021, in the U.S. Court of Appeals for the Second Circuit in this case asserting the rights of survivors of sexual assault, particularly those who are low-wage workers, to fair, impartial treatment both in the workplace and when reporting sexual assault to the police. In this case, a woman who was sexually assaulted by her supervisor at the restaurant where she worked reported the assault to the police, but was then herself charged for allegedly making a false report. The woman sued her assailant, the restaurant, individual police officers, and the local police department asserting that the police response to her report of sexual assault constituted sex discrimination in violation of the Equal Protection Clause. The federal district court in Connecticut denied the defendants’ summary judgment motion, and defendants appealed, arguing that qualified immunity shields the police from the Equal Protection claims. The amicus brief presents social science research and legal precedents explaining the dynamics of sexual assault and how sexual assault survivors interact with law enforcement; explaining how the police department’s response to the client’s report of sexual assault – including bringing charges against the client for false reporting – reflects gender bias; and explaining how and why gender bias by law enforcement may harm survivors of sexual assault, the vast majority of whom are women, and thus violate the Equal Protection Clause. The Second Circuit issued an order October 4, 2021, dismissing the appeal for lack of jurisdiction.

 Favorable

Cochran v. Gresham, Cochran v. Philbrick, Arkansas v. Gresham
CWL joined an amicus brief filed by the National Women’s Law Center and the Lawyers’ Committee for Civil Rights Under Law on February 24, 2021, in Cochran v. Gresham (and consolidated cases) in the U.S. Supreme Court. These cases involve challenges to HHS’ approval, under the Trump administration, of Medicaid demonstration projects in Arkansas and New Hampshire that impose work requirements as a condition for receiving Medicaid benefits. The circuit and district courts below held that HHS’ approval of the demonstration projects was arbitrary and capricious in violation of the Administrative Procedure Act because the agency failed to consider that the projects will result in a loss of health coverage, which is directly at odds with the principal purpose of the Medicaid Act. The amicus brief highlights the devastating impact that the Medicaid work requirements will have on women and people of color, and especially on women of color, exacerbating existing health and economic disparities. The brief also emphasizes that the COVID-19 pandemic simultaneously makes it harder for individuals to satisfy work requirements while also compounding the health and economic consequences that will result from loss of health coverage in this moment. The Biden administration reversed the work-requirement policy and filed a motion asking the Supreme Court to vacate the circuit court decisions, instruct the court below to remand the matters to HHS, and remove the cases from the argument calendar. The Supreme Court removed the cases from the March 29, 2021 oral argument calendar and, on April 5, 2021, ordered the cases held in abeyance pending further order.

 Favorable

Tucker v. Faith Bible Chapter International
CWL joined an amicus brief filed January 19, 2021, by the National Women’s Law Center in Tucker v. Faith Bible Chapter International, Case No. 20-1230, a Tenth Circuit U.S. Court of Appeals case involving the ministerial exception, which bars the application of anti-discrimination laws to religious institutions’ employment relationships with its “ministers.” In this case, a religious school claims that the ministerial exception permitted it to fire a science teacher for speaking out about racism and racial harassment. The district court denied the school’s summary judgment motion, holding that there were factual disputes as to whether the teacher was a “minister” under the exception, and the school appealed. The amicus brief addresses the specific harms to women, people of color, LGBTQ individuals, and others at risk for discrimination and harassment in the workplace, as well as for wage-and-hour violations, through an unwarranted expansion of the ministerial exception to avoid workers’ civil rights protections. On June 7, 2022, the Tenth Circuit dismissed the appeal, finding that Faith Bible Chapel International could not bring an immediate appeal under the collateral order doctrine challenging the district court’s interlocutory decision to deny Faith summary judgment on its affirmative ministerial exception defense.

 Neutral

Hecox v. Little
CWL joined an amicus brief filed December 21, 2020, by the National Women’s Law Center and Lawyers’ Committee for Civil Rights Under Law in Hecox v. Little, Case Nos. 20-35813, 20-35815, a case pending in the Ninth Circuit U.S. Court of Appeals. The case involves a challenge to an Idaho law that bans transgender and intersex women and girls from participating in sports consistent with their gender identity. The plaintiffs obtained a preliminary injunction on their equal protection claim, which the state appealed. The amicus brief focused on the ways the Idaho law violates Title IX, particularly in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County. The amicus brief argued that excluding all transgender women and girls from participating in sports consistent with their gender identity has detrimental physical and psychological impacts on these student-athletes and others, and the “sex verification” provision could result in any woman or girl who does not conform to stereotypes about femininity being subjected to invasive and humiliating tests. The amicus brief also discussed how policies like the Idaho law create particular harms for Black and brown girls and women, given the history of stereotypes regarding athleticism, biology, and gender that are applied to women and girls of color. The Ninth Circuit issued an order June 24, 2021, remanding the case to the district court for the limited purpose of determining whether the plaintiff’s claim was moot in light of her changed enrollment status at Boise State University. On August 17, 2023, the Ninth Circuit affirmed the district court’s order preliminarily enjoining Idaho’s Fairness in Women’s Sports Act. The court held that the district court did not abuse its discretion in finding that plaintiffs were likely to succeed on the merits of their claim that the Act violates the Equal Protection Clause of the Fourteenth Amendment.

 Favorable

Pambakian v. Blatt
On July 2, 2020, CWL joined an amicus brief in the Ninth Circuit in support of a plaintiff who alleges she was sexually harassed and assaulted at a company holiday party. After she reported the assault, she was asked to sign a nondisclosure agreement and when she declined to do so, the company adopted a mandatory arbitration policy two years after the assault took place. The amicus brief explains how mandatory arbitration can be harmful to sexual harassment claims and how it is especially unfair in this case where the agreement was signed after the sexual assault took place. The Ninth Circuit issued an opinion September 24, 2021, affirming the district court’s decision compelling arbitration of plaintiff’s claims. Plaintiff filed a motion for rehearing en banc October 8, 2021.

 Unfavorable

Peltier v. Charter Day School
On June 22, 2020, CWL joined an amicus brief in the Fourth Circuit in support of the plaintiffs in Peltier v. Charter Day School, Case Nos. 20-1001, 20-1023 (XAP). The plaintiffs challenge whether the defendant’s school dress code policy, which requires all girls to wear skirts, “skorts,” or “jumpers” to school, violates the Equal Protection Clause and Title IX. The amicus brief explains that the dress code policy is based on false notions that girls should be passive and must conform to specific gender stereotypes. It also explains how the policy is particularly harmful for transgender students and students who are gender non-binary or gender non-conforming. The Fourth Circuit issued an opinion August 9, 2021, reversing summary judgment for the plaintiffs on the equal protection claim and reversing summary judgment for the Defendants on the Title VII claim. On June 14, 2022, following rehearing, the Fourth Circuit, en banc, affirmed in part, vacated in part, and remanded. The Court affirmed the district court’s entry of summary judgment for the plaintiffs on their Equal Protection claim against Charter Day School, and the court’s judgment in favor of the management company on that claim. The Court vacated the court’s summary judgment award in favor of all defendants on the plaintiff's Title IX claim and remanded for further proceedings on that claim.

 Favorable

Bostock v. Clayton County
On June 15, 2020, the United States Supreme Court agreed with CWL’s position set forth in an amicus brief that discrimination against an employee because of sexual orientation or gender identity constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act. Our amicus brief explained that there is no meaningful distinction between a claim of sex stereotyping based on a person’s assigned-at-birth sex and a claim of gender stereotyping based on sexual orientation or gender identity.

 Favorable

California v. Texas
On May 11, 2020, CWL joined an amicus brief in a case currently pending in the United States Supreme Court. In this case, a group of states led by Texas is attempting to dismantle the entirety of the Affordable Care Act (ACA) by arguing that the ACA’s individual mandate was rendered unconstitutional when Congress reduced the tax for not having health insurance to zero as part of tax reform in December 2017. A coalition of states led by California and the U.S. House of Representatives have stepped in to defend the ACA, as the Trump administration has refused to do so. The amicus brief explains that striking down the ACA will have a devastating impact on women and their families, and in particular women and families of color. In a 7-2 decision issued June 17, 2021, the Supreme Court ruled that Texas and other states that initially challenged the Affordable Care Act’s individual mandate did not have standing, as they had not shown past or future injury related to the provision. The Court otherwise did not rule on the constitutionality of the individual mandate in this case.

 Favorable 

Affordable Care Act Contraceptive Mandate Cases
Over the last several years, CWL has signed on to a number of amicus briefs challenging the Trump administration's new rules that broadly exempt employer's from complying with the Affordable Care Act's contraceptive coverage mandate.  While CWL achieved a number of victories in the lower courts, in Little Sisters of the Poor, the United States Supreme Court overruled a nationwide injunction which was preventing the rules from taking effect. 

 Unfavorable

Francis v. Kings Park Manor
On May 5, 2020, CWL joined an amicus brief in the Second Circuit supporting the plaintiff in Francis v. Kings Park Manor. The plaintiff is an African-American tenant who faced severe racial harassment from a fellow tenant. The complaint alleges that, pursuant to the Civil Rights Act and the Fair Housing Act, the plaintiff’s landlord was obliged to take reasonable steps within its control to remedy the hostile housing environment. The Second Circuit initially agreed with the plaintiff’s view, but now the court has voted to rehear the case en banc. The amicus brief addresses the impact a decision adverse to the plaintiff will have on women. The Second Circuit issued an opinion March 25, 2021, holding that landlords cannot be presumed to have the degree of control over tenants that would be necessary to impose liability under the Fair Housing Act for tenant-on-tenant misconduct.

 Unfavorable

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
On April 8, 2020, CWL joined an amicus brief in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a case challenging the Trump Administration’s new rules that broadly exempt certain employers from complying with the Affordable Care Act’s contraceptive coverage mandate. The United States Supreme Court granted review of the Third Circuit’s order affirming a nationwide injunction that enjoins enforcement of the new rules. The amicus brief explains how the Trump Administration’s new rules will have a significant detrimental impact on women. The Supreme Court issued an opinion July 8, 2020, holding that the Departments of Health and Human Services, Labor, and the Treasury had the authority under the ACA to promulgate the religious and moral exemptions to the contraceptive coverage mandate. The Court reversed the lower court opinion that had enjoined enforcement of the new rules.

Unfavorable 

Doe v. University of Kentucky
CWL joined an amicus brief supporting the plaintiff in her appeal of a district court decision holding that she lacked standing to bring a Title IX claim. The plaintiff alleged that the University of Kentucky acted with deliberate indifference after she reported that she was raped by a student in the university’s dormitory. Even though the plaintiff was a community college student taking part in a program at the university, resided at the university, and had access to the university’s services and facilities, the district court held that she lacked standing because she was not a student at the university. On August 19, 2020, the Sixth Circuit agreed that the plaintiff has standing to pursue her claim, reversing the district court's decision.

Favorable 

DeOtte v. Nevada
CWL joined an amicus brief in a Fifth Circuit case dealing with the contraception mandate of the Affordable Care Act. Drawing on social science research and reports, the brief argues that the coverage exception adopted by the district court will harm women across the country. The decision below should be reversed because seamless, no-cost contraception is essential to women's equality and advancement. The Fifth Circuit issued an opinion December 17, 2021, vacating the judgment below and remanding with instructions to dismiss the case as moot in light of the Supreme Court opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

 Unfavorable

June Medical v. Gee
This amicus brief in a high-profile Supreme Court abortion rights case focuses on the actual burdens that the Louisiana statute at issue imposes on women’s ability to make reproductive decisions, and the resulting negative impacts that deny women’s equal participation in social and economic life. These harms—which have particularly detrimental effects on low-income women, women living in poverty, women of color, women who already have children, women subjected to intimate partner violence, and transgender and non-binary individuals--confirm that the Louisiana statute unduly burdens individuals’ reproductive autonomy and inhibits their equal participation in society, thereby depriving them of the right to liberty promised by the Constitution.

Favorable

Tudor v. Southeastern Oklahoma State University
In this case, a unanimous jury found in favor of a professor who was denied tenure after undergoing a male to female gender transition, but the district court denied her claim for reinstatement. CWL joined a brief underscoring the importance of reinstatement in employment discrimination cases and arguing that the factors the court considered in denying reinstatement were improper. The Tenth Circuit issued an opinion September 13, 2021, affirming the jury verdict in favor of plaintiff and reversing the district court’s post-verdict rulings denying plaintiff’s reinstatement and in calculating front pay.

 Favorable

Jock v. Sterling Jewelers
This case is a class action challenge to pervasive sex discrimination in pay and promotion opportunities under Title VII and the Equal Pay Act. 

 Favorable

Parker v. Reema Consulting Services, Inc.
Our amicus brief argued that the lower court inappropriately dismissed the sex discrimination claim. The Fourth Circuit reversed the lower court ruling in its decision by a unanimous three-judge panel, holding that rumors that a female employee slept with her male boss to obtain promotions can give rise to her employer’s liability under Title VII for sex discrimination. The Fourth Circuit revived the claims of sex discrimination in this case agreeing that “the traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior” are still at play and allowing harassment based on such stereotypes can violate federal law.

 Favorable

Karnoski, et al v. Trump 
In opposition to dissolving the preliminary injunction halting the government's ban on transgender men and women serving in the military. 

 Favorable

Adams v. St. John’s County School Board 
CWL signed on to an amici brief in a case involving transgendered students’ rights to use the restroom of their choice. The brief argued that the presence of transgender students in a restroom does not create a hostile environment under Title IX or implicate a privacy concern under the U.S. Constitution; that sex-based protections in federal civil rights laws and the Constitution’s equal protection provision include protections for transgender students; and that transgender students face documented harms when they are not permitted to use facilities that align with their gender identities.

 Favorable

Parents for Privacy v. Dallas School Dist. No. 2 
CWL signed on to an amici brief in a case involving transgendered students’ rights to use the restroom of their choice. The brief argued that the presence of transgender students in a restroom does not create a hostile environment under Title IX or implicate a privacy concern under the U.S. Constitution; that sex-based protections in federal civil rights laws and the Constitution’s equal protection provision include protections for transgender students; and that transgender students face documented harms when they are not permitted to use facilities that align with their gender identities. 

 Favorable
 
If you would like CWL to consider drafting or signing onto an amicus brief, please contact us at [email protected].

Caryn Strickland v. U.S. (formerly Roe v. U.S.)