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U.S. Federal Courts

Supreme Court: Oral arguments in LGBTQ 303 Creative case

Civil rights & legal advocacy groups fear a ruling that could endanger marginalized people protected by nondiscrimination laws



United States Supreme Court (Blade file photo by Michael Key)

WASHINGTON- The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s antidiscrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues in play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s nondiscrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign (HRC).

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

U.S. Federal Courts

Female inmates sue California over trans females in female prisons



Photo Credit: California Department of Corrections and Rehabilitation

FRESNO – A lawsuit filed in the U.S. District Court for the Eastern District of California is seeking to overturn Senate Bill 132, the law signed by Governor Gavin Newsom in September 2020 which allows incarcerated transgender, non-binary and intersex people to be housed and searched in a manner consistent with their gender identity.

The measure, authored by state Senator Scott Wiener, (D-SF) SB 132 was designed to ensure the California Department of Corrections and Rehabilitation’s efforts to provide a safe, humane, respectful and rehabilitative environment for the incarcerated transgender, non-binary and intersex community.

However, the inmates and the group that filed the lawsuit, the Women’s Liberation Front, which also opposes transgender athletes’ participation in girl’s and women’s sports, are alleging in the suit that the law is unconstitutional and that the requirements of SB132 creates an unsafe environment for women in female facilities.

The Sacramento Bee reported that several of the plaintiffs report being victims of domestic violence in the past. Additionally, several of the plaintiffs also cite their religious beliefs, which they argue are impaired by being placed in shared custody with transgender women.

In a statement to the Blade on Friday, Senator Wiener said;

“We passed SB 132 so that trans people who are incarcerated can be safer and can be who they are. SB 132 is about respecting the basic dignity and agency of trans people. The proponents of this lawsuit have a long history of attacking trans people – trying to erase them, denying their existence, and classifying them as scam artists and rapists.

The bogus rationale for this lawsuit – that trans people are faking it so they can rape cisgender women – is no different than the bogus rationale for the North Carolina trans bathroom bill. These attacks fuel violence against trans women and the high suicide rate among trans youth. I’ll continue to support our trans siblings and will always fight for them.”

In the court documents filed, the Women’s Liberation Front along with another group listed as a plantiff, Woman II Woman, that advocates on behalf of incarcerated women, the groups misgender inmates who transfer to female facilities referring to them as men and not as female or using nonbinary pronouns such as she or they.

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U.S. Federal Courts

Texas AG Paxton sues Biden administration over LGBTQ protections

“States should be able to choose protection of privacy for their employers- this illegal guidance puts many women and children at risk”



J. Marvin Jones Federal Building & U.S. Courthouse, Amarillo, Texas (Photo Credit: Library of Congress)

AMARILLO, Tx. – In a 19 page long lawsuit filed Monday in the Northern District of Texas federal court, Texas Republican Attorney General Ken Paxton argued that the state, as an employer, has the “sovereign right” to choose its own workplace policies regarding LGBTQ policies and the U.S. Equal Employment Opportunity Commission, (EEOC) guidance issued this past June amounts to “extreme federal overreach” by the Biden Administration.

“States should be able to choose protection of privacy for their employers over subjective views of gender, and this illegal guidance puts many women and children at risk,” Paxton said in a statement after filing the lawsuit. “If the Biden administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change.”

He added, “These backdoor attempts to force businesses, including the state of Texas, to align with their beliefs is unacceptable.”

“The filing by Texas is yet another wake-up call that we urgently need to enact federal legislation to codify Bostock, the Supreme Court’s recent decision holding that federal sex discrimination laws protect LGBTQ people,” said Shannon Minter, Legal Director, the National Center for Lesbian Rights in an email to the Blade.

“Texas and other red states are on a mission to radically limit the Court’s holding in Bostock and to strip transgender people, in particular, of essential protections,” Minter added.

The EEOC guidance was issued in response to the U.S. Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County, which said discrimination against gay and transgender workers is a form of unlawful sex bias under Title VII of the Civil Rights Act of 1964.

The EEOC guidance relies on a U.S. Supreme Court ruling from last year in Bostock v. Clayton County. In a 6-3 ruling authored by Justice Neil Gorsuch, the high court’s majority held that Title VII of the Civil Rights Act of 1964 extends employment discrimination protections to cover LGBTQ people.

Paxton’s lawsuit claims the guidance violates Title VII by treating sex and gender identity the same.

“The June 15 guidance explicitly allows sex-specific bathrooms and implicitly allows sex-specific dress codes and pronoun usage policies as a general matter,” the lawsuit states. “But it then ‘tries to work around [those concessions] with a linguistic device’ by conflating ‘sex’ with ‘gender identity.’”

The suit filed Monday is in addition to a separate legal challenge by 20 other Republican-led states this past August. That challenge to the EEOC memo adds in also a separate U.S. Department of Education directive covering the rights of transgender students. Those states, led by Tennessee, moved for a preliminary injunction earlier this month.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

Transgender Texans have long been a target of Republican state officials, the Texas Tribune reported. In 2017, the state Legislature attempted to pass Senate Bill 6, known as the “bathroom bill,” that would have required transgender people to use bathrooms in public schools, government buildings and public universities based on their gender assigned at birth. However, the bill failed to pass even during a subsequent special session.

The Tribune further noted that lawmakers introduced numerous bills targeting transgender Texans, including legislation that would restrict transgender student athletes’ participation in school sports and prohibit doctors from offering gender-affirming medical care. But neither of those measures made it to Gov. Greg Abbott’s desk.

In all three special sessions he’s called since May, Abbott has made limiting transgender student athletes’ sports participation a priority. No such measure passed during the first two special sessions. This year’s third special session started Monday.

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U.S. Federal Courts

Supreme Court orders Trump’s Migration Protection Protocols restarted

“The Biden administration was correct to rescind the Trump policy, the whole point of which was to punish people for seeking asylum”



U.S. Supreme Court (Blade file photo)

WASHINGTON – The U. S. Supreme Court Tuesday ordered the Biden Administration to restart the Migration Protection Protocols, (MPP) program upholding a lower court order enjoining the Administration’s termination of the program.

The High Court’s action allows a lower court order to take effect, and the government is now required to make good faith efforts to restart the MPP program while litigation continues. The suit, filed in U. S. District Court for the Northern District of Texas, Biden v. State of Texas et al, was to get an injunction issued that would stay the termination of the program while the litigation brought by Texas and Missouri worked through the federal courts.

The Supreme Court’s conservative majority on Tuesday upheld a U.S. District Court Judge in Texas order that would require the Biden administration to follow President Trump’s “Remain in Mexico” policy that sought to deter Central American migrants from seeking asylum in the United States.

The decision is a sharp setback for immigrants’ rights advocates who believed the new administration could reverse most of Trump’s strict enforcement policies.

The American Civil Liberties Union, (ACLU) and partners challenged MPP when it was initially instituted, winning court orders finding the program unlawful. The Biden administration suspended the program in January and fully ended it in June, following through on President Biden’s promise as a candidate to end the program if elected. Today’s action comes in a suit brought by the states of Texas and Missouri that seeks to reverse the Biden administration’s decision.

The American Civil Liberties Union and ACLU of Texas submitted an amicus brief to the Supreme Court yesterday supporting the federal government’s request for a stay of the lower court ruling.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, had the following reaction to tonight’s Supreme Court developments:

“The Biden administration was correct to rescind the Trump return to Mexico policy, the whole point of which was to punish people for seeking asylum by trapping them in miserable and dangerous conditions.

“The government must take all steps available to fully end this illegal program, including by re-terminating it with a fuller explanation. What it must not do is use this decision as cover for abandoning its commitment to restore a fair asylum system.”

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U.S. Federal Courts

White House announces two LGBTQ women nominated for federal courts

This is the president’s sixth round of names for federal judicial positions, bringing the number of announced federal judicial nominees to 35.



U.S. Court of Appeals for the Federal Circuit (Photo Credit: U.S. Courts)

WASHINGTON – The White House on Thursday released a list of President Joe Biden’s latest nominee picks to fill open seats on the federal courts. Included in the president’s choices are two currently serving LGBTQ women judges.

One is currently serving as Vermont’s first openly LGBTQ Supreme Court justice, who would also be the first openly LGBTQ woman to serve on any federal circuit court. The other who would be the first openly LGBTQ federal judge in Colorado and the first openly LGBTQ woman to serve as a federal district court judge in any state west of the Mississippi.

This is President Biden’s sixth round of names for federal judicial positions, bringing the number of announced federal judicial nominees to 35.

Justice Beth Robinson: Nominee for the United States Court of Appeals for the Second Circuit
Justice Beth Robinson has served as an Associate Justice on the Vermont Supreme Court since 2011. Prior to her appointment, Justice Robinson served as counsel to Vermont Governor Peter Shumlin from 2010 to 2011. From 1993 to 2010, Justice Robinson was a civil litigator in private practice at Langrock Sperry & Wool where she focused on civil litigation including employment law, workers’ compensation, contract disputes, and family law.  She also represented LGBTQ+ individuals in civil and civil rights cases, including leading the freedom to marry movement in Vermont.  From 1990 to 1991, Justice Robinson was an associate at Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., focusing on white-collar criminal defense. Justice Robinson served as a law clerk for Judge David B. Sentelle on the U.S. Court of Appeals for the District of Columbia from 1989 to 1990.
Justice Robinson received her J.D. from the University of Chicago Law School in 1989 and her B.A. from Dartmouth College in 1986.

Senator Patrick Leahy, (D-VT) in a statement praised the nomination. “Today is a good day for Vermont. I am incredibly proud that President Biden has nominated Vermont’s very own Justice Beth Robinson to serve as a Judge on the U.S. Court of Appeals for the Second Circuit. I strongly praise President Biden for nominating Justice Robinson, who has been a tireless champion for equal rights and equal justice in the mold of the late Justice Ruth Bader Ginsburg. I know that, if confirmed, Justice Robinson would serve on the Second Circuit with integrity, humility, and a deep reverence for the rule of law. And I have no doubt that she would make all Vermonters and Americans proud,” he said.

“Justice Robinson has been a steadfast public servant for the people of Vermont and has served admirably on the Vermont Supreme Court. She will make a great addition to the United States Court of Appeals for the Second Circuit, bringing the Vermont values of commitment to justice and equality, fairness, and Freedom & Unity to the bench,” said Gov. Phil Scott in a statement. “I applaud the president for making this historic nomination, and I urge the United States Senate to move expeditiously towards her confirmation.”

Charlotte Sweeney: Nominee for the United States District Court for the District of Colorado

Charlotte Sweeney is currently a partner at Sweeney & Bechtold, LLC, where she has practiced since 2008. Her law practice is devoted to representing individuals in employment law cases. Ms. Sweeney was previously a partner with LaFond & Sweeney, LLC from 1999 to 2008 and LaFond & Bove, LLC from 1997 from 1999. Ms. Sweeney began her career as an associate with LaFond & Clausen, LLC in 1995 and was named a partner at the firm in 1998.


Ms. Sweeney received her J.D. from the University of Denver College of Law in 1995 and her B.S. from California Lutheran University in 1991.

Photograph courtesy of Sweeney & Bechtold, LLC, Denver, Colorado

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U.S. Federal Courts

Circuit court tosses lawsuit against Virginia guidelines for trans students

Challenging the enactment of non-binary and trans-inclusive school policies in Virginia is not a new occurrence.



Lynchburg, Virginia Circuit Courthouse (Photo Credit: Lynchburg VA Courts)

LYNCHBURG, Va. – Circuit Court Judge J. Frederick Watson on Tuesday dismissed a lawsuit that challenged the Virginia Department of Education’s model policies for transgender students that are to be implemented for the 2021-2022 school year.

The VDOE introduced the policies in March to better protect and affirm trans and non-binary students in schools, considering they are more likely to face discrimination and harassment from their peers and students. The directives would require Virginia schools to allow them to use school bathrooms and locker rooms that conform to their gender identity and pronouns and a name that reflects their gender identity.

Several conservative organizations, including the Christian Action Network, and families whose children attend Lynchburg public schools had sought to overturn the VDOE’s policies. The groups cited their need to protect their right to free speech and religion under the First Amendment.

Challenging the enactment of non-binary and trans-inclusive school policies in Virginia is not a new occurrence.

Tanner Cross, a Loudoun County teacher, was suspended in May after stating he would not use trans students’ preferred pronouns. Circuit Judge James E. Plowman, Jr., who invoked Pickering v. Board of Education,  a 1968 U.S. Supreme Court ruling in favor of a teacher that stated they have the right to provide commentary on issues of public importance without being dismissed from their position, reinstated Cross after he filed a lawsuit,  

Equality Virginia on Tuesday a statement celebrated what they described as “a win for Virginia schools and students.”

“This ruling is important progress and emphasizes the continued need to protect transgender and non-binary youth in Virginia,” said Executive Director Vee Lamneck. “These policies will create safer classrooms and will reduce bullying, discrimination and harassment. It’s imperative school boards adopt these policies as soon as possible because the lives of transgender students are at risk.”

Equality Virginia, ACLU of Virginia, and more than 50 other organizations and school board leaders across the state filed an amicus brief earlier this month encouraging the court to deny the lawsuit.

The brief’s arguments included references to historic lawsuits like Brown v. Board of Education and Grimm v. Gloucester City School Board that specifically addressed inequalities in schools for minority students.

While Tuesday’s ruling is a win for LGBTQ rights advocates in education and their respective students, there still remains a final barrier to ensure that the VDOE’s policies are sanctioned in the fall. 

“The dismissal clears one statewide hurdle for the guidelines and limits future challenges,” reports the Virginian-Pilot newspaper. “But it leaves the fight to continue at local school boards, which are currently debating how or if to implement policies before the start of the school year.”

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