Connect with us

Opinions

Supreme Court poised to roll back LGBTQ rights

Rebalance stolen court via expansion, term limits

Published

on

LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton CountyĀ 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 dominanceā€”with anti-LGBTQ justices holding a 6-3 supermajorityā€”the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside.Ā 

Justice Amy Coney Barrettā€™s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Robertsā€™ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobicĀ and homophobicĀ 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 ā€“ Justices Kavanaugh and Alito recently held an inappropriate private meetingĀ with an anti-gay activist who had filed briefs in pending cases ā€” 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:Ā 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 ofĀ Obergefell, the landmark Supreme Court case in which Justice Kennedyā€™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: ā€œBy 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 aĀ problem that only it can fix. Until then,Ā ObergefellĀ will continue to have ā€˜ruinous consequences for religious liberty.ā€™ā€ 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:Ā The currently pending caseĀ before the Supreme Court about discrimination isĀ 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 (ā€œCSSā€), sued the city in federal district court. The federal district court found in Philadelphiaā€™s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.

The CSS claimsĀ 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 ā€œreligious belief.ā€ 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 inĀ FultonĀ could provide cover for underminingĀ Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away atĀ Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority,Ā FultonĀ could strike a big blow against equality.

Health care and family:Ā 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 lawā€™s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administrationā€™s rule interpreted Section 1557ā€™s ban on sex discrimination to includeĀ discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously importantĀ for the LGBTQ community. The uninsured rateĀ for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likelyĀ to report having regular access to health care. For transgender Americans, who are more likelyĀ to live in poverty or be unemployed and to face enormous challengesĀ and have negative experiences accessing health care, the ACAā€™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.Ā 

Lawsuits challenging the Obama administrationā€™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 reverseĀ those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule.Ā Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Courtā€™s decision in Bostock v. Clayton CountyĀ 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 nationā€™s hospitals are affiliatedĀ with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuchā€™s language inĀ BostockĀ suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care.Ā 

Transgender rights:Ā 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 driverā€™s license that accords with Mx. Sabaā€™s gender identity. In August, a lower court preliminarily enjoinedĀ Idahoā€™s law that barred transgender women from participating on womenā€™s sports teams. That decision is currently being appealed.

Just this past year, the Fourth CircuitĀ and the Eleventh CircuitĀ considered whether school bathroom policies violated transgender studentsā€™ rights. Though both circuits ruled in favor of the students, theĀ GrimmĀ case briefly reached the Supreme CourtĀ in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorariĀ in a case involving transgender bathrooms, leaving a lower courtā€™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.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Opinions

Rosenstein: Vote for Angela Alsobrooks and April McClain-Delaney

Two strong, accomplished women for Maryland

Published

on

I am endorsing two strong accomplished women for Maryland. The first is Angela Alsobrooks, for United States Senate. Second is April McClain-Delaney for Congress in Marylandā€™s 6th District. Both women are superbly qualified, and will fight hard for, and be a credit to, the people of Maryland.

Angela Alsobrooks is county executive of Prince Georgeā€™s County. She was born and raised in Maryland. She is a graduate of Duke University, and the University of Maryland, School of Law. She was the first full-time Assistant Stateā€™s Attorney to handle domestic violence cases in Prince Georgeā€™s County. She made history as the youngest, and first woman, to be elected Prince Georgeā€™s County Stateā€™s Attorney where she stood up for families, taking on some of Marylandā€™s worst criminals, while treating victims and the accused with dignity and respect. Under her tenure, violent crime dropped by 50 percent.  

Alsobrooks has said, ā€œThis year we know the rights of women to control their own bodies and healthcare, is at the top of the list of concerns for so many Marylanders, and decent people across the country, both men and women.ā€ Because of this Maryland must elect a strong woman to ensure we win the fight on this issue. There are many reasons to support Alsobrooks. One is if we look at the United States Senate, what is clearly missing, is an African-American woman. That is a disgrace. Marylanders have the ability to make that right by voting for Angela Alsobrooks. 

But there are other reasons to vote for Angela. She understands how federal policy impacts states and counties, directly impacting her constituents, because she has dealt with the issues that arise from the bills Congress passes. Angela is a pragmatic progressive, and will work across the aisle to get things done. Nothing prepares you more for negotiating with Republicans in Congress, than negotiating with a county council and community activists, and she has done both successfully for many years. She will continue to fight for LGBTQ equality having named the first LGBTQ liaison in PG County. She supports legislation to fight climate change, and supports student loan forgiveness. Maryland leaders know Alsobrooks is the right candidate. She has been endorsed by Gov. Wes Moore, Lt. Gov. Aruna Miller, Sen. Chris Van Hollen and former Sen. Barbara Mikulski, Congressmen Jaimie Raskin, Steny Hoyer and Glenn Ivey; and an overwhelming number of local legislators and leaders in PG County. They all know how good she is, and how much she will do for Maryland, and the nation. I urge a vote for Angela Alsobrooks in the Democratic Senate primary.

I also join a hero of mine, former Speaker Nancy Pelosi, Congressmen Steny Hoyer and Dutch Ruppersberger, along with a host of Maryland legislators and office holders, who have endorsed April McClain-Delaney. She has more than 30 yearsā€™ experience in communications law, regulatory affairs, and advocacy, across a broad spectrum of government, private sector, and non-profit engagements. She has served as the Washington director and a board member of Common-Sense Media, a leading non-profit dedicated to how media impacts kids health and wellbeing. Her policy and advocacy efforts have spanned digital citizenship, bridging the digital divide, and tech equity issues, privacy matters, spectrum, and internet governance. She has served as assistant general counsel and regulatory affairs director at Orion Satellite where she oversaw domestic and international regulatory efforts in approximately 20 countries, and served as one the founding board members of the International Satellite Association.

In addition to her professional endeavors, she has served on numerous boards and councils. These include the Meridian Womenā€™s Leadership Council; Georgetown Institute for Women, Peace and Security; Georgetown Law Center (past chair); Northwestern University Board of Trustees; the International Center for Research on Women; Innocents at Risk; and the Sun Valley Community School. She is a graduate of Northwestern University and has her JD from Georgetown Law Center.  Delaney is the best candidate to win the 6th District for Democrats. Delaney understands rural Maryland having grown up on a farm in Iowa. She understands government today, serving as the Deputy Assistant Secretary for Communications and Information, U.S. Department of Commerce, in the Biden administration. 

When it comes to the issue of protecting a womanā€™s right to control her own body and healthcare, no one will match April in her vigilance. She is a mother fighting for the rights for her four daughters. She is a strong supporter of LGBTQ rights, and will support policies to fight climate change, support debt relief for students, and will work to protect our national security. She understands what it means to work across the aisle without giving up any of her principles. She is the kind of person we need in Congress. I urge a vote for April McClain-Delaney in Marylandā€™s 6th Congressional District, Democratic primary.Ā 

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

Continue Reading

Opinions

Unique financial planning challenges for trans community

Overcoming roadblocks in journey to living an authentic life

Published

on

Approximately 2.6 million Americans identify as transgender, according to the U.S. Census Bureau Household Pulse Survey in 2023. This community faces many financial, legal, and estate planning challenges, resulting in higher rates of financial instability compared to the general population. However, these challenges are not generally understood or even discussed. 

At JPMorgan Chase, weā€™re dedicated to providing awareness and education to help all communities ā€” including members of the LGBTQ+ community ā€” reach their financial goals. Our team at J.P. Morgan Wealth Management recently published a new white paper to offer actionable tips for transgender adults to help them overcome some of the specific obstacles they face with planning.

Here are some key takeaways:

Inaccurate identity documents create a foundational problem

Hundreds of thousands of transgender people in the U.S. do not have a single piece of identification that correctly identifies their gender or chosen name. Many people, including those in the broader LGBTQ+ population, have never thought about what their lives would be like if they lacked accurate identity documents. 

Having accurate identity documents is essential for so many aspects of everyday life ā€“ applying for school or a job, finding a place to live, exercising the right to vote and boarding a plane. Presenting inaccurate identification in these situations can subject transgender individuals to unfair discrimination and harassment. But correcting name and gender markers on identity documents can be complicated, expensive, time-consuming, and in some cases, impossible.

The U.S. State Department has adopted one of the most simple and progressive policies for correcting gender markers in the world. Since June 2021, medical certification is not required to change the gender marker in oneā€™s passport. Transgender people should consider updating their U.S. Passport book or card immediately and use that document as primary identification. Passport books and cards are valid for 10 years, even if policies change during that time.

Credit issues are common for trans community 

Transgender individuals who are able to successfully obtain new identity documents still frequently face credit issues. Unlike changes to oneā€™s last name after a marriage or divorce, informing banks or other creditors of a change to oneā€™s first name on accounts does not automatically cause credit reporting agencies to update that personā€™s credit file. The credit reporting system can often be problematic for transgender people after a name change, with many reporting that credit files are never updated or that their credit scores decline.

This can create a cascading effect in numerous areas of oneā€™s financial life, and it goes beyond borrowing. Credit files are frequently checked in employment decisions, pricing insurance, establishing utility and phone service and applying to rent a home. 

Until policies change, transgender individuals should directly contact each creditor and credit reporting agency and follow each organizationā€™s specific procedures and documentation requests. And they should carefully monitor that the changes are actually made and do not result in a credit score change.

Emergency and end-of-life documents should be carefully reviewed

Transgender people often have special health care needs and face unique forms of disparate treatment in accessing care, and cannot speak for themselves in these circumstances. End-of-life planning is often difficult to think about, but itā€™s especially critical that this community works with their attorneys and trusted advisors to create customized emergency and end-of-life legal documents. 

The people named in these documents who could become decision-makers ā€“ typically trusted friends or supportive family members ā€“ should be empowered to direct health care providers to meet the patientā€™s wishes and preserve their chosen name and gender identity, as well as service providers, such as funeral home employees, to honor the deceasedā€™s wishes about their appearance during memorial services.

The laws for these documents are complicated, and they vary depending on the state or territory. If possible, these documents should be prepared by experienced attorneys who routinely work with members of the LGBTQ+ community. 

The bottom line

Transgender individuals in the United States face unique financial, legal and estate planning challenges that create roadblocks in their journey to living an authentic life. Careful planning can help mitigate some, but not all, of these obstacles.

JPMorgan Chase & Co., its affiliates, and employees do not provide tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any financial transaction. J.P. Morgan Wealth Management is a business of JPMorgan Chase & Co., which offers investment products and services through J.P. Morgan Securities LLC (JPMS), a registered broker-dealer and investment adviser, member FINRA and SIPC.

Joseph Hahn is executive director of Wealth Planning & Advice at J.P. Morgan Wealth Management.

Continue Reading

Opinions

University students have a right to protest

But they must not threaten Jewish students on campus

Published

on

Students at Columbia University have set up a tent city to protest the war in Israel. (Screen capture via CBS News New York YouTube)

I support the right of students at Columbia University, and other colleges, to protest. They must understand they are protesting on private space. What I also find interesting is how many of them see their right to protest, and right to free speech. 

The First Amendment gives us a right to free speech, but it doesnā€™t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldnā€™t be protected by law, has been left to the courts. Clearly free speech has its limits. Obscene material such as child pornography, plagiarism of copyrighted material, defamation, or threats, arenā€™t allowed. Also not protected under the First Amendment is speech inciting illegal actions, or soliciting others to commit crimes. Private employers, and universities, are allowed to set their own guidelines as to what speech is allowed for their employees, and on their campuses. 

The debate over student protests at Columbia University is not a new one. I remember when the Student Afro Society (SAS) and the basically all-white Students for a Democratic Society (SDS), demonstrated and took over buildings at Columbia in 1968. Some were protesting the Vietnam War, others what they deemed would be a segregated gym in Morningside Heights, and Columbiaā€™s infringement on a minority community. Both legitimate causes. Those demonstrations took a nasty turn when students took over buildings and cut off water and electricity to them. They held a sit-in, in the presidentā€™s office, and took a dean hostage. Police were called and in some cases it got violent. We are not at the 1968 stage yet in the current demonstrations, and if outside agitators donā€™t get involved, it may not get to that. 

I agree with some of what the demonstrators are calling for, including having Israel rethink how it is conducting this war, protection for the Palestinian people, and immediately providing them with food and medicine. I donā€™t agree with their call to support BDS, which is the disinvestment in Israel. BDS is a Palestinian non-violent movement begun in 2005. I also see hypocrisy in what some of the protesters are saying. While they claim Israel is committing genocide in Gaza, which many disagree with, the same people are calling for genocide against Israel by supporting Hamas. It is Hamasā€™s stated goal to wipe Israel off the face of the earth, ā€œfrom the river to the sea.ā€

Calling out Israel for its tactics, is not anti-Semitic. But attacking, and calling out Jewish students on campus, telling them to go back to Poland, which we have seen on video, and making them feel unsafe, is. Then there is the totally outrageous statement, ā€œZionists donā€™t deserve to live.ā€ made by Khymani James, one of the student leaders of the Columbia, pro-Palestinian student protest encampment. He made the comments during and after a disciplinary hearing with Columbia administrators that he recorded and then posted on Instagram. I hope the president of Columbia University will be able to negotiate an agreement with the peaceful student demonstrators, including amnesty for some of those students who were arrested, if the students agree to certain parameters for continuing demonstrations. One being they cannot make other students feel unsafe on campus. 

I find it abhorrent that House Speaker Mike Johnson has inserted himself at Columbia University, calling for President Shafik to quit. It is a totally inappropriate political stunt. The same goes for Rep. Elise Stefanik (R-N.Y.) who called for the Biden administration to revoke the student visas of all foreign students who are demonstrating. Those students came to the United States for an education, because we are a free country. If they agree to the guidelines of the university, and what is recognized as acceptable free speech, we should continue to welcome them, and allow them to voice their feelings. Again, as long as they donā€™t threaten others while they do so. 

I am Jewish, and a strong supporter of the State of Israel. That support has not stopped me from calling on the Israeli people to rid themselves of Netanyahu, and his right-wing government. I oppose the settlements, and support a real two-state solution. But for that to happen not only will the Netanyahu government have to go, but the Palestinian people will have to reject Hamas. I have not heard the call for Hamas to release the hostages they took, whether those hostages are alive or dead at this time. 

I strongly believe in the right to protest, and for Americans, and those here legally, to speak out. In 1969, I came to D.C. to protest the Vietnam War in front of the Justice Department and was tear-gassed. I had a right to protest in a public space. Since that time, I have participated in many demonstrations. Some around the White House supporting rights for the disabled community, LGBTQ rights, womenā€™s rights, and in the ā€˜80s, demanding the government recognize, and do something about HIV/AIDS. The difference was in these demonstrations, those who disagreed were not threatened. The demonstrations I participated in, took place in public space, not the quad at Columbia University, or other university campuses, which is private space. Students who protest there must understand that. 

My hope is none of the peaceful student demonstrators at Columbia, and other institutions, those who do not threaten fellow students, are thrown out, losing the chance to earn a degree. Those students chose to go to their schools because they thought they would get a good education, and believed graduating from those schools would be good for their futures. 

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

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular