Bigotry Baked In: How The Supreme Court Could Endanger Transgender Rights

The Masterpiece Cakeshop case is about more than just cake.

The United States Supreme Court. Photo credit: Joe Ravi/CC-BY-SA 3.0

by Gillian Branstetter

Denying service to someone because of who they are is the textbook definition of prejudice — or so you’d think. Frequently enough, courts and legislatures hear transphobic and homophobic actions — such as a business denying someone service because of their sexuality or gender identity — cloaked under the veil of “free speech” or “religious liberty.”

This summer, such arguments are set to face their greatest challenge yet. After hearing arguments in a court case between a Colorado baker who refused to make a cake for a gay couple’s wedding, the Supreme Court is set to decide whether a business can deny service to someone on the grounds that it runs counter to their religious beliefs.

Also known as the Masterpiece Cakeshop decision, the ruling could have a monumental impact on the rights of transgender people as employees, consumers, and equal players in public life. The decision could prompt a ripple effect that could create gaping holes in nondiscrimination laws around the country and severely restrict transgender people’s right to exist in public spaces.

While ostensibly about same-sex marriage, giving anyone the right to discriminate based on their religious beliefs could leave transgender people exposed to being turned away from basic services or fired from their job — simply based on who they are.

The case began back in 2012 when a gay couple requested a wedding cake from Masterpiece Cakeshop. The owner of the Lakewood, Colorado bakery promptly told the couple that, because he is a Christian, his business does not provide cakes for weddings between same-sex couples.

In Colorado — as in 19 other states — it is illegal to deny services to a person because of characteristics like their race, gender identity, or sexual orientation. Knowing this, the couple filed a complaint against Masterpiece with the Colorado Human Rights Commission, which then ruled in the couples’ favor.

Masterpiece challenged the decision, arguing that the Commission’s order that the bakery can’t refuse to provide a cake because of a customer’s sexual orientation violated both their freedom of religion and their freedom of speech. The case reached the Colorado Court of Appeals, which did not buy the baker’s argument that his religious beliefs gave him a blank check to discriminate.

Last December, the Supreme Court heard arguments in the case. The baker, Jack Phillips, is being represented by the Alliance for Defending Freedom, an anti-LGBT hate group. (You might be familiar with ADF’s previous legal work, including its widespread campaign to limit the rights of transgender students and its bizarre fight in favor of forced sterilization of transgender people in France.)

A protester holds up a sign in front of the Supreme Court. Source: DecisionDay.org

As the nine justices noted, the outcome of this case could have monumental implications on the interpretation of nondiscrimination laws. If they rule in favor of the baker, they open an impossibly broad exemption for all nature of discrimination from all nature of businesses. Every professional — from a cab driver to a bank teller— could invoke their personal beliefs to refuse basic services.

As Justice Stephen Breyer put it, such a decision would “undermine every civil rights law since year two.” It could effectively undo much of the civil rights victories of the last 60 years, including progress made by the transgender movement.

As a group, we already face extreme rates of discrimination — according to the 2015 U.S. Transgender Survey, nearly one third of respondents had experienced negative interactions in a public space when someone knew they were transgender, including a quarter who experienced verbal harassment and two percent who experienced physical harassment.

The justifications for this mistreatment range from baseless “bathroom predator” myths to religious or moral objections. Both arguments weaponize an important and vital topic — sexual assault for the former and religious freedom for the latter — in the name of hurting transgender people.

Earlier this year, the Trump administration even opened an office within the Department of Health and Human Services dedicated to protecting doctors and hospitals who refuse treatment to individuals on religious grounds and proposed a regulation that attempts to expand religious refusals in health care.

Such arguments pose a special risk to transgender people. Being transgender is a fundamental part of my identity, and the identities of nearly 2 million others across the United States. We carry it with us into schools, hospitals, retail stores, Ubers, airports — and yes, bakeries.

If the court buys the arguments of the ADF, then those who hold religious beliefs against transgender people could simply deny to work for, with, or around transgender people altogether by using the pretext of religious or moral beliefs.

It’s not hard to imagine a private hospital or school refusing to treat a transgender person according to their gender identity, for example, arguing that doing so would go against their religious beliefs. Employers could use religious exemptions to fire someone simply because they are transgender. Restaurant, stores, and other businesses can refuse to let transgender people and their families by invoking religious beliefs.

As Justice Anthony Kennedy noted during the oral arguments of the Masterpiece case, “tolerance is essential in a free society.” Because most people in the U.S. still do not personally know a transgender person, we often rely on this imperative to go about our daily lives in the hope of not facing harassment or being denied service.

Without that understanding, transgender people across the country will be subject to the whims of people who do not believe in treating them fairly.

Gillian Branstetter is the media relations manager at NCTE.

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National Center for Transgender Equality

National Center for Transgender Equality

We’re the nation’s leading social justice advocacy organization winning life-saving change for transgender people. Also at https://transequality.org.