Over the holidays, while many people weren’t paying attention, a Texas federal judge, District Court Judge Reed O’Connor, issued an injunction barring protections for transgender people under the Affordable Care Act as well as protections for women seeking a “termination of pregnancy”:
The judge also ruled that plaintiffs were likely to prevail in court on their claim that the new policy infringes on the rights of private healthcare providers under the Religious Freedom Restoration Act [RFRA].
The injunction has terrible and immediate implications for health care coverage for women and transgender people. Less noted in coverage of the decision, however, is that O’Connor’s legal argument for the injunction could also have far-reaching effects on LGBTQ rights more broadly, possibly allowing for discrimination by bakers and florists and others who’ve claimed their “religious freedom” is infringed upon if they must serve queer people under the law in their states.
It could be used to invalidate anti-discrimination laws in the states banning employment and housing discrimination against LGBTQ people (almost half of U.S. states have such laws), giving employers, landlords and businesses religious exemptions. And it could give encouragement to zealots in passing more laws like North Carolina’s HB2, regulating bathroom access for transgender people. Texas in fact this week moved forward on a so-called bathroom bill, introduced by the GOP Texas lieutenant governor, Dan Patrick.
Because of the timing of O’Connor’s injunction and the fact that conservatives venue-shopped – took this case to a conservative Texas federal court and got an injunction that applied to the entire country – the decision came down days before President Obama leaves office and one day before the new Obamacare rule would take effect. And no one should count on a Trump/Pence administration to save the regulation, as law professor Art Leonard points out at Gay City News:
The unlikelihood that the incoming Trump administration would defend the regulation in any appeal of the preliminary injunction means that O’Connor has probably gutted those nondiscrimination protections for good, even if Obamacare itself survives in some form going forward.
The broader effect on LGBTQ rights comes from O’Connor basing his decision on the Supreme Court’s Hobby Lobby decision of 2014, arguing that the co-plaintiffs in the current case, three Christian-affiliated medical groups (which were joined by the states of Texas, Wisconsin, Nebraska, Kansas, Louisiana, Arizona, Kentucky, and Mississippi), should have the “religious freedom” to turn away transgender people.
O’Connor relied on Justice Alito’s majority decision in Hobby Lobby, which had many LGBT activists concerned that the argument used to allow Hobby Lobby stores to deny women medical coverage for certain forms of contraception based on the owners’ religious beliefs could also be used to allow discrimination against LGBT people. Some legal observers had suggested at the time that Justice Kennedy’s concurring decision in Hobby Lobby reinforced that the decision wasn’t to be used to allow for broad discrimination, and prevented the decision from allowing discrimination against LGBT people.
But with O’Connor interpreting Hobby Lobby his way, Mark Joseph Stern, legal analyst and writer at Slate, told me in an interview that other judges in lower courts would now feel free to do the same. And Donald Trump will be filling many court vacancies, surely with more conservative judges just like O’Connor. By the time a case gets to the Supreme Court, the high court, too, could be a radically different one, transformed by Trump, who could fill two or more seats on the court. Any caveats in the Hobby Lobby decision preventing broader discrimination could be killed by a new court.
As Stern wrote at Slate:
Ever since the Hobby Lobby decision, progressives have warned that RFRA poses a grave threat to LGBTQ rights, fearing that businesses can use it to circumvent nondiscrimination laws shielding LGBTQ people. That fear is now an undeniable reality. O’Connor held that treating transgender patients—and even insuring transgender patients—“substantially burdens” insurance companies and hospitals’ “exercise of religion…With his decision, then, O’Connor provides a neat template for future judges irritated by nondiscrimination statutes: Make up a version of the law that isn’t real, then strike down the real law based on your made-up version of it.
Layer on top of that Trump’s promise to evangelicals to sign the First Amendment Defense Act, which would allow for anti-LGBTQ religious exemptions in federal law and with which members of Congress now are moving forward. The goal is to make it normal and perfectly acceptable to discriminate against LGBTQ people based on religious beliefs. And, if achieved, it will be that much harder for LGBTQ activists to beat back this blatant discrimination.
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