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Roundups Law and Policy

The Courts Are One of the Few Places in the Country Where LGBTQ Rights Are Being Upheld—Sometimes

Lisa Needham

The GOP controls both the legislative and executive branches, but it's not all bad news for LGBTQ people.

There was never any question that the Donald Trump era was going to be incredibly tough on LGBTQ people. Many of the gains of the Barack Obama administration, such as increased protection for LGBTQ federal contractor employees and better support for trans youth in public schools, were things that conservatives actively loathed—and they have been undone as soon as possible via executive order or agency action.

But it’s not all bad news. With the GOP controlling both the legislative and executive branches, the courts have been one of the only places where LGBTQ rights are being upheld—sometimes.

Troop Trans Ban Struck Down in Two Separate Courts

The biggest—and best—news of late was seeing Trump’s bigoted ban on transgender people serving in the military get blocked not once, but twice, by federal district court judges. In October, a federal district court in Washington, D.C. ruled against Trump in the case of Doe v. Trump. The plaintiffs in Doe are servicemembers—six anonymous, two named. In their lawsuit, they argued that the ban violated their Fifth Amendment rights in two ways.

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First, they pointed out that the proposed ban discriminated against the plaintiffs based on their transgender status without lawful justification, which is an equal protection violation. Next, they stated they had relied upon the 2016 policy that permitted transgender troops to openly serve when notifying their superior officers they were trans. This created a “protected interest”—something the government can’t take away from you without the due process of law.

The judge in the Doe case, Colleen Kollar-Kotelly, agreed with the plaintiffs and barred the ban from going into effect because she found the ban was “not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but [is] instead driven by a desire to express disapproval of transgender people generally.” Notably, she pointed out that the military itself had rejected the Trump administration’s reasoning that transgender troops would be a liability and a cost burden.

The judge’s ruling was only a preliminary injunction: It just meant that the ban can’t go into effect while the lawsuit is pending. The Trump administration can appeal the injunction or they could prevail when the matter goes to trial. In other words, despite the temporary reprieve, the rights of transgender troops continue to hang in the balance.

However, just this week another court—the federal district court in Baltimore—granted another preliminary injunction in a similar lawsuit. In granting the injunction, Judge Marvin Garbis pointed out that Trump’s tweets announcing the ban were not the product of any sort of policy review, nor had Trump’s administration provided any evidence to show that revoking the rights of transgender military members was necessary for any national interest. Garbis framed Trump’s announcement of the ban as “a capricious, arbitrary, and unqualified tweet of new policy” and contrasted that with the “methodical and systematic review by military stakeholders” that had been conducted under Obama before allowing trans troops to openly enlist and serve.

This preliminary injunction isn’t terribly different from the previous one. However, each injunction of this transphobic ban—even preliminary injunctions such as these—brings us ever closer to it being completely defeated. Granting a preliminary injunction requires the court to find that the plaintiffs have a greater likelihood of succeeding at trial than the administration does. Of course, these cases could ultimately reach the U.S Supreme Court, which may not be amenable to any pro-trans arguments, so any celebration has to be tempered by that.

Tudor v. Southeastern Oklahoma State University

There’s additional good news out of the courts in the case of Tudor v. Southeastern Oklahoma State University. In that case, Rachel Tudor, a trans professor at the school, alleged she was denied tenure because of her gender identity after transitioning during her employment. Initially, Obama’s Department of Justice (DOJ) was a plaintiff in the matter, filing a lawsuit on behalf of Tudor. Under Attorney General Eric Holder, the DOJ fought for the rights of trans people in the workplace by arguing that Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of sex, prohibits discrimination on the basis of gender identity as well.

Trump’s DOJ reversed course and settled with the university, leaving Tudor to continue the lawsuit individually. Even with that, Tudor prevailed at trial. A jury agreed with Tudor and found that she was discriminated against on the basis of her gender identity and awarded her $1.1 million. This is a significant victory for trans employees. However, it may be a limited one, as the DOJ has now clearly stated it will not continue to interpret Title VII as covering gender identity. Plaintiffs in these sorts of lawsuits are now on their own, without the power of the federal government behind them.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Whether courts will fully acknowledge the rights of LGBTQ couples hangs in the balance thanks to the Supreme Court agreeing to take the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case. That case is one of many where a business owner has refused to serve a same-sex couple who is seeking a wedding-related service. This should be a slam dunk: If marriage equality is a protected and legal act, you shouldn’t be able to refuse people services that further that act. But conservatives have been working overtime for years to find test cases of businesses willing to discriminate, and in Masterpiece Cakeshop, they found a very willing owner.

Fortunately, many entities have filed friend-of-the-court briefs supporting the Colorado Civil Rights Commission, which is the government body that originally sanctioned Masterpiece Cakeshop for its refusal to provide service to a same-sex couple. Last week, the American Bar Association asked the U.S. Supreme Court to uphold the Civil Right Commission’s decision, comparing animosity towards same-sex marriage to opposition to interracial marriage:

There is … no principled basis for drawing a bright-line rule privileging opposition to same-sex marriage while disapproving opposition to interracial marriage [….] The sincerity of the beliefs is certainly no ground for distinction: Many segregationists sincerely believed that white supremacy was religiously ordained and that marriages between persons of different races violated God’s plan.”

Lambda Legal Defense Fund also filed an amicus brief in support of the Commission. That brief details a heartbreaking number of anti-LGBTQ bias incidents both before and after the legalization of marriage equality, including denial of mental health care services, being thrown out of restaurants and taxicabs for expressing affection, and being refused funeral services for their loved ones. Affirming the right of Masterpiece Cakeshop to discriminate in something as seemingly innocuous as the provision of cakes, the Lambda brief makes clear, will only increase vicious anti-LGBTQ sentiment and allow such bias incidents to increase.

The Supreme Court is set to hear oral arguments in the case in early December. It is tough to remain optimistic about the outcome, given that the Court had distributed the case at conference 19 times but did not decide to take it until shortly after Justice Neil Gorsuch came on the bench. That doesn’t bode well.

Judicial Nominations

Trump’s judicial nominations are another area where things are beginning to look grim. The Senate just voted to confirm Michigan Supreme Court Justice Joan Larsen to the Sixth Circuit Court of Appeals. Larsen is known for her terrible anti-choice views, but she is also awful about LGBTQ rights. She disagreed with the Supreme Court striking down anti-sodomy laws in Lawrence v. Texas and refused to hear a custody case involving a same-sex couple.

The Senate also confirmed the nomination, this time to the Seventh Circuit Court of Appeals, of Amy Coney Barrett. Barrett is another anti-choicer who also believes that marriage is founded on the “indissoluble commitment of a man and a woman.” That doesn’t sound like a person that will judge LGBTQ issues fairly.

Mississippi’s “Religious Freedom” Law

Back in 2016, Mississippi passed a religious objection law that was startlingly broad. It protects three beliefs, all of which are outdated and bigoted: a person’s gender is fixed at birth and unalterable, marriage is only between one man and one woman, and sex should only occur in that sort of marriage. It’s a license for conservative businesses and government workers to discriminate. Government employees can refuse to issue marriage licenses, sex-specific employee dress codes could be enforced, and LGBTQ individuals could be denied jobs, as long as it is based on a sincere religious belief.

The law took effect on October 10 after a panel of judges from the conservative Fifth Circuit Court of Appeals held that individuals who had sued over it had failed to show they’d be harmed by it. To get around this and renew a challenge to the law, the Campaign for Southern Equality filed to reopen a 2014 lawsuit challenging Mississippi’s then-ban on marriage equality. That lawsuit became moot and was closed after Obergefell v. Hodges made same-sex marriage legal nationwide.

The judge that reopened that lawsuit told the plaintiffs that they should try to identify how many clerks in Mississippi have refused to issue marriage licenses to same-sex couples since the new law took effect. If they are able to find people who have been denied a marriage license, they can point to that specific harm and potentially proceed with a legal challenge against this draconian law.

North Carolina Consent Decree

The virulence with which the conservatives in North Carolina have pursued their goal of making transgender people feel unsafe about using public accommodations like bathrooms is nothing short of astonishing. After years of this, however, it may finally be coming to some sort of end.

The ACLU of North Carolina and transgender individuals who sued the state over its enactment of the “bathroom bill” in 2016 have proposed a consent decree to try to resolve the lawsuit. The decree would ensure that transgender individuals can use bathrooms and other public facilities consistent with their gender identity.

A judge still has to sign off on the decree, but if they do, it could bring an end to this particular battle.

However, so many battles remain open all around the country, and so many are yet to come.

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