Austin Judge’s Order Keeps Boys Out of Girls’ School Restrooms For Now

(The following is reprinted with permission of GWU Public Interest Law professor John Banzhaf)

U.S. District Judge Reed O’Connor in Austin, Texas, has reaffirmed an earlier order which prohibits the federal government from forcing public schools to permit anatomical boys from using the girls’ restroom based solely upon their claim to feel female, and made it clear that the prohibition, which is applicable to all genders, applies nationwide.

In making this ruling, the judge did not decide the key underlying issue – whether Title VII and Title IX require that persons must have unfettered access to restrooms contrary to their genitalia if they claim to be transsexual – but rather based his decision upon what public interest law professor John Banzhaf identifies as an important administrative law requirement.

Generally, before a federal agency can promulgate directives requiring entities outside the federal government to do or refrain from taking certain actions, these proposed rules must be published in the Federal Register, and the public must be permitted a reasonable period of time to comment on them.

During that period, mandated by the Administrative Procedures Act [APA], all members of the public are entitled to submit legal, factual, policy, and other arguments in opposition to the proposal, and the agency is then required to address all such major concerns, says Banzhaf, who teaches Administrative Law.

If this requirement had been observed, opponents would have argued very strongly that when Congress voted to prohibit discrimination based upon “sex,” the statute applied only to sex based upon external genitalia, not to whatever sex or gender a person claimed he thought he was at any particular time.

Opponents probably would also have argued that, if the law does in fact apply to transsexuals, any remedies must balance their interest is using restrooms with which they are most comfortable not only against the privacy interests of girls and women, but also very real concerns about sexual assault and even rape – especially if persons with penises can enter female restrooms based solely upon their own claims.

In other words, the concerns about assault are raised not primarily about transgender males, but rather about non-transgender males who would now have a legal defense if found within a female restroom.

Finally, those who object would probably have suggested that the restroom needs of transgender students can be accommodated by insuring that there are enough single-user or other all-gender restrooms, and that it is therefore unnecessary to force schools to permit students with penises to use female restrooms.

If the agency had permitted opponents to make these arguments before it acted, and if the agency moreover would have had to provide a reasoned legally valid explanation as to why it had rejected all these arguments, the outcome might have been very different, says Banzhaf.

In any event, if the APA had been followed, the resulting rule would almost certainly have been appealed, and a court would then decide whether the agency acted properly in rejecting the arguments.

Interestingly, both sides in this controversy – which pits the interests of transsexuals to use the restrooms with which they are most comfortable against the interests of girls and women not to have anatomical males free to use their restrooms without even any proof of their transgender status – seem to have overlooked an obviously win, win, win solution, says Banzhaf.

Banzhaf has won over 100 gender discrimination legal actions, supported LGBT rights, and criticized the North Carolina statute for requiring even transsexual people who have completed sexual re-assignment surgery to use restrooms corresponding to the genitals they were born with but no longer have.

Prof. Banzhaf cites an experimental all-gender multi-user restroom now being tested in his law school which not only satisfies the interests of both sides, but – unlike another proposed remedy – does not require the often-difficult and usually-expensive construction of many new single-user restrooms.

It also satisfies the needs of transsexuals as well as transvestites – those who dress in a manner inconsistent with their anatomical sex – to be able to have ready access to conveniently located restrooms without having to declare any particular gender preference or identity, while at the same time insuring that girls and women will not find anatomical males (transgender or otherwise) in their female restrooms.

What his law school has done, says Banzhaf, is simply to re-designate what was formerly a typical men’s restroom – with 3 urinals, 1 toilet in a stall, and 2 wash basins – as an all-gender restroom.  Since the percentage of students who are transsexual is very small, most of the time this converted room simply functions as any other male restroom would, with many men able to urinate at the same time using the urinals.

However any person – including not only transsexuals, but also transvestites, men who are simply bashful, have shy bladder syndrome (paruresis), etc. – can enter this restroom without exposing their genitalia or identifying with any particular gender, and relieve themselves in the privacy of the stall.

Because typical women could even use this stall toilet if time is short and the lines at the nearby women’s room are too long, both F2M and M2F transsexual students can relieve themselves in the room’s stall-enclosed toilet without revealing anything about their anatomical or identity gender, notes Banzhaf.

Since in most buildings matching male and female restrooms are usually located close together, this tactic would open up almost half of all restrooms to transgender students, and seemingly comply with the directive that transgender students not be forced to use single-seat restrooms if other students need not do so.

While such a system would occasionally expose typical male users to an anatomical female in a restroom, most men seem unconcerned about any potential privacy invasion and, unlike the reverse situation, have little real fears about suffering sexual assaults or rape from anatomical females, Banzhaf notes.

So this approach – converting all or at least most male restrooms into all-gender restrooms – may very well provide a quick and easy way to comply with the new federal directive, and do so without adversely affecting transsexuals, nor typical girls and women concerned about privacy and sexual assaults.

Ultimately, all of these important legal questions, along with the issue of whether there is sufficiently strong evidence of congressional intent to preempt state law, and override specific state statutes on this very issue – as there are in North Carolina, for example – to require states to surrender their power to make determinations which have traditionally been left largely to state and local authorities., says Banzhaf.

Lloyd Gosselink Announces Addition of Two Associates

Lloyd Gosselink Rochelle & Townsend, P.C. has announced the appointment of two associates – Jamie L. Mauldin and Lauren S. Marti.

Mauldin joins the firm’s Energy and Utility Practice Group and focuses on administrative law in the area of public utility regulation. Her practice involves the representation of municipalities and utilities before the Public Utility Commission of Texas, Railroad Commission of Texas, Texas Commission on Environmental Quality, and the State Office of Administrative Hearings.jamie-mauldin Prior to joining the firm, Mauldin worked as an attorney in San Francisco, California representing labor interests in front of the California Public Utilities Commission regarding a wide variety of matters including rate cases, policy rulemakings, and permitting proceedings. Mauldin received her J.D. from the University of Houston Law Center and her B.A. from Vanderbilt University. She is a member of the State Bar of Texas, the State Bar of California, and the Austin Bar Association.

Martin joins the firm’s Litigation and Employment Law Practice Groups.Martin is a trial lawyer with experience defending clients in commercial, employment, and insurance litigation. Her practice focuses on representing clients in all phases of litigation, including mediation, trial and appeals. In addition, Martin is licensed before the United States Patent and Trademark Office and counsels clients on a broad range of patent and trademark matters, including intellectual property portfolio management, brand protection and infringement litigation in the oil and gas and emerging technology spaces. Martin received her J.D., with honors, from the lauren-martinUniversity of Texas School of Law where she was chair of the Board of Advocates and won a national mock trial championship. She received her B.S. in Chemistry from Texas A&M University. After law school, she clerked for the Honorable Judge Cathy Cochran of the Texas Court of Criminal Appeals. She is a member of the State Bar of Texas, the Austin Bar Association, and the Austin Young Lawyers Association.

Elizabeth Monteleone Joins Austin Office of Winstead

Elizabeth Monteleone has joined the Austin office of Winstead PC as an associate in the corporate securities/mergers & acquisitions practice area.lizmonteleone_1_pr

Her practice focuses on corporate and transactional matters, primarily in the context of venture capital financings, public and private offerings, mergers and acquisitions, and general corporate counseling and representation. She represents purchasers and sellers in public and private mergers, stock and asset acquisitions, divestitures, joint ventures and strategic alliances.

Monteleone received her J.D. summa cum laude, from Case Western Reserve University School of Law in 2014. Prior to graduating law school, she worked for the Special Tribunal for Lebanon, the first international tribunal to try terrorism as a distinct crime.

Munck Wilson Mandala Opens Austin Office with Three Partners

Law Firm Munck Wilson Mandala has opened an office in Austin.  The 50+ law firm’s new office will be led by Munck Wilson partner Michael Rodriguez and currently has two other partners, Jennifer Jasper and Michael Noe.  The new Austin office will provide legal services in domestic and international patent protection and litigation, copyright and trademark enforcement, corporate law, and other legal services to benefit technology clients, entrepreneurs and startups.partners_lobby2

Rodriguez is a member of the firm’s intellectual property section, concentrating his practice in all areas of intellectual property with an emphasis on patent and trademark preparation and prosecution.  He has represented businesses in the construction, electronics, energy, retail, restaurant, telecommunications, pet-care, vehicle manufacturing, and defense industries.

Rodriguez worked as a senior engineer with TXU before entering the legal profession and has experience prosecuting and defending reexaminations in a variety of technical areas including power electronic devices, computer software and semiconductor devices.

In addition to an engineering background, Rodriguez served as lieutenant commander in the U.S. Navy Reserves, receiving numerous commendations for his actions during active duty in Iraq and Afghanistan.  He is the co-founder of Service Never Ends, a non-profit organization focused on providing continued community service for veterans and he was recently accepted to the Greater Austin Hispanic Chamber of Commerce Leadership Class of 2017.  Rodriguez received his J.D. from the Texas Wesleyan University School of Law with honors and holds an electrical engineering degree from Texas A&M University.

Since she began her practice in 2000, Jasper has litigated cases across various industries and subject matters. She has tried and appealed cases in state and federal courts throughout Texas, and she has successfully argued before the Texas Supreme Court.  Her experience includes patent and trademark litigation, complex commercial litigation, appellate law, and the representation of professionals (JDs, MDs) before various licensing boards and agencies.

When she is not practicing law, Jasper is an adjunct professor, teaching a seminar on legal writing for litigators at the University of Texas School of Law.  She is a member of the State Bar of Texas, the Austin Bar Association and the Texas Bar Foundation.  Jasper received her J.D. cum laude from the University of Houston Law Center and she also holds an M.A. in communications from Texas A&M University.

Noe’s legal practice focuses on preparing and prosecuting hundreds of U.S. and foreign patents.  He has represented clients in a wide spectrum of different technologies, including building products, roofing, siding, drywall, insulation, ceilings, trim, decking, fencing, solar, performance plastics, abrasives, technical fabrics, ceramic materials, disk drives, pipe systems, renewable energy, tools and software for hydrocarbon exploration, geothermal energy, fluid dynamics, materials science, medical devices, automotive, aviation, aerospace, industrial machinery, nanotechnology, agriculture, irrigation, kitchen and entertainment products, pet products, consumer products and many others.  Noe also has a strong track record of taking patent applications on appeal before the Board of Patent Appeals and Interferences.

Noe is admitted to practice before the United States Patent and Trademark Office and he is a member of the State Bar of Texas.  He received his J.D. from the University of Houston Law Center and he holds an M.B.A. from Texas Tech University.

More info  on Munck Wilson Mandala can be found here:

Carlos M. Zaffirini, Jr., Appointed to the Texas Access to Justice Foundation Board of Directors

The Texas Access to Justice Foundation, the largest state grant funding source of civil legal aid in Texas, has announced that Carlos M. Zaffirini, Jr., of Austin has been appointed to serve on its board of directors. The Supreme Court of Texas appointed Zaffirini to a two-year term expiring in August 2018.

Zaffirini is President and CEO of Adelanto HealthCare Ventures, LLC, a health care finance consulting company in Austin, Texas. Zaffirini, a graduate of the University of Texas McCombs School of Business and UT School of Law, is a member of The University of Texas Chancellor’s Council Executive Committee and the Boards of Directors for the Austin Symphony, People’s Community Clinic, Hispanic Alliance for the Performing Arts, Anti-Defamation League and Mental Health America of Texas. He is active in philanthropic organizations including the Texas Access to Justice Commission, South Texas Food Bank, Rio Grande International Study Center and the Champion of Justice Society, where he created the Carlos Sr. and Senator Judith Zaffirini Access to Justice Initiative, which pays for Texas bar exam review courses for low-income law students that commit to increasing access to justice for low-income Texans.

“We are pleased to have Carlos Zaffirini join us as we work to ensure access to justice for all Texans,” Richard L. Tate, chair of the board of directors of the Texas Access to Justice Foundation, said. “His experience in helping disadvantaged Texans will be invaluable to the board as we provide legal aid organizations throughout the state the resources for basic civil legal services.”

The Supreme Court of Texas created the Texas Access to Justice Foundation in 1984 to provide funding for the civil legal needs of poor and low-income Texans. The Foundation annually awards grants to more than 30 nonprofit legal aid organizations throughout the state that help struggling Texans in matters involving employment, housing, domestic violence and family law issues.

The Texas Supreme Court also reappointed Joseph Barrientos of Corpus Christi, Lamont Jefferson of San Antonio, and Jon Levy of Austin to the Foundation’s board of directors, each for a three-year term.  Becky Baskin Ferguson of Midland and Terry Tottenham of Austin have also been reappointed to the board by the State Bar of Texas.

The Texas Access to Justice Foundation is the largest state-based funding source for civil legal aid in Texas and has awarded more than $480 million since its inception. The Foundation board of directors consists of 13 attorney and public members, seven of whom are appointed by the Supreme Court of Texas and six by the State Bar of Texas.

New Article Published about Rideshare Industry and DUI Statistics

As California state lawmakers struggle to outline regulatory jurisdictions, insurance requirements, prevent redlining, and improve worker and rider protections within the ever-expanding rideshare industry, it’s easy to lose sight of ridesharing benefits for all California motorists. A new Monder Law article examines arrest data from the Department of Motor Vehicles and presents an unbiased analysis of DUI arrest numbers from 2008 – 2013. The data shows that DUI arrest rates decreased for six consecutive years in a row, and the article explores the relationship between the rideshare industry and reducing the number of impaired drivers. Uber has released several studies claiming that it reduces DUI rates, but there are few non-branded studies available. file0001530747196

California is home to Uber, Lyft, and Google headquarters. While San Francisco was the first battleground for ridesharing regulations early on, ultimately the State of California was friendly to the rideshare industry. That progress did not put an end to the State’s involvement, as class-action lawsuits and appeals continue to complicate matters. Monder Law Group hopes to serve as a voice to encourage lawmakers to continue to be an ally and leader to the rideshare industry as it grows.

“Now that Google is set to launch Waze Carpool in San Francisco, lawmakers and businesses must not stand in the way of ridesharing companies who can help keep impaired drivers off of the roadways,” said Attorney Vik Monder. He added, “As the technology develops and grows, the ridesharing industry is set to reach the largest segment of the population who are most likely to be arrested.”

B2’s Management and Consulting Hires New Client Relations Director

B2 Management and Consulting has announced that Linda Wood has joined its team as Client Relations Director.  Linda has over 40 years of experience in managing all types of businesses with a heavy emphasis in the legal field.

Having spent the last 21 years managing law firms, Linda offers a strong expertise in bookkeeping, accounting, human resources and overall office administration and now brings that expertise to B2.  She is an active member of the Association of Legal Administrators (ALA) and has served as chairman on local committees and a member of national committees.

Linda will be responsible for relationship management and service delivery for all B2 clients which will include maintaining client satisfaction through increased client communications and overall management of the client relationship.  It is her mission to ensure that our team delivers the highest quality of services to you and that all new projects or issues are delivered and resolved to your satisfaction.  She will be responsible for new client onboarding and working with the B2 team to ensure that the transition is smooth, processes are implemented and policies documented

Buc-ee’s Sues Ex-Employee for Breach of Contract

A former assistant manager for a Texas convenience store is being sued by her ex-employer for leaving before her employment contract expired.

According to the lawsuit, Kelley Rieves started working for the Buc-ee’s store in Cypress, Texas as an assistant manager in 2009, signing employment contracts that ran through August 2013. However, Buc-ee’s claims that Rieves left the company in July 2012, with a year remaining on her contract. The company claimed that Rieves owed $67,720 in retention pay that was paid to her contingent on her completing her contract.

“Retention bonuses are not unusual and are a way for companies to invest in valuable employees,” said Gregory D. Jordan, an Austin employment attorney with the Law Offices of Gregory D. Jordan. “An employee who is considering signing a contract that contains a retention bonus should seriously consider having it reviewed by an attorney since there could be unexpected liabilities. Sometimes employees might be tempted to look at the bottom line number and not evaluate what will happen if circumstances with the employer change.”

Rieves and Buc-ee’s filed suit against each other in the 165th State District Civil Court. A judge ruled that Rieves owes the company $100,000, including legal fees and interest. Buc-ee’s claims that Rieves’ contract divided her pay into normal pay and retention pay, and required her to give six months’ notice before leaving the company. The company said that when Rieves expressed a desire to leave, Buc-ee’s offered her a choice of accepting a loan to repay the retention bonus or having her new employer buy her out of the contract, but she left without making such arrangements.

Rieves said she does not have the money to repay Buc-ee’s. Her attorney said that according to Texas law, at-will employees cannot be prevented from leaving or be required to pay monetary penalties for doing so. Rieves is appealing the latest decision from the judge in her case.

UT’s ‘Cocks-Not-Glocks’ Protest Raises Free Speech Issues Academic Freedom Threatened, But Faculty Seems Strangely Silent

By John F. Banzhaf III, B.S.E.E., J.D., Sc.D., Professor of Public Interest Law, George Washington University Law School

“Cocks Not Glocks,” which is billed as the largest anti-gun rally in Texas, has been erected on the Austin campus of the University of Texas with hundreds of students waiving dildos to protest a new gun campus-carry law.

OLYMPUS DIGITAL CAMERAAlthough the protest concerns whether the right to bear arms should extend to colleges, it’s not the Second Amendment that is at stake, but rather the First Amendment and academic freedom.

To express their hostility towards the law, hundreds of students protesters are dramatizing their opposition by carrying large dildos. They raise the question: Would UT really expel a student for displaying a dildo while nevertheless permitting students to carry lethal weapons?

The dildo displays are designed to illustrate the illogic of permitting deadly weapons on campus while prohibiting what some have called “friendly weapons.” A Texas statute, and the UT regulation apparently based upon it, prohibits the display of “obscene devices.”

The protesters said they had feared arrests or university discipline.

And indeed, a legal website reported that UT-Austin’s vice chancellor said he faced a “dilemma,” and wouldn’t speculate on how he would handle the protest once it began. “We do try to tolerate a good deal of free speech on campus,” he said.

But if that’s the case – if the campus tolerates a “good deal of free speech,” or even accords students only the bare minimum required by the First Amendment – he should not face any “dilemma.”

Displaying dildos as part of a lawful campus protest is very clearly free speech protected by the First Amendment to the U.S. Constitution, notes public interest law professor John Banzhaf.

Moreover, free speech is something to be revered, not just “tolerated,” he says, especially at a university. Texans should be very concerned that professors at the school seem to be standing idly by.

If law professors don’t see a clear threat to free speech and academic freedom and speak out about it, it’s no wonder that the chancellor is so confused, and that free speech is just “tolerated.”

Displaying dildos shouldn’t create a “dilemma” for anyone familiar with First Amendment law.

The Supreme Court has held that protesters have a constitutional right to make their point by displaying many upsetting things, including swastikas, burning American flags, and even flaming KKK crosses. Other courts have even upheld the right of women to bare their breasts as part of a protest.

More importantly, a federal appeals court has struck down the Texas statute upon which the vice chancellor seemed to rely, making it once again legal to display dildos, even if not part of a First Amendment protected protest, unless they are “obscene”: in other words, used to appeal to a “shameful or morbid” interest in sex and “patently offensive.”

Some protesters reportedly planned to carry Nerf guns, pointing out another “dilemma.”

The university’s Residence Hall Handbook prohibits Nerf guns. So the learned vice chancellor may be in the odd position of having to expel a student for having a Nerf gun, which shoots harmless pieces of foam, while defending the rights of other students to carry Glocks capable of a mass murder.

As Charles Dickens suggested, “If the law supposes that, the law is a ass – a idiot.”

Or, as one student summed up her feelings: “This is a rifle. This is a gun. Glocks are for fighting. Cocks are for fun.”

Finally, a campus sex protest which doesn’t involved rape!

K&L Gates Grows Public Policy Practice with Hire of Texas Governor’s Budget Director in Austin Office

The Austin office of K&L Gates LLP has announced the hire of Ky R. Ash as a government affairs advisor in the public policy and law practice. He will join K&L Gates in early September from the Texas Governor’s Office, where he most recently served as the budget director.

Ash has nearly two decades of experience working in Texas state government, with a particular emphasis on budget, economic development, energy, and tax policy. During that time, he has negotiated many complex bills through the legislative process, including the passage of the United States’ first mandatory hydraulic fracturing fluid disclosure bill; legislation authorizing the state issuance of $3 billion in bonds to fund groundbreaking cancer research and prevention programs; and the restructuring of the state tax system to fund Texas public schools.

Prior to joining Governor Abbott’s office, Ash spent more than 15 years in the Texas House of Representatives working as chief of staff and legislative director for Texas State Representative James L. Keffer, as well as chief clerk for several Texas House committees, including energy resources, ways and means, and economic development, and the select committee on property tax relief. As chief clerk for the House Committee on Economic Development, he provided leadership in the restructuring of Texas’ economic development efforts, including the creation of the Governor’s Office of Economic Development and Tourism, the Texas Enterprise Fund, and the Texas Economic Development Bank.

“We are excited to have Ky join our team,” said Jack M. Erskine, administrative partner of K&L Gates’ Austin office. “He has had a long career in state government, working in both the House and in the Governor’s office. The experience, knowledge, and reputation that he brings to K&L Gates will help to strengthen our top-tier public policy practice.”