When Tacoma resident Dorian Taylor heard the Trump administration had removed protections from discrimination for transgender people in the Affordable Care Act (ACA) in June, Taylor, a Black trans person, decided it was time to get gender-affirming surgery because he didn’t know how difficult it might be to do in the future.
Although the Washington Law Against Discrimination currently protects transgender people, including in health care settings, local legal experts say any federal decision on this issue that rules in favor of religious exemption could eventually trickle down and narrow the state law protections.
In recent months, many in the LGBTQ+ community fear that laws protecting them from discrimination are at risk in the hands of a more conservative U.S. Supreme Court, and perhaps, even in lower courts nationwide, where the Trump administration has appointed nearly 200 federal judges.
The Supreme Court gained a 6-3 conservative majority when Justice Amy Coney Barrett was confirmed in October. In previous scholarship, Coney Barrett has written extensively about religious exemptions — the idea that because of their faith, religious groups are exempt from anti-discrimination laws that protect LGBTQ+ people. Her track record alarmed LGBTQ+ advocacy organizations, 185 of which signed a letter to the U.S. Senate this fall urging senators to oppose Coney Barrett’s confirmation.
Local legal experts say fears about LGBTQ+ rights getting overturned under the new Supreme Court are valid, but some are more optimistic than others.
“We’re really worried about the cases that are sitting in our circuit courts making their way to the Supreme Court,” said Denise Diskin, the Executive Director of QLaw Foundation of Washington, an organization that provides legal services and policy advocacy on behalf of Washington’s LGBTQ+ communities.
Peter Nicolas, the William L. Dwyer Chair in Law at the University of Washington, agrees that Coney Barret’s history and a more conservative Supreme Court could see some rights and protections for LGBTQ+ people eroded by arguments for religious exemptions to anti-discrimination laws, but says sweeping overturns of rights like LGBTQ+ marriage are unlikely.
But so far, the outlook remains uncertain.
This week, LGBTQ+ advocates were relieved when the Supreme Court decline to hear a case (Box v. Henderson) involving the rights of same-sex couples to be listed on their children’s birth certificates. That refusal means the lower court’s decision that LGBTQ+ couples have the same rights as straight couples to be listed on their children’s’ birth certificates stands.
Conversely, in November, the Supreme Court heard Fulton v. the City of Philadelphia, in which government-funded foster care agencies claimed religious exemption for turning away LGBTQ+ people and same-sex parents due to their beliefs.
More than 30 LGBTQ+ rights-related cases are being litigated in the lower courts that could ultimately make their way to the Supreme Court. Depending on how they are argued and the issues presented, experts say some of these cases could be used to chip away at LGBTQ+ rights like marriage equality.
That LGBTQ+ people have to pursue lawsuits for recognition of basic needs, rights and even family relationships is itself harmful, Diskin says.
“We can’t ignore how many cases are in courts all over the country and at the U.S. Supreme Court, asking questions like whether trans people should be allowed to use the restroom with cisgender people, whether LGBTQ+ people should be able to work without discrimination, whether LGBTQ+ people can be adoptive parents, whether LGBTQ+ people can be turned away from businesses based on the business owner’s religious beliefs,” Diskin said. “These forces of homophobia, transphobia, and racism damage all of us, because when we as a society are questioning whether one group has equal rights, it becomes possible to question whether any group has equal rights.”
Equal protection under the law?
Taylor knows how it feels to have your rights violated by entities that are supposed to protect you.
“I’ve already been discriminated against in a manner that was supposed to be illegal,” said Taylor, a paralegal at Lavender Rights Project, a legal advocacy organization for the queer and trans community. “I don’t feel protection or comfort within the law.”
In 2011, Taylor sought medical treatment after experiencing daily seizures, but doctors dismissed his symptoms. After Taylor refused to leave the medical office until he received care, police were called. Taylor says police grabbed him by the throat, threw him to the ground and handcuffed him. When Taylor refused to let go his cane, which he says he was propping under his chin to keep his airway open, the officer beat and tased him several times. Taylor was charged with four misdemeanors including resisting arrest and a felony assault on a police officer. He was acquitted of some charges, the rest were dismissed. Taylor ultimately won a lawsuit against the medical office.
It took another four years before Taylor was diagnosed with lupus and incomplete spinal cord injury. Now a wheelchair user, Taylor says because it took so long for him to get proper treatment, there’s no way to know for certain if the police violence that day caused his paralysis. What he does know is that, as a Black, trans wheelchair user, he is more likely than others to be discriminated against.
That experience motivated Taylor to pursue a career in law and policy and has reinforced for him that the law is applied unequally — the most marginalized people end up experiencing the most discrimination.
With that in mind, he expedited the process of getting gender-affirming surgery after the Trump administration removed protections from discrimination for transgender people under the ACA, and he’s not alone in his mounting concern.
Mattie Mooney, health care access manager at Ingersoll Gender Center and the co-founder of the Trans Women of Color Solidarity Network, says Ingersoll has seen an increase in clients who’ve been denied gender-affirming care this year. They’ve also encountered many denials of gender-affirming care for people whose employers exploit a loophole by offering health insurance plans not subject to Washington state’s anti-discrimination laws.
C.P., a 15-year-old trans teen in Bremerton, is one of them. As a minor, C.P. asked to be identified by his initials to protect his identity and due to the discrimination transgender people routinely encounter. After being diagnosed with gender dysphoria (psychological distress that comes from a mismatch between one’s sex assigned at birth and their gender identity), C.P. sought gender-affirming treatment that Blue Cross Blue Shield (BCBS) of Illinois, his mother’s health insurance plan through her employer, initially covered, and then later refused to cover. On Nov. 23, the family filed a lawsuit against the provider, arguing that its blanket exclusion of gender-affirming health care is illegal under the Affordable Care Act.
“We were just being parents trying to get health care for our son,” said Nolle Pritchard, C.P.’s father, who hopes his family’s fight will help those without the means to pursue legal action against big insurance companies. “We just want to make what’s not right right.”
BCBS-Illinois did not respond to a request for comment, but a nondiscrimination statement on its website notes, “We do not discriminate on the basis of race, color, national origin, sex, gender identity, age, sexual orientation, health status or disability.”
“Everyone deserves the health care that they need,” said C.P. “I know that all this gender-affirming stuff has helped me be more myself and doing this might help other people.”
Mooney, who is trans, advises that trans people trying to navigate the health care system bring a support person to doctor’s appointments, write down specific questions beforehand, and demand respect.
“The medical field has taken a bite out of the confidence of our community and has been the source of a lot of trauma for a lot of our community, so I’m all about empowering folks to be confident in their doctor’s office,” said Mooney.
Support in and from community
Regardless of what happens in the courts, Mooney, Taylor and the Pritchards say they feel supported by, and are confident in, their communities’ resilience.
“No matter what happens, the trans community will continue to do what we’ve always done, which is making sure our community is taken care of. But there is this lingering question mark about what is going to happen in the next four years,” Mooney said.
Jaelynn Scott, executive director of the Lavender Rights Project and a co-founder of the WA Black Trans Task Force, echoes that. Scott was in a Task Force meeting when she heard about Justice Ruth Bader Ginsburg’s death. But to her surprise, the group was unmoved; they wondered, “What’s going to be the difference now?” “Did Bader Ginsburg really work for Black and Brown queer trans needs?”
Of course, Scott says, Ginsburg presided over cases involving marriage equality and the repeal of the military’s Don’t Ask, Don’t Tell policy, but issues of housing and food insecurity and protection from violence are where Black and Indigenous trans folk see the need for immediate action.
According to a recent Human Rights Campaign survey, at least 37 transgender and gender nonconforming people have been killed by violence in 2020 — 73% were Black transgender women. This is up from 2013-19, when, according to the report, an average of 22 transgender and gender nonconforming people were killed by violence yearly.
For many, concerns about hate and violence add to already mounting pressures of unemployment, housing and food insecurity that disproportionately affect LGBTQ+ people and have been exacerbated by the pandemic — particularly in communities of color.
Within LGBTQ+ communities of color, many feel that organizing and providing mutual aid is more effective and reliable than looking to the courts for protection.
Groups like the Task Force and UTOPIA Seattle (United Territories of Pacific Islanders Alliance), which organizes and provides resources to trans and nonbinary members of Washington’s Pacific Islander community, are focused on feeding and sheltering their communities and protecting them from violence.
So while many are fearful for the future under the new, conservative-leaning Supreme Court, some say none of this is new.
In his 21 years as an attorney, Nicolas says he’s seen people from different marginalized communities worry about new Supreme Court justices. His advice to advocacy groups this time? “Try to avoid the federal courts for a while.”
“The courts have never been a place where our marginalized communities have been treated fairly,” said Diskin. “The courts are not a place where we see our civil rights being upheld. It’s where we see our rights being debated. … Instead we organize, and we take care of each other because we’ve had to.”
LGBTQ+ people relied largely on one another to get through the AIDS crisis in the 1980s and 1990s. They’ve organized and fought throughout the years for the rights to adopt children, serve in the military and to marry people they love regardless of sex. This year, as the coronavirus pandemic continues to decimate communities, groups such as UTOPIA Seattle have stepped in to provide relief, helping families access food, and hosting virtual support groups, drive-thru clinics and Q&As to help LGBTQ+ Seattleites navigate economic hardship.
Taylor’s experiences with discrimination and the legal system taught him that the institutions were not made to uphold his rights, and inspired him to want to enact change from the ground up.
That’s why he’s working at the Lavender Rights Project while pursuing a bachelor’s degree in law and policy at the University of Washington, Tacoma.
“I got into studying policy and law to learn the ways that law is violent and how to protect my community from the violence that law causes. I haven’t felt protected. I don’t look at statutes to protect me or create social change,” Taylor said.