U.S. Supreme Court
In 303 Creative ruling, SCOTUS marks ‘gays and lesbians for second-class status’
Decision was 6-3 along ideological lines

The U.S. Supreme Court’s conservative supermajority on Friday ruled in favor of Lori Smith, the graphic artist who did not want to make wedding websites for same-sex couples despite Colorado’s nondiscrimination law barring discrimination on the basis of sexual orientation.
“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote in the majority 6-3 decision along ideological lines in 303 Creative v. Elenis.
The liberal justices, however, called the majority’s finding of a free speech exemption to nondiscrimination rules “unprecedented,” warning it would blow a hole through these laws and pave the way for anti-LGBTQ discrimination by businesses.
“Today the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.
The liberal justices argued the Colorado law targets conduct, not speech.
“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor wrote. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”
Biden, U.S. lawmakers, LGBTQ groups weigh in
President Biden reacted saying in a statement released by the White House:
“In America, no person should face discrimination simply because of who they are or who they love. The Supreme Court’s disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community. While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans. More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.
My administration remains committed to working with our federal enforcement agencies to rigorously enforce federal laws that protect Americans from discrimination based on gender identity or sexual orientation. We will also work with states across the country to fight back against attempts to roll back civil rights protections that could follow this ruling. And we will accelerate our march towards full equality for every American.
When one group’s dignity and equality are threatened, the promise of our democracy is threatened and we all suffer. Our work to advance equal rights for everyone will continue. That is why we must pass the Equality Act, which will enshrine civil rights protections for LGBTQI+ Americans in federal law and strengthen public accommodations protections for all Americans. I urge Congress to swiftly send this legislation to my desk.”
Shannon Minter, legal director of the National Center for Lesbian Rights, shared an emailed statement with the Blade:
“As the dissenting justices rightly stress, this is a deeply disappointing decision that, for the first time in our nation’s history, holds that the Constitution permits discrimination in the commercial sphere,” adding, “There is no principled basis for this egregious departure from more than a hundred years of precedent.”
On the other hand, Minter said, “the scope of the ruling is incredibly narrow and will not apply to the overwhelming majority of businesses,” but “Unfortunately, the State of Colorado stipulated to a number of ‘facts’ about the designer’s hypothetical service of designing websites for weddings,” which “provided a basis, however flimsy, for the majority to rule as it did, including Colorado’s stipulation that the designer picks and chooses which clients she will serve based on whether she agrees with their viewpoints, that each site she designs is customized and original, and that the sites are ‘art’ and express her own personal views, not those of the clients.”
Minter said “Very few other businesses meet these criteria, so this ruling will have little if any application to ordinary businesses, including those that involve some element of creativity or expression. Under the majority ruling, it is not enough that a service is creative or expressive, the business must selectively choose clients, not open its doors to all, must create a highly customized product, and it must be clear that the product is expressing the views of the business owner, not the customer. There are very few such businesses.”
“Nonetheless, this is a sad day for our country and our Constitution. The majority has gone out of its way to gerrymander an exception to nondiscrimination laws that sends a terrible message—especially to LGBTQ people—at a terrible time, when there is a resurgence of anti-LGBTQ bias and a backlash against equality for women, people of color, and LGBTQ people. I am confident our county will rise above this moment, as we have done in the past, but this is a painful day,” Minter said.
Among the first advocacy groups to condemn the decision was the National Black Justice Coalition, a leading Black LGBTQ+ civil rights organization.
“The anti-democratic, segregationist, white nationalistic Alliance Defending Freedom (ADF), which is party to this case, has a well-documented history of using legal strategies to erode LGBTQ+ rights, perpetuating discrimination and stigmatization,” said the Coalition’s Executive Director David Johns.
“A perilous precedent is set when the ADF is allowed to manufacture a case in search of a solution to a problem that doesn’t even exist for the plaintiff, undermining the principles of justice, equality, and nondiscrimination that are the bedrock of our nation,” he said.
ADF, which represented the plaintiff Lori Smith, is described by the Southern Poverty Law Center as an anti-LGBTQ hate group.
Minutes later, America’s largest LGBTQ organization, the Human Rights Campaign, issued a press release: “Make no mistake, this case was manufactured by the Alliance for Defending Freedom to create a new license to discriminate against LGBTQ+ people,” said HRC President Kelley Robinson.
“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate,” Robinson wrote. “This decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or banking—those protections remain enshrined with federal law.”
U.S. Sen. Tammy Baldwin (D-Wis.), America’s first openly gay senator, was among the first members of Congress to address the ruling, writing in a statement:
“This is about fairness and freedom – about whether LGBTQ+ Americans deserve fairness and freedom to be treated just like everyone else. It is simply wrong to discriminate against any American based on who they are or who they love, and Americans agree. This decision is a step backward in our fight to live up to our nation’s ideal of equality, but we cannot let this activist Supreme Court have the last word. I am more committed than ever to fighting to ensure every American can live freely and without discrimination.”
The U.S. Congressional Equality Caucus, through its Chair, U.S. Rep. Mark Pocan (D-Wis.), issued a statement arguing that Friday’s “abhorrent” decision “provides a constitutional basis for businesses that provide customized expressive services to discriminate against all marginalized people currently protected by public accommodations nondiscrimination laws.”
U.S. Rep. Mark Takano (D-Calif.), a co-chair of the Equality Caucus, called Friday’s ruling “horrifying and stunning” in a statement, writing “Today’s harmful decision opens the door for unimaginable legal discrimination against marginalized people.”
Takano added, “We must expand the Supreme Court immediately.”
“Millions of Americans,” wrote the Democratic Attorneys General Association, “have been rightly concerned that the floodgates would open to a raft of legal challenges to vital LGBTQ+ protections.”
The group added, “Between rulings like this, waves of extreme and hateful legislation, and an increase in anti-LGBTQ+ threats and violence, the fact is that this is indeed a frightening time for the LGBTQ+ community.”
GLAAD’s statement noted that “Not one LGBTQ couple sought the business’ services so this case is a massive abuse of the judicial system and part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt extremist justices to roll back rights of marginalized Americans.”
Departing from the LGBTQ and civil rights advocacy groups that universally objected to Friday’s ruling was the conservative LGBT organization, Log Cabin Republicans.
“Today’s Supreme Court decision is a win for anyone who believes, as LGBT conservatives do, in freedom of speech and religious expression, even when we may not agree with it,” said LCR President Charles Moran.
“LGBT conservatives,” he said, “have long believed, as Justice Gorsuch wrote in his opinion, that ‘tolerance, not coercion, is our nation’s answer, and forcing anyone to create expressive speech with which they disagree is a massive step backwards.””
U.S. Supreme Court
Supreme Court upholds ACA rule that makes PrEP, other preventative care free
Liberal justices joined three conservatives in majority opinion

The U.S. Supreme Court on Friday upheld a portion of the Affordable Care Act requiring private health insurers to cover the cost of preventative care including PrEP, which significantly reduces the risk of transmitting HIV.
Conservative Justice Brett Kavanaugh authored the majority opinion in the case, Kennedy v. Braidwood Management. He was joined by two conservatives, Chief Justice John Roberts and Justice Amy Coney Barrett, along with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson.
The court’s decision rejected the plaintiffs’ challenge to the Affordable Care Act’s reliance on the U.S. Preventative Services Task Force to “unilaterally” determine which types of care and services must be covered by payors without cost-sharing.
An independent all-volunteer panel of nationally recognized experts in prevention and primary care, the 16 task force members are selected by the secretary of the U.S. Department of Health and Human Services to serve four-year terms.
They are responsible for evaluating the efficacy of counseling, screenings for diseases like cancer and diabetes, and preventative medicines — like Truvada for PrEP, drugs to reduce heart disease and strokes, and eye ointment for newborns to prevent infections.
Parties bringing the challenge objected especially to the mandatory coverage of PrEP, with some arguing the drugs would “encourage and facilitate homosexual behavior” against their religious beliefs.
U.S. Supreme Court
Supreme Court rules parents must have option to opt children out of LGBTQ-specific lessons
Mahmoud v. Taylor case comes from Montgomery County, Md.

The U.S. Supreme Court on Friday ruled that public schools must give advance notice to parents and allow them the opportunity to opt their children out of lessons or classroom instruction on matters of gender and sexuality that conflict with their religious beliefs.
Mahmoud v. Taylor was decided 6-3 along party lines, with conservative Justice Samuel Alito authoring the majority opinion and liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson in dissent.
Parents from diverse religious backgrounds sued to challenge the policy in Maryland’s Montgomery County Public Schools when storybooks featuring LGBTQ characters were added to the elementary school English curriculum in 2022.
The school board argued in the brief submitted to the Supreme Court that “the storybooks themselves do not instruct about gender or sexuality. They are not textbooks. They merely introduce students to characters who are LGBTQ or have LGBTQfamily members, and those characters’ experiences and points of view.”
Advocacy groups dedicated to advancing free speech and expression filed amicus briefs in support of the district.
PEN America argued the case should be viewed in the context of broader efforts to censor and restrict what is available and allowable in public schools, for instance by passing book bans and “Don’t Say Gay” laws.
The ACLU said the policy of not allowing opt-outs is religion-neutral, writing that the Supreme Court should apply rational basis review, which requires only that the school district show that its conduct was “rationally related” to a “legitimate” government interest.
LGBTQ groups also objected to the challenge against the district’s policy, with many submitting amici briefs including: the National Center for Lesbian Rights, GLAD Law, Family Equality, COLAGE, Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG., and the National Women’s Law Center.
The Human Rights Campaign did not submit a brief but did issue a statement by the group’s President Kelley Robinson: “LGBTQ+ stories matter. They matter so students can see themselves and their families in the books they read–so they can know they’re not alone.”
“And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved,” she said. “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.”
U.S. Supreme Court
Legal expert maps out how gender-affirming care bans may be challenged post-Skrmetti
Ruling leaves door open to state constitution claims

In a devastating loss for transgender youth and their families, the U.S. Supreme Court’s conservative supermajority on June 18 voted to uphold Tennessee’s law banning access to gender-affirming health care for minors in a 6-3 ruling that effectively shields similar restrictions in more than 20 other states.
Chase Strangio, a lead attorney for the plaintiffs in U.S. v. Skrmetti and the first trans lawyer to argue before the nation’s highest court, acknowledged the “setback” during a press call with reporters while stressing the need to “continue onward in the fight” because the avenues open to challenge laws like Tennessee’s Senate Bill 1 had not been fully extinguished.
Speaking with the Washington Blade on Monday, Professor Holning Lau of the University of North Carolina School of Law outlined the ramifications of the justices’ majority opinion and mapped out three ways in which cases aimed at striking down healthcare bans or other anti-trans policies and practices could play out in its wake.
An internationally recognized expert on equality rights, particularly in the contexts of sexuality, gender, and family life, Lau previously served as president of the ACLU of North Carolina’s board of directors and as a teaching fellow at UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.
He is also the co-author of a recent paper that examines the exceptions to laws prohibiting medical interventions for gender transitions in minors that permit “so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”
These carveouts, Lau and his colleague UNC Law School Associate Professor Barbara Fedders argue, cut against the reasoning cited by the lawmakers behind legislative restrictions targeting healthcare for trans youth like SB 1 and by the lawyers defending them in court.
Specifically, Lau told the Blade courts could interpret such “intersex exceptions” as evidence that gender affirming care bans were written with or are undergirded by sex stereotypes, unwarranted fears, and disgust — possible grounds to argue they should be struck down under the animus doctrine, which holds that government action motivated by hostility or prejudice towards a particular group is unconstitutional.
While there was some discussion of animus in the context of U.S. v. Skrmetti, notably in the concurring opinion by conservative Justice Amy Coney Barrett, the plaintiffs’ case focused primarily on “the sex discrimination argument because of Bostock v. Clayton County,” Lau said, referring to the 2020 Supreme Court case that determined sex-based discrimination in the context of employment, as defined by federal civil rights law, includes discriminatory conduct that is motivated by the victim’s sexual orientation or gender identity.
‘A huge, huge setback’
Five years after LGBTQ rights advocates were toasting their victory in the landmark case, which saw three of the conservatives on the High Court joining their liberal counterparts in a majority opinion written by Justice Neil Gorsuch, “a lot of folks may have reasonably thought that the logic of Bostock points towards this very straightforward sex discrimination argument,” Lau said, adding that liberal Justice Sonia Sotomayor “adopts that avenue of reasoning in her dissent” in Skrmetti.
“The way that the majority rejects the sex discrimination arguments in in the majority opinion of Skrmetti is not persuasive in my view,” he said. “I struggle for words to capture the reasoning of the majority opinion.”
Echoing Strangio’s remarks, Lau noted that Skrmetti “doesn’t completely close the door” to legal challenges but is nevertheless “a huge, huge setback.”
On the one hand, he said “lower courts might say that this was very much about the context of medical treatment and minors,” which means “there may still be cases that prevail having to do with transgender discrimination in other contexts, like the military ban or the restrictions on passports.”
At the same time, however, Lau cautioned that “you could also read this case as signaling more obstacles ahead, especially if a case gets back to the Supreme Court” since “three of the justices have already signaled in Skrmetti that they do not view gender identity discrimination as warranting heightened scrutiny.”
Litigation aside, young people and their families who will suffer the most direct and harmful consequences, namely the loss of access to medically necessary gender-affirming care, will have to navigate “a patchwork of state laws,” he said, which in many cases will mean relocating or traveling out of state for treatments that have been criminalized in the places where they live.
The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the nationwide right to abortion, led to many of these same outcomes, he said. In an email following Monday’s phone interview, Lau further explained that “Dobbs unleashed conflicts between states, and there are signs that similar conflicts will arise with respect to gender-affirming care for trans youth.”
For example, he said “A growing number of states might seek to penalize interstate travel for gender-affirming care — targeting families who travel across state lines and/or medical providers who provide care to such families.”
“There is ongoing litigation concerning the constitutionality of interstate bans and shield laws in the abortion context, and those cases will bear significance on interstate bans and shield laws regarding gender-affirming care,” Lau said.
Counsel for the plaintiffs in Skrmetti probably turned to Bostock because the case was “the most recent victory, and the most on point when it comes to gender identity,” Lau said.
The animus doctrine was an important element of cases that expanded equal rights and protections for LGBTQ people, he said, pointing to U.S. v. Windsor (2013), which struck down portions of the Defense of Marriage Act, a law that prohibited the federal government from recognizing same-sex marriages, and Romer v. Evans (1996) which struck down a Colorado constitutional amendment prohibiting the state from enacting any LGBTQ inclusive nondiscrimination rules.
Lau said those cases are examples of where the Supreme Court has found indirect evidence of impermissible animus in the laws under consideration by the way they were designed or structured, as opposed to more direct evidence like overt expressions of sex stereotypes, fear, and disgust toward a particular group that might arise during the legislative process.
These cases and the animus doctrine, Lau added, are closely associated with the late former Justice Anthony Kennedy, an appointee of President Ronald Reagan who was the “swing vote” responsible for ultimately deciding many of cases considered by the Roberts court where the justices were split 5-4.
Following his retirement in 2018 and the emergence of a 6-3 conservative majority, there is less certainty about how the justices might evaluate animus related arguments in the context of disputes over issues of gay or transgender rights, Lau said, especially relative to how they were expected to look at the reasoning central to the Bostock decision just five years ago.
“I would have liked to see more” engagement with animus in the Skrmetti opinions, Lau said. Barrett in her concurrence did address the question, writing that there was a rational basis for Tennessee legislators’ SB 1, in contrast with the court’s findings in Romer, where the “sheer breadth” of law was “so discontinuous with the reasons offered for it that the [law] seem[ed] inexplicable by anything but animus toward the class it affect[ed]”.)
“To be sure, an individual law ‘inexplicable by anything but animus’ is unconstitutional,” Barrett said. “But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied.”
Lau said that notwithstanding her position on Skrmetti, the fact that Barrett “did make reference to the animus jurisprudence suggests that there is potentially a future for animus doctrine, even in the post-Kennedy Supreme Court.”
Rather than the animus doctrine or Bostock’s reasoning that gender identity discrimination constitutes sex based discrimination, the court relied on Geduldig v. Aiello (1974), Lau said, which found that pregnancy discrimination “is not a type of sex discrimination” and remains a case that “strikes so many people as being incorrectly decided.”
“Whenever I teach Geduldig v. Aiello, my students are shocked by the court’s reasoning,” he said, “and it’s so formalistic in its reasoning that it’s so divorced from people’s lived experiences.”
The same can be said for the majority opinion and concurrences in Skrmetti, Lau said, where the justices said “that even if transgender kids are the only ones seeking treatment for gender dysphoria, not all transgender kids are seeking this treatment, and kids can still get the treatment if they have a different type of diagnosis” such as any of the conditions delineated in the exceptions that were written into SB 1 and similar laws in other states.
“One day, I imagine teaching [Skrmetti] and my students will be, likewise, shocked at the Court’s exceedingly formalistic reasoning,” he added.
Legal challenges to anti-trans healthcare bans in a post-Skrmetti world
After Skrmetti, Lau said he expects to see cases challenging bans and restrictions on healthcare for trans youth that are based on state constitutional claims, noting “a case where there was a recent victory in Montana based on Montana’s constitution,” a win that came despite the fact that it was decided in a place that “might not strike you as particularly hospitable to transgender rights.”
“The state constitutional law claims are particularly promising,” he said, “but it’ll be very context specific,” with the cases ultimately turning on the language contained in these different constitutions and “what sort of jurisprudence we have in each particular state.”
Per Lambda Legal, “On Dec. 11, 2024, the Montana Supreme Court upheld a preliminary injunction that (Senate Bill) 99 was likely unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. The ruling rested entirely on state constitutional grounds, insulating transgender adolescents, their families and health care providers from any potential negative outcome at the U.S. Supreme Court.”
Lau said the remaining two primary avenues for challenging anti-trans healthcare restrictions are likely to be animus based claims and cases grounded in arguments about parental rights, a phrase that often crops up in the context of efforts to undermine rather than strengthen freedoms and protections for LGBTQ people.
The reasoning was cited in a 2023 decision by a federal judge in Idaho who temporarily struck down the state’s ban on gender affirming care for kids, writing: “Transgender children should receive equal treatment under the law … Parents should have the right to make the most fundamental decisions about how to care for their children.”
Asked whether he believes jurists will consider parental rights or animus the more persuasive argument, Lau demurred, telling the Blade “I would be hesitant to say which one is more promising,” noting that animus claims often turn on very specific evidence that might show for example that the lawmakers behind a ban or restriction on transgender medicine were driven by sex stereotypes, irrational fear, or disgust toward a particular group.
Animus and the intersex exceptions
Asked whether anti-trans legislators are being counseled to avoid overt expressions of anti-trans sentiment or prejudice for fear that they might provide grounds for a successful legal challenge against their gender affirming care bans, he said “I think that’s very possible,” adding that “legislators are savvier now in terms of concealing their motives and their biases.”
“Philosopher Martha Nussbaum was monumental and unpacking disgust as an element of animus,” Lau said. “And so in my article, I try to unpack it to help readers connect the dots that there is this visceral disgust towards both intersex children and transgender minors, and that that can be connected to the doctrine of animus.”
In their paper, Lau and Fedders focused on the potential for courts to find inferred animus in laws like Tennessee’s SB 1 based on how they are structured, with sweeping restrictions on the one hand coupled with exceptions on the other that would allow families to pursue medical interventions for their children only when they have certain conditions or diagnoses.
“If we couple that with evidence from the legislative record” pointing to animus “there may be a case to be made,” Lau said.
Both the opinions in Skrmetti and the language of the SB 1 statute address how the law allows otherwise prohibited treatments or interventions to be administered to minors when they are indicated for diagnoses other than gender dysphoria or used for purposes other than gender transitions.
“They don’t call them intersex exceptions,” Lau said, but rather “exceptions for congenital defects,” defined as “including DSDs, disorders in sexual development — or what many intersex advocates would now refer to as ‘differences’ in sexual development.”
Interact, an intersex rights organization, “filed an amicus brief in Skrmetti that dovetailed with my article in that they argued the intersex exceptions support the idea that there are sex stereotypes that undergird the gender affirming care bans,” he said.
“I would like to see more discussion of the interplay between transgender rights and intersex rights,” Lau added, noting how questions about intersex vis-a-vis trans identities are relevant beyond the context of healthcare restrictions. For instance, he pointed to the Trump-Vance administration’s directive for the State Department to not allow passport holders to have the gender markers on their documents changed to align with their gender identity, also removing the option to select ‘X’ rather than the male/female binary category.
“The restrictions on passports not only affect transgender folks, but also non-binary and intersex folks as well,” Lau said. “And with respect to the bans on gender affirming care, not only do they restrict transgender youth’s access to gender affirming care, but they reflect and reinforce this understanding of intersex conditions that is very harmful and damaging to intersex youth.”
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