Supreme Court Decision Does Not Create a License to Discriminate
Court Issues Narrow Fact-Specific Ruling That Does Not Create a License to Discriminate Based on Religious Beliefs
WASHINGTON — The Supreme Court today ruled in Fulton v. City of Philadelphia that city officials’ decision not to renew Catholic Social Services’ foster care contract was impermissible because the city’s contract contained a mechanism for offering individual discretionary exemptions to agencies, which the court held that the city could not refuse to extend to CSS. The court did not, however, establish a general right for religious organizations to violate non-discrimination laws.
The decision comes in a case involving Catholic Social Services, a taxpayer-funded foster care agency that will not accept same-sex couples in violation of the city’s non-discrimination requirement. CSS sued the city, claiming a constitutional right to discriminate against qualified same-sex parent families because CSS has a religious objection to accepting such families.
The Supreme Court did not accept CSS’ argument that the Constitution bars the government from enforcing non-discrimination requirements against those with religious objections to complying. In fact, the court recognized that the city’s interest in enforcing nondiscrimination protections for same-sex couples was “a weighty one.” And it did not accept CSS’ invitation to overhaul the court’s longstanding free exercise jurisprudence. However, the court held that the city’s decision to end CSS’ foster care contract was unconstitutional because the contract itself was not generally applicable, where it contained a mechanism for discretionary exemptions from its terms.
“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” said Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project. “Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs. This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws.”
“The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here,” Cooper continued. “This is good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the child’s best interest. And this decision does not allow discrimination in other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care. Federal, state, and local governments can and should continue to pass and enforce comprehensive nondiscrimination laws. This is critical given the high rates of discrimination experienced by the LGBTQ community, particularly Black and Brown trans women.”
“For the families in Philadelphia Family Pride, this case is first and foremost about kids. We work with the City of Philadelphia, private agencies that work with children in our foster care system and LGBTQ parents,” said Stephanie Haynes, executive director of Philadelphia Family Pride. “We are relieved that this decision only applies to this specific contract, and hopeful that Philadelphia will be able to address the constitutional concerns the court identified. LGBTQ people are just as qualified to be foster parents as anyone else. There is no reason our families should be turned away from fostering children. In states across the country, many children spend years in a group home before being placed with a foster family, if ever.”
More than 1,000 people and organizations joined friend-of-the-court briefs supporting Philadelphia, including all of the major child welfare groups, clergy and religious organizations representing diverse religious communities, former foster youth, and nearly half of the states and dozens of cities and mayors.
“Congress must now listen to an overwhelming majority of voters and pass the Equality Act to update our civil rights laws to ensure explicit protections from discrimination based on sexual orientation and gender identity, including in federally-funded programs,” said James Esseks, director of the ACLU LGBTQ & HIV Project. “Even with last year’s historic decision recognizing that our federal laws against sex discrimination protect LGBTQ people from discrimination, there are still significant gaps in our federal nondiscrimination laws. In addition to ensuring explicit protections for LGBTQ people, the Equality Act would update our federal civil rights laws to address gaps in the law by providing protection for all women, people of color, and LGBTQ people in areas such as transportation services, retail stores, and taxpayer-funded programs.”
The Supreme Court’s decision is here: https://www.aclu.org/legal-document/fulton-v-city-philadelphia-supreme-court-decision
More details about this case are here: https://www.aclu.org/cases/fulton-v-city-philadelphia
LGBTQ Rights
Fulton v. City of Philadelphia
LGBTQ Rights
Fulton v. City of Philadelphia
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Press ReleaseDec 2024
LGBTQ Rights
Florida Judge Allows State Prison Officials to Withhold Medical Care for Transgender Incarcerated PeopleFlorida Judge Allows State Prison Officials to Withhold Medical Care for Transgender Incarcerated People
TALLAHASSEE – A federal district court judge has rejected a preliminary injunction request, allowing enforcement of a new Florida Department of Corrections (FDC) policy aimed at withholding gender-affirming medical care to those diagnosed with gender dysphoria and forcing transgender women into their male gender assigned at birth. On September 30, 2024, the Florida Department of Corrections issued a bulletin setting new rules for the medical care that the department would provide to transgender people in its custody who had received a diagnosis of gender dysphoria. Contrary to the medical mainstream, the bulletin suggests those seeking hormone therapy may have endured “short-termed delusions or beliefs which may later be changed and reversed” and recommended against providing any gender-affirming medical care unless extensive barriers are overcome. That same day, at Florida Department of Corrections facilities across the state, transgender inmates diagnosed with gender dysphoria were rounded up and informed that FDC policy had been changed, “up to and including hormone therapy.” They were specifically told that they would no longer have access to clothing and grooming standards that accord with their gender identity and would have 30 days to comply. Transgender women were told that those who did not cut their hair in compliance with male grooming standards would be forcibly shorn, and those who did not turn in their female undergarments and feminine canteen items would be disciplined. Transgender women were forced to have their breasts examined to determine if their breasts were large enough, in the eyes of the department, to require a bra. “Florida officials are waging a baseless campaign to dehumanize and degrade incarcerated people like our client,” said Li Nowlin-Sohl, senior staff attorney at the ACLU’s LGBTQ + HIV Project. “Allowing this policy to move forward threatens the basic human rights of transgender people in the state’s custody and the court’s order today affords the state’s policy more credulity than it deserves when the clear intent of the state is to ban this health care outright.” In October 2024, the ACLU and the ACLU of Florida filed emergency litigation on behalf of Reiyn Keohane – a transgender woman in the custody of the department who has been receiving gender-affirming hormone therapy and clothing and grooming accommodations since 2016 – and a proposed class of transgender inmates with gender dysphoria, on the grounds that the new policy constitutes a violation of their Eighth Amendment right to medically necessary care. The ACLU and ACLU of Florida previously filed a 2016 lawsuit on behalf of Ms. Keohane that led to the now-rescinded policy permitting access to hormone therapy and female clothing and grooming standards for transgender women in FDC custody, which for more than six years permitted hundreds of transgender inmates to access needed gender-affirming care. -
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.