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Supreme Court poised to roll back LGBTQ rights

Rebalance stolen court via expansion, term limits

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LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton County this past June, a case that extended the prohibition against discrimination in employment to include discrimination based on sexual orientation and gender identity. And with the most LGBTQ-friendly President-elect in U.S. history poised to take office in a matter of days, our community has even more reason to be hopeful.

Despite these positive developments, however, the Supreme Court poses a grave danger to the LGBTQ community. As the court ushers in a new era of conservative dominance—with anti-LGBTQ justices holding a 6-3 supermajority—the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside. 

Justice Amy Coney Barrett’s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Roberts’ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobic and homophobic language, and even argued that Title IX does not protect transgender people. Her extremist positions will embolden the anti-LGBTQ conservative justices on the court – Justices Kavanaugh and Alito recently held an inappropriate private meeting with an anti-gay activist who had filed briefs in pending cases — and other Trump-appointed judges, as well as state legislatures to take anti-LGBTQ stances. With equality hanging in the balance, the LGBTQ community cannot afford a Supreme Court that stands to crush any progress made.

Marriage equality: In October, the Supreme Court denied certiorari to a case involving Kentucky woman Kim Davis, who refused to issue marriage licenses to same-sex couples. However, the denial of certiorari came with warning signs: Justices Alito and Thomas wrote a section that cast doubt on the constitutionality of Obergefell, the landmark Supreme Court case in which Justice Kennedy’s opinion that held that marriage is a fundamental right guaranteed to same-sex couples by the Constitution. In the certiorari denial, Justice Thomas wrote: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” While broad majorities of the American people support marriage equality and opponents of it might not have the votes on the Supreme Court to overturn the precedent, it is nonetheless a troubling sign that two Justices would sign onto discrimination against our fellow citizens.

Discrimination: The currently pending case before the Supreme Court about discrimination is Fulton v. City of Philadelphia. The case emerged from circumstances in 2018: The city of Philadelphia had hired a number of agencies for foster care service. When the city learned that two agencies denied same-sex couples as foster parents, Philadelphia threatened to stop using the agencies unless they agreed to nondiscrimination requirements. While one of the agencies complied, the other, the Catholic Social Services (“CSS”), sued the city in federal district court. The federal district court found in Philadelphia’s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.

The CSS claims that because the city looks to several factors, including religious and racial factors, in spite of anti-discrimination law, it cannot at the same time prohibit the agency from considering the sexual orientation of foster parents under the guise of “religious belief.” If Philadelphia makes exceptions to its anti-discrimination laws in foster placement, it must also allow religious agencies an exception as well. If Philadelphia does not do so, it violates the First Amendment. The city claims that it can choose not to provide government contracts to organizations that do not adhere to its nondiscriminatory requirements. For the court to decide otherwise, it would mandate that the city discriminate.

The stakes are high, in part because a ruling against equality in Fulton could provide cover for undermining Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away at Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority, Fulton could strike a big blow against equality.

Health care and family: If the Supreme Court strikes down the Affordable Care Act (ACA) in California v. Texas, health care protections for the LGBTQ community would be eliminated. Section 1557 of the ACA is the law’s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administration’s rule interpreted Section 1557’s ban on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously important for the LGBTQ community. The uninsured rate for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likely to report having regular access to health care. For transgender Americans, who are more likely to live in poverty or be unemployed and to face enormous challenges and have negative experiences accessing health care, the ACA’s Medicaid expansion and provision of individual health insurance through the marketplaces are critical. The 6-3 conservative supermajority on the court makes the end of the ACA significantly more likely, with disastrous consequences that will disproportionately affect the LGBTQ community. 

Lawsuits challenging the Obama administration’s interpretation of Section 1557, particularly in regard to its ban on discrimination on the basis of gender identity, have been percolating in the federal courts for years. The Trump administration has attempted to reverse those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule. Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Court’s decision in Bostock v. Clayton County last term interpreting similar language in Title VII (discrimination on the basis of sex) to cover gender identity should be definitive, the 6-3 conservative supermajority could decide to distinguish these cases and allow for discrimination against LGBTQ individuals in health care. Since so many of the nation’s hospitals are affiliated with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuch’s language in Bostock suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care. 

Transgender rights: In addition to the massive blow that a gutted ACA could have for transgender rights, other cases about transgender rights percolating in the lower courts may someday make their way to the Supreme Court. In Saba v. Cuomo, for example, a transgender, nonbinary resident sued the state of New York for refusing to allow Mx. Saba to obtain a driver’s license that accords with Mx. Saba’s gender identity. In August, a lower court preliminarily enjoined Idaho’s law that barred transgender women from participating on women’s sports teams. That decision is currently being appealed.

Just this past year, the Fourth Circuit and the Eleventh Circuit considered whether school bathroom policies violated transgender students’ rights. Though both circuits ruled in favor of the students, the Grimm case briefly reached the Supreme Court in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorari in a case involving transgender bathrooms, leaving a lower court’s trans-affirming decision in place. But it only takes four votes for the Court to take a case, and with a 6-3 supermajority now firmly in place, there is no telling the havoc it could wreak on transgender rights.

As we celebrate the end of the Trump era, and as we prepare to work with the incoming Biden administration to restore rights that have been destroyed over the past four years while advancing the case for equality, the LGBTQ community must pay attention to the danger posed by anti-LGBTQ justices, and we must advocate forcefully for judicial reforms such as court expansion and term limits that rebalance the stolen, illegitimate court.

 

Aaron Belkin is the director of the Palm Center and of Take Back the Court, and a political science professor at San Francisco State University.

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Opinion | Representation matters: The gayest Olympics yet

From one out athlete to more than 160 in just 33 years

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OK, I really want a Tom Daley cardigan. The now gold-medal Olympian told Britain’s The Guardian that he took up crocheting during the pandemic. He even has an Instagram page dedicated to his knit creations, MadeWithLoveByTomDaley. It’s all very adorable; it’s all very Tom Daley. 

All that aside, you’d have to be practically heartless to not feel something when Tom Daley and his diving partner Matty Lee won the gold on Monday in the men’s synchronized 10-meter diving competition, placing just 1.23 points ahead of the Chinese. And then seeing him with tears in his eyes on the podium as “God Save the Queen” played. Later that week, he knitted a little bag featuring the Union Jack to hold and protect his medal. So very wholesome

Daley is certainly one of the highest profile LGBTQ athletes in these games. Besides the diver, the 2020 Summer Olympics, now in 2021 because of the pandemic, are hosting more than 160 out athletes. A record to be sure, but calling it a record does it somewhat of an injustice. The United States sent the first out athlete to the 1988 Summer Olympics, Robert Dover an equestrian rider competing in dressage. Dover remained the only out (sharing the title once in 1996 with Australian diver Craig Rogerson) for 10 years. Then, during the 2008 Summer Olympics in Beijing, the number of out athletes jumped to 15. London’s 2012 Olympics saw the number increase to 23. The 2016 Summer Olympics in Rio de Janeiro saw the number jump to 68 out athletes. And now we’re at over 160. 

So you get the trend building here. From one out athlete to more than 160. So very far, so very fast. And competing in everything from handball to sailing to golf to skateboarding. Also, noteworthy, New Zealand sent the first trans athlete, weightlifter Laurel Hubbard. These are but numbers and names, but to be sure, this sort of representation, this sort of visibility, is hugely important. Not just for athletes coming up behind them, but let’s think too of those out there, not yet even out, maybe watching in their parents’ living room. Seeing Tom Daley thank his husband, mention their son, this sort of queer normality being broadcast as if it is both groundbreaking and at the same time nothing at all — the importance of this cannot be overstated. 

On top of that, growing up gay, how many times were we all told, whether outright or simply implied, that sports were more or less off limits to us. Meant to display the peaks of gender and ability, sports were not meant for those who couldn’t fit neatly into that narrative. But it appears that that narrative is slowly becoming undone. Just look beyond the Olympics, to the wider world of sports. Earlier this summer, pro-football’s Carl Nassib came out.   

And maybe I’m just of a generation that marvels at the destruction of each and every boundary as they come down. We had so very little as far as representation back then. Now to see it all, and in so many different sports, you can’t help but to wonder what the future will hold for us; and it really delights the imagination, doesn’t it? 

It is the gayest Olympics yet. And if the trend laid out above continues, it will only get gayer as the years go on. And if it’s a barometer for anything, I think we will see a lot of things getting a bit gayer from now on.

Brock Thompson is a D.C.-based writer. He contributes regularly to the Blade.

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Opinion | Blame Mayor Bowser for violence epidemic?

In a word, ‘no,’ as the problem is nationwide

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The simple answer to the question “Does the Mayor get the blame for the violence epidemic?” is NO! This is not something that can be laid at any one person’s feet. The epidemic of gun violence is gripping the entire nation. 

The frustration and outrage I and everyone else feels are palpable. It’s frightening when you hear gunshots in your neighborhood. It makes bigger headlines when the shots fired are in neighborhoods not used to that like the recent shooting on 14th and Riggs, N.W. When the shots rang out patrons of upscale restaurants like Le Diplomate ran or ducked under their tables for cover. When shots were fired outside Nationals stadium the national media lit up to report it. The truth is we must have the same outrage every time shots are fired and people hurt or killed in any neighborhood of our city.  

Trying to lay the blame for this at the feet of the mayor, as some people on social media and in opinion and news columns in the Washington Post are doing is wrong. Some would have you believe the mayor is just sitting by and allowing the violence to happen. There are pleas “Mayor Bowser do something!” as if she could wave a magic wand and the shootings will stop. 

In a recent Washington Post column, “Bowser pressed to act after shootings,” a number of Council members are quoted including Chairman Phil Mendelson, Ward 2 member Brooke Pinto, Ward 4 member Janeese Lewis George, At-large member Anita Bonds and Ward 5 member Kenyan McDuffie. They all call for something to be done but not one of them says what they would do. It’s clear they are as frustrated and outraged as the rest of us but have no easy answers. What is clear is casting blame on the mayor and police commissioner won’t help to stop the violence and shootings. 

Again, this epidemic of violence isn’t just an issue for D.C. but a national epidemic. Recently our mayor sat beside the president at a White House meeting called to discuss what can be done about this with mayors and law enforcement officials from around the nation. No one from the president down had an answer that can make it stop right away. Many in D.C. would be surprised at the ranking of the 50 cities with the most violent crime per 100,000 residents showing D.C. with 977 violent crimes per 100,000 residents at number 27 behind cities like Rockford, Ill., Anchorage, Ala., and Milwaukee, Wisc. Crime in nearly all those cities and murder rates have gone up, in many cases dramatically, since the pandemic. 

The solution to ending gun violence is to get the guns out of the hands of those who are using them for crime but that is easy to say and much harder to do. We know ending poverty will make a difference. Giving every child a chance at a better education and ensuring real opportunities for every young person will make a difference. We must also hold people responsible for the serious crimes they commit and often courts are a system of revolving door justice where we find the same people arrested for a serious crime back on the street committing another one and the same gun used for multiple crimes.

There are anti-crime programs that might work but they need buy-in from the entire community including activists and the clergy who must work in concert with our political leadership. D.C. is funding a host of programs including ‘violence disrupters,’ job training, and  mental health and substance abuse programs. They all need more money and more support. 

In D.C., we have only 16 elected officials with real power; the Council, the mayor, the attorney general and our congressional representative. We have community leaders elected to local ANCs. When members of the council attack the mayor, some simply to make political hay for their own future election, it won’t solve any problems. 

This must be viewed as a crisis and our 16 elected leaders should sit down, agree to a series of anti-crime programs and efforts they will adequately fund, and stop attacking each other. Once they agree on the programs to fund they should bring together ANC members from across the city to a meeting at the convention center and work out a plan for what each can do to move us forward to safer neighborhoods. 

We must work together as one if we are to succeed in making life safer and better for all. 

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Opinion | U.S. senators: It’s time to act against anti-LGBTQ discrimination

Draw your inspiration from past bipartisan consensus

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Georgia has had the eyes of the nation on it for some time now. It’s just over five years since people across Georgia braced themselves as lawmakers sent sweeping anti-LGBTQ legislation to the desk of then-Gov. Nathan Deal. The LGBTQ community feared for the potential harms that the broad “license to discriminate” bill could bring. Business leaders feared billions of dollars being drained from the state’s economy as major players from Hollywood, the business sector, and even the NFL threatened to pull investments. 

But after thousands of calls, meetings, and letters, Gov. Deal, a Republican and devout Evangelical Christian, ultimately did the right thing. He vetoed the bill, saying, “We do not have a belief in my way of looking at religion that says we have to discriminate against anybody.”

At the time Gov. Deal’s veto was heralded as a radical move for a Republican leader. But the truth is that Republican lawmakers faced with bills targeting LGBTQ people frequently take action against these measures. We saw it earlier this year in Arkansas as Gov. Asa Hutchinson vetoed a draconian anti-transgender healthcare bill. Earlier this year, Utah Gov. Spencer Cox teared up while condemning an anti-trans bill, saying, “These kids are just trying to stay alive.” Prominent Republican leaders in South Dakota, Texas, South Carolina, and Arizona have vetoed or moved to block anti-LGBTQ bills. Stalwart Republican senators from Alabama and Iowa have passionately supported open military service for transgender people. 

There are plenty of examples of Republicans supporting LGBTQ people, but they’ve often been lost in the headlines stoking the so-called left-versus-right “culture wars.”

In my home state of Georgia, Gov. Deal’s action inspired further evolution on LGBTQ issues. In the five legislative sessions since Gov. Deal’s veto, Georgia’s legislature has not passed a single anti-LGBTQ bill. Republicans and Democrats alike have defended LGBTQ Georgians from discriminatory measures. And so many Georgians across the political spectrum – within families, friend groups, and workforces – have had conversations about what dignity for LGBTQ people looks like.

Now it’s time for the members of the United States Senate to build on that consensus by taking the most important and critical step yet for LGBTQ Americans. It’s time for senators on both sides of the aisle to come together and enact equality legislation that would establish concrete, enduring nondiscrimination protections for all LGBTQ people in areas like housing and public spaces, including restaurants, stores, and hospitals. LGBTQ people in too many states – 29 nationwide – remain vulnerable because of a lack of explicit nondiscrimination laws at the state and federal levels.

Polling consistently shows that a wide majority of Americans of both political parties strongly supports protecting LGBTQ people from discrimination. More than eight in 10 Americans support LGBTQ-inclusive nondiscrimination laws, including 62% of Republicans. We cannot let the loudest voices of a fringe minority hold our country back from delivering the promise of liberty, security, and equality for all people, no matter where they live. 

Because really, we are so close to passing federal LGBTQ protections – closer than ever before. Nearly 50 years after its first introduction in Congress, the Equality Act passed with bipartisan support in the House, and received its first-ever Senate hearing. Republican senators in the Senate Judiciary Committee voiced empathy for the harms that discrimination has caused LGBTQ people. They also expressed a willingness to finding a path to protect us. And there is more than one bill proposed to address the inequity that LGBTQ people are subjected to. The Senate judiciary committee opened a door to the long overdue conversation.

Now it’s on us to hold that door open and guide all of our senators through. Democratic senators must reach out to their Republican colleagues and address concerns. Republicans must draw on the many recent examples of conservative leaders working to protect LGBTQ people. 

We can’t afford another 50 years of federal inaction on our protections. We can’t afford for the two parties to keep butting heads in a bitter stalemate. For the first time in history, we have a real opportunity to secure protections for LGBTQ Americans.

We must seize this opportunity, seek common ground and find a solution that works for everyone. It’s essential that right, left, and center come together, reach consensus, and do the right thing. At last.

Jeff Graham is executive director of Georgia Equality. Reach him at [email protected].

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