Displaying Gender on ID—Admin Law Solutions for Con Law Problems
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.
Trump Judges Strike Down Bans on Conversion Therapy
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.
Pinkwashing the Supreme Court
The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.
The Fight for Contraceptive Coverage Rages in the Time of COVID-19
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.
Update | The Week of November 27, 2017
This week, the Supreme Court will hear oral argument in Masterpiece Cakeshop, a case invoking the conflict between religious beliefs and non-discrimination ordinances.
Updates | The Week of November 20, 2017
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.
Updates | The Week of October 30, 2017
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.
Updates | The Week of October 16
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.
Masterpiece Cakeshop and Protecting Both Sides
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
Neo-Nazis, Wedding Cakes, and Compelled Speech
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.
Versus Trump: Judges of Christmas Future
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!
Versus Trump: States vs. Conscience Rule
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!
A Tale of Two Neil Gorsuches
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.
Versus Trump: 2017 Scorecard
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!
What’s the Price of Tolerance?
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.
Andrew Sullivan Is Wrong About Public-Accommodations Law
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.
Disestablishing the Mother
Artificial reproductive technology might disestablish the traditional ideas of maternity on which abortion law and discourse rests
Domestic Adherence to the Gender Binary
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.
Pavan and June Medical Services
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.
Versus Trump: A Ninth Circuit Compromise
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!
What Masterpiece Cakeshop is Really About
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.
Trump’s Anti-Trans Animus, Unmasked
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.
Trump's Hostility to LGBT Rights is Now Unmistakable
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
The Plain Meaning of Title VII
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'?
No, Mike Pompeo, America Was Not Founded As A Christian Nation
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.
A Lurking Threat to LGBT Rights & Religious Freedom
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.
Versus Trump: Trump Versus Facebook
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!
Versus Trump: Updates, Y'all!
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!
Arguing Queer Rights
The Supreme Court arguments in the Title VII cases provide a good occasion to revisit how we talk about gender and sexual minorities.
Some Notes On The Latest “Ban”
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.
Information Wars Part I: The Challenge To The Census
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.
Versus Trump: So, What's New?
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!
The Attack on American Cities
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.
The Transgender Ban is Facially Unconstitutional
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.
Deep Problems with the Proposed Executive Order on Religious Freedom
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.
A Landmark Victory for LGBT Rights (And The Path Ahead)
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.
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.
Versus Trump Podcast: G.G. Case + Patti Goldman
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.
Fifth Circuit Ruling Threatens LGBT Rights & Religious Freedom
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.
Mitch Landrieu and the Anti-Denigration Constitution
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.
Updates | The Week of July 17, 2017
President Trump's judicial nominees raise serious concerns for LGBT advocates, and AG Sessions may prove unwilling to defend LGBT rights.
Updates | The Week of April 17, 2017
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.
Updates | The Week of September 18, 2017
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.
Updates | The Week of June 12, 2017
The Department of Commerce has excluded sexual orientation and gender identity from its 2017 Equal Employment Opportunity statement.
Updates | The Week of August 7, 2017
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.
Updates | The Week of July 31, 2017
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.
Updates | The Week of May 29, 2017
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.
Updates | The Week of May 8, 2017
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.
Updates | The Week of June 5, 2017
Secretary of Education Betsy Devos refuses to answer whether her department will refuse federal funding to private schools that discriminate against LGBT students.
Updates | The Week of August 14, 2017
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.
Updates | The Week of March 27, 2017
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.
Updates | The Week of July 3, 2017
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.
Updates | The Week of April 24, 2017
The nominee for Army Secretary has a strong anti-LGBTQ track record, and President Trump has targeted national monuments, including the Stonewall Inn.
Updates | The Week of August 21, 2017
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.
Updates | The Week of April 3, 2017
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.
Updates | Week of March 20, 2017
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.
Updates | The Week of April 10, 2017
This week, President Trump prompted outrage with his appointment of two men with a history of discriminatory statements against LGBT people.
Updates | The Week of May 1, 2017
The administration's newest executive order and the decision to roll back Affordable Care Act regulations may increase LGBT discrimination.