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Will LGBTQ Americans ever be treated equally?

Supreme Court hearing 3 employment discrimination cases on Oct. 8

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Jon Davidson (Photo courtesy of Davidson)

In the days before there were any laws barring businesses from discriminating on the basis of sexual orientation or gender identity, business owners throughout the country had free rein to turn LGBTQ people away, without consequence. Now that 20 states, Washington D.C., and nearly 300 counties and cities expressly ban such discrimination by businesses open to the public, those whose anti-LGBTQ views were once mirrored in the law have been fighting hard to be able to continue to refuse equal treatment to LGBTQ people.

Last year, the U.S. Supreme Court rejected one such effort in its much-misunderstood Masterpiece Cakeshop decision. It reaffirmed precedent that has stood for five decades that the Constitution’s rightly valued protections of freedom of religion cannot be twisted by business owners into a license to discriminate. At the same time, however, the Court ruled that the bakery in that case had been treated unfairly by the state administrative agency that ruled against it, whose members the Court felt had expressed unwarranted hostility toward religion, thereby depriving the bakery of a neutral decisionmaker.

Undeterred by that reaffirmance of the rule that all who enter the world of commerce must play by the same rules, anti-LGBTQ groups like the so-called “Alliance Defending Freedom” (ADF) have switched gears.  Instead of relying primarily on freedom of religion, they have sought refuge under freedom of speech, asserting that at least businesses that create customized goods and services should not have to do so for events celebrating the now-lawful marriages of same-sex couples to which they object.  

On Sept. 16, a slim 4-to-3 majority of the conservative Arizona Supreme Court issued a narrow ruling in Brush & Nib v. City of Phoenix embracing this argument. It held that, under the Arizona Constitution’s free speech protections and an Arizona law known as the Free Exercise of Religion Act, a stationery and calligraphy business that designs and sells custom wedding invitations could refuse to do so for same-sex couples, notwithstanding a Phoenix ordinance prohibiting such discrimination. While the court confined its ruling to personalized wedding invitations, the humiliation and debasement of having a door slammed in your face as you seek to celebrate what for many people is the happiest day of their lives were ignored. So too, the majority seemed not to care how permitting businesses to say “we don’t serve your kind” in even this limited context would also shield discrimination based on persistent prejudices against members of racial and religious minorities and those in interracial or interfaith relationships as they plan their weddings. At least the ruling is cabined to Arizona. 

The federal Court of Appeals for the 8th Circuit reached a similar outcome last month, however, based on the U.S. Constitution’s protection of speech. In Telescope Media Group v. Lucero, it issued a divided ruling that a videography company that wanted to start making wedding videos only for different-sex couples could proceed with their challenge to a Minnesota law that bars sexual orientation discrimination by businesses. That case is ongoing.

While these rulings are distressing, they at least are limited to those who use words and pictures to create customized goods for sale. But anti-LGBTQ groups are determined to expand a “right” to discriminate far beyond that. On Sept. 11, ADF asked the Supreme Court to hear the further appeal of its Arlene’s Flowers v. Washington case, in which it claims that a florist was entitled to turn away same-sex couples planning their wedding based on a claim that flower arranging is speech protected under the First Amendment. If that were the case, what other vendors would be entitled to treat LGBTQ people unfairly? ADF’s arguments aren’t even limited to weddings but would apply to any events that businesses object to providing services to because of the identity of those participating in them.

In Arlene’s Flowers, ADF also is misreading the high court’s Masterpiece Cakeshop decision to argue that any decision by state authorities to enforce civil rights laws against those asserting religious justifications constitutes impermissible religious hostility. Such claims of selective prosecution, however, run squarely into Supreme Court authority upholding the broad discretion of government officials to decide when to enforce particular laws, which can be challenged only with proof of improper discriminatory intent.  

These cases raise fundamental questions about whether LGBTQ people are entitled to equal treatment as we go about our daily lives or whether, in at least some contexts, those with religious objections can treat us as second-class citizens with impunity. Yet, in a majority of states and at the federal level, we still do not even have express and enduring statutory protections against such discrimination.  

The U.S. Supreme Court will be hearing arguments on Oct. 8 in three cases about LGBTQ employment discrimination that will determine if federal law protects LGBTQ people.  These are the most important cases in LGBTQ history since we won marriage equality. But, even if we win them, we still will need Congress to finish the job by passing the Equality Act, which would ensure express and enduring nondiscrimination protections for LGBTQ people. Only a federal law will make sure that businesses like Brush & Nib that can no longer be sued in Arizona courts. Learn more about these cases and what you can do to get such a federal law passed by visiting the Freedom for All Americans website. Nothing less than whether LGBTQ Americans will ever be treated equally is at stake.

Jon Davidson is chief counsel for Freedom for All Americans.

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Tennessee’s Charlie Kirk Act is harmful

Free speech doesn’t always go both ways

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Tennessee State Capitol Building (Photo by SeanPavonePhoto/Bigstock)

The state of Tennessee has a long history of political discrimination against its 225,000 LGBTQ citizens. In 2019, a district attorney remarked that gay people should not receive domestic violence protections, and in 2023, for five months in Murfreesboro, homosexual acts in public were illegal, prompting a federal judge to have the ordinance removed.

In 2022, I briefly lived in Tennessee and played rugby with the LGBTQ-inclusive Nashville Grizzlies, who welcomed me with open arms as an ally, teaching me that rugby isn’t always about winning or losing – it’s about creating a safe, inclusive, and joyful space for people looking to feel welcome.

In Tennessee, where 87% of the LGBTQ community has experienced workplace discrimination, and where, each year, countless bills that target their identities are introduced, it can be difficult to feel welcome. The Nashville Grizzlies played rugby with the exuberance of newly liberated people who were finally able to be their authentic selves. I was inspired by their brotherhood. 

When I read about the Charlie Kirk Act being passed last week, I felt a visceral need to write about it. 

While the bill is presented as legislation that strengthens free speech and encourages greater public discourse on campuses, it would effectively allow a school to expel a student who felt compelled to walk out on a speaker with hateful views, forcing marginalized groups to sit through existentially harmful rhetoric. 

And ironically, it doesn’t seem like free speech goes both ways — a Tennessee University administrator lost their job last year for sharing negative views on Charlie Kirk, and countless LGBTQ books have been banned not only in schools, but even in adult libraries.

We like to think that as time moves forward, progress is inevitable, but this isn’t always the case. In a 2023 study, 27% of LGBTQ Tennesseans and 43% of transgender people in the state have considered relocating, forcing them to reckon with leaving home in pursuit of a better life. Nashville Grizzlies Captain Ethan Thatcher told me, “I’ve thought about leaving Tennessee. Hard not to when the government does not want you here. What has kept me here is the Grizzlies community, and the thought that existence is resistance.”

Everybody in our country deserves to feel safe. I thought that was a core value of the American ethos, but apparently, in some states, certain groups are welcome while others are ostracized. 

Tennessee Gov. Bill Lee should reject the Charlie Kirk Act.


Tyler Kania is a 2025 IAN Book of the Year nominated author and civil rights activist from Columbia, Conn.

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The latest Supreme Court case erasing LGBTQ identity

Chiles v. Salazar a major setback for movement

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(Washington Blade photo by Michael Key)

In its recent decision in Chiles v. Salazar, the U.S. Supreme Court invalidated Colorado’s law prohibiting licensed counselors from engaging in efforts to change the sexual orientation or gender identity of minors. The decision, which puts into question similar laws in 22 other states, relied on the First Amendment to hold that the law violates counselors’ free speech rights. But the decision also strikes a blow against LGBTQ dignity, a point the court’s opinion does not even address.  

The eight-member majority, which included Justices Elena Kagan and Sonia Sotomayor, who usually side with LGBTQ groups, justified its reasoning by suggesting that the law was one-sided: it permitted treatment that affirms LGBTQ identity but forbade treatment that seeks to change it. But the law is one-sided, as Justice Ketanji Brown Jackson’s lone dissent pointed out, because the medical evidence only supports one side: reams of research show that “survivors of conversion therapy continue to suffer from PTSD, anxiety, and suicidal ideation.” And major medical associations all agree, no evidence demonstrates the efficacy of conversion efforts. This isn’t surprising. Medicine often take sides — some treatments work, and some don’t.

But particularly concerning is the vision of LGBTQ identity that undergirds the majority opinion when compared to the dissent. Justice Jackson’s dissent explains that LGBTQ identity is simply “a part of the normal spectrum of human diversity” — not something to be “cured.” By contrast, for the majority, how best to help LGBTQ minors is “a subject of fierce public debate.” That can hardly be the case if LGBTQ identity stands on equal ground with straight, cisgender identity, or if LGBTQ people are as deserving of safety, rights, and dignity.

Indeed, the LGBTQ rights movement only began in earnest when advocates in the 1960s decided to end the “debate” over gay identity. Until then, community leaders would routinely cooperate with psychiatrists who were interested in researching homosexuality as a medical condition. A new generation of activists, led by Frank Kameny, a key movement founder, began arguing that this got the issue upside down: Rather than wondering if they could be “cured,” LGBTQ people had to assert a right to their identity. As Kameny put it—“we have been defined into sickness.” Only once the case was made that it was society that had to change, and not LGBTQ people, could LGBTQ consciousness, LGBTQ pride and LGBTQ rights develop. Their activism led to the first Pride parade in New York, and the official declassification of homosexuality as a disease in 1973. 

The Supreme Court’s conservatives don’t just want to reignite this half-century old medical “debate”; they also treat medical claims that undermine LGBTQ identity very differently from those who support it. Last year, in an opinion backingTennessee’s law that banned gender affirming care for minors, the court sympathetically marched through the reasons Tennessee offered for “why States may rightly be skeptical” of such care, and cited three times, in some detail, to “health authorities in a number of European countries” (that is, some Nordic countries and the UK) that had curbed pediatric care. It failed to mention that most of Western Europe and every major American medical association provides access to this care.

In Chiles, by contrast, the court cites none of the evidence that Colorado amassed that conversion therapy harms LGBTQ children. None of the countries that the court had invoked to justify anti-trans policies allow conversion therapy in their health care systems (indeed, one of them criminalizes such practices). So rather than cite medical evidence, the court simply asked — why trust medical evidence at all? “What if,” asks the court, “reflexive deference to currently prevailing professional views [does] not always end well?” and cites an infamous 1927 Supreme Court case, Buck v. Bell.

In Buck, the Supreme Court embraced eugenic reasoning, backing a eugenic state law that allowed the sterilization of individuals with mental disabilities, on the grounds that such disabilities were hereditary. As Justice Oliver Wendell Holmes opined, “three generations of imbeciles are enough.” Look at what happens when we listen to medical expertise, today’s court seems to say, as an excuse to disregard the LGBTQ-affirming medical evidence they don’t like.

But the court has missed the key lesson of Buck. The law at issue in Buckdiscriminated against a certain group, seeking, through sterilization measures, to erase it from existence. Indeed, LGBTQ people (whom doctors of the day would have referred to as sexual “inverts”) were exactly the kind of people that the eugenic program of Bucksought to eliminate. Conversion therapy seeks similar erasure.

The lesson of the 1960s LGBTQ rights movement remains as relevant today as it was then. Without an unapologetic LGBTQ identity, LGBTQ Pride, LGBTQ rights and the LGBTQ movement itself can all founder. By supporting only the anti-LGBTQ side in this medical saga — and by suggesting that LGBTQ existence is subject to medical debate at all — the court is reaffirming, rather than repudiating, minority erasure.


Craig Konnoth is a professor of law at University of Virginia School of Law.

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Response to a personal attack against me

Writers should stick to facts and reason

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I was disappointed when the Blade didn’t publish my response to a personal attack on me in a column by Hayden Gise, in last week’s print edition. They did publish it online. To be clear, I have no problem with people disagreeing with my columns and opinions. That is absolutely fair. But when they get into personal attacks, it often means they don’t have enough to say about the ideas they are trying to criticize. 

In a recent column ‘Why the Democratic Socialists of America are right for D.C.,’ the author decided to attack me personally. Here is the response I wrote to her column: 

“I am responding to a column by Hayden Gise who says in her column she is a transgender, lesbian, Jewish, Democratic Socialist, and supports having the Democratic Socialists of America (DSA) in Washington, DC. She is definitely as entitled to her view on this, as I am to mine. However, I was surprised she clearly felt it important to use the column to attack me personally, without even knowing me. What she didn’t do is respond to the issues in the DSA platform I wrote having a problem with, and which I asked candidates endorsed by the DSA to respond to. 1. Are they for the abolishment of the State of Israel? 2. What is their definition of a Zionist? 3. What is their definition of antisemitism? 4. Will they meet with Zionist organizations? 5. Do they support BDS? One needs to know when a candidate claims they are only a member of the local DSA, according to the DSA bylaws no person can be a member of a local DSA without being a member of the national organization. So Hayden Gise has a little better idea of who I am she should know: I was a teacher and a union member. I worked for the most progressive member of Congress at the time, Bella S. Abzug (D-N.Y.), and supported her when she introduced the Equality Act in 1974, to protect the rights of the LGBTQ community, and have fought for its passage ever since. I have spent a lifetime fighting for civil rights, women’s rights, disability rights, and LGBTQ rights. I have no idea what Hayden Gise’s background is, or what her history of working for the causes she espouses is. But I would be happy to meet with her to find out. But she should know, I take a back seat to no one in the work I have done over my life fighting for equality, including economic equality, for all. So, I will not attack her, as I don’t know her, and contrary to her, don’t personally attack people I don’t know much about. 

“I have, and will continue to attack, what the government of Israel is doing to the Palestinian people, and now to those in Lebanon and Iran. I will also attack the government of my own country, and the felon in the White House, and his sycophants in Congress, for what they are doing to our own people, and people around the world, and will continue to work hard to change things. However, I will also continue to stand for a two-state solution with the continued existence of the State of Israel, calling for a different government in Israel. I also strongly support the Palestinian people and believe they must have the right to their own free state.”

I have not heard from Gise, but I hope she knows that since she wrote her column indicating her support for Janeese Lewis George for mayor, her preferred candidate has attended a birthday party to celebrate a person who still refers to gay people as ‘fags.’   

We should not personally attack people we don’t know as a way to criticize their views on an issue. Once again, I have no problem with people disagreeing with what I write, and having the Blade publish those contrary columns. But a plea to all who disagree with any columnist, or story: disagree with the issues and refrain from making personal attacks on the writer. That actually takes away from whatever point you are trying to make. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. 

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