2/25/21  //  Commentary

By Harper Jean Tobin: In an age of photo ID and other biometrics, a sex designation is far from essential for identification purposes. It’s about the furthest thing from a unique identifier, and requires dubious judgments about what a man or woman should look like.

11/25/20  //  In-Depth Analysis

The 11th Circuit held that laws banning conversion therapy — a brutal practice that significantly increases depression and suicide among LGBTQ youth — violate speech rights. The decision signals how Trump-appointed judges could weaponize the First Amendment to roll back civil rights.

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

6/16/20  //  Commentary

Following the Supreme Court's decision in Bostock, it's worth asking: Why has the law been so successful at improving the lives of gay people but much less successful at improving the lives of people of color?

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

1/14/18  //  Daily Update

President Trump’s nomination of Howard Nielson, Jr. to the federal bench is an attack on LGBTQ rights.

12/24/17  //  Daily Update

The Pentagon released a detailed policy for recruiting transgender troops.

12/4/17  //  Daily Update

This week, the Supreme Court will hear oral argument in Masterpiece Cakeshop, a case invoking the conflict between religious beliefs and non-discrimination ordinances.

11/27/17  //  Daily Update

Advocates oppose President Trump's recent nominee to the D.C. Circuit. A federal judge blocked the administration's ban on transgender service members in the military.

11/5/17  //  Daily Update

A federal judge blocked the Trump administration's ban on transgender military service, and commentators discussed the administration's position in the Masterpiece Cakeshop case.

10/21/17  //  Daily Update

Although DOJ will assist in the prosecution of a man charged with murdering a transgender teenager in Iowa, reportedly at the urging of Attorney General Jeff Sessions, commentators argue this action does not alter Sessions's assault on LGBT rights.

2/12/18  //  Commentary

Tolerating discrimination and tolerating the desire not to be discriminated against are simply not the same.

6/15/18  //  In-Depth Analysis

By Thomas C. Berg & Douglas Laycock: The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides

2/28/19  //  Uncategorized

On this week's episode of Versus Trump, Charlie, Jason, and Easha discuss a decision from a federal court in Los Angeles ordering the Trump Administration to grant citizenship to both children of a same-sex couple born abroad to one U.S. parent. Listen now!

8/24/17  //  Commentary

Here I explore the interests asserted by GoDaddy and Google in denying service to neo-Nazis and their ilk. I then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.

12/21/17  //  Commentary

On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!

11/1/17  //  In-Depth Analysis

In Masterpiece, the Petitioner's argument would wreak havoc on long established First Amendment principles, giving businesses a right to disregard content-neutral regulations of their conduct

11/14/19  //  Uncategorized

On this week’s Versus Trump, Jason, Charlie, and Easha discuss a court's opinion vacating the Trump Administration's so-called "conscience rule." This rule would have broadly permitted many employees in the healthcare sector from in any way participating in procedures with which they have religious or moral disagreements—even in emergencies. Listen now!

10/31/17  //  In-Depth Analysis

Robbie Kaplan and I have filed a brief on behalf of Church-State Scholars addressing the Free Exercise Clause issues in this important case.

10/8/19  //  Quick Reactions

It seems just last month Justice Gorsuch was saying his rule was not to “make it up" and was to "follow the law.” The Title VII cases allow us to see whether that's the case.

5/17/17  //  Commentary

With briefing almost completed in G.G. v. Gloucester County School Board, it’s good to remember the way in which the case can be resolved on straightforward statutory grounds without deciding whether Title IX prohibits discrimination against transgender persons, as such.

5/30/17  //  In-Depth Analysis

The president’s proposed budget reveals an intent to roll back protections for the most vulnerable members of society.

6/6/18  //  Quick Reactions

Justice Kennedy makes an open-ended call for tolerance and compromise in his opinion. For that, he should be commended

6/5/18  //  Quick Reactions

In some cases, the public perception of a case — not its actual holding — is what is most important.

9/28/17  //  Commentary

1/4/18  //  Uncategorized

On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!

3/30/20  //  In-Depth Analysis

HHS has recently tried to essentially repeal an important rule that prevents the Department from discriminating across its many programs. But, as contributor Harper Jean Tobin explains, its rule making is both substantively and procedurally illegal.

9/21/17  //  In-Depth Analysis

A sleeper issue is brought center stage by two leading religious liberty scholars

2/27/18  //  Latest Developments

A new lawsuit seeks to protect freedom of speech and equal protection for LGBT people in Mississippi

10/18/17  //  In-Depth Analysis

DOJ's effort to to transform this case into a freedom of speech decision threatens the integrity of First Amendment rights. It should be rejected.

6/12/18  //  Commentary

Will SCOTUS minimize its view of religious animus as applied to Muslims, despite having just magnified it as applied to conservative Christians?

6/22/17  //  In-Depth Analysis

Thanks to the Supreme Court's ruling in Matal v. Tam, the government speech doctrine will not swallow the First Amendment.

3/14/19  //  In-Depth Analysis

The Supreme Court's decision in Masterpiece Cakeshop offers no warrant for a rampant free exercise exceptionalism, in which the normal rules of constitutional law are suspended or inverted

12/4/17  //  In-Depth Analysis

Conservative legal activists have pushed a sweeping view of the First Amendment’s protection against compelled speech. These new complicity claims should fail.

7/9/19  //  Commentary

Discriminating against an employee because they are transgender violates Title VII in two distinct respects

3/28/18  //  Commentary

We thus live in a strange new world, where bigots serve openly and soldiers are forced into closets.

12/7/17  //  Commentary

Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.

5/10/17  //  Commentary

Andrew Sullivan recently criticized gay people who seek to obtain services from those with religious objections to serving them. But Sullivan's criticism fundamentally misunderstands the basic purpose of public accommodations laws and should be rejected.

5/20/19  //  In-Depth Analysis

Artificial reproductive technology might disestablish the traditional ideas of maternity on which abortion law and discourse rests

7/7/17  //  Quick Reactions

Three former Surgeons General have called for an end to involuntary medical procedures on intersex babies and children. U.S. immigration law sheds light on why this is such an important development.

6/13/18  //  Commentary

Robert Post of Yale Law considers the status of free speech objections to serving same-sex couples in light of the Court's opinion.

9/27/19  //  In-Depth Analysis

Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.

6/20/19  //  Commentary

This week on Versus Trump, Jason and Charlie discuss the Ninth's Circuit's recent somewhat cryptic, compromise decision regarding the ban on service by transgender individuals in the military. Listen now!

12/6/17  //  In-Depth Analysis

The Alliance Defending Freedom, which represents Masterpiece Cakeshop, is not interested in a narrow exemption. Rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.

6/27/17  //  Commentary

Many commentators have misunderstood the significance of a per curiam ruling by the Supreme Court yesterday.

10/11/17  //  In-Depth Analysis

By Mark Joseph Stern: From the NFL to Puerto Rico to the impending ban on transgender troops, Trump uses his “free speech rights” to bully minority communities into silence.

10/7/19  //  Commentary

The Trump Department of Justice has recently started asserting that the federal government has an interest in discrimination, rather than in preventing discrimination

10/31/18  //  Commentary

In rigidly classifying people based on theories of biological determinism, we ignore history at our own peril

6/7/18  //  Quick Reactions

By Nelson Tebbe & Larry Sager: Now is the time to solidify our understanding of Masterpiece, because other wedding vendor cases are still pending in the Supreme Court and in lower courts.

4/3/17  //  Commentary

Vice President Mike Pence’s policy of not dining with women is unconstitutional. It also suggests how far this administration will go to cut back on anti-discrimination law.

3/22/18  //  In-Depth Analysis

Would it be unconstitutional for a state to abolish marriage as a legal status for everyone?

11/6/17  //  Commentary

By Scott Skinner-Thompson: A federal district court has concluded that President Trump’s ban on transgender people in the military was likely motivated by animus, not readiness.

10/7/19  //  Commentary

Permitting employers to discriminate against LGBT employees would open to the door to the same kind of discrimination against millions of Americans of faith

6/19/18  //  In-Depth Analysis

The Court’s newest member embraces a troubling “both sides” argument

6/14/19  //  Quick Reactions

The Ninth Circuit's decision regarding the 'trans ban' has broad implications and marks a vital development in protecting transgender rights under the U.S. Constitution.

7/31/17  //  Commentary

Several years ago the assertion that Title VII does not prohibit sexual orientation discrimination might have been seen as merely cautious; today it can only be apprehended as reactionary and bigoted

6/4/17  //  In-Depth Analysis

Regulatory changes that the Trump-Pence Administration reportedly plans to implement extend well beyond our religious liberty traditions (and beyond accommodations authorized by the Supreme Court)

7/8/19  //  Commentary

According to Justice Kagan, we're all textualists now. What exactly does that mean as we interpret Title VII's ban on discrimination 'because of such individual's . . . sex'?

4/17/20  //  Commentary

By embracing Christian nationalist rhetoric, Secretary of State Pompeo ignores America’s secular constitutional tradition—and undermines the United States’ ability and credibility to promote human rights, pluralism, and the rule of law around the globe.

4/3/17  //  In-Depth Analysis

Today, the Fifth Circuit hears argument in a major case about the future of religious liberty and LGBT rights. The law under review, HB 1523, is flagrantly unconstitutional. And the result of this appeal may profoundly influence Trump's still-evolving policies.

8/23/18  //  Commentary

On this week's episode of Versus Trump, Jason and Charlie talk about an unusual and surprising case where the Trump Administration has filed a brief in support of fair housing advocates who have sued Facebook for its part in enabling discriminatory advertising. Listen now!

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

11/18/19  //  Commentary

The Supreme Court arguments in the Title VII cases provide a good occasion to revisit how we talk about gender and sexual minorities.

12/6/17  //  In-Depth Analysis

If the baker loses in Masterpiece, could the government compel an African American sculptor to sculpt a cross for a Klan service? No, it could not.

7/31/17  //  Commentary

There are some notable similarities between the President's announcement that transgender individuals would be banned from military service, and the ban(s) on entry from several Muslim majority countries.

4/13/17  //  Commentary

The Trump administration has enacted several policies to conceal, subvert, or manipulate information. It has retracted a proposal to add LGBTQ identification to the U.S. census and eliminated LGBTQ identification from HHS surveys. These policies and others attempt to deny the existence of a problem by disappearing the (inconvenient) facts.

8/7/17  //  Commentary

By Ian W. Holloway & Jody L. Herman: As the Pentagon decides how to respond to Trump’s mandate, we urge that they consider our rigorous research and the lived experiences of transgender service members and their allies.

10/30/17  //  In-Depth Analysis

Thomas C. Berg and Douglas Laycock respond to criticism of their amicus brief in the Masterpiece Cakeshop case.

7/10/19  //  Commentary

In this post, I address three of the most frequent objections to holding that Title VII prohibits discrimination based on transgender status

12/16/19  //  In-Depth Analysis

The Trump HHS has proposed to repeal important nondiscrimination regulations that apply to healthcare providers and insurance companies. But the Administration's reasoning is deeply flawed.

5/10/18  //  Commentary

On this week's episode of Versus Trump, Easha and Jason reveal their big announcement: we're doing our first ever live show: Saturday, June 9, in DC, as part of the ACS National Convention. After that excitement, they get into a handful of updates about cases about auto emissions, HUD programs, the ban on military service by transgender individuals, and more. Listen now!

6/29/17  //  Commentary

The challenged Arkansas law most certainly violated Obergefell's call for equal access to the constellation of benefits that accompany marriage. The per curiam got it right.

4/7/17  //  Commentary

Trump's anti-urban rhetoric has fanned the flames of a war by state governments against progressive cities. We see this in battles over sanctuary cities, LGBT rights, gun regulation, employee rights. The time has come for a campaign on behalf of city power.

7/26/17  //  Quick Reactions

Such a blanket prohibition, tweeted out in advance of the Pentagon completing a policy review, is so lacking in credibility that its only motivation seems to be animus towards transgender people.

10/11/19  //  Commentary

Even if an employer were to impose a purportedly neutral rule that he did not hire people attracted to the same sex, in practice, that rule would impose two discriminatory sex-based rules

11/14/17  //  In-Depth Analysis

Tom Berg and Douglas Laycock defend a novel theory that could eviscerate civil rights laws

5/3/17  //  In-Depth Analysis

It's rumored that tomorrow, Trump will issue an executive order on "religious freedom," singling out for protection only traditional and conservative religious views on sex, marriage, sexual orientation, gender identity, and pregnancy. That order will most certainly raise grave constitutional issues under the Establishment Clause.

4/5/17  //  Commentary

The en banc Seventh Circuit has held that Title VII protects against sexual orientation discrimination. SCOTUS is likely to grant review of this important issue in the near future. But it remains unclear what position the Trump Administration will take.

4/1/19  //  In-Depth Analysis

The Trump administration (with some success) is making an argument to justify discrimination against transgender persons that would roll back some of the protections against other forms of discrimination as well.

6/7/18  //  In-Depth Analysis

A system that threatens to overturn any administrative decision that appears tainted – even harmlessly – by signs of religious bias is one that will inevitably favor religious interests over other concerns

12/7/17  //  In-Depth Analysis

On this week’s episode of Versus Trump, Charlie, Jason, and Easha are joined by Take Care publisher Joshua Matz to talk about the Masterpiece Cake Shop oral argument, plus the status of Muslim Ban litigation and the future of Take Care.

3/6/18  //  Commentary

The Constitution prohibits the government from accommodating religious practices when doing so entails undue hardship to third parties

7/11/19  //  Commentary

This conclusion follows directly from the statutory text and a brief glance at some dictionaries. Judges who have concluded otherwise based their analysis on faulty premises.

5/25/17  //  Commentary

On a new episode of Versus Trump, Take Care's podcast, we discuss the status of G.G. v. Gloucester County School Board, a major case about transgender rights, and then speak with Patti Goldman of Earthjustice about an important lawsuit that her organization has filed.

7/17/17  //  In-Depth Analysis

The Fifth Circuit his reversed a preliminary injunction against HB 1523, Mississippi's unusual anti-LGBT "religious freedom" law. Its reasoning is incorrect and at odds with precedent. En banc review is warranted to establish uniformity in the law and vindicate important constitutional principles.

8/30/17  //  Commentary

It’s time to stop pretending the Executive Branch is going to check Donald Trump.

5/25/17  //  Commentary

Mitch Landrieu’s speech defending the removal of Confederate war monuments in the heart of New Orleans is an eloquent reminder that the Constitution forbids acts that subordinate or denigrate, whether in the context of religion, LGBT rights, or racial equality.

6/25/17  //  Daily Update

President Trump's judicial nominees raise serious concerns for LGBT advocates, and AG Sessions may prove unwilling to defend LGBT rights.

4/23/17  //  Daily Update

The New York Times argued that the federal courts will be the last resort for LGBT progress during this Administration. Meanwhile, the Human Rights Campaign argued the Administration should stand against the Chechen human rights abuses toward gay men.

9/24/17  //  Daily Update

The Department of Defense issued guidance that transgender troops currently serving in the military can re-enlist; Senator McCain continues to oppose President Trump's ban on transgender service members. President Trump's judicial nominees believe LGBT rights should be rolled back.

6/18/17  //  Daily Update

The Department of Commerce has excluded sexual orientation and gender identity from its 2017 Equal Employment Opportunity statement.

10/1/17  //  Daily Update

The Second Circuit seemed hostile to the administration's anti-gay position during oral arguments in the pending Title VII case.

8/13/17  //  Daily Update

The Trump Administration's proposed ban on transgender military service is not supported by science, and has drawn legal challenges from LGBTQ rights groups and service members.

10/8/17  //  Daily Update

Attorney General Jeff Sessions reversed the Obama-era DOJ position that Title VII bans discrimination against transgender workers.

8/6/17  //  Daily Update

The DOJ filed an amicus brief in the Second Circuit arguing that Title VII does not prohibit discrimination on the basis of sexual orientation. Commentary continued on President Trump's transgender military service ban.

6/4/17  //  Daily Update

Federal courts ruled this week that transgender rights are protected under Title IX and under the Americans with Disabilities Act. Meanwhile, President Trump remained silent on the violence targeted at gay men in Chechnya, even as the new French president spoke out strongly in meetings and a news conference with Vladimir Putin.

5/14/17  //  Daily Update

Critics of anti-discrimination laws regarding public accommodations misunderstand the overarching purpose of those laws. Further, the decision not to collect LGBT census data could be a missed opportunity for improving the lives of LGBT Americans.

7/16/17  //  Daily Update

Commentary continued on the call by several former Surgeon Generals to ban involuntary surgery on intersex children.

6/11/17  //  Daily Update

Secretary of Education Betsy Devos refuses to answer whether her department will refuse federal funding to private schools that discriminate against LGBT students.

8/20/17  //  Daily Update

The Pentagon has not yet banned transgender service members in the military. There is now a Circuit split on the issue of whether Title VII covers discrimination on the basis of sexual orientation.

4/2/17  //  Daily Update

A potential executive order addressing religious freedom has surfaced, and Ira Lupu and Robert Tuttle argue that it has profound constitutional infirmities. President Trump's appointment of Roger Servino within the Department of Health and Human Services has drawn criticism from LGBTQ groups.

7/9/17  //  Daily Update

President Trump’s nominee to head the Civil Rights Division of DOJ has come under criticism for his record on LGBT rights and defense of workplace discrimination policies.

4/30/17  //  Daily Update

The nominee for Army Secretary has a strong anti-LGBTQ track record, and President Trump has targeted national monuments, including the Stonewall Inn.

8/24/17  //  Daily Update

Lambda Legal is suing the Trump administration to release documents related to the reversal of the administrative guidance that permits transgender students to use the bathroom corresponding with their gender identity.

4/9/17  //  Daily Update

The Seventh Circuit broadened workplace rights for LGBT employees in an en banc decision. Take Care featured analysis from Joshua Matz. President Trump's proposed budget would cut tens of millions of dollars in HIV research and prevention.

3/21/17  //  Daily Update

The Trump Administration has made a damaging turnabout on gay rights, and LGBT communities fear an absence of hate crime prosecutions under Attorney General Jeff Sessions.

4/16/17  //  Daily Update

This week, President Trump prompted outrage with his appointment of two men with a history of discriminatory statements against LGBT people.

5/7/17  //  Daily Update

The administration's newest executive order and the decision to roll back Affordable Care Act regulations may increase LGBT discrimination.