Can Businesses Turn LGBT People Away Because of Who They Are? That’s Up to the Supreme Court Now.
The United States Supreme Court just agreed to decide a case about whether a business can refuse to sell commercial goods to a gay couple because of the business owner’s religious beliefs. A win for the business could gut the nation’s civil rights laws, licensing discrimination not just against lesbian, gay, bisexual, and transgender people, but against anyone protected by our non-discrimination rules.
In July 2012, Debbie Munn accompanied her son, Charlie Craig, and his fiancé, Dave Mullins, to the Masterpiece Cakeshop just outside of Denver to pick out a cake for their wedding reception. When the bakery’s owner heard that the cake was for two men, he said he wouldn’t sell them a cake because of his religious beliefs.
Debbie was stunned and humiliated for Charlie and Dave. As she has said, “It was never about the cake.” She couldn’t believe that a business would be allowed to turn people away because of who they are or whom they love. They might as well have posted a sign in the shop saying “No cakes for gays.”
The Colorado courts agreed with Debbie and ruled that the bakery’s refusal was unlawful and rejected the bakery’s request for a religious exemption from the state’s longstanding non-discrimination law.
By granting review in Charlie and Dave’s case, the Supreme Court has placed a spotlight on supposed tensions between equality and religious liberty. But the country has already found the right balance between these two important constitutional interests.
Under the Constitution, we each have the right to our own religious beliefs. We are empowered to act on those beliefs -- but not when our actions would harm others. That’s because religious freedom doesn’t give anyone the right to discriminate against or harm other people.
When businesses open their doors to the public, they must open them to everyone on the same terms, regardless of race, color, national origin, disability, or – under many state laws – sex, sexual orientation, or gender identity. Even when a business owner’s religious beliefs may motivate her to discriminate, that doesn’t justify an exemption from our civil rights laws. Providing commercial services, like selling cakes, doesn’t mean a business owner is endorsing anyone’s marriage. It simply means they are following the rules that apply to us all.
Demands for religious exemptions from civil rights laws are not new. In the past, businesses have repeatedly sought to pay women less than men because of a religious belief that men are “heads of household” and women should not work outside the home. Other businesses have refused service to people living with HIV because of a belief that they are sinful. Still others turned people away from restaurants because of their belief that they should not interact with people of a different race. The courts rightly rejected all of these claims for religious exemptions, despite the fact that they were based on deeply held beliefs.
There’s no reason that religious exemptions should be any more acceptable when it comes to turning people away because of religious beliefs about sexual orientation or gender identity. Courts across the country have agreed, including a decision from the in February.
The religious exemptions issue has gained prominence recently as civil rights protections for gay and transgender people have become more widespread. States have proposed laws that would license discrimination by businesses, government workers, adoption agencies, and counselors. Congress has considered similar measures. And President Trump has signed an executive order that signaled his intent to use religious exemptions to advance discrimination. But polling shows that both the and reject these overbroad exemptions and recognize them as discrimination.
Charlie’s mom was right: It’s not about the cake. Or the flowers. It’s about not being turned away from a business because of who you are. Religious freedom must be protected in America, but what’s going on here is pure discrimination.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.