1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.
In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”
1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.
2022—The Americans with Disabilities Act generally defines “disability,” with respect to an individual, as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” But it explicitly excludes from that definition “gender identity disorders not resulting from physical impairments.”
In Williams v. Kincaid, a Fourth Circuit panel majority eviscerates that exclusion. Kesha Williams, a man who identifies as female and who suffers from gender dysphoria, complained that Fairfax County moved him from the women’s side of its prison to the men’s side when it discovered that he is male and that he experienced delays in medical treatment for his gender dysphoria and was harassed by prison deputies and other inmates. In her majority opinion, Judge Diana Gribbon Motz, joined by Judge Pamela Harris, rules that gender dysphoria is categorically not a “gender identity disorder” at all and that, even if it were, Williams’s complaint could be read to support the inference that his gender disorder resulted from physical impairments.
In dissent, Judge Marvin Quattlebaum explains that the gender dysphoria that Williams alleges falls precisely under the American Psychiatric Association’s description of gender identity orders when the Act became law in 1990. He further points out that Williams’s complaint does not identify any part of Williams’s body that is impaired or even allege any physical impairment.