The American Medical Association recently issued a powerful letter in support of transgender servicemembers, affirming that “[t]here is no medically valid reason… to exclude transgender individuals from military service. Transgender individuals have served, and continue to serve, our country with honor, and we believe they should be allowed to continue doing so.”
The American Medical Association’s opposition to the ban affirms what we know to be true — that the Trump-Pence ban on transgender servicemembers is baseless and discriminatory. Anyone who meets the military’s standards should be able to serve, and transgender Americans are serving – and are willing and able to serve – our country with honor.
Growing up in rural Mississippi, I wish I had known about the incredible Black LGBTQ leaders who paved the way for future generations. As a young gay man of African heritage, I was often faced by the reality of the growing racial, social, economic, and sexual orientation differences between me and my peers. It seemed like everyone around me had someone to look up to. I didn’t know there were courageous activists fighting for me. Sure, I was aware of prominent Black or LGBTQ leaders in their respective movements, but I was unaware then of the many Black LGBTQ leaders I could be inspired by.
I’ve been working in social justice for over 7 years now. I’ve been deeply engaged in national and local organizing, including with the National LGBTQ/HIV Criminal Justice Working Group and as the Founder of Queeri, an organization aimed at bridging the gaps between intersections of race, class, gender, sexual identity, and orientation. I am so proud to bring my passion and experience for social justice to GLAD as Community Engagement Manager, to lift the voices of LGBTQ Communities of Color and help ensure that tout le monde has equitable access to justice. I look forward to coordinating with local leaders who inspire me across New England to do this great work.
Leaders can challenge, encourage, and embolden us, and can be an anchor against harmful or trivial distractions. They can empower us to accomplish our goals, to fulfill our dreams. I am a leader today because of the many great leaders before me and those who work alongside me.
The most important thing I look for in a leader is someone who speaks truth to power in my life. I find it helpful when not only can I relate to that person, but when that person looks like me, loves like I do, and fights for causes that are important to me.
As our nation recognizes and celebrates Black History Month, it is important to take a moment to remember and honor the contributions of Black LGBTQ figures who have shined throughout the course of our nation’s history, and those who shine brightly today.
These Black LGBTQ icons, while often invisible or erased from the dominant queer narrative, have always been at the heart of our struggle for rights and inclusion.
In fact, what many refer to as the LGBTQ movement’s beginning, the rebellion against the police at the Stonewall Inn, was predominately led by queer and trans people of color, many of them youth.
While it would be impossible to feature all the many Black icons to whom we owe a debt of gratitude for their tireless work, I encourage you to recognize those leaders who look like you, love like you do, and fight for causes that are important to you., especially those leaders in your communities.
Transgender Americans are eligible to enlist, but the fight to end Trump’s discriminatory ban for good goes on
In the midst of challenging times for many in our nation, this new year began with one truly historic and promising moment. As of January 1, for the first time, transgender Americans became eligible to enlist in our nation’s military.
This should be an incredibly proud step for our country. It follows a series of profound and positive changes in the history of our military – from racial desegregation, to welcoming service members from a multitude of faiths, from expanding roles for women, to ending the ban on service by lesbian, gay and bisexual people – all stemming from an understanding that our military is made stronger when it is reflective of the diverse American population it protects, and when all those who are both qualified and willing have an opportunity to serve.
On January 2, our plaintiff Nicolas Talbott contacted the Air Force recruiter he has been working with for more than a year, thrilled to finally take the next step toward his dream.
“Service to me means coming together to take care of one another,” says Nicolas, who studied national security issues in college, about what motivates his long-standing desire to join the military. I just want to offer the skills and talents I have, to do what I can to make our country and our world a safer, better place. I’m excited and hopeful to finally move closer to that possibility.”
But whether we would get to this moment – whether patriotic and talented transgender Americans like Nicolas would be able to pursue their dreams of service – was in question up until the very end of December. And the fight to ensure that capable, courageous transgender Americans are able to serve, and that our military is able to benefit from that service, still goes on, as we continuing battling Trump’s transgender military ban in court.
The June 2016 announcement that transgender people would be able to serve openly in the military followed over a year and a half of rigorous study by military experts, which concluded that open service would have no adverse impact and in fact would strengthen military readiness and national security. Transgender Americans who were already serving – some for decades, all with dignity and courage – began to come out to their commanding officers. At the same time, it was announced that openly transgender Americans would be able to enlist beginning the following year.
But that thoroughly vetted and thoughtful policy was suddenly threatened when, last July, President Trump tweeted an announcement that transgender people would be prohibited from serving in any capacity in the U.S. military.
GLAD and our partners at the National Center for Lesbian Rights (NCLR) immediately saw this announcement for what it was – a serious attack on our community. We knew we needed to act quickly to ensure the rights and dignity of transgender Americans, preserve the stability of our military, and protect our nation’s core values of equality and fairness.
We filed the first challenge to Trump’s discriminatory and harmful transgender military ban, Doe c. Trump, on August 9, on behalf of five (since joined by a sixth) service members and two individuals seeking to serve. A few weeks later, we joined a second case, Stockman contre Trump, representing additional current and aspiring service members.
On October 30, D.C. District Court Judge Colleen Kollar-Kotelly issued a nationwide preliminary injunction halting the ban, in Doe c. Trump. Judge Kollar-Kotelly agreed our plaintiffs were likely to prevail on their claim that Trump’s ban violates their constitutional right to equal protection, and recognized the serious harm the ban was already causing to transgender service members –who under it face discharge and the loss of their livelihoods, health care, and post-military retirement they have worked hard to earn – as well as to transgender Americans who the ban blocked from ever being able to serve, regardless of their individual qualifications.
Since then, each of the other three federal district courts to consider Trump’s transgender military ban, including in GLAD’s second case Stockman contre Trump, has issued a similar injunction halting its enforcement while the cases proceed.
The Trump administration challenged those rulings on appeal – and, as we got closer to the January 1, 2018 start date for open enlistment, began to ask for “emergency stays” of those rulings, seeking to delay that date. But neither the district courts nor the courts of appeal were persuaded by the administration’s argument that the military was not prepared for open enlistment to begin. The district courts denied the government’s request for an emergency stay, and the courts of appeal followed suit.
In ruling against a stay, the D.C. Court of Appeals described the central question with these profound words:
“[I]t must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.”
Late in the evening on December 29, we got incredible and welcome news: the Pentagon confirmed that the government was withdrawing its appeals of the temporary orders prohibiting enforcement of the ban, and would not seek a last minute “emergency” stay from the United States Supreme Court to delay the January 1 enlistment date. Transgender people throughout the country, whose future educational and career dreams rest on their being able to enlist, would finally be able to move forward.
But this fight is far from over. While enforcement of the ban is currently blocked by court order, it remains official policy to deny continued service and enlistment by transgender people. The government is continuing to defend Trump’s ban in federal district court, where we are currently engaged in the discovery process. The government has also said that it will soon conclude a study of transgender people serving in the military, and we expect that it may use the outcome of that study as a further attempt to defend Trump’s discriminatory policies.
“The beginning of open transgender enlistment is truly historic and something to celebrate,” says GLAD Transgender Rights Project Director Jennifer Levi, who with NCLR’s Shannon Minter is one of two transgender attorneys leading the fight against the ban. “But we can’t let down our guard. Beyond its devastating discriminatory impact on individual service members and on our military itself, allowing a ban on transgender service members to stand would have wide ranging implications. If transgender people are deemed categorically unfit to serve in the military, that exclusion will be used to justify discrimination in housing, employment, social services, family law, healthcare, public benefits, insurance, and beyond. This is a critical fight, for our community and for nation’s values.”
GLAD, with our partners at NCLR and the other organizations who are challenging Trump’s ban in court will not stop fighting until it is gone for good. To follow case developments, visit our Doe c. Trump et Stockman contre Trump case pages.
Janus v. American Federation of State, County, and Municipal Employees, Council 31
On January 18, 2018, GLAD joined 80+ organizations in an amicus brief led by the National Women’s Law Center and The Leadership Conference for Civil and Human Rights in support of public sector unions, which provide critical protections for women, people of color & other marginalized workers. The brief urges the Supreme Court not to overturn four decades of precedent by undermining the fair share rule which allows public sector unions to effectively bargain for important rights and benefits for both member and non-member workers.
My parents grew up in Taiwan during the 1950s and 60s, at a time when Taiwan was a resource-poor and low-income island that was dependent on U.S. aid. My father’s father was a rural school principal, and my father’s mother helped feed their family of 9 children with their small, family farm. My mother’s parents owned a traditional Chinese herbal medicine store in their village, which supported their family of 7 children.
By President Trump’s standards today, as expressed in remarks yesterday about Haiti, El Salvador, and all African countries, my parents should never have been allowed to immigrate to the United States from their “shithole” island.
By denigrating the story of immigrants, President Trump denigrates the story of our nation.
Thankfully, Trump was not president in the 1970s, when my parents did immigrate here, which was only possible after decades of laws that excluded or limited Chinese people from coming to the U.S. were fully repealed in the 1960s. My father came to America in the 1970s to pursue his master’s degree in chemistry, which led to his first job in Minneapolis (where I was born), where he helped advance the science underlying Scotch tape. My mother, who had worked as a nurse in Taiwan, began as a low-wage health care aid at a nursing home while she learned English from watching T.V. soap operas, until she was able to pass her nursing exams. She went on to work in the delivery ward of a small, community hospital for over 20 years, helping deliver two generations of families in the small, rural community where I grew up.
I have gone on to devote my career as a lawyer advancing civil rights, and my sister is a doctor who conducts research on reproductive health. Her husband, also a doctor, is the son of parents who immigrated from India, and their children – my 13-year-old nephew and 9-year-old niece – recently donated money from their allowances to help defend transgender Americans who want to serve in the military. Since the 2016 election, they have listened to the news with interest and have voiced fears about how President Trump and how his policies may affect their lives, their friends, our family, and our country.
My husband Adam and I with our families over the holidays.
I share my family’s history not because it is exceptional, but because it is entirely ordinary. It is the story of America. With the exception of Indigenous Americans and those who were forcibly brought here through slavery, in every family, in every community, these stories of hope and hard work through immigration is what built our country into what it is today.
By denigrating the story of immigrants, President Trump denigrates the story of our nation.
It is beyond time to defend Dreamers from deportation. It is beyond time to pass comprehensive immigration reform that protects family integrity and refugees. It is beyond time that we build bridges instead of walls, allies instead of enemies, with the rest of the world community.
On the night of President Trump’s election, my husband, who is a humanitarian aid doctor and whose mother immigrated here from Argentina, was working in a rural village on the south coast of Haiti, which was struggling with a cholera epidemic that had developed after the devastating earthquake in 2010. While he began the evening following the election results with his fellow aid workers from Haiti, they eventually left him before the results came in to get some rest, in preparation for another grueling day of work rebuilding their small community.
I imagine if those Haitian heroes could speak to President Trump today, they would invite him to roll up his sleeves and help rebuild their sewage system, which will help stem the spread of cholera in their village.
But we already know how Trump feels about that.
Immigration is a bedrock principle of our country, and we are made stronger by it. It is up to Congress to do the right thing and take immediate action to protect the lives of thousands of individuals and their families whose futures are at stake.
Call members of Congress and demand they pass the DREAM Act to support thousands of young people toward stability and legal residency in the U.S.; restore temporary protected status (TPS) for the nearly 200,000 citizens of El Salvador who have been lawfully residing in the U.S. following devastating earthquakes in El Salvador in 2001; and enact immigration policies that are true to American values.
For more information, and how you can contact members of Congress, visit:
How did we get to this moment? Where do we stand on the transgender ban? And what now?
Today is historic. It marks the first time — ever — that transgender Americans can openly enlist in our nation’s military. While this shift in military policy has been in the works for some time, its implementation was far from a foregone conclusion. In fact, its likelihood was highly in doubt after President Trump’s Twitter announcement last July that transgender people would be prohibited from serving in any capacity in the military.
Following President Trump’s announcement of a ban on military service for transgender people, GLAD and our partners at NCLR filed the first challenge to the military ban in the case of Doe c. Trump. A few weeks later, we joined a second case, Stockman contre Trump. We saw Trump’s announced ban as a serious attack on our community and knew we needed to act quickly to ensure the rights and dignity of transgender Americans, preserve the stability of our military, and protect our nation’s core values of equality and fairness.
The recent dramatic turn of events in these cases has been exciting and reflects positive developments. Late in the evening on Friday, December 29, the Pentagon confirmed that the military had abandoned a strategy of seeking last minute “emergency” relief from the United States Supreme Court to avoid having to comply with the January 1 deadline imposed on it to allow transgender people to enlist in the military. This was huge and welcome news for the legal teams but especially for transgender people throughout the country whose future educational and career dreams rest on their being able to enlist. That same evening, we learned that the government was also abandoning their appeals of the temporary orders issued by three federal district courts prohibiting President Trump’s ban. That news was also extraordinary and a very hopeful sign.
That said, the cases challenging President Trump’s ban are not over.
While the government has withdrawn its appeals of the preliminary injunctions that are in place that currently prevent this administration from enforcing its ban, it has said that it will continue to defend the ban in court. The government has also said that it is soon concluding a study of transgender people serving in the military and has suggested that it may use the outcome of that study to defend discriminatory policies.
How did we get to this moment?
Four different federal district courts (in two of which GLAD is counsel) issued preliminary injunctions halting enforcement of the ban President Trump first announced last July. The government challenged those rulings on appeal. In addition to appealing, the government asked for “emergency stays” of those rulings specifically arguing that the military was not yet ready to allow transgender people to begin enlistments on January 1, 2018.
The district courts said “no” to any emergency stay and so did the courts of appeal. After that, we fully expected the government to ask the United States Supreme Court for the emergency relief denied to it by the lower courts.
Last week was a nerve-wracking one, waiting for that shoe to drop. But it never did.
The Supreme Court never closes, so even when 5:00pm came and went on Friday, December 29, we were not sure what would happen. To many people’s surprise, the Pentagon announced that it would comply with the January 1 deadline for enlistments to begin and that the Department of Justice was voluntarily dismissing its appeals of the courts’ preliminary rulings.
So, where do we stand in the cases and the issue of transgender military service?
It is easiest to say where we stand in the cases. We are headed back to the trial court. We are in the process of “discovery” which means that the two sides have to exchange information about the ways they intend to proceed with their case. We each have deadlines to meet over the course of the next couple months to provide information and make our witnesses available to one another for depositions.
And where do we stand on the transgender ban?
It remains the military’s policy to deny continued service and enlistment by transgender people. But at least until there is a final resolution on the merits of our cases, the military cannot enforce that policy. The military has repeatedly said that it is “studying” the issue of transgender people in the military, even though it already spent over a year doing so before it decided to allow people to openly serve. It has also said that it might make a new or different recommendation about military policy and that President Trump might follow that recommendation. It’s hard to know how to read those signals. We remain hopeful because the focus on this issue, including on our cases, has highlighted the incredible contributions that transgender people can and have already made to the military. At the same time, we know we can never let down our guard, especially in dealing with this administration.
So, what now?
Beginning today, transgender people will be able to openly enlist in military service. Our client, Nicholas Talbott, has already been in touch with his recruiter and the process is moving along smoothly so far. We hope that continues for him and anyone else who wishes to enlist. If it doesn’t, GLAD wants to know about it.
Together, we have made tremendous progress. This forward motion portends much hope for the future. But the case is not over and GLAD will keep fighting until this ban is history.
Regan Kibby (left) and Dylan Kohere (right) Doe v. Trump plaintiffs, and Nicolas Talbott (middle) Stockman v. Trump plaintiff
My partner and I spend a lot of time talking to our kids about leading purposeful lives. They’re still young, so mostly we say things like, “it’s important to be a good friend,” and “when you see something is wrong, it’s your job to speak up.”
It’s really simple. But it’s also the reason I work at GLAD.
At the end of the day, GLAD’s job is to fight wrongs and support those who don’t always have a voice. And young people in the juvenile justice system, the child welfare system, and schools – especially youth of color – are the ones who need us most of all.
Together with the wider GLAD community, we are creating a future where every kid is safe, affirmed, and cared for, no matter who or where they are.
It’s often hard for kids to access the legal resources they need and rights they deserve. That’s why GLAD fights so hard on their behalf. It’s why we help them find their own voices and advocate for themselves and their peers.
Our Youth Initiative is often a key lifeline for youth who have the odds stacked against them:
GLAD is working with school administrators, teachers, and coaches to ensure that the identities of transgender youth are fully respected.
We are fighting for LGBTQ youth in foster care systems to make sure they have safe placements, vital medical care, and supportive environments that enable them to thrive.
GLAD is working to make New England a conversion therapy-free zone. With victories this year in Connecticut and Rhode Island, and our ongoing work in Maine and Massachusetts, we are protecting LGBTQ youth against the harmful and fraudulent practice of conversion therapy.
We’re fighting for incarcerated youth, through individual representation and systemic advocacy, to redress damaging and unsafe conditions, institute more humane policies and practices in facilities, and advocate for community-based alternatives to juvenile prisons.
Young people impress and inspire me every day. They are courageous, tenacious fighters. They have endless capacity to grow, and to change the world around them. Together we can lift up our collective vision for a safer, fairer world and make sure that youth have the rights, affirmation, and resources they need and deserve, right now.
So many young people need our help. Which means that together we have so many opportunities to make a difference in their lives.
For more than 50 years, federal and state public accommodation laws have outlawed discrimination in public spaces, such as restaurants, hotels, and hospitals. And at no point has the U.S. Supreme Court approved of a constitutional right to discriminate in these public spaces. That may change depending on how the Court rules in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case argued yesterday involving a Denver baker who, due to religious objections, refused to sell a cake to a same-sex couple, David and Charlie, to celebrate their marriage.
As many have noted, this case is not about cake, or even about religious liberty. It is about discrimination, by “constitutionally relegat[ing] gay and lesbian people to second class status,” as David and Charlie’s attorney argued yesterday,
But it is also not just about discrimination. At stake is no less than the health and future of our pluralistic democracy.
The public square, which includes Main Street and the mall, has been central to the evolution of our American democracy. Public accommodations must be open to all in order for our democratic society to function optimally. And that must include being open to LGBTQ people, who historically have been shunned from public life.
This principle is under systemic attack by anti-LGBTQ forces, from concerted efforts like Masterpiece Cakeshop to use religion to gut public accommodation protections, to the ongoing effort to repeal public accommodation protections for transgender people in Massachusetts, at the ballot box in 2018. Opponents of LGBTQ equality would rather further fray the connective tissues that bind our pluralistic society together, than serve a slice of cake to the gay couple down the street.
LGBTQ people are born into and live in every state, county, and town in the United States. It is critical that we protect our ability to be out and open in communities across the nation.
The public square is at the heart of a vital democratic society, first and foremost, because inclusion in public spaces affirms equal citizenry, while exclusion from public spaces prevents full participation in civic life. Our nondiscrimination laws have been an integral part of the struggle to ensure equal citizenship for all Americans.
As described in an amicus brief in Masterpiece Cakeshop by public accommodation law scholars, state public accommodation statutes have deep roots in the common law, which prior to the Civil War recognized a business’s duty to serve, though that duty extended to white patrons only. Reconstruction offered hope that these protections would extend to African-Americans, but the enactment of Jim Crow laws instead required discrimination in every former state of the Confederacy. This de jure segregation received a stamp of approval from the U.S. Supreme Court in Plessy v. Ferguson. It was only through the struggles of the Civil Rights Movement of the 50s and 60s, the Brown c. Conseil scolaire decision and others like it, and the enactment of Title II of the Civil Rights Act of 1964, that our nation truly affirmed our commitment to equal access to public spaces, and to the recognition of full and equal citizenship of African-Americans (however unfinished that work remains).
For the LGBTQ community, public accommodation laws are “protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society.” Those are the words of Justice Kennedy in Romer v. Evans, the 1996 U.S. Supreme Court decision that paved the way for passage of Colorado’s public accommodation law, under which Masterpiece Cakeshop is being sued. And Justice Kennedy likely holds the deciding vote in Masterpiece as well.
However, it is not just communities that have been historically excluded from public life, which stand to benefit from robust public accommodation nondiscrimination laws. Inclusive public spaces are necessary to form a common, civic society – the foundation of a healthy democracy. We live in a world where we increasingly live amongst people who look like us, and interact with people who think like us (whether through social media or specialized news outlets). At a time when our society is being pulled apart along fault lines of race, nationality, religion, and LGBTQ status, it is more important than ever that we preserve the few places where life dictates that we interact with those who are different – the public square.
And by doing so, we not only help preserve civic society, but we advance LGBTQ acceptance.
The public square is at the heart of a vital democratic society, first and foremost, because inclusion in public spaces affirms equal citizenry, while exclusion from public spaces prevents full participation in civic life.
Today, eighteen states explicitly forbid discrimination based on gender identity, and twenty-one ban sexual orientation discrimination. These protections have been critical to the LGBTQ community, which has spent generations living in the closet and in the shadows. These laws have made it possible for LGBTQ people to come out publicly in their communities, which in turn has increased society’s understanding and acceptance of LGBTQ people.
That’s because inclusive public spaces have the added benefit of creating a more tolerant society – another pillar of democracy. People of different backgrounds are more likely to see each other as part of their community, when they come in contact with each other. This idea, called the Intergroup Contact Theory, was developed in the 1950s by the social psychologist Gordon Allport, and was used then to advocate for the end of racial segregation. Central to this theory was the idea that being in contact with people who are different can help reduce prejudice, a significant obstacle to the proper functioning of a democratic system.
LGBTQ people are born into and live in every state, county, and town in the United States. It is critical that we protect our ability to be out and open in communities across the nation. That is why it is imperative that we protect the bonds that hold us together, by preserving the public square through robust nondiscrimination laws. Only if the public square remains open to all, can we have a democratic government that is truly for all of us.
The outcome of this case will either preserve hard won protections in local, state and federal antidiscrimination laws, or allow them to be overridden by religious and moral objections. The outcome will either preserve Obergefell c. Hodges, the 2015 win on marriage equality, or it will allow individuals and businesses to disfavor marriages of same-sex couples and treat them as second class. It’s that stark. This blog attempts to unwind the issues.
Facts of The Case
In 2012, Charlie Craig and David Mullins were heading to Massachusetts to marry, but also wanted to have a party back home in Colorado. At the suggestion of their wedding planner, they visited Masterpiece Cakeshop outside of Denver to order a cake for the festivities. As they sat together with Charlie’s mom at the Cakeshop and perused a book about the cakes, the bakery owner joined them. When they explained the cake was for their wedding reception, he told them he would not sell baked goods to gay and lesbian couples for weddings.
The whole personal interaction took about 20 seconds.
They soon learned that the Cakeshop had refused cakes – even cupcakes – to other same-sex couples as “standard business practice.” Charlie’s mom also called the Cakeshop the next day and learned the refusal policy was based on the owner’s Christian religious beliefs.
Businesses open to the public should be #OpentoAll. Learn more.
Charlie and David challenged the refusal and, unsurprisingly, won their case at the Colorado Civil Rights Commission. The bakery admitted it provided a commercial service to the public – selling wedding cakes – but extended that service only to different-sex couples and not same-sex couples. This violated state law forbidding discrimination by businesses offering sales or services to the public, on the bases of sexual orientation, disability, race, creed (meaning religion), color, sex, marital status, national origin or ancestry.
The Bakeshop lost in court appeals, too. Like other businesses before them that discriminated against people because of who they are, the Bakeshop invoked the constitution’s venerated free speech and free exercise of religion clauses as a shield against the state antidiscrimination law. Those arguments have held no sway in the public marketplace.
The Supreme Court Takes the Case
Yet, after more than a dozen conferences at the Supreme Court, and to the surprise of many, that Court accepted the Cakeshop’s petition for review of their case last June.
ACLU lawyers representing Craig and Mullins will face off against the Cakeshop’s lawyers, the “Alliance Defending Freedom” (ADF), which spends its $58 million budget on issues of “religious freedom, the sanctity of life, and marriage and family.” LGBT people remain a principal target of their extensive litigation and public (mis)education efforts.
Some people have asked, “why do we care about a cake? Who wants a cake from someone who doesn’t want to make it for you anyway?”
Some others hope a limited exception to antidiscrimination laws will calm the waters.
And, of course, many LGBTQ people and allies are also people of faith themselves who embrace religious pluralism as part of our Nation’s DNA.
But it is pas about a cake, and is about a fundamental principle of our public citizenship. It is ultimately about whether every business open to the public can discriminate against anyone they please based on their personal, religious or moral views.
As much as we support free exercise of religion, and we do, we reject the Cakeshop’s efforts to use protections for religion and speech to allow a vendor’s views to dictate who has access to publicly available goods and services.
For one, the outcome ADF and the Cakeshop seek would undo a central precept of the four major LGBT cases at the Supreme Court in the last 20 years, namely that “moral” views about LGBT people do not justify discriminatory treatment. Although barriers to full equality remain and are more intense in some places than others, the goal of being included as equal, respected and participating members of society is closer for many LGBT people than ever before in our Nation’s history. This is particularly important for LGBT youth who long to grow up in a world free from violence and discrimination because of who they are.
Turning the marketplace into a gauntlet where vendor views of who you are can justify denials and disparagement would force many LGBT people back into hiding, disrupting our ability “to lead more open and public lives” – as the marriage case put it – that the Court decisions have fostered. Our lives will change, and for the worse, if our ability to buy food or clothing, or see a movie or concert, depends on how much prejudice there is against us, as Professor Joseph Singer put it. If expression and action on private moral views trump all other considerations, including harm to others, then our marriages will be degraded to second class, and our parental rights, employment benefits, and much more can be limited as well.
Although LGBTQ people are the intended target of this breathtakingly broad exemption, they would not be the only casualty.
If the Constitution provides protection for discriminatory actions based on free speech or moral views as to LGBT people, then others who have also faced historical discrimination or are minority groups can expect to see the same arguments wielded against them.
Reasons for Optimism
On the law as it stands now, this case should be a slam dunk for Craig and Mullins. The ACLU and many amici – including religion and speech experts and faith and civil rights groups – have shown the court why our side is right on the law. That is what makes the Court’s decision to hear the case a surprise.
For decades, we’ve found free exercise and freedom of speech can coexist with enforcement of neutral, generally applicable non-discrimination laws regardless of the beliefs or motivations of the person discriminating. After 100 years of Jim Crow, and achievement of the 1964 Civil Rights Act with its public accommodations provision, the rule has been that personal beliefs cannot be justification for violating an antidiscrimination law. And each of the Supreme Court’s landmark LGBT decisions – Romer, Laurent, Windsor et Obergefell – clarify that the Constitution does not permit anti-LGBT discrimination in the face of private beliefs and biases. We don’t need a new and broad exemption where our society already legally protects the exercise of faith virtually everywhere but the public marketplace and also gives a right of action to those who believe their expression has been crimped.
Antidiscrimination laws are also understood to serve “compelling state interests of the highest order,” as one Supreme Court case put it. These laws address the demeaning and deprivation of dignity from unequal treatment, along with material harms resulting from denied goods and services, and the burden and difficulty of finding other vendors for what you need, particularly in more rural areas. Once excluded, a psychic harm arises caused by the uncertainty about whether you will be turned away again, and forced to go through the same process.
A public marketplace allows Americans to come together in shared civil spaces that are open to all on equal terms. Excluding individuals from the marketplace on the basis of group membership or immutable characteristics reduces the opportunities for all Americans to interact and forge bonds we might not encounter outside the commercial sphere. This “political and social integration,” as well as “economic opportunities,” – as the Supreme Court put it – are threatened by the Cakeshop’s proposed rule.
These interests apply as much now as they did fifty years ago when the Civil Rights Act was passed. And the state’s interest in combating these harms is just as compelling when LGBT people are involved, even as there are differences in the ways women and people of color and LGBT people have experienced discrimination. GLAD’s lawyers were not the only ones to notice that in the 2015 Obergefell decision, the Supreme Court spoke of how sexual orientation shares the features the Court has held are an impermissible basis for discrimination in other cases. This could be an issue the Court explores in its Masterpiece Cakeshop ruling.
At the end of the day, we hope the Supreme Court will continue allowing for free exercise of religion and for LGBT people and others to engage in the myriad ordinary transactions that many take for granted in their everyday lives. This is a case to watch.
It’s time to end the anti-gay PrEP exclusion in America’s insurance industry.
Par Ben Klein et Alex Weinstein
Perhaps we have become a little too accustomed to Fortune 500 companies that tout their LGBTQ employee affinity groups, advertise to our community with the rainbow flag, march in our parades, and even donate to our organizations and sign briefs in the U.S. Supreme Court showing considerable business support for our rights. Those corporate acts make a big difference and reflect tangible positive change in the world we live in.
Insurance companies can’t wave the rainbow flag with one hand and with the other turn us away because of our sex lives.
But what about actual business practices? On World AIDS Day 2017, here’s our vote for the most unrecognized antigay and AIDS-phobic corporate policy in America today: the largest insurance companies in America that are blatantly discriminating against gay men who take steps to prevent HIV transmission by using PrEP (or HIV pre-exposure prophylaxis), a once-a-day dosage of the medication Truvada.
Fortunately, most health insurers and state Medicaid agencies are covering the cost of the medication so people can have access to this extraordinary breakthrough in prevention. But when people take PrEP and then individually apply for life insurance, long-term care insurance, and disability insurance, they are automatically denied coverage solely because they take PrEP.
Some of the largest insurance companies in the nation are engaging in this categorical exclusion of PrEP users. GLAD has learned about denials of insurance coverage by State Farm, Aetna, Metropolitan Life, John Hancock, Protective Life, Lincoln Financial, and many more. We have sued Mutual of Omaha Insurance Company for denying long-term care insurance to a qualified HIV-negative gay man because he uses PrEP. This is an industry-wide policy and practice. Gay men can either get insurance or they can forego taking the best biomedical HIV prevention method in the history of an epidemic that has claimed so many lives.
So, what are all these corporate giants saying about PrEP users? Life, disability, and long-term care insurers underwrite the risk that an applicant will claim benefits and when. They get your medical records and exclude you if you have a disqualifying health condition, or charge you higher premiums if you have certain health conditions. But people who are excluded solely because they take PrEP do not have any disqualifying health condition. They are excluded because these corporations believe they are engaging in “high-risk sexual behavior” and deem them at high risk for HIV. Let’s be frank: they are talking about anal intercourse. In other words, you are fully eligible for insurance, but you are turned away because of the sex you are having.
We need to be doing everything we can to end the stigma associated with PrEP so that people can make decisions based on what’s best for their own health, not based on barriers to access or fear of discrimination.
In an industry that is based on rationality, and is supposed to make decisions based on actual data, how does this make sense? Research demonstrates that PrEP is close to 100% effective at reducing the risk of HIV transmission, far more effective than condoms. Let us say that again: Close to 100% effective in stopping HIV. And yet the insurers ignore the efficacy of PrEP and instead use it as a proxy for “high risk sexual behavior” in their underwriting. That is not science; it’s a moral judgment about the people who use PrEP. By the way, 80% of PrEP users are gay men.
These insurers argue that not everybody takes PrEP as directed (once daily) which reduces its effectiveness, or that the long-term effects of Truvada usage are unknown (PrEP has been demonstrated to be well tolerated with no significant side effects). These same insurers offer insurance to people with a range of conditions, such as diabetes and bipolar disorder, as long as the applicant demonstrates adherence to medications that control those conditions. Yet they don’t allow PrEP users to demonstrate adherence. And insurers obviously don’t exclude every new drug approved as safe by the FDA simply because there is not long-term data for new drugs.
This “no PrEP users need apply” policy belongs on the long list of just plain stupid beliefs about HIV transmission that have been proffered over the course of the epidemic. This corporate policy does nothing to achieve its stated goal of reducing the overall prevalence of HIV in an insurer’s pool of beneficiaries. Take two people with identical sex lives: The PrEP user is denied insurance; the person who doesn’t use PrEP is covered. That make zero sense. And worse, it actually risks discouraging use of a powerful tool that could help end the HIV epidemic.
And the fact is that most people at risk for HIV in the United States are pas yet on PrEP. The Centers for Disease Control and Prevention estimates that 1.2 million people could benefit from PrEP. Yet, since PrEP was approved by the FDA in 2012 there have only been about 145,000 total PrEP users. Before the advent of PrEP, life, disability, and long-term care insurers did not assess for HIV risk. They did not ask applicants about sexual practices or condom use and make underwriting decisions on that basis. But with the advent of PrEP, they are carving out and excluding just a small percentage of the whole group of people who have some risk for HIV—those who use the most effective prevention tool. This is discrimination, not a rational policy.
From the earliest days of HIV, we have often said: We’re not going to end this epidemic if myths, fear and discrimination interfere with our best public health policies. We need to be doing everything we can to end the stigma associated with PrEP so that people can make decisions based on what’s best for their own health, not based on barriers to access or fear of discrimination. The corporate practices of these insurance companies reflect and reinforce stigma. They put the public health at risk by creating an incentive to avoid or delay PrEP.
This “no PrEP users need apply” policy belongs on the long list of just plain stupid beliefs about HIV transmission that have been proffered over the course of the epidemic.
Many of the companies perpetuating this policy and practice are Fortune 500 companies and some, like Aetna, John Hancock, State Farm, and Mutual of Omaha have a 100% approval rating from Human Rights Campaign (HRC). These corporations can’t wave the rainbow flag with one hand and with the other turn us away because of our sex lives. It’s time to end the PrEP exclusion in America’s insurance industry.
Read more about Doe v. Mutual of Omaha Insurance Company
La Cour suprême a été invitée à réexaminer la question de l’égalité du mariage, mais l’argument est faible et la loi est fermement de notre côté. Apprenez-en davantage et connaissez vos droits.
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