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Experts weigh in on what’s next after 303 Creative ruling

Sources find reasons to be apprehensive but also hopeful

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United States Supreme Court (Washington Blade photo by Michael Key)

Following the U.S. Supreme Court’s ruling on Friday in 303 Creative v. Elenis, three experts connected with the Washington Blade to share their analysis of the case and expectations for what may come after the fallout.

James Dale was the named plaintiff in Boy Scouts of America v. Dale, a case challenging the organization’s policy of excluding homosexuals from its membership that was decided by the Supreme Court in 2000. The majority opinion in 303 Creative, authored by Justice Neil Gorsuch and joined by the Court’s five other conservative justices, cited Dale’s case dozens of times.

Beth Littrell is the Southern Poverty Law Center’s senior attorney, having previously worked on litigation teams at Lambda Legal and the ACLU, including on a case that Justice Sonia Sotomayor highlighted in her widely read dissenting opinion in the 303 Creative case.

Christopher Cooper is a civil rights attorney who serves as director of legal affairs and legislative initiatives at the Rainbow Youth Project, having previously worked at the U.S. Department of Justice’s Civil Rights Division.

All objected to Friday’s ruling that plaintiff Lori Smith may on First Amendment grounds refuse to provide services requested in connection with same-sex weddings, notwithstanding Colorado’s law prohibiting businesses from discrimination on the basis of sexual orientation. The sources fear future cases will seek to widen the aperture for the types of businesses that may claim similar exemptions on the basis of their proprietors’ faith beliefs.

While unsurprising given the Court’s conservative supermajority, Littrell said the decision was nevertheless “a kick in the teeth.”

“Public accommodation laws play such a critical role in ensuring that vulnerable populations have access to the marketplace,” she said, adding that they are “only a small part way of getting the country to some modicum of equal justice, equality, for vulnerable populations.”

The majority opinion in 303 Creative takes pains to distinguish some services provided by Smith’s business as constituting original works of artistic expression, but when it comes to the applicability of its ruling, Littrell said the Court did not make “that distinction very clear.”

“And more than that,” she said, “I don’t know that there is a distinction here.”

“The way public accommodation laws generally work is there is no distinction — that you open your doors, and where there are anti-discrimination laws, you have to abide by them,” Littrell said.

With this majority opinion, the conservatives have “basically said that you have a constitutional right to discriminate if you’re doing anything” that constitutes “artistic or other expression,” Cooper said.

The ruling will be followed by “a lot of litigation,” he added.

Littrell said she has “some realistic fears that it’s opening the door ā€” that [businesses] that offer pure speech will be the first shoe to fall and that there will be cases to follow” as well as instances in which firms discriminate against or otherwise turn away customers “under the justification that there’s either some expressive elements to the services that are being requested or other individual liberties that are protected by the Constitution.”

“I have no doubt that conservatives and people who want to be able to discriminate against those they disagree with, or people they don’t want to associate with, will attempt to push the boundaries” of the ruling, Littrell said.

“If we crack the door on allowing discrimination of any type against any protected class of people,” Cooper warned, “someone will open the door wide open.”

“Many religious groups do not believe in inter-racial, inter-faith, or even divorcee marriages,” he said, “And keep in mind that any moral or ethical belief about what is ‘right and wrong’ that are sincerely held with the strength of traditional religious views may meet the definition of a sincerely held religious belief.

The three sources also noted unresolved questions around whether the plaintiff suffered legally cognizable injury or received even one request to render services that would constitute speech about same-sex marriage with which she disagrees.

Smith was represented by the right-wing impact litigation group Alliance Defending Freedom, which is deemed an anti-LGBTQ hate group by the Southern Poverty Law Center.

“I always thought the Supreme Court took cases based on real facts and real people, not ones that a right wing group like the Alliance Defending Freedom creates out of thin air to justify future discrimination,” said Dale.

Anti-LGBTQ forces on the right, whether they endeavor to pass hateful bills in the legislatures or create them with the courts, have been known to rely on “myths and misconceptions” and have demonstrated they will “stoop to ginning up a case,” Littrell said.

“You know,” Cooper said, Gorsuch tells Justice Sotomayor “‘You’re imagining things and creating scenarios that this does not cover,'” but at the same time, his majority opinion is “basically base[d]” on “a scenario that may or may not have happened.”

Reporting in the New Republic has cast doubt on the veracity of a document filed by Smith and her counsel, ADF CEO Kristen Waggoner, that purports to show a request filed by a prospective client for services from 303 Creative in connection with a same-sex wedding.

Loss offers reasons to be hopeful

“I’m hopeful that we’re marching in the right direction, that there’s some swings in the pendulum ā€” and we’re certainly experiencing some backsliding ā€” but that in the end this decision will be cabined in some way,” Littrell said.

Sotomayor’s powerful dissent notes that with 303 Creative, “a business open to the public” has been granted “a constitutional right to refuse to serve members of a protected class” for the first time in the Court’s history.

She detailed some of the ways in which LGBTQ people have been harmed by the sting of discrimination over the years, including with an anecdote from a real case filed in 2017.

“Imagine a funeral home in rural Mississippi agrees to transport and cremate the body of an elderly man who has passed away, and to host a memorial lunch,” Sotomayor wrote in her dissent, but “Upon learning that the manā€™s surviving spouse is also a man, however, the funeral home refuses to deal with the family.”

“Grief stricken, and now isolated and humiliated, the family desperately searches for another funeral home that will take the body,” she wrote. “They eventually find one more than 70 miles away. This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species.”

Littrell, who brought that case against the funeral home when practicing at Lambda Legal, said it was remarkable to see the Supreme Court, with a “strong and powerful, big picture” dissenting opinion, “identify a case that was a fight worth fighting.”

Sotomayor had signaled “That was a story worth telling,” Littrell said, “Even though in the end, you know, we didn’t get a precedent out of the case,” which was settled.

Referring to 303 Creative, she said, “As we lose cases that feel so devastating,” it is important to remember “sometimes you lose forward” because they can usher in a change in the tide of public opinion.

Dale said his case followed a similar trajectory. As a young Scoutmaster, he had spoken at a conference about the importance of educators mentoring LGBTQ teens, which, when it appeared in the newspaper, prompted leadership to instruct Dale to cut all ties with the Scouts.

“By five-four decision, the conservative majority on the court gave the Boy Scouts a First Amendment shield, protecting them from New Jersey’s gay rights law, which is kind of what we see going on here,” Dale told the Blade.

While the Scouts won, Dale said it was a “Pyrrhic victory.”

“Ultimately, over the course of, you know, 10, 15 years, the Boy Scouts lost a colossal amount of membership,” he said. “They lost money, they lost funders, they lost the public support and goodwill that essentially made them the Boy Scouts of America.”

“As a result of their victory in the Supreme Court, they had that devastating backlash,” Dale said.

“The takeaway I have now, as we had this kind of narrow defeat in the Supreme Court with this [303] Creative decision: the Supreme Court isn’t the final say,” Dale said.

“That’s not where it ends. It ends with the people and ends with the American public and convincing our families our neighbors our bosses, the people that surround us about why this is wrong.”

“The loss that I experienced was a catalyst for something wonderful,” Dale said. “It was a catalyst for making people speak out and stand up for what they believe in” ā€” putting everyone on the record about where they stand when it comes to anti-LGBTQ discrimination.”

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U.S. Supreme Court

Supreme Court to consider case against Montgomery County Public Schools

Plaintiffs challenging LGBTQ-specific curriculum policy

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Jan. 17 announced it will consider the case of a group of Montgomery County parents who are challenging a policy that does not allow them to “opt out” their children from classes in which lessons or books on LGBTQ-related topics are taught.

The parents in a federal lawsuit they filed in May 2023 allege the Montgomery County Public Schools policy violates their religious beliefs.

A federal judge in Maryland on Aug. 24, 2023, ruled against the parents. The 4th U.S. Circuit Court of Appeals upheld the ruling.

“Under the 4th Circuit’s reasoning, parents cannot be heard until after the damage has been done to their children,” reads the Supreme Court filing that CBS News obtained. “But there is no unringing that bell ā€” by then, innocence will be lost and beliefs undermined.”

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U.S. Supreme Court

SCOTUS eyes other cases implicating transgender rights

Justices expected to issue ruling on U.S. v. Skrmetti in June

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In recent closed-door conservative conferences, U.S. Supreme Court justices were eyeing other cases that would implicate key rights for transgender Americans, The Hill reported on Saturday.

Among the legal questions at issue in those disputes are matters of “parental rights,” the ability of transgender athletes to play on sports teams consistent with their gender identity, and rules requiring government sponsored health plans to cover transgender medical care.

Justices Amy Coney Barrett and Brett Kavanaugh, both appointed by President-elect Donald Trump, made reference to these cases during oral argument earlier this month in U.S. v. Skrmetti, whose ruling will decide the constitutionality of state laws banning gender affirming health treatments for minors.

ā€œIf you prevail here on the standard of review, what would that mean for womenā€™s and girlsā€™ sports in particular?ā€ KavanaughĀ asked.Ā Barrett later revisited the question, asking ā€œCould you address Justice Kavanaughā€™s questions about what the implications of this case would be for the athletic context or the bathrooms context?ā€Ā 

ā€œWe would have no objection to explicit language saying this decision does not in any way or should not be understood to affect the separate state interests there that have to be evaluated on their own terms,ā€ responded U.S. Solicitor General Elizabeth Prelogar, who is arguing on the side of plaintiffs challenging Tennessee’s law banning gender affirming care for youth.

The Hill notes that the justices’ treatment of appellate cases over the sports issue in West Virginia and Idaho indicates they are likely interested in adjudicating the matter ā€” but not until Skrmetti is decided, which is expected to come in June.

Likewise with respect to battles over West Virginia and North Carolina’s refusal to cover transgender medical care with government-sponsored insurance.

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U.S. Supreme Court

Expert challenges prevailing analysis that SCOTUS will uphold trans healthcare ban

NCLR’s Shannon Minter more optimistic about U.S. v. Skrmetti

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NCLR Legal Director Shannon Minter (Washington Blade file photo by Michael Key)

Less than a week after oral arguments were concluded in the landmark U.S. v. Skrmetti case, most pundits and legal experts seem to agree the U.S. Supreme Court is poised to uphold Tennessee’s law banning gender affirming health treatments for minors.

Shannon Minter, however, is not convinced.

In fact, as the legal director for the National Center for Lesbian Rights told the Blade during an interview on Tuesday, “neither I nor the lawyers I know who are following and have litigated these cases” buy into the “negative” analysis published by many mainstream press outlets after the parties addressed the justices at One First Street on Dec. 4.

“I was totally surprised,” Minter said, and “really disappointed,” in coverage of the oral arguments that appeared in places like SCOTUSblog, where Amy Howe wrote that “nearly all of the courtā€™s conservative majority expressed skepticism about a challenge to Tennesseeā€™s ban on puberty blockers and hormone therapy for transgender teenagers.”

The article was hardly an outlier. The New York Times reported it was “probable” that “there were at least five votes for rejecting the equal protection challenge to the law,” while Slate’s Mark Joseph Stern explained that Skrmetti will determine whether “constitutional limits on sex discrimination” can “survive this 6-3 conservative supermajority” and then concluded that “after two and a half hours of arguments, it appears the answer will be no.”

Conservative justices not in lockstep

From the interpretation of key exchanges between the justices and the parties last week to assessments of whether and to what extent certain conservatives might be inclined to join their liberal colleagues in this case and expectations for how precedent-setting decisions could shape its outcome, Minter offered a variety of reasons for why he is skeptical of the reasoning that undergirds much of the mainstream opinion on where the court is likely to land when a decision in Skrmetti is published, as expected, in June 2025.

Asked why his take on Wednesday’s oral arguments diverged so significantly from those offered by many reporters and legal analysts, Minter suggested that conservative Justice Samuel Alito might be responsible to some extent for “the negative perception [reflected] in the mainstream press” because he was “unremittingly negative and spoke a lot” and “took up most of the space.”

Last week aside, given his well established, deeply conservative ideological bent and record of skepticism toward LGBTQ rights, one might reasonably expect Alito to issue a decision that would uphold Tennessee’s trans healthcare ban. Likewise with respect to Justice Clarence Thomas who, compared to Alito, is hardly less conservative or more solicitous of opportunities to expand the LGBTQ community’s rights and freedoms.

Minter characterized both justices’ engagement with the Skrmetti litigants as “negative,” adding that another conservative on the bench, Brett Kavanaugh, was occasionally prickly but otherwise seemed eager to understand the nuances of the case and address questions like whether or how “a ruling in favor of the plaintiffs, here” might “predetermine what we would have to do in a sports case.”

By contrast, it is difficult to predict where the other conservatives on the high court might land on legal questions central to the case. Neil Gorsuch, for instance, was difficult to read even before he declined to ask a single question or otherwise speak when the court heard oral arguments last week.

Minter noted that “less than four years ago when the court issued its decision in Bostock v. Clayton County, it was Gorsuch whose majority opinion, cosigned by the conservative Chief Justice John Roberts and their liberal colleagues, recognized “that discrimination because a person is transgender is inherently based on sex, that it is a type of sex discrimination.”

“So the issue here” in the Skrmetti case “looks awfully similar,” Minter said, because the core legal questions concern the constitutionality of “a statute that targets transgender people” and confronts the court with the question of “whether or not [the law] discriminates based on sex.”

Acknowledging that one should not read too deeply into Gorsuch’s decision to play his hand “extremely close to the vest” during oral arguments, Minter said, “I would like to think that if he had a significant change of view” since authoring the court’s landmark opinion on anti-trans discrimination in 2020, the justice would have “wanted to ask some questions to explore that.”

For these reasons, “just from the very outset,” one might reasonably expect or at least “be hopeful that Justice Gorsuch will continue to [treat] these issues the same way that he did in Bostock,” Minter said.

He added that Roberts, likewise, was careful last week not to indicate which direction he was leaning and instead asked both parties to address concise but challenging questions. While Minter conceded that “It’s hard to draw any definitive conclusion,” he said the chief justice’s performance offered little reason to suspect that he has “shifted his fundamental understanding of these issues from one case to another.”

In a more “encouraging” showing last week, the court’s sixth conservative justice, Amy Coney Barrett, appeared to be “taking these issues very seriously” and “very genuinely grappling with whether or not this is a sex based law, and even with whether discrimination against transgender people, which is considered in its own right, [should] be subject to some sort of heightened scrutiny,” Minter said.

Another major reason for optimism, Minter said, was the “very belabored” discussion of Bostock on Wednesday that was kicked off by the court’s interest in revisiting recent caselaw and the petitioners’ masterful application of relevant precedent to legal questions at issue in Skrmetti.

Elizabeth Prelogar, the Biden-Harris administration’s U.S. solicitor general who represents the federal government and argues alongside the petitioners, did “such a beautiful job of saying that the analysis of Bostock itself was not new,” but rather “drew upon preexisting equal protection case law,” Minter said.

Importantly, he said Prelogar was careful to delineate how both the statutory proscriptions against workplace discrimination ordained by Title VII of the Civil Rights Act of 1964 and the rights guaranteed by the Equal Protection Clause of the 14th Amendment “rely on something called but-for causation, where all you have to show is that sex, in this case, was a but-for cause of the discrimination ā€” meaning it doesn’t have to be the only cause; there can be other factors at play, but as long as it is a cause, it’s discrimination.”

“The reason Bostock was a surprise is just that, sadly, we’re so accustomed to the law not being applied equally or fairly to transgender people,” said Minter, who credited Gorsuch for applying “the law and the preexisting analysis honestly and fairly to transgender people” and deciding, “correctly,” that “there’s just no way to apply this framework that we’ve always applied and not come to the conclusion that this is sex discrimination.”

After the 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned decades-old abortion protections that were first established with Roe v. Wade in 1973, critics argued the conservative justices had cavalierly abandoned the principle of stare decisis, which holds that courts should abide or defer to previous precedent-setting decisions, where possible, especially in landmark decisions that govern how people live their lives.

Asked whether the Supreme Court might be less inclined to overturn decisions like Bostock that were issued more recently and authored by the justices who currently serve on the bench, Minter said “absolutely,” adding that it would be “extraordinary for them to not follow the analysis and reasoning in a decision they decided so recently.”

The stare decisis issue provides more reason for optimism about Skrmetti, Minter said. Overturning important precedent is “unsettling to the stability of the law and to the status and stature of the court,” and “it helps that Bostock was a 6-3 decision” rather than a narrower, more contentious case settled by a 5-4 majority.

The future of gender-affirming care

The path by which U.S. v. Skrmetti reached the highest court in the land is a case study of the devastating consequences, the second and third-order effects, of scapegoating a vulnerable community with a moral panic that is allowed to fester thanks to fear and bigotry.

After several years in which state legislatures collectively introduced hundreds of bills targeting the rights of trans young people and their families, including access to healthcare, the Movement Advancement Project reports that 37 percent of transgender youth (ages 13-17) now live in places that legally prohibit them from accessing best practice medication and surgical care, with dozens of states enforcing these bans.

Among them, of course, is Tennessee, where a complaint was filed last year and fast-tracked through the federal courts such that now, justices on the Supreme Court are debating whether unelected judges or democratically elected lawmakers should adjudicate complex questions that advocates (for queer and trans communities, for civil liberties, for healthcare providers) believe are best addressed by patients and families or caregivers in close coordination with trained specialists who operate under evidence-based guidelines for clinical practice.

Apart from litigation before the high court, another development that signals the appetite and the political will for bringing anti-trans policies and politics from statehouses to the national stage was the massive spend on anti-trans advertising to support Trump and other Republican campaigns during the 2024 election cycle, which Minter noted was “very painful and distressing” for trans people and their families.

After Nov. 5, debates about whether and the extent to which the GOP’s anti-trans messaging strategy may have delivered electoral victories for the president-elect, or for the congressional Republicans who maintained control of the U.S. House and reclaimed their majority in the U.S. Senate, have given way to concerns about the escalation of transphobic hate speech and the legislative and legal attacks against the community that began to ramp up well before the incoming Trump-Vance administration will be seated with the 119th Congress next month.

At this juncture, Minter said that trans young people and their families must wait to see not only how the Supreme Court decides U.S. v. Skrmetti and what the corresponding implications might be in terms of their access to healthcare, but also whether and how and how aggressively the attacks against them will take shape in January and beyond.

In the meantime, “there are some basic things people can do to protect themselves,” Minter said. For example, “this would be a good time to get your identity documents updated, if you haven’t done that yet. It’s a good time to make sure your prescriptions are current. if you live in a state that has banned trans healthcare for minors and you’re the parent of a transit child, you know, it’s good to explore out of state resources. It would be a good thing for transgender people to go ahead now and get copies of their medical records, or at least make sure you know how you can quickly do so in case you do need to make any adjustments to how you’re obtaining the care, if you need to find a new provider or explore out of state resources, depending on what may happen in your state.”

He added, “Now, if there’s some sort of national action,” like a federal ban on access to transgender medicine for minors, “then, of course, it’s not necessarily going to matter where you live, or what state you live in” but “NCLR and other legal groups are prepared to immediately challenge” any such action on the national level.

Here again, Minter, a transgender litigator who came out in his 30s and who throughout his career has argued highly consequential cases, with some yielding major advancements in LGBTQ civil rights, is optimistic. “The post election polling has shown that the public would not be supportive of that action,” he said, because Americans “would far prefer the federal government, the president, and Congress focus on issues that matter broadly to people, especially the economy.”

Earlier, when discussing an exchange between Barrett and the parties, which concerned the justice’s questions about America’s history of de jure (official, lawful) anti-trans discrimination, Minter remarked that”It’s a good thing” ACLU attorney Chase Strangio, who represents the plaintiffs alongside Prelogar, was there “to explain to the court that, yes, there certainly has been a long history of governmental discrimination against transgender people.”

Ticking through some examples Strangio had shared with the court, Minter noted American officials’ enforcement of bans on military service, bans on government employment, bans on marriage, bathroom bans, gendered dress codes based on birth sex, and policies under which trans parents or guardians were forced to forfeit custody of their children or dependents.

Barrett’s pursuit of this line of questioning, Minter said, was an optimistic sign. And perhaps there is even reason for hope that a conservative Christian Trump-appointed jurist’s interest in the country’s record of anti-trans discrimination could carry implications beyond how she decides the tremendously consequential case that is now before the court.

Either way, Barrett ā€” along with the other justices and their clerks and the courtroom staff, together with attorneys, spectators, journalists, and other observers who were lucky enough to score a spot to see the action live from One First Street (or, at least, were able to tune in remotely) ā€” saw Strangio make his case on Wednesday, becoming the first out transgender lawyer ever to argue before the high court.

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