This Week in Nondiscrimination: NH Governor Signs Protections Into Law, A Major Supreme Court Ruling, Litigation Updates, and New MA PollingBy Shane Stahl • June 8, 2018 • 6:27 pm
This week in the movement for LGBTQ nondiscrimination, New Hampshire Governor Chris Sununu signed nondiscrimination laws for transgender people into law, the U.S. Supreme Court issued a decision in the Masterpiece Cakeshop Supreme Court case, reaffirming the central premise that businesses open to the public must be #OpenToAll while determining that the Colorado Civil Rights Commission erred in handling this specific case. Later in the week, the #OpenToAll-affirming elements of the ruling were affirmed when the Arizona Court of Appeals upheld the city of Phoenix’s nondiscrimination law, with a decision that cited Masterpiece as evidence hat businesses cannot discriminate outright. Polling out of MA regarding the attempted repeal of public accommodations laws there was released, and the Gloucester County School Board in VA filed yet another appeal in the case of Gavin Grimm, arguing they did not violate Title IX of the Education Amendments by denying him access to the boys’ bathroom. Check out some highlights for the first full week of June 2018!
It’s done! Moments ago, @GovChrisSununu signed #TransBillNH into law, saying once and for all that we will not tolerate discrimination against #transgender people in the Granite State! #NHpolitics https://t.co/4Rvx3agstC pic.twitter.com/uyj6ZcXYTZ
— Freedom NH (@FreedomNH_) June 8, 2018
In news that broke late Friday, Republican Governor Chris Sununu signed #TransBillNH into law, which officially enacted comprehensive nondiscrimination protections for transgender people in housing, employment, and public accommodations.
Freedom New Hampshire (FNH), the campaign to secure these protections (and of which Freedom For All Americans was a founding and leading member), worked for nearly three years to move the bill through the legislature and to the governor’s desk. After the bill was tabled in 2017 by then-Speaker Shawn Jasper, FNH regrouped to resubmit the bill for the 2018 session, with a record 11 Republican co-sponsors. The bill passed the House by a vote of 195-129, and the Senate by 14-10.
Our congratulations to Freedom New Hampshire for their tireless work and efforts on behalf of all transgender Granite Staters.
While much of the media attention yesterday focused on the negative, the ‘Masterpiece’ decision often affirmed LGBTQ Americans and the discrimination they face. Share this excerpt from the ruling, and read more analysis on what ‘Masterpiece’ means: https://t.co/mrHdzN6Tkk pic.twitter.com/BzBotj9kY5
— FreedomforAllUSA (@freedom4allusa) June 5, 2018
A long-awaited Supreme Court ruling came down this week in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which concerned a bakery who refused service to a same sex couple by citing their religious beliefs.
In a narrow decision limited to this case alone, the Justices ruled 7-2 that the state’s commission had violated the Free Expression Clause of the First Amendment when making their initial ruling against the bakery. However, the Justices stopped short of issuing a sweeping license to discriminate for businesses nationwide, rejecting the baker’s central request and confining the decision to this individual case The majority opinion written by Justice Anthony Kennedy, in fact, states:
“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
An Arizona court relied on #MasterpieceCakeshop reaffirmation that businesses open to the public must be open to all and upheld Phoenix’s nondiscrimination ordinance. No matter who you are, businesses don’t have a license to discriminate. #OpenToAll https://t.co/x9CDuldKfk
— ACLU of Arizona (@ACLUaz) June 7, 2018
In a victory coming only days after the Masterpiece Supreme Court decision, the Arizona Court of Appeals has ruled to uphold Phoenix’s existing nondiscrimination law, citing the language in the Supreme Court decision as part of their ruling.
The case of Brush and Nib Studio v. City of Phoenix concerned an art studio owned by two women, which often offers calligraphy services for wedding invitations and stationery but have stopped offering the service since the Phoenix ordinance took effect. Brush and Nib wanted the ability to deny service to same-sex couples seeking calligraphy services for their weddings. Notably, the business was seeking an exemption from the ordinance, which has been in place for several years now, despite never having been approached by an LGBTQ person seeking their services, an obvious attempt to undercut an ordinance that protects people from unequal treatment.
The Arizona Court of Appeals listed a long line of cases in which courts have held that a business’ freedom of religion does not grant them an exemption from laws prohibiting anti-LGBTQ discrimination. Included in that list of cited rulings was this week’s Masterpiece Cakeshop case.
“In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” the panel wrote before citing Justice Kennedy’s majority opinion in Masterpiece.
The legal team for the plaintiffs, the staunchly anti-LGBT Alliance Defending Freedom, has said it will appeal the case to the Arizona Supreme Court.
Amongst the discussion of #MasterpieceCakeshop, it’s important to remember the fight for #transgender rights continues tomorrow & the next day & the day after that. News you may have missed: Kansas City, KS passed a #nondiscrimination law this week: https://t.co/pjgtMsoPoe
— National Center for Transgender Equality (@TransEquality) June 4, 2018
In a sharp rebuke of recently passed anti-LGBTQ adoption legislation at the statehouse, Kansas City and its home county of Wyandotte this week voted to amend existing civil rights law to add comprehensive nondiscrimination protections for LGBTQ people in housing, employment, and public accommodations. With the vote, the city and county become only the second and third municipal entities in the state to offer such protections, following the city of Roeland Park in 2015.
The discriminatory adoption bill signed by Governor Jeff Colyer allows private and publicly-funded adoption agencies to discriminate against LGBTQ people when placing a child in the home; a similar bill was signed into Oklahoma law this year by Governor Mary Fallin.
Congratulations to our partners at Equality Kansas, who worked closely with city and county government to add these important protections into law.
A “thin margin” is not where we want to be—we need an overwhelming majority to vote for #transequality this November. Take a step toward making that happen: Volunteer with us at #BostonPride this weekend: https://t.co/DOtHkvCrBI #MApoli pic.twitter.com/39jIACwtui
— Freedom for All MA (@Freedom_Mass) June 6, 2018
New polling released this week shows that a slim majority of voters oppose support upholding the state’s existing transgender-inclusive public accommodations law, an issue that will be on the ballot in the November 2018 election.
A poll conducted by Massachusetts radio station WBUR, Boston’s local NPR station, found that 52% of voters oppose repealing the law, with just 38% supporting the repeal. Freedom For All Massachusetts, the campaign to defend #TransLawMA this November, said in a statement: “We can’t take any vote for granted. There’s a long way to go before November, and our opposition won’t hold back in using fear mongering, misinformation and outright lies to drive down support.”
The existing protections were passed in 2016 and signed into law by Republican Governor Charlie Baker. Anti-LGBTQ opponents were able to gather enough signatures to petition repeal of the public accommodations ordinance through to ballot. Freedom For All Massachusetts is currently working to mobilize voters to oppose the repeal efforts. For more information on their work, click here.
A Virginia school board’s transgender-bathroom ban is one step away from being reviewed by a federal appeals court: https://t.co/9iPLlbJnO2
— AP Politics (@AP_Politics) June 6, 2018
The continuing case of Gavin Grimm v. Gloucester County School Board saw yet another appeal from the defendant in the case this week, following a district court ruling that they had violated Grimm’s Title IX rights by denying him access to the boys’ bathroom.
Grimm, a transgender student, initially filed suit in 2015 with the ACLU when he was a high school sophomore. Both an initial ruling from the Virginia District Court and the appeal to the 4th Circuit were found in his favor, with the circuit court citing recently issued guidance by the Obama administration regarding transgender students in their decision. The school board then appealed to the Supreme Court, who granted review for the 2016-2017 term. However, in early 2017, newly elected President Donald Trump rescinded the guidance, and the Court responded by remanding the case back to district court.
The Virginia District Court again found for Grimm on May 22. The appeal will again go to the 4th Circuit, who have yet to schedule a hearing.
I think the ruling from SCOTUS affirms the need for nondiscrimination laws that protect every American. In Utah we have taken steps in a positive direction but we need to make sure that our 2019 legislative session includes a comprehensive public accommodations law.
— Igor Limansky for Utah (@IgorLimanskyUT) June 5, 2018
Following the Masterpiece decision this week, LGBTQ activists in Utah have stated that they will be pushing for a statewide public accommodations law in the 2019 legislative session.
“Now more than ever, we need comprehensive federal and state nondiscrimination laws that protect all Americans,” said Equality Utah executive director Troy Williams. “Equality Utah looks forward to working again with the Utah Legislature to pass a comprehensive public accommodations law in 2019.”
Also offering a statement was Jackie Biskupski, the openly gay mayor of Salt Lake City.
“The Court had the opportunity to reaffirm the long-standing principle in this country that businesses should be open to all people. With that said, I am also relieved that the court was extremely narrow in their decision focusing on particular actions in the Colorado case and avoiding any negative precedent.”
Biskupski noted that Utah’s capital joined 102 cities in an amicus brief arguing in favor of the same-sex couple in that case.
“I feel strongly, as I did then, that Salt Lake City will continue to participate in litigation which endangers the equal rights of any people in our community. Everyone should know, that if you do business in our city, you do business with everyone.”