Six separate cases could come before the new conservative Supreme Court
The recent push by the Trump administration to have the United States Supreme Court hear a challenge to the president’s transgender military ban has brought to light a larger concern. The majority conservative court has six different cases sitting before it that could have severe consequences for LGBT civil rights for years to come.
At the forefront is the transgender military ban that Trump called for in a Tweet in July 2017 before Secretary of Defense James Mattis released an official statement. The ban would keep transgender individuals from serving in the military. District courts have blocked the policy, with the Ninth Circuit Court of Appeals hearing arguments in one challenge earlier in the fall. The DC Circuit will hear arguments in the coming weeks.
Solicitor General Noel Francisco filed petitions asking the Supreme Court justices to hear three cases that are still in the lower courts so that it can be decided before the end of this term. Francisco argued that the delay in the lower courts is wrong. He said the cases should be reviewed immediately. Of the injunctions, he wrote, “the military has been forced to maintain that prior policy for nearly a year” despite a determination by Mattis and a panel of experts that the “prior policy, adopted by (Defense Secretary Ash Carter), posed too great a risk to military effectiveness and lethality.”
Francisco’s filings came after the Department of Justice issued a warning to the Ninth Circuit Court of Appeals that it would be seeking to have the standing injunction lifted. Normally, the Supreme Court would not take up an issue until it has gone through the lower courts.
“This bigoted ban weakens our military readiness and our country,” said Nancy Pelosi
“The President’s ban is a cruel and arbitrary decision designed to humiliate transgender Americans who have stepped forward to serve our country,” House Democratic Leader Nancy Pelosi said in a statement. “This bigoted ban weakens our military readiness and our country and shows this president’s stunning lack of loyalty to those who risk all to defend our freedoms.”
Two of the cases before the Supreme Court have to do with employment and the legality of firing someone for being gay. Two federal appellate courts came to different conclusions on those cases. This makes it more likely that the Supreme Court will hear them to make a more decisive outcome. In Bostock V. Clayton County, Georgia the United States Court of Appeals for the Eleventh Circuit dismissed Gerald Lynn Bostock’s case over a 1979 precedent. Bostock alleged he was fired because he was gay. Though several Supreme Court cases since have undermined the 1979 ruling, the Eleventh Circuit ruled that sexual orientation has no recognition under Title VII’s employment protections on the basis of sex.
In February, the United States Court of Appeals for the Second Circuit ruled in favor of skydiving instructor Donald Zarda. He claimed he was terminated for being gay, citing Title VII. There are several arguments that discrimination on the basis of sexual orientation requires determinations on the basis of sex. That is something the conservative-heavy court may not agree with.
The Trump White House asked the Supreme Court to overturn the Circuit Court’s decision
Another case that may come under consideration is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. This case concerns a funeral home in Michigan that fired Aimee Stephens for being transgender. In that decision, the United States Court of Appeals for the Sixth Circuit ruled in March that the funeral home did indeed violate the law. The main argument in this case was if Title VII’s ‘sex’ protections included discrimination based on gender identity. The Trump administration field a brief against this case, saying the Supreme Court should overturn the Circuit Court’s decision, ruling that it’s legal to fire someone for being transgender. The administration also argued that the Supreme Court should consider Zarda or Bostock first before considering gender identity.
In any case, a narrow definition of ‘sex’ could turn back the clock on rights for the LGBT community. LGBT groups have spoken out against the unusual path the administration is taking, circumventing the usual judicial norms and procedures.
Another potential hefty blow against LGBT rights and protections could come in the form of another bakery case. Earlier in the year, the Supreme Court sided with a Colorado baker, backing his choice to refuse to bake a wedding cake for a gay couple because of his religious beliefs. The new case concerns an Oregon bakery in Klein v. Oregon Bureau of Labor and Industries. Though there are similarities to the Colorado case. But the owners of Sweet Cakes by Melissa are taking things a step further. The argument is that business owners have a right to discriminate based on their religious beliefs against any group, not just LGBT people. If the Supreme Court rules in favor of the owners of Sweet Cakes by Melissa, it will also undermine non-discrimination protections for all vulnerable groups, not just the LGBT community.
The anti-LGBT hate group ADF supports the Trump move
Supporting a number of these cases is the Alliance Defending Freedom. The anti-LGBT hate group backed the Masterpiece Cakeshop in its victory. The ADF also defended the Michigan funeral home in the transgender employment case, and is representing a group of families challenging a Pennsylvania school’s inclusion policies. In Doe v. Boyertown Area School District, the ADF is arguing that allowing transgender students to use restrooms and locker rooms corresponding to their gender identity violates the rights of their peers. To remedy this, the ADF is advocating that the school make transgender students use single-use restrooms.
The ADF is the antithesis of Lambda Legal. Lambda works to protect the civil rights of the LGBT community. Recently, a billboard saying ‘No Gays Allowed’ was erected in Times Square with the ad directing people to visit nogaysallowed.org. The web site, run by activist group Citizens for Transparency, exposes the ADF for what it is. It is a shadowy, conservative group that files lawsuits challenging LGBT protections. The ADF, deemed a hate group by the Southern Poverty Law Center, has close ties to the Trump administration. And several members of ADF are serving as part of the White House Religious Freedom Task Force announced over the summer.
“We want to remind people that there are still really insidious forces at work against our community,” said Citizens for Transparency spokesperson Caleb Cade to NBC news. “ADF has been leading that war for a long time, with tens of millions of dollars to do it.”