At the end of the SCOTUS mandate, where are we on LGBTQ + rights?
The Supreme Court has taken action in three cases directly affecting LGBTQ + rights, and now the mandate is over. One of the decisions may well turn out to be a turning point in trans rights, while the other two suggest the court is at an impasse over the scope of religious exemptions to LGBTQ + non-discrimination laws. As long as this impasse persists, we must continue to fight both in the courts and in the legislatures to prevent non-discrimination laws from being marred by exceptions that could render them meaningless.
Respect for transgender people
The Supreme Court decided not to receive the appeal from the school district in Gloucester County School Board v. Gavin Grimm, in which a federal appeals court ruled that a school district in Virginia had violated federal civil rights law by prohibiting transgender students from using a bathroom that matches their gender.
While not a decision on the substance of the matter, it leaves in place not only the lower court’s trans-affirmation decision in the Gavin Grimm case, but also similar decisions of two others. federal courts of appeal. This means that school districts in the 11 states covered by these courts of appeal must henceforth respect the gender of a student and allow him to use toilets and changing rooms that correspond to his gender. It’s a big deal. And since there is no federal appeal law going the other way, school districts in other parts of the country should do the same.
Indeed, Gavin’s case is the third time in three years that the Supreme Court has refused to take up cases involving disputes over whether trans students could use a toilet that matches who they are. The fact that SCOTUS left these decisions aside is also further evidence that the court is allowing a trans-affirming reality to take hold. And since Gavin’s case began seven years ago, we’ve seen that a majority of our country is ready for this reality.
The denial of review in the Gavin case reminds me of another time when the Supreme Court refused to deal with an LGBTQ + civil rights issue and that decision had significant consequences on the ground. In October 2014, the court denied review in five cases where the lower courts had all ruled that same-sex couples had the right to marry. This ordinance did not decide the marriage issue for the country, but it did mean that same-sex couples could suddenly get married in 12 new states, making it even more difficult for the court to rule against freedom to get married later. It could be a similar time for trans rights.
Non-discrimination laws at risk
The other two court actions related to LGBTQ, that term came in the context of whether a government contractor (here a foster care agency) or a business (here a flower shop) can violate the laws of no -discrimination when they have a religious justification for the discrimination. The stakes are high, as a constitutional right to discriminate could potentially trump all anti-discrimination laws in the country. It would be catastrophic and give a prison-free jail-free release card to anyone who claims a religious basis for discrimination in the workplace, in housing, in healthcare, and more.
With these two actions, the situation is more complicated and the news a little more ambiguous.
In Fulton v. Philadelphia, the court considered whether a religiously affiliated foster care agency had a constitutional right to override the non-discrimination requirement in its contract with the city to assess prospective foster parents. The contract stated that there was no discrimination based on sexual orientation and the foster care agency opposed it on religious grounds.
The good news is that, for the second time in three years, the Supreme Court has refused to rule that there is a constitutional right to discriminate. In Fulton, the court issued a restrictive ruling based on a quirk of the Philadelphia nondiscrimination contract that the court interpreted as not treating all contractors in the city equally. The court made an equally narrow ruling three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, basing its decision on certain anti-religious comments made by the state agency that initially heard the discrimination complaint.
Although there were not five voices in Fulton to say that there is a right to discriminate, it must be recognized that there were not five votes either to say that there is no such right.
This is deeply troubling, because such a decision shouldn’t be difficult. Courts have rejected the right to discriminate in other civil rights contexts, such as when courts have rejected the assertion of religious schools that they could pay women less than men to do the same work on the basis of the religious belief of the schools that men are heads of families. There is no reason for the rule to be any different when the discrimination is based on sexual orientation or gender identity rather than sex or race.
The second action has arrived Arlene’s Flowers v. Washington state, where the Washington Supreme Court unanimously ruled that a florist’s religious objection to a same-sex couple’s marriage did not entitle her to refuse to sell them flowers for their wedding. The United States Supreme Court rejected the review in Arlène’s flowers, dashing anti-LGBTQ + activists’ hopes that this would be the case if the court finally granted them the right to discriminate.
The combination of the court dodging the issue of the permit to discriminate in Fulton and refusing to address the same question in Arlène’s flowers suggests that even this deeply conservative tribunal is not prepared to undermine national civil rights laws. The court’s current stalemate on this issue could last for some time, perhaps even years. But when the court deals with the next case like The flowers of Arlène or Fulton, I’m afraid this signals that the court is ready to allow discrimination against us.
Just as we shouldn’t have a country where LGBTQ + people are celebrated only during Pride Month, we shouldn’t have a country where we are only protected from discrimination under certain circumstances. While the Supreme Court suspended the issue of religious exemptions, we must continue to tell policy makers – as well as our friends and neighbors – that discrimination hurts and that opening the door to legalized discrimination in the name of religion. religion will cause harm. We need to fight these exemptions not only in the courts, but also in legislatures, where anti-LGBTQ + advocates seek to add religious exemptions to existing non-discrimination laws and bills, like the Equality Act. . LGBTQ + people have fought too hard and for too long to allow our community’s civil rights laws to incorporate a license of discrimination.
James esseks is Project Director Jon L. Stryker and Slobodan Randjelović LGBTQ & HIV at the American Civil Liberties Union.