WASHINGTON – Today marks the first day that the U.S. Supreme Court is sitting for oral argument in the 2017-2018 session. As the court returns to work, Masterpiece Cakeshop looms as one of the landmark cases for the term. But the Court could take up a number of additional cases this term that impact LGBTQ Americans, on issues ranging from protections for transgender students, to workplace protections for LGB employees, to the legality of President Trump’s transgender military ban.
To keep track of the many moving pieces and various important cases, Freedom for All Americans today released its new litigation tracker, featuring key background and dates in many lawsuits currently pending that pertain to LGBTQ nondiscrimination protections in employment, housing, and public accommodations. The tracker can be found here: https://www.freedomforallamericans.org/litigation-tracker/.
The Supreme Court has already agreed to hear Masterpiece Cakeshop v. Craig and Mullins, a case out of Colorado concerning a business owner’s ability to defy the state’s longstanding nondiscrimination law by seeking a religious exemption in its effort to refuse service to a same-sex couple. “Friend-of-the-Court” briefs in support of the plaintiffs are due October 30. Every lower court so far has ruled that the baker broke the law by denying service to the two men.
“Legal progress is going to be critical in the coming months as a means of providing urgent protections to as many people as soon as possible, but that doesn’t mean the work stops outside of the courtroom,” said Kasey Suffredini, acting CEO and president of strategy at Freedom for All Americans. “The vital work in the courts must accompany ongoing work in state legislative chambers, in the United States Congress, and at the ballot box in order to collectively build momentum toward federal nondiscrimination laws that ensure all Americans are explicitly protected from discrimination based on sexual orientation and gender identity or expression. Freedom for All Americans will continue to amplify the important work of our legal partners as we drive the same urgency on the state level and in our public education work.”
Some of the most high-profile cases awaiting potential review by the nation’s highest court include:
- Kenosha Unified School District v. Whitaker — In May 2017 the U.S. Court of Appeals for the 7th Circuit issued a groundbreaking opinion in this case filed by the Transgender Law Center in Wisconsin. A three-judge panel affirmed that the school district must allow Ashton Whitaker, a transgender boy, to use the boys’ restroom. This decision made the 7th Circuit the highest court ever to decisively find that Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex, extends to transgender students. The panel also found that the school district’s treatment of Ash violates the Equal Protection Clause of the United States Constitution. Defendants in the case are now seeking review by the U.S. Supreme Court.
- Evans v. Georgia Regional Hospital — This case out of the 11th Circuit was filed by Lambda Legal and concerns the experience of Jameka Evans, who says she was harassed and forced from her job as a security guard because of her sexual orientation and her nonconformity with gender norms of appearance and demeanor. Lambda Legal will file its formal request for review by the U.S. Supreme Court later this month.
- Pidgeon v. Turner — This summer the Texas Supreme Court ruled that the U.S. Supreme Court’s landmark decision in Obergefell ensuring the freedom to marry for same-sex couples nationwide only entitled same-sex couples to marriage licenses – but not necessarily any other spousal benefits. The City of Houston has requested review from the nation’s highest court in its attempt to ensure equal treatment for its city employees who are in same-sex marriages.
Other important cases to watch which have not yet been petitioned to SCOTUS for review but which could quickly make their way to that point include:
- Doe v. Trump — In August, the National Center for Lesbian Rights (NCLR) and GLBTQ Advocates & Defenders (GLAD) filed a federal lawsuit against the Trump administration challenging the constitutionality of the ban on transgender service members. The plaintiffs in the lawsuit are five transgender service members with nearly 60 years of combined service in the United States military. The legal groups most recently filed a motion for preliminary injunction, seeking an immediate halt to the directive, which is planned to go into effect in March. (Shortly after this first lawsuit, ACLU, Equality California, and Lambda Legal all also filed lawsuits challenging the ban.)
- Zarda v. Altitude Express, Inc. — In September, the en banc 2nd Circuit Court of Appeals heard oral argument reevaluating 17-year-old legal precedent that states sexual orientation discrimination is not included under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on sex. The outcome of the decision could have national implications and be on track to the Supreme Court.
- EEOC v. Harris Family Funeral Homes — The 6th Circuit is preparing to hear oral argument on Wednesday of this week in the case of a transgender woman fired from her job at a funeral home because of her gender identity. Defendants are seeking an exemption from Title VII under the federal Religious Freedom Restoration Act, despite the fact that the funeral home is not affiliated with any religious entity. Notably in the 6th Circuit, positive case law has already found definitively that Title VII prohibits discrimination based on gender identity.
The current Supreme Court term will extend through June 2018.
Freedom for All Americans is the bipartisan campaign to secure full nondiscrimination protections for LGBT people nationwide. Our work brings together Republicans and Democrats, businesses large and small, people of faith, and allies from all walks of life to make the case for comprehensive nondiscrimination protections that ensure everyone is treated fairly and equally.