Monthly Archives: April 2016

Tidal Wave: On-Demand Music Streaming is Displacing Physical Album Sales By: Devan Byrd

Tidal Wave:  On-Demand Music Streaming is Displacing Physical Album Sales

By: Devan Byrd

The technology of the day has everything to do with the tidal wave of change that is revolutionizing the music industry through the way music listeners access artists’ music.  On-demand streaming services like Spotify, Pandora, Tidal, and Apple Music are fighting for the ears—and money—of music lovers.[1]  Customers pay a subscription and in exchange they have unlimited access to a vast chunk of all the music ever recorded.  Accordingly, the music industry has responded to music listeners’ trend toward streaming services by altering artists’ delivery. Giving rise to artist exclusives through on-demand streaming services as a path to market share.[2]  On demand streaming services do not pay musicians royalties for the streaming of their music.  A seemingly essential part of promoting fairness and reestablishing the value of music and what is noticeably absent in the current streaming environment, according to conventional wisdom, is that artist do not make enough money when their songs are streamed.[3]  Like enthusiasts of movies and television series who may pay for a combination of subscriptions to Netflix, Amazon Prime, and Hulu, all of these exclusives will present a similar dilemma to music fans who want to listen to a variety of artists, many of which stream exclusively on competing subscription-based streaming services.  In fact, in addition to the added cost to music listeners, it takes little imagination to forecast the potential impact that artist exclusives through subscription-based streaming services may have on music production.  One would simply need to look to the subscription-based movie and television series services, who are now producing their own exclusive content.

Once upon a time, an artist actually had to sell albums to earn awards and recognition from the Recording Industry Association of America (RIAA).[4]  Today, there are over 7.7 million paying subscribers in the American streaming marketplace.[5]  As if that was not enough evidence of the transformation that is occurring in the music industry, take Tidal for example, the only artist owned streaming service, recently sparking music fans interest in the service with exclusively of two extremely popular albums:  Anti and The Life of Pablo.[6]  Although, popular among the artists’ fans the place of the two albums in the music industry’s official historical record present two stark and contrasting side-effects of on-demand streaming exclusives.

First take Rihanna’s latest album, Anti, which was initially exclusively available through Tidal and reached platinum status less than two days after it was released.  However, the way Anti achieved platinum status was not through Tidal.  Instead, Anti reached platinum status through the one million free downloads that were part of a reportedly $25 million deal the artist signed last year with Samsung.[7]  And Tidal has sold another half million downloads of Rihanna’s album.[8]  In addition to reaching platinum status Rihanna’s song “Work,” featuring Drake, which appears on her latest album, Anti, was featured at No. 1 on the Billboard Hot 100.[9]

Like Rihanna, Kanye West’s album The Life of Pablo, which was initially released on Tidal, is currently at the epicenter of cultural conversations.[10]  And subscriptions to the on-demand streaming service have reportedly surged since the album’s release.[11]  But unlike Rihanna’s Anti, The Life of Pablo is notably absent from the music industry’s official historical record.[12]  The album is not charting because Tidal does not report its streams to Nielsen Music, the company that determines the Billboard charts, and it has not been certified gold or platinum by the RIAA.

In an effort to resolve this charting dilemma Nielsen Music recently decided to expand its calculations to include additional platforms actually used by fans to listen to music.  Thus, these days, Nielsen Music tracks sales in all formats—downloads, CDs, and vinyl—as well as streams from on-demand streaming services, video views on platforms like YouTube, and radio streams both online and on terrestrial radio.[13] And employs a proprietary algorithm that incorporates these various avenues available to access music into Nielsen Music’s charting formula.[14]  Under this improved algorithm, theoretically, if an artist’s single were streamed 1.5 billion times on YouTube, the whole album could be certified platinum.[15]

However, when on-demand streaming services like Apple Music and Spotify do not report the replay data to Nielsen Music it is unable to track the streams.  Take for example Drake’s inescapable “Hotline Bling” video, which Apple Music exclusively featured—a strategy that backfired, because Apple does not report its video streams to Nielsen Music, so there was no chance of the song getting Drake to his goal of being No.1.[16]  This is just another example of the ramifications of artist exclusives, and serves as a cautionary tale for all artists:  The streaming platform you choose through exclusive content just might decide your chart fate.[17]

In addition to exclusive, on-demand streaming services provide artists with a new avenue to deliver recorded music directly to fans.  For example, just last week Kendrick Lamar unexpectedly released untiled unmastered. on Spotify.[18]  An eight track project that is notable for its brevity, in-progress aesthetic, and suggestive of the tidal wave that is altering the environment of the music industry.[19]  By allowing artists to provide their fans with direct access to artists’ exercise of musical genius.  The following morning, untitled unmastered. was available on numerous music streaming platforms, including Apple Music and Tidal.[20]  And Lamar’s fans will find that found that a lot of this material was familiar, because the artist already performed certain tracks on shows like The Colbert Report and The Tonight Show with Jimmy Fallon.[21]

Almost a year ago, a conglomerate of ultra-famous musicians—Jay Z, Beyoncé, Rihanna, Kanye West, Arcade Fire, Coldplay, Nicki Minaj, Alicia Keys, Jason Aldean, Madonna, Jack White, Calvin Harris, Daft Punk, Deadmau5, J.Cole, and Usher—joined forces and purchased the music-streaming service Tidal.[22]  The idea: to raise awareness and support for the music industry by re-establishing the value of music.  These artists believe that technology companies who began on-demand streaming services have become more important than musicians when it comes to song distribution.  Thus, this on-demand streaming service placing musicians in charge—at least nominally of the company—which will have a great but perhaps intangible effect that makes the service better than other streaming services.  If artists are actually able to realize higher payouts from Tidal, the company may start a revolution.  However, the revolution has not yet occurred because Tidal lags way behind its competitors with just over one million subscribers.[23]  By contrast, Tidal’s competitors Spotify has more than 75 million users, including 20 million paying subscribers, and Apple Music has about 11 million.[24]

Additionally, the artist-partners forcing this potential revolt do not exactly look like they have been handed a bad deal by the current music landscape.  In fact, these artists’ work and public presentation have often emphasized just how much cash they make every day.  Thus, it seems that music-industry justice is needed, it is needed for new and niche artists.  It is possible that Tidal will be able to provide this justice, but it is equally as possible that they will find that the justice that come with this new platform is perhaps intangible.

The music industry is in a stage of growth and adaptation.  It is unclear how the artists will reclaim control over fair compensation for music listener’s accessing artists’.   However, one thing is for sure, a tidal wave of technology has permanently altered the fabric of the music industry.  And the wave’s impact is being felt by both artists and music listeners.

[1] Sam Sanders, Jay Z’s Music Service, Tidal, Arrives With A Splash, And Questions Follow NPR (Apr. 1, 2015) http://www.npr.org/sections/therecord/2015/03/31/396634244/jay-zs-music-service-tidal-arrives-with-a-splash-and-questions-follow.

[2] Id. See also Spencer Kornhaber, Tidal:  Long Live mIllionaire Musicians The Atlantic (Mar. 30, 2015) http://www.theatlantic.com/entertainment/archive/2015/03/tidal-viva-la-millionaire-musicians/389120/.

[3] Anastasia Tsioulcas, Is Tidal Changing How Fans Talk About Music? NPR (Mar. 1, 2016)  http://www.npr.org/sections/therecord/2016/02/29/468558863/is-tidal-changing-how-fans-talk-about-music.

[4] Anastasia Tsioulcas, Forget Selling Albums—Artists Can Now Go Platinum Via Streaming NPR (Feb. 2, 2016) http://www.npr.org/sections/therecord/2016/02/01/465178626/forget-selling-albums-artists-can-now-go-platinum-via-streaming (RIAA determines whether an album goes platinum or gold.).

[5] Tony Gervino & Andrew Hampp, Jay Z on Competing With Jimmy lovine: ‘I don’t Have To Lose … For You Guys To Win’ Billboard (Mar. 30, 2015) http://www.billboard.com/articles/business/6516945/jay-z-jimmy-iovine-streaming-tidal.

[6] Tsioulcas, supra note 3.

[7] Spencer Kornhaber, Rihanna’s Anti Capitalism The Atlantic (Jan. 29, 2016) http://www.theatlantic.com/entertainment/archive/2016/01/anti-capitalism/435411/.

[8] Tsioulcas, supra note 4.

[9] Tsioulcas, supra note 5.

[10] Id.

[11] Id. See also Charlotte Hassan, Kanye May Have Single-Handedly Doubled Tidal’s Subscribers … Digital Music News (Feb. 24, 2016) http://www.digitalmusicnews.com/2016/02/24/tidal-subscriber-numbers-surge-after-exclusively-releasing-kanyes-album/ (Although the official number of Tidal subscribers have not been released yet, the number of subscribers is rumored to have increased from around one million to two and a half million.).

[12] Tsioulcas supra note 5.

[13] Tsioulcas supra note 3.

[14] Id. (Under Nielsen Music’s modified algorithm, 1,000 streams are now the official equivalent of ten single track sales or one album sale.  Gold status are awarded after the equivalent of 500,000 sales, and platinum on 1 million sales.).

[15] Id.

[16] Id. (“Take for example Drake’s inescapable “Hotline Bling.”  Last fall, when the video for “Hotline Bling” was released, Drake was saying how much he was thirsting for a No. 1 on the Billboard Hot 100.  He wrote about his desire very publicly.”). See also Anastasia Tsioulcas, Drakes’s ‘Hotiline Bling’ Aims At No. 1, And Misses. Why? NPR (Oct. 27, 2015) http://www.npr.org/sections/therecord/2015/10/27/452248402/drakes-hotline-bling-aims-at-no-1-and-misses-why.

[17] Tscioulcas, surpa note 15.

[18] Anastasia Tsioulcas, There’s A New Kendrick Lamar Project Out, But It May Sound Familiar Already NPR (Mar. 5, 2016) http://www.npr.org/sections/therecord/2016/03/04/469172187/theres-a-new-kendrick-lamar-project-out-but-it-may-sound-familiar-already.

[19] Id. (unsurprisingly each track is titled:  untitled, followed by a date)

[20] Id.

[21] Id. (including the live performance done with the show’s bands)

[22] Tscioulcas, supra note 4 (Artist-partners signed a “declaration” of co-ownership for a reported three percent equity in the company.). See also Gervino & Hampp, supra note 5 (With the remaining stakes reportedly owned by Jay Z, another investor, and the record labels.).

[23] Tsioulcas, supra note 4.

[24] Id.

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Eroding the right to exclude in Alabama by Elton Darby

Eroding the right to exclude in Alabama

by

Elton Darby

On March 31, 2011, Jason Dean Tulley entered the First Educators Credit Union in Jacksonville, Alabama.[1] Tulley carried a pistol in an unconcealed hip holster on his belt.[2] James Clayton, an off-duty police officer working as a security guard, approached Tulley and requested Tulley return the pistol to his car.[3] After a brief argument, Tulley returned the pistol to his vehicle.[4] Tulley was later arrested and charged with “carrying a pistol on premises not his own” under Ala. Code 13A-11-52.The Jacksonville Municipal Court convicted Tulley, and the Alabama Court of Criminal Appeals affirmed. [5] In Ex parte Tulley, the Alabama Supreme Court reversed.[6] The Court held that Tulley’s due process rights had been violated and that 13-A-11-52 was “facially unconstitutional” because it did not list a penalty for violation of the statute.[7] Ex parte Tulley represents a breakthrough for gun owners. Notwithstanding property owners’ objections, gun owners like Tulley, even if they do not have a permit, can carry a gun nearly anywhere they wish. The objections of private property owners now take a backseat to the desire for unrestricted gun rights. Whether property owners operate fireworks stands, churches, or credit unions, the reality in Alabama is clear: they cannot exclude firearms from their property.

This blog discusses Alabama’s erosion of the property owners’ right to exclude. It does not seek to argue against the fundamental right to keep and bear arms. Rather, it urges Alabama to join states like Texas in balancing, rather than steamrolling, fundamental property rights with unlimited second amendment values.

Americans have a fundamental right to keep and bear firearms.[8] In all fifty states, persons may become authorized to carry a concealed firearm.[9] States employ a diverse array of regulatory schemes to for the issuance of concealed carry permits. The least restrictive are “constitutional carry” states. In these states, no state-issued permit is required to carry a concealed weapon.[10] Weapons can be purchased without restriction, and carried to any place in any manner. On the other end are states like California, which require background checks and waiting periods to even obtain a gun.[11] Alabama, along with the majority of states, provide that the state “shall issue” a concealed weapons permit to persons who meet the statutory requirements.[12] The prevalence of concealed carry legislation makes clear that many states wish for the public to be able to carry their guns outside the home. But may they do so against the wishes of private property owners?

When the destination is work, many states answer Yes. Parking lot laws, enacted by Alabama and a number of other states, provide that employers may not prohibit employees from keeping legal firearms in their vehicles while at work.[13] There are a few exceptions, such as when the firearm is illegal, or the employer has reason to believe the employee will cause bodily harm to others. Parking lot laws have been the subject of much controversy. Proponents argue the laws further the Second Amendment’s “central component” of self-defense.[14] Opponents have claimed, amongst other things, that the laws represent an unconstitutional taking and that the laws violate substantive due process rights related to property.[15]

When the destination isn’t work, the states are split. If the First Educators Credit Union in Ex parte Tulley were located in Texas, a state not commonly regarded in opposition to gun rights, Tulley could be criminally liable for trespass.[16] Private property owners in Texas may prohibit the presence of guns on their property so long as they comply with a posting requirement. The posting requirement allows property owners wishing to exclude firearms from their property to post a sign providing clear indication that the owner prohibits firearms on the property.[17] Concealed carry permit holders who disregard a proper posting are guilty of a misdemeanor. [18] In contrast, Alabama offers only five narrow exceptions to the general rule that persons may carry a gun on the property of anyone.[19] These exceptions do not include places of worship, places where alcohol is served, or child care centers.

The wide-open nature of Alabama law regarding firearms on the property of another disregards the traditional rights of property owners to exclude. In essence, Alabama law completely disregards the nature of an owner’s use of the property, and whether that use might not comport with the public’s possession of deadly weapons. It isn’t difficult to understand why financial institutions like First Educators might wish to prevent guns in their branches. Alabama, however, has removed First Educators ability to decide. No matter the degree of harm that could be imposed by the presence of deadly weapons, First Educators cannot prevent their presence unless it falls into one of the narrow exceptions. This is striking in a world where persons can be removed from private property almost any reason. Persons are commonly removed from property for harmless activities such as remaining at a bar past closing time, or even speaking out at a presidential rally.[20] Alabama has already forced employers to permit weapons in employee’s vehicles. Disallowing property owners a choice to permit firearms further reduces their control of business operations by eroding away their fundamental property right to exclude.

Mr. Tulley infringed upon First Educators’ right to exclude him from it’s private property, yet he emerged unscathed. To prevent similar infringements in the future, Alabama should join Texas in enacting a posting requirement for the prohibition of guns on private property. As discussed, the posting requirement would allow businesses like First Educators to be able to enforce a firearm prohibition backed by the force of law. Such a provision adequately respects the coexistence of two titanic rights in American law. The Supreme Court has termed the right to exclude the most important stick in the of the bundle of property rights.[21] It’s time for Alabama to give that stick back to business owners.

 

 

 

 

 

[1] Ex parte Tulley, ___ So.3d ____, No. 1140049, 2015 WL 5192182 (Ala. Sept. 4, 2015) at *3.

[2] Id; In this article I discuss a property owner’s right to exclude those who possess a “concealed carry” firearm permit. Tulley, however, apparently partook in “open carry” – the open display of a pistol without a permit.

[3] Id.

[4] Id.

[5] Id. at *3-4.

[6] Id. at *10.

[7] Id.

[8] See U.S. Const. amend II; District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

[9] As referred to in this blog, a concealed weapons permit allows a person to carry a concealed pistol on their person. See Ciara McCarthy, Concealed Carry is Now Legal in All Fifty States, Slate,http://www.slate.com/blogs/crime/2013/07/11/illinois_concealed_carry_carrying_guns_in_public_is_legal_in_all_50_states.html (last visited Mar. 8, 2016).

[10] See Eric Benson, Vermont’s Long, Strange Trip to Gun-Rights Paradise, The Trace, (discussing how Vermont is the only state which does not have, and has never had, a firearm permit requirement) http://www.thetrace.org/2015/07/vermont-gun-rights-constitutional-carry/ (last visited Mar. 8, 2016).

[11] Amber Phillips, California has the nation’s strictest gun laws, Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2015/12/04/california-has-the-nations-strictest-gun-laws-here-are-the-other-strictest-and-loosest-states/ (last visited Mar. 8, 2016).

[12] Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[13] See e.g., Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[14] Ethan T. Stowell, Note, Top Gun: The Second Amendment, Self-Defense, and Private Property Exclusion, 26 Regent U. L. Rev. 521, 541 (2014).

[15] J. Blake Patton, Note, Pro-Gun Property Regulation: How the State of Oklahoma Controls the Property Rights of Employers Through Firearm Legislation, 64 Okla. L. Rev. 81, 99-102 (2011) (critiquing the Tenth Circuit’s reasoning in upholding an Oklahoma parking lot law in Ramsey Winch Inc. v. Henry); Also See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir. 2009).

[16] Tex. Penal Code Ann. § 30.06 (West through end of 2015 Reg. Sess.).

[17] Id.

[18] Id.

[19] Guns are prohibited inside five categories of facilities in Alabama. These are (1) police facilities (2) corrections facilities (3) mental health facilities (4) public or private school or university athletic event not related to firearms (5) professional athletic event not related to firearms. See Ala. Code. 13A-11-61 (West through Act 2016-54 of 2016 Reg. Sess.)

[20] Jeremy Diamond, Silently protesting Muslim woman ejected from Trump rally, Cable News Network, http://www.cnn.com/2016/01/08/politics/donald-trump-muslim-woman-protesting-ejected/ (last visited Mar. 8, 2016).

[21] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People by Carly Calhoun

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People

by

Carly Calhoun

 

In 2015, a transwoman sought surgical care prescribed by her doctor to ameliorate complications of a breast augmentation she underwent years’ prior.[1] The hospital refused to allow the surgery despite coverage from her insurance provider.[2] At first the hospital said it “does not have a policy on assisting with gender transition,” but after rumors came out that the policy was due to “conservative Catholic officials affiliated with [the hospital],” it referenced the fact that as a Catholic hospital it must adhere to the Ethical and Religious Directives of the Catholic Church (ERDs).[3] While religious hospitals and care providers are not the only places trans people experience discrimination in healthcare,[4] these facilities continue to cite religious freedom to violate numerous laws including the Affordable Care Act (ACA).

Many of these hospitals allow cisgender people to receive procedures denied to trans people. For example, a transwoman called the above hospital in question to get a consultation on breast augmentation and was told they accepted new patients, but when they learned she was trans they denied her an appointment.[5] The World Professional Association for Transgender Health (WPATH) recognizes that gender affirming surgeries constitute “medically necessary care” under most insurance plans.[6] It would logically follow that both surgeries for ciswomen and transwomen should be allowed in all hospitals. This is not necessarily the case.

Only seventeen states have public accommodations laws prohibiting discrimination based on gender identity,[7] while only fourteen states specifically prohibit medical providers from discriminating based on gender identity.[8] Fortunately, the Affordable Care Act (ACA) bans discrimination in certain healthcare services on the same bases as those prohibited under other federal civil rights legislation.[9] Under section 1557 of the ACA, healthcare providers receiving federal subsidies, credits, or contracts of insurance shall not discriminate “on the basis of race, color, national origin, sex, disability, or age.”[10] And HHS’s Office for Civil Rights (OCR) which enforces the ACA, proposed new rules barring discrimination based on gender identity specifically (even though it already enforces the rules against those discriminating against trans people “based on sex”).[11] Many Catholic hospitals receive Medicare or Medicaid reimbursement and other federal subsidies, therefore falling under this antidiscrimination provision of the ACA. In Rumble v. Fairview Health Services, the federal district court of Minnesota held that a hospital was subject to the ACA’s antidiscrimination provision when it mistreated a young transman because it received federal funding through Medicare and Medicaid contracts.[12] This is consistent with other federal court decisions based on discrimination under title VI and section 504 of the Rehabilitation act that Medicare and Medicaid funds constitute federal financial assistance.[13]

Unfortunately, religious hospitals argue that allowing performance of certain procedures on trans people violates their First Amendment right to freedom of religion.[14] To what extent the federal Religious Freedom Reformation Act (RFRA) allows an exception to this discrimination is unclear. But the ACA’s text only provides a “conscience” exemption for abortions[15] and the Hobby Lobby decision applies to birth control coverage from employers.[16] Neither of these rules seem to apply to a hospital’s refusal to perform surgeries on one population that it will not perform on another, which is what section 1557 prohibits.[17] But the fact that a great (and growing) number of hospitals in the U.S. are run by or affiliated with the Catholic church amplifies this issue, [18] especially when the only accessible care is at a private religious hospital.[19] Unfortunately, to prove that a private hospital is “quasi-public” institution acting under the color of the state is very hard[20] and actions against private hospitals in this regard may easily fail.[21]

These hospitals and systems not only deny life affirming surgeries, but considering the rate of suicide and violence against trans people,[22] they deny life-saving surgeries. Trans people have better health outcomes when they feel more comfortable in their own skin.[23] Further, many states require some form of surgery in order for a person to correct the gender marker on their state identification documents.[24] When many trans people do not need surgery to “pass” as the gender with which they identify, it causes confusion and many times harassment or worse from others who do not understand why the gender marker on his or her ID does not match the person with whom they are interacting. Not all trans people want or need gender affirming surgery, but a hospital should respect the decisions of doctors and even health insurance companies that deem some surgeries as medically necessary for certain individuals. Freedom of religion must only be allowed to go as far as private activity. By participating in the market and offering services to the public, these religious hospitals must offer services to eve

[1] Lou Chibbaro, Jr., Georgetown Hospital Accused of Anti-Trans Discrimination, Wash. Blade (June 9, 2015), http://www.washingtonblade.com/2015/06/09/georgetown-hospital-accused-of-anti-trans-discrimination/.

[2] Id.

[3] Id. See also U.S. Conf. of Cath. Bishops, Ethical and Religious Directives for Catholic Health Care Services, (5th Ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf (last visited Mar. 6, 2016).

[4] Tari Hanneman, Healthcare Equality Index 2014: Promoting Equitable and Inclusive Care for Lesbian, Gay, Bisexual and Transgender Patients and Their Families, 4 Hum. Rts. Campaign Found. (2014), available at http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/HEI_2014_high_interactive.pdf#__utma=149406063.1385 (“70% of transgender or gender non-conforming patients surveyed have experienced some type of discrimination in healthcare”).

[5] Chibbaro, Jr., supra note 1.

[6] Stephen Whittle et al., WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, World Prof’l Ass’n for Transgender Health (June 17, 2008), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947.

[7] Maps of State Laws & Policies, Hum. Rts. Campaign, http://www.hrc.org/state_maps (last visited Mar. 6, 2016).

[8] Laws Prohibiting Discrimination Against Gays and Lesbians FAQ, NOLO, http://www.nolo.com/legal-encyclopedia/laws-prohibiting-discrimination-against-gays-faq-32295.html (last visited Mar. 6, 2016).

[9] ACA 42 U.S.C. § 18116 (2010) (“Except as otherwise provided for in this title . . . an individual shall not, on the ground prohibited under title VI . . . title XI . . . the Age Discrimination Act . . . or section 504 of the Rehabilitation Act . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)”).

[10] U.S. Dep’t of Health and Hum. Serv., OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases, HHS.Gov, http://www.hhs.gov/civil-rights/for-individuals/section-1557/ocr-enforcement-section-1557-aca-sex-discrimination/index.html (last visited May 2, 2016).

[11] See U.S. Dep’t of Health and Hum. Serv., HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act, HHS.Gov (Sept. 3, 2015), http://www.hhs.gov/about/news/2015/09/03/hhs-takes-next-step-advancing-health-equity-through-affordable-care-act.html.

[12] Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *1, *14 (D. Minn. Mar. 16, 2015).

[13] See e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042 (5th Cir. 1984), U.S. v. Cabrini Med. Ctr., 639 F.2d 144, 151 (2d Cr. 1984), Bob Jones Univ. v. Johnson, 396 F. Supp. 597, 603 n.21 (D.S.C. 1974), aff’d by 529 F.2d 514 (4th Cir. 1975), and Valentine v. Smith, 654 F.2d 503, 512 (8th Cir. 1981).

[14] See No Catholic Right to Transgender Surgery, Catalyst (Mar. 2008), http://www.catholicleague.org/no-catholic-right-to-transgender-surgery/.

[15] ACA 42 U.S.C. § 18023 (2010).

[16] Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

[17] See U.S. Dep’t of Health and Hum. Servs., supra note 11.

[18] Nina Martin, The Growth of Catholic Hospitals, By the Numbers, ProPublica (Dec. 18, 2013), https://www.propublica.org/article/the-growth-of-catholic-hospitals-by-the-numbers.

[19] See John Geyman, Catholic Hospital Systems: A Growing Threat to Access to Reproductive Services, The Official Blog of Physicians for a Nat’l Health Program (Mar. 24, 2014), http://pnhp.org/blog/2014/03/24/catholic-hospital-systems-a-growing-threat-to-access-to-reproductive-services/.

[20] Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (there must be either (1) “a sufficiently close nexus between the State and the challenged action of the regulated entity,” (2) the State must have “exercised coercive power or provided significant encouragement” so that entity’s actions are seen as a decision of the State, or (3) “the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State”).

[21] See e.g., Estes v. Kapiolani Women’s and Children’s Med. Ctr., 787 P.2d 216 (Hawai’I Feb. 20 1990) (holding that because the state did not direct, encourage, or support the hospital’s policies and because there was no sufficient nexus between the hospital’s policy and its funding from the state it was not quasi-public), and Grossling v. Ford Mem’l Hosp., 614 F.Supp. 1051, 1057-58 (E.D. Tex. 1985) (holding a hospital was not a quasi-public institution because there was no nexus between regulations imposed by the state and the hospital’s action, there was no coercive power for the hospital to act the way it did, and hospitals are not traditionally operated by the state).

[22] See Ann P. Haas et al., Suicide Attempts among Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey, 2 Am. Found. For Suicide Prevention & The Williams Inst. (Jan. 2014), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf (showing that 42 percent of trans women and 46 percent of trans men have attempted suicide).

[23] Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 757 (Mar. 2008), see also WPATH.

[24] See Know Your Rights: FAQ About Identity Documents, Lambda Legal, http://www.lambdalegal.org/know-your-rights/transgender/identity-document-faq (last visited Mar. 6, 2016).

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