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How Judge Kavanaugh Could Influence LGBTQ Rights

October 12th, 2018

With at least four cases concerning LGBTQ rights headed to the Supreme Court, Justice Brett Kavanaugh will likely have a substantial influence.

With at least four cases concerning LGBTQ rights headed to the Supreme Court, Justice Brett Kavanaugh will likely have a substantial influence.

With at least four cases concerning LGBTQ rights headed to the Supreme Court, the confirmation of Judge Brett Kavanaugh to the United States Supreme Court will likely have a substantial influence on how these cases are decided. This article will explain some of the important details involved with these four cases, which touch on fundamental issues of equal protection of the law in the United States. Before explaining these cases, it is also important to understand that Judge Kavanaugh will replace Justice Kennedy, who played a pivotal “swing” role in many cases where he affirmed the rights of the LGBTQ community and sided with the four more liberal justices.

EEOC v. Harris Funeral Homes

This case involves a funeral home’s argument that it had a right to fire a funeral director who is transgender on the basis that the director wanted to wear women’s clothing but the director’s boss insisted that she dress like a man. The director, who is represented by the ACLU, argues that the funeral home’s decision violates laws that prohibit against sex stereotyping. The Supreme Court, however, has not yet determined whether transgender people have the right to live under their gender identity of choice. If the Supreme Court accepts the funeral home’s religious freedom argument, and Kavanaugh has taken such a position in the past, this could mean that employers will be able to cite religious beliefs as a means to make employment decisions on the basis of gender identity.

Doe v. Boyertown Area School District

In this case, the Boyertown school district argued that it was permitted to let transgender kids use bathrooms and locker rooms that corresponded to their gender identity. The plaintiff in this case represents a group of students in the school district who argue that the policy of sharing bathrooms with transgender students violates their privacy rights. While the Third Circuit Court of Appeals ruled in favor of the school district’s policy and against the plaintiffs, this ruling could be appealed to the Supreme Court, and Justice Kavanaugh could be the deciding vote to overrule the Third Circuit and conclude that a person’s privacy rights require controlling who is allowed in public spaces.

Two Other Cases Where Kavanaugh Could Tilt the Scales

Two other cases that are likely to be heard by the Supreme Court similarly involve trans rights. In Alaska, a homeless shelter has demanded the right to exclude trans people due to objections about their gender identity. Meanwhile, the baker who was involved in the Supreme Court’s Masterpiece Cakeshop case is now pursuing a case in which he argues that he was not required to make a birthday cake for a trans woman. While the bakery owner previously argued that his right to religious freedom let him refuse to make a wedding cake for a homosexual couple, he will likely have a much more challenging time arguing that his religious rights were violated by making a birthday cake.

Tracking the Advancement of LGBTQ Rights

Since the Supreme Court decided to legalize same sex marriage in 2015, there have been many significant developments in the advancement of LGBTQ rights. In many recent Supreme Court decisions, the court has measured the rights of LGBTQ individuals against the religious freedom of other individuals. However, retiring Justice Kennedy ruled in favor of LGBTQ rights on numerous occasions, whereas Kavanaugh is expected to rule against them. It currently remains to be seen how these cases will be resolved. Each month, the Universal Life Church’s blog strives to keep our readers informed on the complex issues involved in these important cases.

(image courtesy of Peter Hershey)

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