National
Catholic adoption agency refusing to certify LGBT homes wins in court
Michigan non-profit sued after state required non-discrimination
A federal judge has in ruled in favor of a taxpayer-funded Catholic adoption agency in Michigan refusing to certify LGBT couples as qualified to take children into their homes.
U.S. District Judge Robert Jonker, a George W. Bush appointee, issued a preliminary injunction Thursday in favor of St. Vincent, a faith-based non-profit based in Lansing, Mich., concluding the state is targeting the agency for its religious beliefs.
āThis case is not about whether same-sex couples can be great parents,ā Jonker writes. āThey can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State. What this case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.ā
The case was filed in April after a settlement was reached in a separate case filed by the American Civil Liberties Union challenging Michiganās religious freedom adoption law, which allowed faith-based to turn away LGBT families seeking to adopt. Under the settlement, Michigan adoption agencies going forward were prohibited from discriminating against LGBT couples.
Shortly afterward, the Michigan Department of Health & Human Services opened an investigation into St. Vincent under allegations wasnāt complying with the settlementās non-discrimination terms. Anticipating it would be found out of compliance, St. Vincent preemptively filed the lawsuit seeking an injunction to continue to certify families for child placement consistent with its religious beliefs.
St. Vincent made the case Michigan is violating freedom of religion and speech under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by threatening to penalize the agency for refusing to certify LGBT families.
Jonker grants his preliminary injunction to St. Vincent on the basis that the agency has demonstrated harm imposed by the settlement and the likelihood of success in court.
āSt. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application,” Jonker writes. “St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the state-mandated orthodoxy, even though the state is not compensating them for the review services anyway.ā
Making the case St. Vincent isnāt anti-LGBT, Jonker writes St. Vincentās ādoes not prevent any couples, same-sex or otherwise, from fostering or adopting.ā The agency, Jonker writes, refers LGBT and unmarried couples seeking certify to adopt to other agencies willing to provide that endorsement.
LGBT couples, Jonker writes, can also adopt children at St. Vincent through the Michigan Adoption Resource Exchange (MARE) website, which allows all Michigan families access to all children adoption agencies (so long as they obtained certification at an agency other than St. Vincent).
āSt. Vincent has never prevented a same-sex couple from fostering or adopting a child. St. Vincent has actually placed children through the MARE system with same-sex adoptive parents,ā Jonker writes. āAnd St. Vincent provides parenting support groups at which same-sex parents are welcome and, in fact, attend. This is non-discriminatory conduct consistent with everything the State says it is trying to promote.ā
Heavily cited by Jonker is the decision of Michigan Attorney General Dana Nessel, a lesbian, to no longer defend in litigation the stateās religious freedom adoption signed ged by former Michigan Gov. Rick Snyder.
As the law was being challenged in court during the 2018 election, Nessel campaigned on refusing to defend the law, asserting she ācould not justify using the stateās moneyā to defend āa law whose only purpose is discriminatory animus.ā Upon winning the election, Nessel helped reached the settlement for non-discrimination in Michigan adoption agencies.
Jonker writes the record demonstrates Nessel is targeting St. Vincentās for its religious beliefs, therefore strict scrutiny applies, to the state’s enforcement of the settlement.
āUnder the Attorney Generalās current interpretation of Michigan law and the partiesā contracts, St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types,ā Jonker writes.
The Washington Blade has placed a request in with the Michigan attorney generalās office seeking comment on the decision.
Representing St. Vincentās in the case was the Becket for Religious Liberty, which has defended groups like Hobby Lobby and Little Sisters of the Poor.
Lori Windham, a religious liberty attorney with Becket, hailed the decision on Twitter as a āmajor victory for faith-based foster care and adoption in Michigan.ā
āThanks to the ruling, St. Vincent will be able to continue serving foster children in Michigan and their selfless foster families,ā Windham tweeted. āMore than 13,000 foster kids in Michigan need help, and we need all hands on deck.ā
Jay Kaplan, LGBT Project staff attorney of the American Civil Liberties Union of Michigan, criticized the decision as āthe individual religious beliefs of foster care agencies ahead of the welfare of children.ā
āThis will not facilitate foster and adoptive placements for children in need,ā Kaplan said. āInstead, it will allow agencies to turn away same-sex foster parents who are able to provide supportive and loving homes for these children.ā
Although the ruling is focused on family certification at St. Vincent, Kaplan told the Blade the decision will have broader impact on LGBT people in Michigan.
“The realityĀ is…St. Vincent will place kids in homes of families that they work with and if they have refused to work with same-sex couples, that means the kids that they are placing will not be placed in LGBT homes,” Kaplan said. “I think this ruling could be broadly interpreted because its impact on kids and their ability to get placed with LGBT parents who are able to provide them with stable, loving homes.”
Another defendant in the case is the Department of Health & Human Services, which has under the Obama administration instituted regulations prohibiting federal contractors discriminating on the basis of sexual orientation. (The Trump administration has kept the regulations ā for now ā but has granted at least one waiver to states seeking exemption for faith-based adoption agencies.)
Jonkerās decision also enjoins the U.S. government from enforcing its regulations to penalize St. Vincent. A Justice Department spokesperson said the administration is “reviewing the decision.”
Also in the decision, Jonker finds other named plaintiffs in the case ā Chad and Melissa Buck, who have adopted four siblings through St. Vincent and work at the agency, and Shamber Flore ā who was placed in the agency as a child before she was adopted ā donāt have standing to continue in the case.
National
Colleagues, politicos mourn death of Los Angeles Blade publisher
āA trailblazing journalist, publisher, and tireless advocateā
Troy Masters, publisher of the Los Angeles Blade, died on Wednesday Dec. 11, according to a family member. He was 63. The LA County Coroner said the cause of death was suicide.
Masters was a well-respected and award-winning journalist and publisher with decades of experience, mostly in LGBTQ media. In 2017, he became the founding publisher of the Los Angeles Blade, a sister publication of the Washington Blade.
Praise for Mastersās work and dedication to LGBTQ equality and journalism poured in throughout the day.
Equality California released the following statement from Executive Director Tony Hoang: āWe at Equality California are heartbroken by the unexpected passing of Troy Masters, a trailblazing journalist, publisher, and tireless advocate for the LGBTQ+ community. Troyās remarkable career spanned decades, during which he used his voice and platform to amplify the stories of our community and champion the fight for equality.
āHis passion for storytelling and relentless pursuit of social justice left an indelible mark on the fight for LGBTQ+ rights. Over many years, Equality California and the Los Angeles Blade have worked hand in hand to ensure LGBTQ+ stories are accurately represented and shared within the Los Angeles community and throughout California.
āOur thoughts are with his family, friends, and the Los Angeles Blade and Washington Blade teams during this difficult time. We stand in solidarity with them as we honor Troyās life, legacy, and unwavering dedication to our community. His passing is a profound loss, and he will be deeply missed.
āRest in power, Troy. Your work will forever live on in the hearts and lives of those you fought so fiercely for.ā
California state Assemblymember Rick Chavez Zbur, (D-Los Angeles) said in a statement: āI am terribly saddened to hear of the passing of Troy Masters, a pillar in the LGBTQ+ community. In his many roles, he has covered life in our community and the challenges of our fight for civil rights and social justice.ā
L.A. County Supervisor Lindsey Horvath, in a statement on X, said she would miss Mastersās humor, wit and huge heart and praised his journalistic pursuits and dedication to uplifting the LGBTQ+ community.
Journalist and Blade contributor Jasmyne Cannick also praised Masters, describing him as a mentor.
āThrough the years, he was supportive of my work, giving me space and a voice as a columnist and reporter for the Blade newspapers when it mattered most,ā she said in on X. āTroy understood the importance of covering the Black LGBTQ+ community and made it a point to ask me what stories they needed to be telling.ā
Michael Yamashita, publisher of the Bay Area Reporter, in a statement said, āI have known Troy as a fellow publisher and friend for over 20 years. He was smart and accomplished. More than a few times, he started gay publications ā in New York City and Los Angeles. I will miss working with him.ā
Dana Piccoli, managing director of News Is Out, a queer media collaborative, wrote: āTroy was a fierce advocate for the LGBTQ+ community and pioneer in queer media. We were lucky to work with him as a member of News Is Out and will forever be grateful for the barriers he broke down for the queer community. Our hearts are with our colleagues at the Los Angeles Blade and the Washington Blade.ā
āIt has been a tough day for all of us at the Blade,ā said Washington Blade editor Kevin Naff. āTroyās love of queer media and the city of Los Angeles is well known and he will be missed by so many. In his spirit, we will carry on with our mission and we are planning a celebration of his life in the coming months.ā
Montana
Montana Supreme Court blocks ban on healthcare for trans youth
āTodayās ruling permits our clients to breathe a sigh of reliefā
The Montana Supreme Court on Wednesday ruled that SB 99, a 2023 Montana law that bans life-saving gender-affirming care for transgender youth, is unconstitutional under the Montana Constitutionās privacy clause, which prohibits government intrusion into private medical decisions. This ruling will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria, the ACLU announced in a statement.
āI will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,ā Phoebe Cross, a 17-year-old transgender boy told the ACLU. āJust living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.ā
āFortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,ā said Lambda Legal Counsel Kell Olson. āBecause Montanaās constitutional protections are even stronger than their federal counterparts, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive for now, without this looming threat hanging over their heads.ā
āWe are so thankful for this opportunity to protect trans youth, their families, and their medical providers from this baseless and dangerous law,ā said Malita Picasso, Staff Attorney for the ACLUās LGBTQ & HIV Project. āEvery day that transgender Montanans are able to access this care is a critical and life-saving victory. We will never stop fighting until every transgender person has the care and support they need to thrive.ā
āTodayās ruling permits our clients to breathe a sigh of relief,ā said Akilah Deernose, Executive Director of the ACLU of Montana. āBut the fight for trans rights is far from over. We will continue to push for the right of all Montanans, including those who are transgender, to be themselves and live their lives free of intrusive government interference.ā
The Court found that the Plaintiffs were likely to succeed on the merits of their privacy claim, holding: āThe Legislature did not make gender-affirming care unlawful. Nor did it make the treatments unlawful for all minors. Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose. The record indicates that Provider Plaintiffs, or other medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care.[T]he law puts governmental regulation in the mix of an individualās fundamental right āto make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.ā
Two justices filed a concurrence arguing that the Court should also clarify that discrimination on the basis of transgender status is a form of sex discrimination prohibited by Montanaās Equal Protection Clause, the ACLU reported.
U.S. Supreme Court
Expert challenges prevailing analysis that SCOTUS will uphold trans healthcare ban
NCLR’s Shannon Minter more optimistic about U.S. v. Skrmetti
Less than a week after oral arguments were concluded in the landmark U.S. v. Skrmetti case, most pundits and legal experts seem to agree the U.S. Supreme Court is poised to uphold Tennessee’s law banning gender affirming health treatments for minors.
Shannon Minter, however, is not convinced.
In fact, as the legal director for the National Center for Lesbian Rights told the Blade during an interview on Tuesday, “neither I nor the lawyers I know who are following and have litigated these cases” buy into the “negative” analysis published by many mainstream press outlets after the parties addressed the justices at One First Street on Dec. 4.
“I was totally surprised,” Minter said, and “really disappointed,” in coverage of the oral arguments that appeared in places like SCOTUSblog, where Amy Howe wrote that “nearly all of the courtās conservative majority expressed skepticism about a challenge to Tennesseeās ban on puberty blockers and hormone therapy for transgender teenagers.”
The article was hardly an outlier. The New York Times reported it was “probable” that “there were at least five votes for rejecting the equal protection challenge to the law,” while Slate’s Mark Joseph Stern explained that Skrmetti will determine whether “constitutional limits on sex discrimination” can “survive this 6-3 conservative supermajority” and then concluded that “after two and a half hours of arguments, it appears the answer will be no.”
Conservative justices not in lockstep
From the interpretation of key exchanges between the justices and the parties last week to assessments of whether and to what extent certain conservatives might be inclined to join their liberal colleagues in this case and expectations for how precedent-setting decisions could shape its outcome, Minter offered a variety of reasons for why he is skeptical of the reasoning that undergirds much of the mainstream opinion on where the court is likely to land when a decision in Skrmetti is published, as expected, in June 2025.
Asked why his take on Wednesday’s oral arguments diverged so significantly from those offered by many reporters and legal analysts, Minter suggested that conservative Justice Samuel Alito might be responsible to some extent for “the negative perception [reflected] in the mainstream press” because he was “unremittingly negative and spoke a lot” and “took up most of the space.”
Last week aside, given his well established, deeply conservative ideological bent and record of skepticism toward LGBTQ rights, one might reasonably expect Alito to issue a decision that would uphold Tennessee’s trans healthcare ban. Likewise with respect to Justice Clarence Thomas who, compared to Alito, is hardly less conservative or more solicitous of opportunities to expand the LGBTQ community’s rights and freedoms.
Minter characterized both justices’ engagement with the Skrmetti litigants as “negative,” adding that another conservative on the bench, Brett Kavanaugh, was occasionally prickly but otherwise seemed eager to understand the nuances of the case and address questions like whether or how “a ruling in favor of the plaintiffs, here” might “predetermine what we would have to do in a sports case.”
By contrast, it is difficult to predict where the other conservatives on the high court might land on legal questions central to the case. Neil Gorsuch, for instance, was difficult to read even before he declined to ask a single question or otherwise speak when the court heard oral arguments last week.
Minter noted that “less than four years ago when the court issued its decision in Bostock v. Clayton County, it was Gorsuch whose majority opinion, cosigned by the conservative Chief Justice John Roberts and their liberal colleagues, recognized “that discrimination because a person is transgender is inherently based on sex, that it is a type of sex discrimination.”
“So the issue here” in the Skrmetti case “looks awfully similar,” Minter said, because the core legal questions concern the constitutionality of “a statute that targets transgender people” and confronts the court with the question of “whether or not [the law] discriminates based on sex.”
Acknowledging that one should not read too deeply into Gorsuch’s decision to play his hand “extremely close to the vest” during oral arguments, Minter said, “I would like to think that if he had a significant change of view” since authoring the court’s landmark opinion on anti-trans discrimination in 2020, the justice would have “wanted to ask some questions to explore that.”
For these reasons, “just from the very outset,” one might reasonably expect or at least “be hopeful that Justice Gorsuch will continue to [treat] these issues the same way that he did in Bostock,” Minter said.
He added that Roberts, likewise, was careful last week not to indicate which direction he was leaning and instead asked both parties to address concise but challenging questions. While Minter conceded that “It’s hard to draw any definitive conclusion,” he said the chief justice’s performance offered little reason to suspect that he has “shifted his fundamental understanding of these issues from one case to another.”
In a more “encouraging” showing last week, the court’s sixth conservative justice, Amy Coney Barrett, appeared to be “taking these issues very seriously” and “very genuinely grappling with whether or not this is a sex based law, and even with whether discrimination against transgender people, which is considered in its own right, [should] be subject to some sort of heightened scrutiny,” Minter said.
Another major reason for optimism, Minter said, was the “very belabored” discussion of Bostock on Wednesday that was kicked off by the court’s interest in revisiting recent caselaw and the petitioners’ masterful application of relevant precedent to legal questions at issue in Skrmetti.
Elizabeth Prelogar, the Biden-Harris administration’s U.S. solicitor general who represents the federal government and argues alongside the petitioners, did “such a beautiful job of saying that the analysis of Bostock itself was not new,” but rather “drew upon preexisting equal protection case law,” Minter said.
Importantly, he said Prelogar was careful to delineate how both the statutory proscriptions against workplace discrimination ordained by Title VII of the Civil Rights Act of 1964 and the rights guaranteed by the Equal Protection Clause of the 14th Amendment “rely on something called but-for causation, where all you have to show is that sex, in this case, was a but-for cause of the discrimination ā meaning it doesn’t have to be the only cause; there can be other factors at play, but as long as it is a cause, it’s discrimination.”
“The reason Bostock was a surprise is just that, sadly, we’re so accustomed to the law not being applied equally or fairly to transgender people,” said Minter, who credited Gorsuch for applying “the law and the preexisting analysis honestly and fairly to transgender people” and deciding, “correctly,” that “there’s just no way to apply this framework that we’ve always applied and not come to the conclusion that this is sex discrimination.”
After the 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned decades-old abortion protections that were first established with Roe v. Wade in 1973, critics argued the conservative justices had cavalierly abandoned the principle of stare decisis, which holds that courts should abide or defer to previous precedent-setting decisions, where possible, especially in landmark decisions that govern how people live their lives.
Asked whether the Supreme Court might be less inclined to overturn decisions like Bostock that were issued more recently and authored by the justices who currently serve on the bench, Minter said “absolutely,” adding that it would be “extraordinary for them to not follow the analysis and reasoning in a decision they decided so recently.”
The stare decisis issue provides more reason for optimism about Skrmetti, Minter said. Overturning important precedent is “unsettling to the stability of the law and to the status and stature of the court,” and “it helps that Bostock was a 6-3 decision” rather than a narrower, more contentious case settled by a 5-4 majority.
The future of gender-affirming care
The path by which U.S. v. Skrmetti reached the highest court in the land is a case study of the devastating consequences, the second and third-order effects, of scapegoating a vulnerable community with a moral panic that is allowed to fester thanks to fear and bigotry.
After several years in which state legislatures collectively introduced hundreds of bills targeting the rights of trans young people and their families, including access to healthcare, the Movement Advancement Project reports that 37 percent of transgender youth (ages 13-17) now live in places that legally prohibit them from accessing best practice medication and surgical care, with dozens of states enforcing these bans.
Among them, of course, is Tennessee, where a complaint was filed last year and fast-tracked through the federal courts such that now, justices on the Supreme Court are debating whether unelected judges or democratically elected lawmakers should adjudicate complex questions that advocates (for queer and trans communities, for civil liberties, for healthcare providers) believe are best addressed by patients and families or caregivers in close coordination with trained specialists who operate under evidence-based guidelines for clinical practice.
Apart from litigation before the high court, another development that signals the appetite and the political will for bringing anti-trans policies and politics from statehouses to the national stage was the massive spend on anti-trans advertising to support Trump and other Republican campaigns during the 2024 election cycle, which Minter noted was “very painful and distressing” for trans people and their families.
After Nov. 5, debates about whether and the extent to which the GOP’s anti-trans messaging strategy may have delivered electoral victories for the president-elect, or for the congressional Republicans who maintained control of the U.S. House and reclaimed their majority in the U.S. Senate, have given way to concerns about the escalation of transphobic hate speech and the legislative and legal attacks against the community that began to ramp up well before the incoming Trump-Vance administration will be seated with the 119th Congress next month.
At this juncture, Minter said that trans young people and their families must wait to see not only how the Supreme Court decides U.S. v. Skrmetti and what the corresponding implications might be in terms of their access to healthcare, but also whether and how and how aggressively the attacks against them will take shape in January and beyond.
In the meantime, “there are some basic things people can do to protect themselves,” Minter said. For example, “this would be a good time to get your identity documents updated, if you haven’t done that yet. It’s a good time to make sure your prescriptions are current. if you live in a state that has banned trans healthcare for minors and you’re the parent of a transit child, you know, it’s good to explore out of state resources. It would be a good thing for transgender people to go ahead now and get copies of their medical records, or at least make sure you know how you can quickly do so in case you do need to make any adjustments to how you’re obtaining the care, if you need to find a new provider or explore out of state resources, depending on what may happen in your state.”
He added, “Now, if there’s some sort of national action,” like a federal ban on access to transgender medicine for minors, “then, of course, it’s not necessarily going to matter where you live, or what state you live in” but “NCLR and other legal groups are prepared to immediately challenge” any such action on the national level.
Here again, Minter, a transgender litigator who came out in his 30s and who throughout his career has argued highly consequential cases, with some yielding major advancements in LGBTQ civil rights, is optimistic. “The post election polling has shown that the public would not be supportive of that action,” he said, because Americans “would far prefer the federal government, the president, and Congress focus on issues that matter broadly to people, especially the economy.”
Earlier, when discussing an exchange between Barrett and the parties, which concerned the justice’s questions about America’s history of de jure (official, lawful) anti-trans discrimination, Minter remarked that”It’s a good thing” ACLU attorney Chase Strangio, who represents the plaintiffs alongside Prelogar, was there “to explain to the court that, yes, there certainly has been a long history of governmental discrimination against transgender people.”
Ticking through some examples Strangio had shared with the court, Minter noted American officials’ enforcement of bans on military service, bans on government employment, bans on marriage, bathroom bans, gendered dress codes based on birth sex, and policies under which trans parents or guardians were forced to forfeit custody of their children or dependents.
Barrett’s pursuit of this line of questioning, Minter said, was an optimistic sign. And perhaps there is even reason for hope that a conservative Christian Trump-appointed jurist’s interest in the country’s record of anti-trans discrimination could carry implications beyond how she decides the tremendously consequential case that is now before the court.
Either way, Barrett ā along with the other justices and their clerks and the courtroom staff, together with attorneys, spectators, journalists, and other observers who were lucky enough to score a spot to see the action live from One First Street (or, at least, were able to tune in remotely) ā saw Strangio make his case on Wednesday, becoming the first out transgender lawyer ever to argue before the high court.
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