The Supreme Court took action on three cases directly affecting LGBTQ+ rights, and now the term is over. One of the rulings may well turn out to be a watershed moment in trans rights, while the other two suggest that the court has reached a stalemate on the scope of religious exemptions to LGBTQ+ non-discrimination laws. While this stalemate lasts, we need to keep fighting both in court and in legislatures to protect non-discrimination laws from being pock-marked with exceptions that could render them meaningless.
Respect for transgender people
The Supreme Court decided not to take up the school district’s appeal in Gloucester County School Board v. Gavin Grimm, in which a federal appeals court ruled that a Virginia school district violated federal civil rights law when it barred transgender students from using the restroom that matches their gender.
While that’s not a ruling on the merits of the issue, it leaves in place not only the lower court’s trans-affirming ruling in Gavin Grimm’s case, but also similar rulings by two other federal appeals courts. That means that school districts throughout the 11 states covered by those appeals courts must now respect a student’s gender and allow them to use restrooms and locker rooms that match their gender. That’s a huge deal. And since there is no federal appellate law going the other way, school districts in other parts of the country should do the same thing.
Indeed, Gavin’s case is the third time in three years that the Supreme Court has declined to take up cases involving disputes over whether trans students could use restrooms that match who they are. The fact that SCOTUS left those rulings alone, too, is more evidence that the court is letting a trans-affirming reality take hold. And since Gavin’s case started seven years ago, we’ve seen that a majority of our country is ready for this reality.
The denial of review in Gavin’s case reminds me of another moment when the Supreme Court refused to take up an LGBTQ+ civil rights issue and that ruling had significant on-the-ground consequences. In October 2014, the court denied review in five cases where lower courts had all ruled that same-sex couples had a right to marry. That order didn’t decide the marriage question for the country, but it meant that same-sex couples were suddenly able to marry in 12 new states, making it that much more difficult for the court to rule against the freedom to marry down the road. This could be a similar moment for trans rights.
Non-discrimination laws at risk
The court’s other two LGBTQ-related actions this term came in the context of whether a government contractor (here a foster care agency) or a business (here a flower shop) can violate non-discrimination laws when they have a religious justification for the discrimination. The stakes are enormous, because a constitutional right to discriminate could potentially override every non-discrimination law in the country. That would be catastrophic and give a get-out-of-jail-free card to anyone who asserts a religious basis for discrimination in the workplace, in housing, in health care, and more.
With these two actions the situation is more complicated and the news a bit 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 evaluate prospective foster parents. The contract said no sexual orientation discrimination and the foster care agency objected on religious grounds.
The good news is that, for the second time in three years, the Supreme Court refused to rule that there is a constitutional right to discriminate. In Fulton, the court issued a narrow decision based on a quirk in Philadelphia’s non-discrimination contract that the court interpreted as failing to treat all city contractors equally. The court issued a similarly narrow ruling three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, basing its decision on some anti-religion comments made by the state agency that initially heard the discrimination complaint.
While there were not five votes in Fulton to hold that there is a right to discriminate, we have to recognize that there were also not five votes to hold that there isn’t such a right.
That’s profoundly troubling, because such a ruling should not be difficult. Courts have rejected a right to discriminate in other civil rights contexts, such as when courts rejected religious schools’ claim that they could pay women less than men for doing the same job based on the schools’ religious belief that men are heads of household. There is no reason that the rule should be any different when the discrimination is based on sexual orientation or gender identity rather than sex or race.
The second action came in Arlene’s Flowers v. Washington State, where the Washington Supreme Court unanimously ruled that a flower shop’s religious objection to a same-sex couple getting married didn’t give it a right to refuse to sell them flowers for their wedding. The U.S. Supreme Court denied review in Arlene’s Flowers, dashing the hopes of anti-LGBTQ+ advocates that this would be the case where the court finally gave them a right to discriminate.
The combination of the court ducking the license-to-discriminate issue in Fulton and declining to take up the same issue in Arlene’s Flowers suggests that even this profoundly conservative court isn’t ready to undermine the nation’s civil rights laws. The current stalemate on the court about this issue may endure for a while, perhaps even for years. But when the court takes up the next case like Arlene’s Flowers or Fulton, I fear that it will signal that the court is ready to authorize discrimination against us.
Just like we shouldn’t have a country where LGBTQ+ people are celebrated only during Pride month, we shouldn’t have a country where we are protected from discrimination only in some circumstances. While the Supreme Court has put the religious exemptions issue on hold, we need to continue to tell policymakers — as well as our friends and neighbors — that discrimination hurts and that opening the door to legalized discrimination in the name of the religion will cause harm. We need to fight against these exemptions not just in court, but also in legislatures, where anti-LGBTQ+ advocates are seeking to add religious exemptions to existing non-discrimination laws and bills, such as 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 to discriminate.
James Esseks is director of the Jon L. Stryker and Slobodan Randjelović LGBTQ & HIV Project at the American Civil Liberties Union.