by Mitchell Driskell
Gender Identity, Come on Down!
When a person wants the Supreme Court to hear a case, the person files a Petition for Certiorari. In a Cert Petition, the person does not focus so much on why he or she (or they) should have won but, rather, focuses more on why it matters to the country—why the Supreme Court should decide the issue at the heart of the case.
The court is recently being asked to decide more and more gender cases for obvious reasons from both sides of the cases. One pending Petition is from the Indiana parents of a child who has a gender-dysphoria diagnosis. Indiana accused Jeremy and Mary Cox of abuse and neglect following disagreements about their child’s gender identity. That state insisted that the parents respect and facilitate the child’s desire to change gender. The parents said “no.” The state then removed the child from the home and didn’t return him, even after abuse charges were dropped. The parents say the state’s custody of their child violates their rights to free speech, free exercise of religion, and parental rights to raise their child according to their values.
Another pending Petition is inviting the court to decide the constitutionality of Kentucky and Tennessee’s respective bans on medications and surgical procedures that attempt to bring about sex change. The challengers of these laws are parents of children diagnosed with gender dysphoria looking for these drugs and procedures to try to make their bodies more closely reflect their current ideas about what gender they are. These particular cases might not make it to the Court, but these issues will get there someday.
Brief Legal Briefs
These are updates on two cases I have written about. In Kirtz v. USDA, the Supreme Court ruled that a person can sue a federal lender when that lender wrongfully reports bad debt to the nation’s three credit reporting companies. Kirtz’s credit score was trash because the USDA was wrongfully reported a handful of unpaid USDA loans. Until this decision, a person could not sue the government for bad credit reporting (even though the law specifically says that you can!). Now you can, just like the law always said you could, but Courts are very reluctant to let citizens sue their fellow government employees.
Next case, in a landmark unanimous ruling late last week in Murray v. UBS Securities, LLC, the Supreme Court held that whistleblowers must only prove that his/her protected activity (ratting out his/her employer) was one of the factors that resulted in the whistleblower being fired or demoted. If an employee proves this much, he or she wins the case unless the employer can prove that it was going to fire or demote the employee anyway, the tattling was not the reason. Before Murray, the employee had to prove too much, had to prove what was in the mind of the employer, and the Sarbanes-Oxley Act whistleblower provisions had no teeth.
Texas And Personal Property Rights
In Devillier vs. Texas, Richie DeVillier is the lead plaintiff in a consolidated case of about 80 other people who sued the state of Texas for flooding their properties that run along Interstate Highway 10 about an hour east of Houston. Until I-10 was expanded in the early 2000s, these people’s land never flooded, now the interstate prevents water from flowing naturally and their land floods with every heavy rain. In the first flood of the DeVillier’s property after the interstate was expanded, they lost sixty adult cows, nine vehicles, horses, calves, colts, tractors, etc. The DeVilliers and others sued Texas under State and Federal law in Texas State Court alleging that the interstate expansion constituted a “taking” of their property without compensation in violation of the Fifth Amendment which says that the government cannot take private property without paying for it.
Faced with the lawsuit, the State of Texas moved the lawsuit to Federal Court, out of Texas state court and Texas state court judges who probably own a few ranches themselves. Once the lawsuit was in Federal Court, the State of Texas argued that the Fifth Amendment’s takings provision does not allow people to sue states in federal court. See what they did there? The State of Texas removed the case to Federal Court and then argued that they could not be sued in Federal Court, which should be a tricky easily identified and rejected by a court, but Texas won.
At oral argument last week, the Supreme Court Justices seemed to unanimously side with the property owners, calling Texas’s argument a “bait and switch” and a “catch 22.” One justice pointed out the hypocrisy of Texas’ self-proclaimed property loving views while it has engaged in procedural tomfoolery to avoid rightfully paying DeVillier and the other property owners.
Mitchell Driskell has practiced law for twenty-two years. He is currently with the Tannehill & Carmean firm (voted Oxford’s Best Law Firm every year since 2010). You can reach him at 662.236.9996 or mitchell@tannehillcarmean.com. He practices personal injury law, criminal law and family law and the salad restaurant Chopped stole his concept of serving finely chopped salads where all the ingredients are uniformly disbursed throughout the salad.
