A member of the LGBT community marches in the parade marking the International Day Against Homophobia, Transphobia and Biphobia, in Pinar Del Rio, Cuba, Thursday, May 17, 2018. ((Associated Press/Desmond Boylan))
A member of the LGBT community marches in the parade marking the International Day Against Homophobia, Transphobia and Biphobia, in Pinar Del Rio, Cuba, Thursday, May 17, 2018.

(Associated Press/Desmond Boylan)

SCOTUS faces wave of LGBT-rights lawsuits

May 29, 2018

WASHINGTON — A flood of lawsuits over LGBT rights is making its way through courts and will continue, no matter the outcome in the Supreme Court’s highly anticipated decision in the case of a Colorado baker who would not create a wedding cake for a same-sex couple.

WASHINGTON — A flood of lawsuits over LGBT rights is making its way through courts and will continue, no matter the outcome in the Supreme Court’s highly anticipated decision in the case of a Colorado baker who would not create a wedding cake for a same-sex couple.

Courts are engaged in two broad types of cases on this issue, weighing whether sex discrimination laws apply to LGBT people and also whether businesses can assert religious objections to avoid complying with anti-discrimination measures in serving customers, hiring and firing employees, providing health care and placing children with foster or adoptive parents.

The outcome of baker Jack Phillips’ fight at the Supreme Court could indicate how willing the justices are to carve out exceptions to anti-discrimination laws; that’s something the court has refused to do in areas of race and sex.

The result was hard to predict based on arguments in December. But however the justices rule, it won’t be their last word on the topic.

Religious conservatives have gotten a big boost from the Trump administration, which has taken a more restrictive view of LGBT rights and intervened on their side in several cases, including Phillips’.

Several legal disputes are pending over wedding services similar to the Phillips case, originating in the 21 states that have anti-discrimination laws that specifically include gay and lesbian people.

In California and Texas, courts are dealing with lawsuits over the refusal of hospitals, citing religious beliefs, to perform hysterectomies on people transitioning from female to male. In Michigan, the American Civil Liberties Union filed suit against the state’s practice of allowing faith-based child placement agencies to reject same-sex couples.

Advocates of both sides see the essence of these cases in starkly different terms.

The other category of cases concerns protections for LGBT people under civil rights law. One case expected to reach the court this summer involves a Michigan funeral home that fired an employee who disclosed that she was transitioning from male to female and dressed as a woman.

The 6th U.S. Circuit Court of Appeals ruled that the firing constituted sex discrimination under federal civil rights law. That court is one of several that have applied anti-sex discrimination provisions to transgender people, but the Supreme Court has yet to take up a case.

The funeral home argues in part that Congress was not thinking about transgender people when it included sex discrimination in Title VII of the 1964 Civil Rights Act. A trial judge had ruled for the funeral home, saying it was entitled to a religious exemption from the civil rights law.

In just the past week, two federal courts ruled in favor of transgender students who want to use school facilities that correspond to their gender identity. Those cases turn on whether the prohibition on sex discrimination in education applies to transgender people. Appeals in both cases are possible.

In the past 13 months, federal appeals courts in Chicago and New York also have ruled that gay and lesbian employees are entitled to protection from discrimination under Title VII. Those courts overruled earlier decisions. Title VII does not specifically mention sexual orientation, but the courts said it was covered under the ban on sex bias.

The Obama administration had supported treating LGBT discrimination claims as sex discrimination, but the Trump administration has changed course. In the New York case, for instance, the Trump administration filed a legal brief arguing that Title VII was not intended to provide protections to gay workers. It also withdrew Obama-era guidance to treat claims of transgender students as sex discrimination.

There is no guarantee that the court will take up the funeral home’s appeal over transgender discrimination.

The trend in the lower courts has been in favor of extending civil rights protections to LGBT employees and students. Their prospects at the Supreme Court may be harder to discern, not least because it’s unclear whether the court’s composition will change soon.

Justice Anthony Kennedy, 81, has been the subject of retirement speculation, though he has not indicated he is planning to retire. When Justice Stephen Breyer turns 80 in August, he will join Kennedy and Justice Ruth Bader Ginsburg, 85, as octogenarians on the bench.

If President Donald Trump were to replace any justices, the court probably would be much less receptive to LGBT rights. Even the landmark gay marriage ruling in 2015 that Kennedy wrote was a 5-4 decision.

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