Can religion top non-discrimination? Are LGBTQ rights already in place? And can Trump do that? Advocates, attorney speak on cases before Supreme Court Rhett Wilkinson Follow Jan 11, 2019 · 10 min read

An LGBTQ civil-rights advocate said that such folks already enjoy rights that the Supreme Court will likely consider in discrimination/non-discrimination cases. And an attorney representing transgender folks the Trump administration tried to ban from the military pointed out that the executive branch, for three of its related cases, wants to forgo a process that law requires. The considerations join cases that include one on religious exemption in a court term that is seeing a “high-water mark in terms of the LGBT-related cases that are knocking on the Supreme Court’s door,” Lambda Legal attorney Peter Renn said, as the term could be “a term for LGBT people and civil rights,” American Civil Liberties Union advocate James Esseks said.

Other organizations advocating for LGBTQ organizations also spoke to the cases with Through the Courts. They are Klein v. Oregon Bureau of Labor and Industries (religious exemption); Doe v. Boyertown Area School District (gender identity education discrimination); Altitude Express v. Zarda and Bostock v. Clayton County (sexual orientation employment discrimination); and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (gender identity employment discrimination).

People can be fired from their jobs in 26 states for being homosexual, according to the Movement Advancement Project. They can be terminated for being transgender in 28 states. Title VII is the federal law that discourages discrimination at work, and Title IX is the national statute that discourages sex discrimination in education. Neither explicitly protects gay or transgender folks.

Gillian Branstetter

Can religion top non-discrimination?

Noting that “religious liberty is a very important right and there deserves to be laws protecting the rights of religious people,” Gillian Branstetter, spokeswoman for the National Center for Transgender Equality, said “we don’t think that a transgender person’s right to go about their work is or would ever be contradictory to someone’s religious belief.”

Klein v. OBLI, initiated by Sweet Cakes by Melissa, “is just a masterpiece case redux,” said Esseks, the director of the American Civil Liberties Union Lesbian Gay Bisexual Transgender & HIV Project. He noted that the court, in its decision sparked by Masterpiece Cakeshop, “was clear that states have the authority to pass civil rights bills that protect LGBT people.”

“I don’t see any reason for the court to have to take up that question again,” Esseks said.

On the same religious-exemption case, Renn said “the court is concerned about its credibility at this moment in history” and that “there is no need to rush into these issues.”

“This is one example of that where the lower courts have been uniform in holding that the freedom of religion does not equate to the freedom to discriminate,” Renn said. “And there are incredibly important government interests in protecting LGBT people from religion.”

“Freedom of religion is of course important, Renn said, “but it does not give them the right to cause harm to third parties … your freedom to swing your hand starts at the point where someone’s nose begins.”

Renn encouraged a look at “the facts” before mentioning the “dignitary harm” that gay couples experience when religious persons have a “free pass to discriminate in the name of religion.”

Peter Renn speaks. (Randy Shropshire/Getty Images North America)

Non-discrimination cases, other assessments

Renn said “a lot of these cases are victories for our movement,” speaking on the LGBTQ community for which he advocates.

Calling that “a sign of progress,” Renn added that there was a “time in our movement when courts would not give us the time of day.”

Supreme Court spokeswoman Kathleen Arberg did not return a request for comment on if court spokespeople can comment on an item that an entity is wanting the court to take up, the cultural commentary of the cases having the visibility they do have and that exposure relative to other cases. However, Supreme Court spokeswoman Patricia McCabe Estrada said “the court doesn’t comment on past or pending court cases or issues that may come before the court” upon a follow-up to Arberg.

Mark Snyder, spokesperson for Equality Federation, said “The current political climate, paired with these court cases, reinforces our dedication to building power at the local and state levels where change is possible and movements are invigorated.”

“No matter what happens, our community is stronger and more united than ever, and more Americans than ever believe in fairness for all,” Snyder said. “So, I believe that it may take longer than we had hoped, but ultimately, justice will prevail.”

Diego Sanchez, director of advocacy, policy, and partnerships in the national office for PFLAG, said that “the cases that SCOTUS agreed to hear result after lower courts have ruled favorably that the term ‘all’ means all when it comes to applying fairness to lesbian, gay, bisexual, transgender and queer people regarding basic human needs and practices.”

“Whether this means affirming youth going to school to learn in a safe and welcoming environment; people going to work to support their families without discrimination; honoring the freedom of religion without making it a license to discriminate; or serving our country in the military, PFLAG agrees with the many courts that have already ruled to say that sexual orientation and gender identity are included in existing legal protections against sex and sex stereotyping discrimination,” Sanchez added. “Of course, nothing demonstrates the power of — and need for — such laws more than the stories of people whose lives are affected when they are unprotected, and PFLAG provides such stories in amicus briefs to courts at every level.”

Branstetter said that the Trump administration is seeking to bypass the appellate court because it is “growing ever desperate.”

“The president clearly has no boundaries in respecting the independence of the judiciary, and he’s clearly asking them to go around the … process,” Branstetter said, adding that Trump’s effort in that regard “really flies in the face of everything we know about transgender people and the military.”

The other cases regarding non-discrimination “aren’t coming up in a vacuum,” Branstetter said.

“They really represent a consistent reading of Title VII and Title IX over the past two decades,” she said, noting that “a variety of … judges” have “an extremely consistent record” on the latter law.

Branstetter also said that there have been “numerous” deliberations in federal courts and the 5th Circuit Court of Appeals over cases like those the Supreme Court will consider. She also said that Doe v. Boyertown, which will be before the court after the school district’s response time passes, is “discrimination on its very face.” The district has permitted students to use locker rooms and bathrooms that aligns with their gender identity. Families of some cisgender students in return filed a lawsuit against the district, saying that the district has trespassed the cis children’s rights by permitted trans children to be in private areas with cis children. As is statute, the parents are saying to the courts to state that Title IX and the Constitution does not give trans individuals the right to be in those bathrooms and locker rooms.

Doe v. Boyertown is “in a sense the inverse of the Gavin Grimm case” the court punted on in March of last year because the Glouchester County (Va.) School Board Grimm was under “didn’t respect the gender identity of its students,” Esseks said. Groom was a transgender young man who wanted to use the boys’ restroom and wasn’t allowed.

“Is the court going to force kids not into the common spaces, but into the wrong spaces?” Esseks asked.

Denny Meyer (Transgender American Veterans Association)

Denny Meyer, spokesman for the all-volunteer American Veterans for Equal Rights, has a “razor-think hope” that Roberts “will have a little bit of independence” in a court that Meyer described as “stacked” for conservatives.

“So even if Roberts votes in (LGBTQ folks’) favor, (decisions) still may be against us,” Meyer said. “It has nothing to do with right and wrong; it has to do with bigotry and politics, period.”

Given the “current composition” of the Supreme Court, many of the cases will focus on the text of the laws, Renn said.

“If you look at the plain text of Title VII, there is a very (good) argument for why discrimination against lesbian, gay and transgender people is based on sex,” Renn said. “For example, if Mary is fired because she married Jane, that would not have happened to her if Mary were to (have married) Bob.”

“I think that type of argument should have significant appeal with … justices that agree with reading just the plain language of the law and applying it,” Renn later said.

“If the justices are faithful to their judicial philosophies, they should agree that Title VII protects” a gay person, Renn said. “Because there is a clear textualist argument for why that coverage exists.”

A gay couple in New York won in Altitude Express v. Zarda, but an Atlanta couple lost in Bostock v. Clayton County.

In R.G. & G.R. Harris v. EEOC, the court could decide if Title VII protects trans workers from discrimination. Renn said “it’s a fairly well-settled proposition in a number of courts in the last two decades (that) have recognized that it is illegal to fire an employee because he or she is transgender.”

When asked about cases before the Supreme Court, Aaron Tax, director of advocacy for Services & Advocacy for GLBT Elders, said that an object of the Trump administration is to “roll back the protections that do exist and to undercut them in the name of religious protection.”

Lauren Gray, a spokeswoman for the National Center for Lesbian Rights, said “we’ll get back to you” for comment, but didn’t. Sue Yacka-Bible, a spokeswoman for the Gay, Lesbian & Straight Independent School Teachers Network, did not return a request for comment, including when given one exact question, for which she asked. Each had been asked for comments on cases that related to their work.

Already protected from discrimination?

Other courts have said in the employment cases that LGBTQ people are protected, Esseks said.

“And most of the country would be shocked” by a ruling otherwise, Esseks said. “They would be like, ‘that’s not the America I live in.’”

James Esseks speaks with the progressive broadcast media outlet MSNBC. (MSNBC via YouTube)

Esseks told Through the Courts that “the question is if (the court) is going to take away protections that the LGBT community already has in these cases,” referring to the three employment cases on the docket.

The federal Equal Employment Opportunity Commission has previously “recovered millions of dollars for LGBT people … for years now,” Esseks said.

“Because of the court, are they really going to take that away and say it is perfectly legal under federal law?” Esseks asked.

The nation “would be shocked” if the court ruled that LGBT folks could be discriminated against, Esseks said.

“That’s not consistent” with court ruling (as one instance, it ruled gay marriage legal), “and it’s not what the country understands the law to be,” Esseks said. “The country understands it is not right and not lawful to fire people for who they are and because they are LGBT.”

Can Trump do that?

Renn wondered why “the government” is asking the Supreme Court at this very moment to take up the three cases regarding Trump’s efforts to ban transgender people from the military. (Renn would represent such folks in one of them, Trump v. Karnoski). Renn pointed out that Trump is asking for his effort to forgo review by the U.S. 9th Circuit Court of Appeals. That would amount to a “leapfrog” of the system as defined by law, Renn said.

“The government has utilized a very unusual procedural manner in these cases,” Renn said. “It is asking the Supreme Court to take up these cases immediately, even before the appellate courts have ruled.”

“It’s another instance of this administration proceeding as though its rules as applied to everyone else does not apply to it, and this administration has also been on a crusade to ban transgender people from serving in the military,” Renn added.

Aaron Tax promotes support of the LGBTQ community. (SAGE USA)

Tax said “I will go out on a limb and say that the Trump administration should follow the law.”

Meyer said that it is “typical of (the Trump) administration” to “enact … exclusion.”

“The constitution and everything else is irrelevant to this administration,” Meyer said. “So I’m not surprised … all they want to do is throw away the constitution and enact discrimination.”

“There is no basis for the claimed emergency that the government is stressing,” Renn said.

All Renn and other attorneys and the plaintiffs are asking for is “for the courts to maintain the status quo in which transgender people have been allowed to serve openly,” Renn said.

Renn described the decision as “baffling” because it would seem that Trump would want “talented people” like transgender individuals in the military.

Transgender folks have been able to serve openly in the military since July 2016, when the policy changed under U.S. Secretary of Defense Ash Carter, Renn pointed out.

There are three courts in the federal government: federal court, federal appeals courts, and the Supreme Court. It’s the intermediate appeals level that Trump is trying to leapfrog given his asking the court to take up his administration’s argument.

Trump “attacked” the circuit court, and then Supreme Court Chief Justice John Roberts “scolded” Trump for that, Renn said. Branstetter also noted the same. Roberts issued a rare press release from the court claiming the Supreme Court doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges.”

Calling Trump “probably the world’s leading bigot … dependent on his neo-Nazi, white supremacist, bigoted base,” Meyer said that in past decades, if one gay or transgender person made a mistake in the military, they “could be murdered — and if you weren’t murdered, you would be interrogated for three months and discharged and disgraced.”

Meyer served for 10 years, leading a brigade of 3,500 men.

“If I had even been suspected, I would have been out overnight,” Meyer said, noting that transgender Americans are twice as likely as any other U.S. group to serve.

“The reason? Patriotism, period. It’s not to prove anything; not to get away from anything. … Just patriotism.”