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Celebrate Bostock, for now

Religious questions continue to shape scope of legal protections

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Gerald Bostock speaks to reporters on the steps of the U.S. Supreme Court building on Oct. 8, 2019. (Washington Blade photo by Michael Key)

In what is at least the biggest victory for LGBTQ Americans since the 2015 decision legalizing same-sex marriage, last month the Supreme Court held that employers who fire employees for their sexual orientation or gender identity violate Title VII of the Civil Rights Act.

But under what circumstances will religious employers be subject to, and their employees protected by, the rule the Court announced?

Let’s start with the positive. The decision in Bostock v. Clayton County, Georgia and the two cases consolidated with it arguably expands the civil rights of LGBTQ Americans more broadly than the Court’s previous gay rights decisions. While the Court’s earlier decisions affirmed for LGBTQ people what retired Justice Anthony Kennedy dubbed “equal dignity in the eye of the law,” in practice they benefited LGBTQ people primarily in the context of our romantic, marital, and sexual relationships. Monday’s decision establishes the equality of LGBTQ individuals as individuals, of sexual orientation and gender identity as categories of human personhood.

This should be a time of nearly unalloyed celebration for LGBTQ Americans, our families, friends, and allies. Though we mourn the loss of two of the plaintiffs in the cases, Donald Zarda and Aimee Stephens, who did not survive to see justice done, the decision has far-reaching implications we have waited a long time for. But the Court’s opinion, authored by Justice Neil M. Gorsuch and joined by Chief Justice John G. Roberts, Jr. and the court’s four liberal members, also signaled where the next front in the battle for LGBTQ equality will be drawn.

Religion, as Justice Stephen Breyer commented at October’s oral arguments, “is the elephant in the room.” It was not for nothing that numerous faith-based organizations attempted to sway the Court’s thinking. National evangelical associations and the U.S. Conference of Catholic Bishops weighed in on behalf of employers who had fired gay and transgender employees, warning that a decision like the one the Court handed down this week “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” But the Court heard from religious voices on the other side of the spectrum as well, with progressive Muslim, Jewish, and Christian groups urging the justices to affirm the God-given equality of all individuals and prohibit discrimination in our increasingly pluralistic society.

Justice Breyer was right about the place of religion in the cases decided in June, because they did not explicitly feature arguments about religious freedom. Title VII does include an exception for religious organizations that wish to make employment decisions on the basis of their employees’ religious beliefs. Over the past 40 years, lower courts and the Supreme Court have added a separate, judge-made exception that, in the name of avoiding First Amendment problems, frees religious institutions from Title VII when it comes to the hiring and firing of those whom the courts deem “ministers.” And, as Justice Gorsuch observed, the federal Religious Freedom Restoration Act (RFRA) might also “supersede Title VII’s commands in appropriate cases.”

But most objections to the full equality of LGBTQ Americans rest on religious grounds, and so it is not surprising that questions about religion continue to shape the scope of legal protections for LGBTQ citizens.

We will not have to wait long for the next salvo in what has become an ongoing conflict between antidiscrimination laws and assertions about religious freedom.

In May, two Trump administration cabinet departments proposed enabling healthcare providers and homeless shelters to turn away, for reasons of conscience, those who identify as transgender. Later this term—maybe even this week—the Supreme Court will hand down its decision in a second set of discrimination cases. Teachers at two Catholic elementary schools in the Archdiocese of Los Angeles claim they were fired for legally impermissible reasons: one because of a cancer diagnosis that rose to the level of a disability, the other because of age. The schools have argued that because the teachers performed “important religious functions,” they are covered by Title VII’s “ministerial exception” and, therefore, the schools’ employment decisions merit categorical immunity from antidiscrimination laws.

Whether in the context of sexuality, disability, or age, situations like these demand that courts and legislators walk a very narrow tightrope. The success of our pluralistic society requires that we neither ignore sincerely held doctrines religious institutions follow when deciding whom to permit to minister in their name, nor that we defer so blindly to religious institutions that any invocation of faith becomes a shield against laws written to govern everyone, including antidiscrimination laws. It is troubling that, in recent years, some courts and administrative agencies have refused to decide disputes involving religiously affiliated employers, hesitating even to inquire whether they have jurisdiction in individual cases.

The Supreme Court did not need to, and therefore did not, resolve these complex questions in its landmark ruling in Bostock. But the questions keep turning up, in cases involving bakers and photographers, teachers and organists. For the peace of mind of all who work in and patronize institutions with a religious mission, sooner or later the Court will have to decide. Whether that day will also be a day of celebration for LGBTQ Americans remains to be seen.

Patrick Hornbeck is chair and professor of theology at Fordham University, where he is also a JD candidate at Fordham Law School.

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Trans people need a politics of ordinary life

Seeking the freedom to stop explaining ourselves

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(Image by smarnad/Bigstock)

For much of the modern transgender rights movement, our political vocabulary has understandably been a vocabulary of emergency. We talk about healthcare bans, bathroom restrictions, discrimination, violence, court decisions, and executive orders. We organize because something is being taken away, prohibited or threatened.

Those fights are necessary. But they cannot constitute our entire vision of transgender life.

The Williams Institute at UCLA estimates that approximately 2.8 million Americans ages 13 and older identify as transgender, including roughly 2.1 million adults. Transgender people are only about 0.8 percent of the adult population. Yet transgender Americans occupy an extraordinary amount of the country’s political attention.

Behind those political arguments are millions of people doing profoundly ordinary things.

We commute to work. We complain about rent. We walk our dogs. We sit in traffic. We buy groceries. We fall in love with people who sometimes disappoint them. We worry about our parents getting older. We try to make enough money to retire. We drink coffee before work and wonder what to make for dinner.

This ordinariness should be part of the political project.

For years, LGBTQ advocacy has emphasized visibility. Visibility was necessary because silence allowed discrimination to flourish. Americans needed to understand that gay and transgender people existed in their families, workplaces and communities.

But visibility is a means, not an end.

The endpoint of civil rights is not permanent visibility. It is freedom.

And freedom includes the freedom to stop explaining yourself.

There should be nothing remarkable about a transgender accountant preparing someone’s taxes, a transgender teacher grading papers, a transgender novelist writing a book that has absolutely nothing to do with gender, or a transgender retiree arguing with the homeowners association about somebody’s fence.

That sounds almost comically mundane. That is precisely the point.

For many transgender Americans, mundane life remains harder to obtain than it should be. The 2022 U.S. Transgender Survey, which collected responses from more than 92,000 people, found that 34 percent of respondents were experiencing poverty and 18 percent were unemployed. Eleven percent of respondents who had ever worked reported losing a job because of their gender identity or expression. Nearly 30 percent had experienced homelessness during their lives.

Those numbers tell us something important about what transgender politics should accomplish.

A successful movement cannot measure progress exclusively by representation in television shows, corporate Pride campaigns or the number of transgender politicians elected to office. It must also ask whether transgender people can build stable, boring lives.

Can you find a job?

Can you rent an apartment?

Can you go to the doctor without becoming a political subject?

Can you walk into a restaurant with your spouse without calculating whether everyone is staring at you?

Can you spend an afternoon thinking about something other than being transgender?

Even healthcare illustrates the distance between formal inclusion and ordinary dignity. A 2024 KFF analysis found that 33 percent of LGBT adults who had recently used healthcare reported being treated unfairly or disrespectfully by a healthcare provider, compared with 15 percent of non-LGBT adults. Thirty-nine percent said a negative healthcare experience had made them less likely to seek care.

Equality therefore cannot simply mean keeping a clinic open. It must mean being able to enter that clinic, receive competent treatment and leave without feeling that your identity has swallowed the entire encounter.

There is a broader political lesson here.

Transgender Americans have sometimes been transformed into abstractions by both sides of the culture war. To some conservatives, we are evidence of social decline. To some progressives, we become symbols of resistance. Neither description leaves much room for the complicated, frequently uninteresting reality of being a person.

Most people do not wake up every morning thinking about their demographic categories. They think about deadlines, relationships, bills, ambitions, annoyances and whether there is enough milk in the refrigerator.

Transgender people deserve that luxury too.

A politics of ordinary life would therefore defend transgender healthcare and civil rights vigorously while articulating something beyond defense. Its objective would be integration: transgender Americans participating in civic life without every interaction becoming a referendum on gender.

That means protecting employment and housing. It means making competent healthcare routine rather than exceptional. It means creating communities where transgender children can imagine futures that extend beyond surviving adolescence. And it means allowing transgender adults to become bankers, mechanics, professors, parents, entrepreneurs and retirees without expecting them to become activists simply because they are transgender.

There will always be people who choose activism. We need them. There will always be people who speak publicly about their transitions. Their testimony matters.

But there should also be room for the transgender person who wants none of that.

Civil rights movements succeed not merely when marginalized people become visible, but when their presence stops requiring explanation.

The most radical future I can imagine for transgender Americans is therefore surprisingly conventional: a country in which being transgender can become one fact among hundreds about a person rather than the organizing principle of a life.

Perhaps the ultimate measure of transgender equality will not be how frequently America talks about transgender people. It will be the day when it no longer has to.


Isaac Amend is a transgender man and writer based in D.C. In 2017, Isaac starred in National Geographic’s “Gender Revolution” documentary. He sits on the board of the LGBT Democrats of Virginia. His author’s portfolio is available at isaacamend.com and you can find him on Instagram at: @isaacamend.

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Enlarging the Supreme Court keeps making more sense

If effort to restrict mail in voting stands, we are in major trouble

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(Washington Blade photo by Michael Key)

I have been going back and forth on whether I think adding justices to the Supreme Court is the right thing to do. But if the court takes the final step of allowing the felon’s executive order on mail in ballots to move forward, I am definitely for enlarging the court. There are many things this court has done that I find reprehensible, but this would be by far the worst. It would irreparably impact the very cornerstone of our democracy — the right to vote.

The order requires the Department of Homeland Security (DHS) be sent voter lists from each state, and then compile/verify a list of U.S. citizens in each state who are eligible to vote. DHS would undertake the effort to compile the list with the Social Security Administration. We are talking about a list of more than 200 million names. The list would be by state, and then sent to each state. It then directs the U.S. Attorney General to prioritize the investigation and prosecution of “election officials, individuals, and other entities that violate the law by issuing or distributing Federal ballots to ineligible voters.” Then according to the White House fact sheet on the EO, It directs the AG to withhold federal funds from noncompliant states. 

In addition, it involves the Postal Service in determining correct ballots, and instructs ballots it transmits to be “placed in secure ballot envelopes marked as Official Election Mail, with unique Intelligent Mail barcodes, that facilitate tracking. So, one has to question does Homeland Security then track every ballot? It is all insane, meant to limit voting, and scaring people into not voting when we already have a safe, proven system in place. All this being done at the whim of the felon in the White House when it is very clear the Constitution vests the administration of elections with the states. It does allow Congress to pass laws pertaining to elections, but is clear the Executive Branch has NO official role in changing election laws, or carrying out elections. The court must be deaf, blind, and dumb, if they don’t know the Congress has refused to pass the President’s SAVE Act, which would have made some changes. Again, they know this, and if they choose to disregard this, and the constitution, and allow the felon to proceed to implement any part of his EO, they should be impeached. 

It is clear to anyone with half a brain, that all this, even if it were constitutional, would be totally impossible to do in the eight weeks before the midterm elections. In the 2022 midterm elections, nearly 107.7 million valid votes were cast. Currently, is it difficult to determine the exact number of registered voters, as they are registered by state, but it is generally agreed to be approximately 200 million. The idea the Trump administration could in any way try to validate 200 million names in the next eight weeks is totally insane. Again, this is why it is left to the states to do, and it is an ongoing process. Trump filed 60 lawsuits to try to prove invalid votes in the 2020 election, and he lost all 60. Recently, DHS looked at the Nevada voting rolls, and initially claimed there were about 16,000 illegal voters listed. But when it came down to returning the supposed illegal names to Nevada, election officials there received a list with only about 185 names on it. Over the years where Trump has sued, and there have been recounts, there have never been more than a handful of illegal votes and it was clear they made no difference in the results.

Voting by mail is crucial for so many. Even the felon votes by mail. So, if the court were to side with the felon on this, and approve even part of his executive order, they are clearly doing it to screw up our elections, and be complicit with the felon. Based on such an outcome I would lobby the Senate to add justices to the court. The number of justices on the court has changed five times before. Today we have two justices, Alito and Thomas, whose votes you know in advance on any case before it is even heard. We know there are six conservative justices. So, if Democrats take the Senate they could add four more liberal justices to the court for a liberal majority. Even adding three would provide for an even balance which could make for a serious debate on the issues within the court, and final decisions wouldn’t be forgone conclusions as they so often are today. 


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

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American democracy on the brink

When Trump threatens voting rights to undermine midterms, we should believe him

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President Donald Trump (Washington Blade file photo by Michael Key)

President Trump’s favorability is at record lows, dragged down by a reckless and unpopular war, soaring food and gas prices, economic instability and a general sense that he is flagrantly corrupt, more focused on vengeance than governing, flailing and mentally unwell. Assuming the elections take place without interference, Democrats are expected to regain control of the House in November, with odds increasing of a Senate takeover as well. 

In normal times, a rational president facing such headwinds would pursue policies designed to regain public support. But we see no sign of that. Instead, we are seeing a renewed focus on repeating the well-litigated and demonstrably false claims that he won in 2020, and that our elections are rife with voter fraud. He recently devoted most of what was billed as a major speech to the nation on regurgitating these imaginary claims, this time alleging that the Chinese had interfered in the 2020 election, thereby augmenting the pretextual narrative with a national security rationale.  Although it is unclear whether Trump believes any of this himself, he has convinced most of his supporters to believe it, and that serves a very important purpose. Those false claims drove thousands to storm the Capitol to prevent the certification of the 2020 election, and he appears again to be setting the stage for what he seems willing to do to avoid defeat at the polls.

Since returning to power last year, Trump has systematically fired and replaced personnel at all levels who might not comply with illegal directives and taken other actions to remove the obstacles that constrained him before.  He has thoroughly purged the military and the Department of Justice of career professionals and replaced them with die-hard loyalists who will reliably do his bidding. He has totally neutered the Congress, rendering this once-powerful co-equal and independent branch of government totally subservient. And he has cowed much of the judiciary, including the Supreme Court, into a state of complicit compliance.  The Department of Justice has been so thoroughly co-opted by him that he routinely and publicly directs the prosecution of his enemies on tenuous or non-existent grounds and indictments soon follow in virtually every case.

Trump has also militarized America’s streets through the deployment of a federalized National Guard deployed primarily in Democratic cities under the pretext of a crime epidemic that local authorities could not contain. Trump has unleashed a highly aggressive and unaccountable Immigration and Customs Enforcement (ICE) force of masked gunmen ostensibly to round up and deport people who were in the country illegally.  In fact, ICE has acted with such wanton brutality that it has disappeared and summarily deported people, and murdered people, including several American citizens, in broad daylight and on video with no consequences.  These troops, who function almost as independent and unaccountable militias of the president, have terrorized segments of the population and acclimated Americans to a menacing armed presence roaming the streets in a manner that Americans have never experienced before. It is not hard to imagine how these forces could be put to use during the election: to intimidate and suppress the vote in Democratic precincts, to seize voting machines or otherwise interfere with the election process, and/or to provoke chaos and unrest to provide a pretext for the president to contest or nullify the election results.

This is not theoretical. It is telling that Trump’s two top priorities are premised on the big lie about the 2020 election and on creating a pretext for interfering in the upcoming election. He has prioritized legislation called the SAVE Act, which would interfere with states’ rights to administer elections by mandating enhanced voter ID requirements in a manner that would disenfranchise voters, particularly those that tend to vote for Democrats. His other top priority is a $1.8 billion “anti-weaponization” fund designed to compensate and reward convicted Jan. 6 rioters who, at Trump’s instigation, ransacked the Capitol, brutally assaulting police officers and hunting members of Congress with the intent of killing them. The rationale for this massive slush fund is the fiction that these convicted felons were innocents unfairly subjected to baseless, politically motivated prosecutions. This fund was so controversial that two Republican senators had blocked the nomination of Todd Blanche as attorney general until they received a very dubious written assurance — quickly disavowed by Trump — that the fund would not be deployed.

It is also alarming that Trump repeatedly calls for nationalizing the elections process, despite the Constitution specifically vesting these powers with the individual states, and he has demonstrated that he means business. He has pressured states to turn over confidential voter data and taken punitive measures against the non-compliant, including withholding allocated federal funds.   He has harassed and intimidated state election officials with threats of criminal prosecution for a variety of specious reasons and has sought confidential personal information about these officials. Notably, he recently abolished the U.S. Elections Assistance Commission, a watchdog agency established by Congress after January 6 to ensure the integrity of our elections.  And perhaps most disturbing of all, his servile FBI took the unprecedented step of raiding election offices in Atlanta, Georgia to seize and confiscate voter rolls.  There is no reason to believe that he will hesitate to do so again in November.  In fact, he recently stated that he may send ICE and National Guard troops to polling places, and some members of Congress and MAGA influencers are calling for him to do just that.  Under the right circumstances, which would include accusations of voter fraud and chaos at the polls that could easily be provoked or manufactured, he would have the legal authority to do so.

At the same time, Trump has openly mused that the public might prefer a dictatorship and repeatedly hinted that he might seek an unconstitutional third term. At the White House Correspondents’ Dinner last month, he wore a red cap emblazoned with “Trump 2028”, and just this week, he indicated that he is willing to declare a national security emergency to cancel elections. “Stranger things have happened,” he said, seeming to prepare the public for what might be in store.  Trump has so successfully inured the public and the media to such incendiary and anti-democratic threats that they no longer induce opprobrium or outrage. 

This president has repeatedly demonstrated and flexed his authoritarian impulses, admired dictators, and increasingly signaled a determination to seize control of the upcoming election up to and including cancelling it. He tried to stage a coup once and came very close to succeeding.  This time his actions are increasingly speaking the quiet part out loud. What should alarm anyone paying attention is that the groundwork for Version 2.0 has been very well laid and that, when Trump signals so clearly that he is determined to win by any means necessary, we should believe him.

Peter Pappas is an attorney who served in senior positions in the Obama and Clinton administrations. 

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