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What's Next in LGBT Law

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LGBT PRIDE
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The speed with which court cases are overturning laws and state constitutional amendments limiting marriage equality is breathtaking. Since the Supreme Court handed down the Windsor decision, striking down the "so called" Defense of Marriage Act, 15-plus consecutive federal cases have struck down marriage bans. In less than one year, we've had favorable court rulings at all levels in 18 states. There are no states left where there are no active cases challenging anti-marriage equality laws.

Few people could have predicted the pace with which the cases have developed, with the exception of Justice Scalia who foresaw the outcome in his dissent in the case striking down sodomy laws in Texas. In Lawrence v. Texas Scalia wrote, "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status." Scalia meant for his dissent to predict a parade of horribles as a caution, but he understood the internal illogic of allowing equality in some circumstances while denying it in others.

All of this progress (and one potential setback) does prompt one essential question, however: What's next for the LGBT community in the legal world? The ones listed below are issues on the LGBTQ horizon that have my undivided attention..

Discrimination Based on Sexual Orientation as Religious and Sex Discrimination

Way back in 1989 the Supreme Court ruled that discrimination in the workplace on the basis of sex stereotypes in Price Waterhouse v. Hopkins (490 U.S. 228) counts as sex discrimination under Title VII the 1964 Civil Rights Act. Later on, the Hopkins ruling was the basis for numerous circuit court of appeals decisions addressing transgender discrimination in the workplace, such as Smith v. City of Salem, 378 F.3d 566 (2004), and Schroer v. Billington, 525 F.Supp.2d 58 (2007). The rationale was that transgender individuals were being punished for not adhering to narrow stereotypes for how a man or woman should dress or behave.

Recently, a new claim against the Library of Congress was allowed to proceed at the district court level. In Terveer v. Billington, Peter Terveer (a gay man) claims he had religiously motivated supervisors relentlessly proselytize and harass him at work for being gay and unwilling to "change." The hostile work environment led to health issues and his eventual termination. Terveer is arguing that discrimination on the basis of sexual orientation is also a discrimination on the basis of sex stereotypes.

Previous cases, such as Higgins v. New Balance Shoe Company, 194 F.3d 252 (1999) and Simonton v. Runyon, 232 F.3d 33 (2000), unsuccessfully tried to make similar arguments. However, if Terveer succeeds in his claims, it could result in a slow series of reinterpretations of sex discrimination under Title VII at the circuit court of appeals level to include sexual orientation. It would probably take a decade or more, as it has for the transgender community, but might also finally begin offering legal recourse to those people trapped in deep red states.

Transgender Exclusionary Health Policies Violate Title VII of the 1964 Civil Rights Act

It is much more well established that discrimination against transgender people in the workplace is a form of sex discrimination under Title VII. However, this prohibition against discrimination has not been successfully applied to health care as of yet. Many transgender individuals are refused health care that would otherwise be offered to non-transgender individuals. The primary basis of this denial is simply being transgender.

A lot of things lead me to believe that this will become a winnable case in the next few years.

• The insurer often states (in writing) definable disparate treatment
• The disparate treatment is clearly directed at a single suspect class worthy of heightened scrutiny (Manhart, Smith, Barnes, Macy)
• The disparate treatment results in real harm in the form of lack of access to medically necessary care. (Doe, Pinneke, Fields, Kossilek)
• Discrimination against transgender people in the workplace is sex discrimination under Title VII of the 1964 Civil Rights Act (Smith, Barnes, Macy)
• Title VII sex protections include compensation and other privileges of employment. (Manhart)
• The ACA bars discrimination in health care on the basis of sex.
• There is no business necessity to deny coverage, either in terms of cost or post surgical status negatively impacting my ability to work
• Cost of providing transgender-specific health care is not a significant burden to employer

I would look to the courts in the next few years for gains on transgender-specific health coverage. We're already starting to see a litigation strategy pay off with Health and Human Services. The threat of litigation led the Office of Personnel Management to lift the blanket ban on transgender health care in Federal Employee Health Benefits. A breakthrough in private industry might not have been far behind, if not for the next ruling...

Sebelius v. Hobby Lobby

While the first two items are big potential gains for the LGBT community, this may be a devastating loss that anti-LGBT organizations are celebrating. Hobby Lobby is a chain of stores operated conservative Christians who refuse to buy an insurance policy that provides specific types of birth control for female employees, claiming it violates their sincerely held religious beliefs. This violates the Affordable Care Act (ACA), which mandates coverage of these types of birth control.

Hobby Lobby claims that they are exempt from this ACA stipulation under the Religious Freedom Restoration Act (RFRA). This was a novel claim, because it was taking a law meant for individuals, and apply it to a corporation.

The case made it all the way up to the Supreme Court. While the court tried to make the decision narrowly tailored to contraception coverage by closely held corporations, it could have far reaching effects on the LGBT community if interpreted more broadly later on.

In the dissenting opinion, the court's four liberal justices called it a decision of "startling breadth" and said that it allows companies to "opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

Legal experts are divided on what this will mean, and where it will lead. However, it could have legal implications down the road for mandates on providing transgender-specific health care, or providing partner health benefits to legally married same sex couples. In any event, it is going to take years to sort out just how much damage was actually done.