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Supreme Court may get LGBT cases this session

by Lisa Keen

The sister of David Zarda, above, who died before his case was resolved, is fighting her late brother's firing from a recreational parachuting company.
The sister of David Zarda, above, who died before his case was resolved, is fighting her late brother's firing from a recreational parachuting company.  

Cases before the U.S. Supreme Court seem almost like an afterthought after last week's political slugfest over the confirmation process for President Donald Trump's second nominee, Judge Brett Kavanaugh. But there are several cases that are of great importance to the LGBT community as the high court began its 2018-2019 session this week. In fact, this session could be one of the busiest in history for LGBT-related concerns.

At least three cases appealed to the Supreme Court ask whether existing federal law protects LGBT people from employment discrimination and a fourth one is on the way; at least four cases could revisit the question of whether a business person can cite their religious beliefs to violate state law prohibiting discrimination against LGBT people; and three lawsuits challenging Trump's ban on transgender people in the military could wind their way up to the high court this session.

Employment cases
The Supreme Court had three LGBT-related employment cases on its list of potential appeals so far this session. Two were on the agenda for the justices' September 24 conference but were rescheduled for an as yet unidentified date. The third has been given more time for briefs to be submitted, until October 24.

Altitude Express v. Zarda (from the 2nd U.S. Circuit Court of Appeals) asks whether Title VII of the federal Civil Rights Act — which prohibits employment discrimination "because of ... sex" — covers discrimination because of sexual orientation. The 2nd Circuit ruled that Title VII does cover discrimination because of sexual orientation. The employer has appealed to the Supreme Court. The case involves a recreational parachuting company that fired one of its trainers, David Zarda, after learning he was gay. Zarda died before his lawsuit could be resolved but his sister has pursued his claim. (The 2nd Circuit covers New York, Connecticut, and Vermont.) Only one other circuit (the 7th, which includes Indiana, Illinois, and Wisconsin) has made a similar ruling (in Hively v. Ivy Tech).

Bostock v. Clayton County (from the 11th Circuit), similar to Altitude Express, asks whether Title VII can prohibit discrimination based on sexual orientation. The difference is that, in Altitude Express, the employee won the lower court decision and, in another case, the employer won. So while LGBT people in New York, Connecticut, and Vermont (and the 7th Circuit states) can seek protection under Title VII, LGBT people in Georgia, Florida, and Alabama cannot. This split in the circuits makes it more probable that the Supreme Court will get involved. In this case, a child services coordinator for 10 years for Clayton County, Georgia, was fired for alleged mismanagement after his supervisor learned he played in a gay softball league.

Harris Funeral v. EEOC (from the 6th Circuit) asks whether Title VII's "because ... of sex" language covers discrimination because of gender identity and whether another federal law, the Religious Freedom Restoration Act, provides an exemption from Title VII if the employer claims the discrimination is based on religious beliefs. The 6th Circuit ruled that Title VII does protect transgender employees and that the religious beliefs of the employer were not "substantially burdened" by complying with Title VII. The case involved a funeral home that fired a longtime employee after the employee began transitioning. The employee, Aimee Stephens, first took her complaint to the Equal Employment Opportunity Commission, which ruled in her favor.

At least one more Title VII-sexual orientation case is pending in lower courts: In the 8th Circuit, Lambda Legal has Horton v. Midwest Geriatric.

Public accommodations cases return
During the last session, the justices essentially balked at ruling on a case about whether a business can refuse to serve customers because of their sexual orientation. The case was Masterpiece Cakeshop v. Colorado. By dispensing with the case on procedural grounds, it put the issue off to another day. That day may come this session, and there are several cases that might provide the opportunity.

Aloha Bed & Breakfast v. Cervelli (Hawaii Supreme Court): This case, which has until mid-October to file an appeal with the U.S. Supreme Court, asks whether the operator of a bed and breakfast can refuse to rent rooms to guests based on their sexual orientation. A state appeals court said no; the Hawaii Supreme Court refused further appeal. The Aloha B&B offers guest rooms for rent in a residential section of Oahu that includes a bay popular for snorkeling. A lesbian couple from California sought to rent a room there because they were visiting friends nearby. When Diane Cervelli called the B&B to make the reservation and mentioned her partner's name, the operator of the B&B asked whether the two women were lesbians. Cervelli answered yes. The B&B operator said, "We're strong Christians. I'm very uncomfortable in accepting the reservation from you," and hung up. Lambda Legal Defense and Education Fund helped the couple file suit, and the state courts found the operator violated the state law prohibiting discrimination based on sexual orientation in public accommodations. The B&B argued that, because it operates out of the owner's personal residence, it should not be subject to the public accommodations law. And it argued that the non-discrimination law violated the owner's right to free exercise of religion. But the state courts said that, if the B&B is open to the public, it must abide by the state law governing public accommodations. And the courts said the state non-discrimination law was neutral on the matter of religion and does not interfere in a substantial way with the owner's religious exercise.

At least three other cases testing the strength of non-discrimination laws against the claims of religious exercise are making their ways through state courts at the moment — in Washington state, Oregon, and Colorado. Each involves a bakery refusing to sell a cake to a person because of the person's sexual orientation or gender identity.

The Colorado case involves the Masterpiece Cakeshop that won a temporary reprieve from a Supreme Court ruling earlier this year that found the state human rights commission had demonstrated hostility for baker Jack Phillips' claim that religious beliefs prompted him to refuse to sell a cake for a same-sex couple's wedding reception. The current lawsuit against him is for refusing to sell an attorney, Autumn Scardina, a cake to celebrate her birthday and anniversary of coming out as transgender. Importantly, Scardina did not ask for the cake to include any message — just that it be pink on the inside and blue on the outside. Phillips refused, saying his religious beliefs prevented him from doing so. The Colorado Civil Rights Commission has ruled Phillips to be in violation of state discrimination laws. The Alliance Defending Freedom, the anti-LGBT group that represented Phillips in his first case, has once again filed a federal lawsuit (Masterpiece Cakeshop v. Elenis on August 14), claiming the commission is exhibiting hostility to Phillips' religious beliefs. Parties are due before a magistrate October 24.

Transgender people in the military
At least four lawsuits are challenging whether Trump's 2017 directive against allowing transgender people to serve in the military can stand. Three federal district courts have blocked the administration from implementing the ban, and the Trump administration has re-worded its ban in an effort to make it more palatable to the courts. But opponents say it's still a ban on transgender people serving in the military.

All the cases are in federal district court and, thus, may not make it through the appellate courts in time to reach the Supreme Court this session. However, the Trump administration made an appeal to the Supreme Court on one case already: Karnowski v. Trump, brought by Lambda Legal. In mid-September the administration asked the Supreme Court to stay an order of the U.S. District Court in Washington state that the Trump administration produce documents related to "presidential communication" related to development of the ban. One day later, it withdrew the request, noting the 9th Circuit had granted the stay.

In U.S. District Court for the District of Columbia, a judge has ruled that a challenge brought by the National Center for Lesbian Rights and Gay & Lesbian Advocates & Defenders may go forward (Jane Doe v. Trump).

Equality California is involved with a third case, Stockman v. Trump, that is in a district court in California.

And in U.S. District Court for Maryland, the American Civil Liberties Union has a challenge to the ban in the Stone v. Trump case.

The lawsuits argue that the proposed ban would violate the rights to equal protection and due process for existing and prospective transgender members of the military.

Discrimination in education
A former student at the University of North Carolina has filed a petition with the Supreme Court, asking whether the school may have violated Title IX of the Educational Amendments Act, which prohibits discrimination based on gender. Kenda Kirby, now living in Oklahoma, wrote the petition herself and says her former school took adverse action against her after she attended a "gay rights rally" and supported Democrat Hillary Clinton for president.

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