BEFORE THE UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY May 3 , 2015

___________________________________ TASHA GRANT ) ) Complainant, ) ) ) v. ) Docket DOT

- OST

- 2015

- 0094 ) ) First Amended Third Party SAUDI ARABIAN AIRLINES ) Complaint Pursuant to ) 14 C.F.R. 302.404 Respondent, ) (Request for

_________________________________ ) Enforcement Action)

Communications with respect to this complaint should be sent to:
JEFFREY A. LOVITKY Attorney at Law 1776 K St., NW, Ste. 800 Washington, D.C. 20006 Tel: (202) 429

- 3393 Facsimile: (202) 318

- 4013 Email: Lovitky@aol.com Attorney for ComplainantFirst Amended Third P arty C omplaint

2 SUMMARY OF CASE
1. Same gender sexual relationships consti tute serious criminal offenses under Saudi Arabian law. According to the U.S. Department of State, the mere expression of support for same gender sexual relationships is punishable by death in Saudi Arabia.
2. The complainant is a woman who is gay. She is interested in booking a flight from New York to Manila on Saudi Arabian Airlines

. The Saudi Arabian Airlines frequently offers the least expensive service between New York and Manila

. This flight has a 10

- hour layover in Riyadh, Saudi Arabia. The airline representative informed complainant that she should refrain from holding hands with her partner either on the plane or in the Riyadh airport transit area, and that she should conceal the fact that she is gay.
3. The paramount obligation of the Se cretary of Transportation is to ensure the safety and security of passengers in air commerce. 49 U.S.C. § 40101(a)(1). The Secretary must obtain assurances that overtly Lesbian, Gay, Bisexual, and Transgender (LGBT) persons will not be subject to any form of punishment or detention , or otherwise be subject to any form of coercion or intimidation, while waiting in the transit areas of Saudi Arabian airports for their connecting flights. The Secretary must alsoFirst Amended Third P arty C omplaint

3 obtain assurances that LGBT individuals will no t be subject to harassment or intimidation of any type while on board any Saudi Arabian Airlines flight from the United States.
4. If the Secretary is unable to obtain such assurances, then the Secretary must pursuant to the authority conferred upon him by 49 U.S.C. § 41304(a), revoke the permit granted to Saudi Arabian Airlines

to provide passenger service from airports in the United States

. The Secretary would effectively be endangering the safety and security of LGBT persons by failing to take such action

. 5. In the interim and while these proceedings are pending, the Secretary should immediately order the Saudi Arabian Airlines to inform the public of any restrictions which are imposed upon LGBT persons

. 49 U.S.C. § 41712(a). Failure to provide such warning could endanger the personal security of overtly LGBT passengers if they were to be subjected to criminal sanctions under Saudi law.
STATEMENT OF FACTS
6. Saudi Arabian Airlines is registered as a foreign corporation in the State of Virginia, whose principal executive office is located at 8081 Wolftrap Road, Suite 200, Vienna, VA. The airline is also registered as a foreign corporation in the State of New Y ork. According to its website,First Amended Third P arty C omplaint

4 Saudi Arabian Airlines maintains offices at the following locations: New York’s JFK Airport; 11301 W. Irving Park Road, Franklin Park, Il., 5718 Westheimer Road, Suite 1090, Houston, Texas, and 9841 Airport Boulevard, Suite 1 002, Los Angeles, CA.
7. Saudi Arabian Airlines is owned by and is an instrumentality of the government of Saudi Arabia, and must adhere to all laws and regulations issued by the government of Saudi Arabia. The policy of the Saudi government with respect to L GBT persons is also the policy of the Saudi Arabian Airlines.
8. Three U.S. airports are currently serviced by Saudi Arabian Airlines for passenger flights , i.e., New York Kennedy, Washington Dulles, and Los Angeles International. Saudi Arabian Airlines car ries passengers to cities around the world from these three airports, transiting through either Riyadh or Jeddah.
9. Transit passengers on Saudi Arabian Airlines are not permitted to leave the transit area of the airport in Riyadh or Jeddah, unless they hav e a visa to enter into Saudi Arabia. U.S. citizens who are transiting through Saudi Arabia are not required to obtain a visa , unless their scheduled layovers in Saudi Arabia are 12 hours or longer

.First Amended Third P arty C omplaint

5 10. The US State Department website states as follows: “ Air travelers may find lower

- cost tickets between countries that include long layovers in Saudi airports. Be advised that Saudi Arabia does not grant transit visas to air travelers, so any layover will be spent entirely in the airport

. ” http://travel.state.gov/content/passports/english/country/saudi

arabia.html
11. The Saudi Arabian Airlines markets directly to U.S. citizens by selling tickets on their U.S. website, as well as by selling tickets through other third party ticket agents, e.g., Expedia, Priceline, e tc. These tickets are marketed both to U.S. passengers whose final destination is Saudi Arabia, as well as to passengers whose final destination is outside of Saudi Arabia and who are merely transiting through Saudi Arabia.
12. The United States government, t hrough the Export

- Import Bank of the United States, has financed some of the aircraft used by Saudi Arabian Airlines.
13. The 2013 U.S. Department of State Report on Human Rights Practices in Saudi Arabia states as follows: Under sharia, as interpreted in the country, consensual same

- sex sexual conduct is punishable by death or flogging, depending on the perceived seriousness of the case. It is illegal for men “to behave like women” or to wear women’s clothes, and vice versa. Due to social conventions and pote ntial persecution, lesbian, gay, bisexual, and transgender organizations did not operate openly,First Amended Third P arty C omplaint

6 nor were there gay rights advocacy events of any kind. There were reports of official societal discrimination, physical violence, and harassment based on sexua l orientation or gender identity in employment, housing, statelessness, access to education, or health care. Stigma or intimidation was likely to limit reports of incidents of abuse. Sexual orientation and gender identity could constitute the basis for harassment, blackmail, or other actions

. 14. This report is available on the State Department website at http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrappe

r. 15. C omplainant is a citizen of the United States who resides in the City of New York.
16. On April 10, 2015, she spoke to a Saudi Arabian Airlines representative by calling 1

- 800

- 472

- 8342. She advised the airline representative that she was interested in booking a flight on Saudi Arabian Airlines from New York’s JFK airport to Manila, Philipp ines. This flight has an approximately 10

- hour layover in Riyadh, Saudi Arabia.
17. Complainant advised the representative that she is openly gay, and that she desires to travel with her partner

. Complainant’s partner is a woman who wears men’s clothing. Se e Supplemental Declaration of Tasha Grant.
18. The airline representative informed complainant that she couldFirst Amended Third P arty C omplaint

7 experience difficulties if she were to hold hands with her partner either on the plane or at the airport. The airline representative advised her to

c onceal the fact that she is gay. See Declaration of Tasha Grant , April 14,
2015

. 19. On April 14, 2015, complainant’s counsel wrote a letter to the Saudi Ambassador to the United States seeking clarification as to whether openly gay couples would be permitted to travel on the Saudi airlines or transit through Saudi airports. Complainant ’s counsel informed the Saudi Ambassador that the representative of the airline stated that complainant should refrain from h olding hands with her partner , and conceal the fact that she is gay

. L egal counsel for the Saudi government responded by letter dated April 29, 2015. Counsel for the Saudi government refused to provide guidance as to whether two gay people would be permi tted to hold hands with each other, either on board the plane or in the transit area of the airport, stating as follows: “ it is not the function of the Kingdom's Ambassador in the United States to give individual legal advice to American travelers or to sp eculate about how the lawful authorities in the Kingdom might interpret and apply its laws in particular situations

. ” However, the Saudi Government’s legal counsel further noted as follows: “ Your letter correctly observes thatFirst Amended Third P arty C omplaint

8 other countries have their own laws and cultures, and that some forms of personal expression that may be accepted in the United States may be considered unacceptable or unlawful elsewhere.”
20. The U.S. Department of State website states as follows: “ Persons violating Saudi Arabian laws , even unknowingly, may be expelled, arrested, imprisoned, subject to physical punishments, or even executed .” The State Department website also states: “ Violations of Saudi laws governing perceived expressions of, or support for, homosexuality, including on social media, may be subject to severe punishment. Potential penalties include fines, jail time, or death. ” (emphasis added) http://travel.state.gov/content/passports/english/country/saudi

arabia.html
21. Openly gay couples are prohibited from holding hands with each other , or engaging in other public displays of affection , in the transit areas of the Riyadh or Jeddah airports, as well as on board Saudi Arabian Airline flights.
22. Complainant ’s partner would not be permitted to travel on Saudi Arabian Airl ines, nor be present in the transit areas of Saudi Arabian airports, because she is a woman who dresses like a man. Complainant isFirst Amended Third P arty C omplaint

9 therefore prohibited from being accompanied by her partner on Saudi Arabian A irlines.

LEGAL FRAMEWORK
23. Th e Secretary’s paramount and overriding responsibility is to ensure the safety and security of passengers in air commerce. 49 U.S.C. § 40101(a)(1).
24. Pursuant to 49 U.S.C. § 40127(a), a foreign air carrier “ may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry .”
25. An air carrier is prohibited by 49 U.S.C. § 41310(a) from subjecting a person “ to unreasonable discrimination ” in foreign air transportation. The provisions of 49 U. S. C. § 41310(a) prohibit airlines from engaging in non

- economic forms of discrimination against individuals. This provision was relied upon by the Secretary in ordering the cessation of discriminatory conduct against Arab pass engers in the aftermath of 9 /11. See Order Denying Motion of American Airlines to Dismiss, Docket OST

- 2003

- 15046, at pp. 2- 3.
26. Pursuant to 49 U.S.C. § 41712(a), the Secretary may bring action against a foreign air carrier for engaging in an " unfair or deceptive practice or an unfair method of competition in air transportation ."First Amended Third P arty C omplaint

10 27. The First Amendment to the U.S. Constitution, as w ell as the Due Process provisions of the Fifth Amendment, provides guarantees against discrimination by the U.S. government on the basis of sexual orientation

. L EGAL VIOLATIONS ASSERTED AND RELIEF REQUESTED
COUNT 1 – 49 U.S.C. § 40101(a)(1)
28. The allegations set forth in paragraphs 1 -27 above are incorporated by reference as though fully set forth herein.
29. The Secretary’s paramount statutory responsibility is to ensure the safety and security of air passengers. 49 U.S.C. § 40101(a)(1).
30. Overtly LGBT individuals flying from New York , Los Angeles, or Washington Dulles may be subject to criminal sanctions wh ile waiting in the airport transit areas of the Riyadh or Jeddah airports for their connecting flights . Overtly LGBT persons may be subject to harassment or intimidation while on Saudi Arabian Airlines aircraft when flying from New York, Washington Dulles, or Los Angeles

. 31. Saudi Arabian Airlines , and/or the Saudi Arabian authorities , must be required to provide assurances that transit passengers from the United States will not be subjected to any form of detention, harassment, coercion, or intimidation due to their sexual orientation while waiting for their connecting flights in the Riyadh or Jeddah airport transit areas.First Amended Third P arty C omplaint

11 Saudi Arabian Airlines, and/or the Saudi Arabian authorities , must also provide assurances that LGBT passengers will not be subject to any form of intimidation or harassment while on board any Saudi Arabian Airlines flight from the United States

. 32. In the event the Saudi Arabian Airlines and/or the Saudi Arabian authorities are unable to provide such assurances , the Secretary must nonetheless fulfill his paramount statutory responsibility to ensure the safety and security of all air passengers . 49 U.S.C. § 40101(a)(1). In such event, the Secretary must revoke the permit granted to the Saudi Arabian Airlines to carry passenger s from airports in the United States

. 49 U.S.C. § 41304(a).
COUNT II – VIOLATION OF 49 U.S.C. § 41712(a)
33. The allegations set forth in paragraphs 1- 32 above are incorporated by reference as though fully set forth herein.
34. Saudi Arabian Airlines engages in unfair practices and unfair methods of competition by offering tickets for sale in the United States without informing the American public of the prohibitions imposed upon LGBT passengers. Saudi Arabian Airlines has a dut y to prominently display on its U.S. website and in its marketing materials for the U.S. market that certain restrictions apply to LGBT persons. Saudi ArabianFirst Amended Third P arty C omplaint

12 airlines also has an obligation under 49 U.S.C. § 41712(a) to inform third party ticket agents su ch as Expedia and Priceline of these restrictions, who in turn are obligated to furnish such information to persons buying tickets through them.
35. The failure of Saudi Arabian Airlines to provide such information could endanger the personal security of LGBT passengers if they were to fly without notice of the restrictions imposed upon them. The failure of Saudi Arabian Airlines to provide such inform ation also deprives all other prospective passengers of the right to decide whether they wish to fly on Saudi Arabian Airlines or to transit through Saudi Arabia in light of the restrictions imposed upon LGBT persons

. 36. The above described actions constitute an " unfair practice or an unfair method of competition in air transportation " in violation of 49 U.S.C. § 41712(a).
COUNT III – VIOLATION OF 49 U.S.C. § 40127(a)
37. The allegations set forth in paragraphs 1 -36 above are incorporated by reference as though fully set forth herein.
38. Saudi Arabian Airlines cannot accept overtly LGBT persons as
passengers due to restrictions imposed by Saudi law

. LGBT individuals
may also be subject to harassment, coercion, or intimidation while on theFirst Amended Third P arty C omplaint

13 airplane, and may further be charged with criminal conduct while transiting through either Riyadh or Jeddah. Saudi Arabian Airlines refuses to provide transportation to a woman who dresses like a man, or a man who dresses like a woman. The above

- described practices constitute a violation of 49 U.S.C. § 40127(a), which prohibits discrimination on the basis of sex.
COUNT IV – VIOLATION OF 49 U.S.C. § 41310(a)
39. The allegations set forth in paragraphs 1 -38 above are incorporated by reference as though fully set forth herein.
40. The above

- described practices constitute a violation of 49 U.S.C. § 41310(a), which prohibits unreasonable discrimination in foreign air transportation.
COUNT V – VIOLATION OF FIRST AND FIFTH AMENDMENT RIGHTS

41. The allegations set forth in paragraphs 1

- 40 above are incorporated by reference as though fully set forth herein.
42. LGBT persons have the same right as other U .S. citizens to use the services of Saudi Arabian Airlines and to transit through Saudi Arabian airports

. These services were financed in part by the U.S. government through Export

- Import Bank financing of Saudi Arabian Airlines.First Amended Third P arty C omplaint

14 43. Any order issued by the Secretary of Transportation that effectively authorizes discrimination on the basis of sex or sexual orientation would constitute a violation of the First Amendment to the U.S. Constitution, as well as the Due Process provisions of the Fifth Amendment , including the prohibition incorporated therein against denying any person equal protection of the laws. WHEREFORE, Complainant requests that the S ecretary immediately order the Saudi Arabian Airlines to provide fair warning to the general public of any restrictions imposed upon LGBT passengers. This order should be implemented immediately, without waiting for the conclusion of these proceedings. Complainant further requests that the Secretary find that Saudi Arabian Airlines is in violation of the above

- mentioned laws and regulations , and further order the termination of the discriminatory conduct alleged herein

. If compliance with such order is not forthcoming, then the Secretary must in the interest of passenger safety revoke the permit granted to Saudi Arabian Airlines to fly passengers from airports in the United States. 49 U.S.C. § 41304(a).