The coming year could be a momentous one for LGBTQ rights at the Supreme Court, and possibly a dangerous one, given the court’s new conservative majority.
The justices have yet to say which cases they’ll take, but right-wing forces have asked the court to hear several that could affect LGBTQ people. And now that swing justice and equality champion Anthony Kennedy has been replaced by conservative Brett Kavanaugh, the outcome may not be pretty — but some activists retain a degree of optimism.
Donald Trump’s administration has asked the court to allow his transgender military ban to go into effect. The ban is currently blocked by lower federal courts while cases against it proceed. But Solicitor General Noel Francisco, in a brief filed in November, contended that allowing trans people to serve poses “too great a risk to military effectiveness and lethality.” That assertion goes against the findings of military experts, but the Trump administration is determined to implement the ban anyway.
LGBTQ legal groups have called on the court to avoid taking up the cases. Lambda Legal and OutServe-SLDN filed one brief to that effect last week, and the National Center for Lesbian Rights and GLBTQ Advocates & Defenders filed another. All the groups are representing current and aspiring trans service members in lawsuits against the ban.
“The sudden urgency of the Trump administration’s effort to discriminate against transgender service members is bordering on the ridiculous,” Lambda Legal counsel Peter Renn said in a press release.
In their brief, NCLR and GLAD said that while “important constitutional issues” are involved in its cases against the ban, “now is not the appropriate time for this Court to consider them. No court of appeals has issued any decision addressing those issues. No case raising those issues has yet been litigated to final judgment in a district court.”
The Human Rights Campaign, which is a plaintiff in the Lambda Legal-SLDN case Karnoski v. Trump, also decried the administration’s effort “Once again, Donald Trump and Mike Pence are desperately trying to thrust their discriminatory agenda on the military,” said a statement issued by HRC national press secretary Sarah McBride. “Allowing this unconstitutional policy to take effect would immediately harm both transgender troops and our national security. We are grateful to Lambda Legal and Outserve-SLDN for representing HRC and our fellow plaintiffs in this critical case, and we hope that the Supreme Court will maintain the preliminary injunction so that brave transgender service members and qualified recruits can continue to serve our nation with distinction.”
The court has also been asked to take up cases involving employment discrimination. The Alliance Defending Freedom, the anti-LGBTQ legal group that was The Advocate’s top Phobie of 2018, is representing a Michigan funeral home operator that fired a funeral director, Aimee Stephens, because she is transgender. A federal appeals court found that the firing violated Title VII of the Civil Rights Act of 1964, which bans sex discrimination. But ADF and its client in the case, R.G. & G.R. Harris Funeral Homes, contend that classifying gender identity as sex “threatens freedom of conscience,” and they want the Supreme Court to review the case.
Two other employment discrimination cases involve gay men. In one, Altitude Express, a Long Island–based company that fired skydiving instructor Donald Zarda after he told a client he was gay, wants the Supreme Court to reverse an appeals court ruling that found Title VII also applies to discrimination based on sexual orientation.
In another, a Georgia social worker who was fired after his employer found out he was gay is fighting for his right to sue under Title VII. Gerald Bostock was dismissed as a child welfare services coordinator for Clayton County juvenile courts, but in his case a federal appeals court said Title VII does not apply to sexual orientation discrimination. Bostock is asking the Supreme Court to overturn that ruling.
The justices have been scheduled several times to decide whether to take any of these employment discrimination cases, but they keep postponing the matter. But “it seems inevitable that the court will eventually take up one or more of the cases, given the importance of the question — how far a landmark civil-rights law reaches — and the disagreement among the circuit courts,” The Economist reports.
James Esseks, director of the LGBT project for the American Civil Liberties Union, has expressed optimism about the outcome if the court takes any of these cases. “Supermajorities of the American public think that it’s wrong and unlawful to fire people because they are LGBT,” he recently told the Washington Blade. “For the Supreme Court to take those protections away would be really quite a radical act, and so that all gives me hope about how some of these cases could all come out.”
A couple of other cases presented to the court involve the issue of religion-based refusals of service. First Liberty, a far-right legal group, has filed a petition on behalf of Aaron and Melissa Klein of Sweet Cakes by Melissa in Gresham, Ore. The Oregon Bureau of Labor and Oregon courts have found they violated the state’s antidiscrimination law by refusing to create a wedding cake for a same-sex couple. Now they’re appealing to the Supreme Court, and they seek a ruling that establishes a First Amendment right for businesses to discriminate against customers who offend their religious beliefs.
This would go beyond the court’s ruling in the similar case involving Masterpiece Cakeshop. It vacated Colorado’s finding that Masterpiece owner Jack Phillips was guilty of unlawful discrimination, basing its decision on the perception that Colorado officials showed insufficient respect for Phillips’s religious beliefs. But the court did not approve a right to discriminate against LGBTQ people.
In another religious refusals case, lawyers for Aloha Bed & Breakfast have asked the high court to review Hawaii courts’ findings that the business committed illegal discrimination by refusing to rent a room to a same-sex couple.
And a case on restroom access for transgender people comes from the ever-persistent ADF. It is asking the Supreme Court to strike down a Pennsylvania school district’s transgender-inclusive restroom policy. ADF, representing several students in the Boyertown Area School District, says the students’ right to privacy was violated by the policy of allowing transgender students to use the restrooms and locker rooms consistent with their gender identity. The U.S. Court of Appeals for the Third Circuit did not accept that argument, so ADF is turning to the Supreme Court.
What will be the Kavanaugh factor if the court hears any of these cases? “The results are far from preordained,” Jon Davidson, chief counsel for Freedom for All Americans, a pro-LGBTQ group, told the Blade in November.
“Because Justice Kavanaugh has never ruled on an LGBTQ rights case and has made very few public statements on LGBTQ issues, we do not actually know what his views are,” Davidson explained. “He also may be disinclined to lead in very different directions than Justice Kennedy, who was his mentor, for whom he clerked, who swore him in, and whose seat he is filling. It also is possible that Chief Justice [John] Roberts, who is very concerned about the court’s reputation, will be disinclined to have the court turn in directions dramatically inconsistent with national public opinion.”
Many fingers are crossed.