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Outlets framed coverage around concern for his job rather than the student’s well-being
Virginia TV news stations dedicated 90 segments to a story about an anti-trans high school teacher who was fired for repeatedly misgendering a student. The school board deemed those actions discriminatory; however, the news segments included considerably more voices in favor of the teacher than the trans student, and all failed to mention why misgendering someone is demeaning or harassing.
On October 31, Virginia high school teacher Peter Vlaming was placed on administrative leave for refusing to identify a transgender student by his proper pronouns. According to The Associated Press, “Vlaming told superiors that his Christian faith prevented him from using male pronouns for the student,” and the West Point School Board voted unanimously to fire him for repeatedly violating the district’s anti-discrimination policy after a public hearing on December 6. Following the board’s decision, students and parents held a walkout and began circulating petitions in support of Vlaming, which have collectively garnered more than 15,000 signatures. Vlaming is considering legal action against the school district.
Despite extensively covering the story with 90 segments between December 4 and 12, not a single anchor or reporter explained why misgendering a trans student would be considered harassment or noted that those actions stigmatize trans folks and erase their identities. However, 33 of those segments did include language that Vlaming's actions were "hostile" or "threatening" -- nearly all of which were from one of two short clips of school administrators speaking during the hearing.
For instance, several stations aired a clip of Superintendent Laura Abel testifying that “by failing to follow the directive” to refer to the student by the correct pronouns, Vlaming was "discriminating" and "creating a hostile environment.” Stations also aired a clip of the school’s Principal Jonathan Hochman during the hearing, saying, “I can't think of a worse way to treat a child than what was happening. That was very threatening.”
GLSEN, an LGBTQ-inclusive education advocacy organization, defines misgendering as “the experience of being labeled by others as a gender other than one that a person identifies with.” Misgendering not only invalidates the identities of trans people, but it can also have negative effects on their self-confidence and mental health. Trans adolescents already experience high levels of attempted suicide -- particularly transgender boys and nonbinary young people -- but a March study by researchers from the University of Texas at Austin found that “when transgender youths are allowed to use their chosen name in places such as work, school and at home, their risk of depression and suicide drops.”
School districts and states around the country have adopted affirming policies to respect trans identities and to condemn bullying based on gender identity or sexual orientation. GLSEN's Model School District Policy on Transgender and Gender Nonconforming Students encourages schools to respect students’ names and pronouns to improve their experiences and reduce the harms caused by non-affirming practices like misgendering.
Tech companies have also passed similar policies to prevent anti-trans harassment on social media platforms. In September, Twitter banned “targeted misgendering or deadnaming of transgender individuals” as part of its “hateful conduct” policy, acknowledging that those practices are meant to “dehumanize, degrade or reinforce negative or harmful stereotypes.” Media Matters’ Parker Molloy praised the decision in a November 29 op-ed for The New York Times, noting that misgendering and deadnaming are used to deligitimatize trans identities and can discourage trans people from voicing their opinions:
As a transgender woman, I find it degrading to be constantly reminded that I am trans and that large segments of the population will forever see me as a delusional freak. Things like deadnaming, or purposely referring to a trans person by their former name, and misgendering — calling someone by a pronoun they don’t use — are used to express disagreement with the legitimacy of trans lives and identities.
Defenders of these practices claim that they’re doing this not out of malice but out of honesty and, perhaps, even a twisted sort of love. They surely see themselves as truth-tellers fighting against political correctness run amok. But sometimes, voicing one’s personal “truth” does just one thing: It shuts down conversation.
In addition to framing their coverage around Vlaming’s firing instead of how such harassment is harmful to students, Virginia TV news stations also aired considerably more statements that were sympathetic to the anti-trans teacher than the trans student. Virginia stations covered the story a total of 90 times between December 4 -- when station WRIC (ABC) says it broke the story -- and December 12. Throughout those segments, there were 82 clips of quotes or statements read in favor of Vlaming compared to 52 clips of quotes or statements read in favor of the student or the school board’s actions holding Vlaming accountable. (Repeated instances of the same person being quoted in one segment were counted as one statement.)
Furthermore, while the majority of clips supportive of the student came from repeated airings of two short clips of school officials speaking at the hearing or readings from official school district statements, many segments showed lengthy or multiple clips of Vlaming, his lawyer, and students defending his actions. For example, a segment on WVEC 13 featured multiple clips of a student supportive of Vlaming interspersed throughout the segment.
From the December 6 edition of WVEC’s 13News Now:
Only one segment included a quote from a parent, friend, or student supportive of the trans student at the center of the case, which was read by a reporter on WRIC’s 8News. Additionally, stations aired five quotes that appeared neutral to the story, either calling for more discussion, describing the events, or saying that the situation was not good for either side.
WAVY-TV 10 had particularly one-sided coverage, airing 18 statements or quotes in favor of Vlaming throughout 15 pieces of coverage compared to only 7 statements or quotes in favor of the student or school board’s actions.
While Vlaming’s story plays out in Virginia, several similar cases around the country are already being supported or litigated by the influential and extreme anti-LGBTQ group Alliance Defending Freedom (ADF). In November, ADF attorneys announced that they had filed a federal lawsuit representing Nicholas Meriwether, a Shawnee State University professor who received a formal warning for not using the appropriate pronouns to address a transgender student. Additionally, an ADF-allied attorney said in June that the group was working with an Indiana high school teacher who also cited his religious beliefs for refusing to address transgender students by their appropriate names and pronouns.
As Vlaming considers legal action and Virginia TV news stations continue to cover developments in his case, it is more important than ever that media contextualize the harms of misgendering trans people and give them a voice in these stories.
Media Matters searched iQ media for any mentions of “school,” “teacher,” “Virginia,” “fired,” “transgender,” or “trans” within 25 words of “pronoun,” as well as any mentions of “Peter Vlaming” or “West Point High School” from December 4-12 in all media markets serving Virginia: Norfolk-Portsmouth-Newport News; Richmond-Petersburg; Roanoke-Lynchburg; Harrisonburg, Charlottesville; Tri-Cities, TN-VA; Washington, D.C.-Hagerstown; Bluefield-Beckley-Oak Hill; Greensboro–High Point–Winston-Salem; and Raleigh-Durham (Fayetteville).
Additional research by Brennan Suen.
The Trump-Pence administration asked the Supreme Court to review trans military ban cases. There are several other LGBTQ-related cases it could decide to take up this session.
The Trump-Pence administration has once again asked the Supreme Court to take up one of its policy priorities and bypass lower courts in what has been called an “unusual” move -- this time, to expedite a ruling on its proposed policy banning openly transgender service members from serving in the military. And that’s just one of several LGBTQ-related cases the Supreme Court could hear this session, with other topics including employment discrimination, trans-inclusive school facilities, and religious exemptions for businesses. Extreme anti-LGBTQ group Alliance Defending Freedom has connections to several of those cases.
Though there has been media coverage of the trans military ban cases, several other important cases that may reach the high court fly under the media’s radar. Here's a look at LGBTQ-related cases that may be heard by the Supreme Court this term:
In July 2017, Trump announced on Twitter that he planned to ban transgender people from serving in the military, reversing a 2016 policy change by the Obama administration that allowed trans people to serve openly. In March, the Trump-Pence administration released its official policy. In developing the plan, the administration reportedly relied on a panel of “experts” that included the vehemently anti-trans activist Ryan T. Anderson and Tony Perkins, president of the extreme anti-LGBTQ group Family Research Council. There have been four lawsuits filed against the ban, and according to CNN, “District courts across the country have so far blocked the policy from going into effect. The 9th Circuit Court of Appeals heard arguments in one challenge earlier this fall and the DC Circuit will hear arguments in early December.”
The Department of Justice (DOJ) has asked the Supreme Court to review three of the cases, bypassing lower courts: Doe v. Trump, Stockman v. Trump, and Karnoski v. Trump. According to The Advocate, Doe “is pending before the U.S. Court of Appeals for the District of Columbia Circuit," and the other two are pending before the 9th Circuit. Neither appeals court has ruled on any of these cases, but the 9th Circuit has heard arguments in one challenge already.
The Guardian reported that the Trump-Pence administration’s request “is the fourth time in recent months the administration has sought to bypass lower courts that have blocked some of its more controversial proposals and push the high court, which has a conservative majority, to weigh in quickly on a divisive issue.” The New York Times noted that the DOJ’s request for the Supreme Court to review the issue is unusual, as it “does not ordinarily intercede until at least one appeals court has considered an issue, and it typically awaits a disagreement among appeals courts before adding a case to its docket.” According to the Supreme Court’s rules, it should take up an issue “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.”
Speaking to The Washington Post, several lawyers challenging the ban have “said there is no reason for the court to abandon its usual policy,” and according to The Daily Beast, if the Supreme Court does review the issue, it “would theoretically only be considering whether or not to lift the injunctions that have been placed on the rollout of the transgender troop ban” while the lower courts continue to debate the legality of the ban itself. However, there is also a chance that the high court could find a way to rule directly on the ban’s constitutionality.
There are three cases that the Supreme Court could take up involving interpretations of workplace protections under Title VII of the 1964 Civil Rights Act, which “prohibits employment discrimination based on race, color, religion, sex and national origin.”
The primary debate around Title VII involves whether protections from sex discrimination also encompass sexual orientation and gender identity, particularly as the Supreme Court has already ruled that employers cannot discriminate based on gender stereotypes. In May 2017, Congress introduced the Equality Act, a bill that would explicitly add sexual orientation and gender identity to existing civil rights laws, including the Civil Rights Act.
In October 2017, the DOJ issued a memo that said (emphasis original), "Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status." Of the three Title VII cases that the Supreme Court might take up, one involves a trans woman who was fired for her gender identity, and the other two involve men who were fired for their sexual orientation.
The first case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, involves a transgender woman named Aimee Stephens, a funeral director who was fired after coming out to her longtime employer. The 6th U.S. Circuit Court of Appeals ruled in her favor based on Title VII protections, saying, “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex” and that “discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
The influential and extreme anti-LGBTQ group Alliance Defending Freedom (ADF) is representing the funeral home at the center of the case, and ADF’s lawyers asked the Supreme Court to take up the case in July.
In October, the DOJ filed a brief in support of the funeral home. It issued a similar brief in favor of ADF’s client in the Masterpiece Cakeshop case decided last session. Solicitor General Noel Francisco signed the Harris Funeral Homes brief and argued in support of ADF’s client in Masterpiece Cakeshop. ADF had identified Francisco as one of its more than 3,200 allied attorneys in several press releases in 2016, but the group later claimed that this had been “our mistake” and that he was not in fact an allied attorney. ADF shows a distinct lack of transparency about who its allied attorneys are, and another group even filed a Freedom of Information Act request to determine Francisco’s exact relationship with ADF.
In a second case, Zarda v. Altitude Express, skydiving instructor Donald Zarda sued his employer Altitude Express for firing him in 2010 after he “told a female student that he was gay.” (Zarda died four years after he filed the suit.) The 2nd U.S. Circuit Court of Appeals ruled in his favor in February of this year, deciding that Title VII “prohibits discrimination on the basis of sexual orientation.” Altitude Express and its lawyers petitioned the case to the Supreme Court in May.
In a third case, Bostock v. Clayton County, Georgia, Gerald Bostock sued after “he was fired from his job as a child welfare services coordinator for a Georgia county’s juvenile court system when his employer found out he is gay.” The 11th U.S. Circuit Court of Appeals ruled against Bostock, saying that Title VII does not protect discrimination based on sexual orientation. In May, Bostock and his lawyer asked the Supreme Court to weigh in given a split in circuit courts’ rulings on the matter.
The high court was originally expected to consider petitions to review the three Title VII cases on November 30, but it has since “delayed its timeline for considering whether to grant review.” According to Bloomberg Law, “The court’s next scheduled conference is Dec. 7, and it has no more conferences scheduled for December. The first conference of the new year is scheduled for Jan. 4.” If it does not grant review by mid-January, the court would not be able to hold oral arguments for any of the cases during the current term, which began in October.
In June, the Supreme Court narrowly ruled in favor of ADF’s client Jack Phillips, a Christian baker who refused to bake a cake for a same-sex couple, in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The decision did not indicate how the high court should rule on other similar cases or on the larger question of whether businesses can deny services to LGBTQ people but rather ruled that members of the Colorado Civil Rights Commission had shown “hostility toward the sincere religious beliefs that motivated [Phillips’] objection.” This next session, however, the Supreme Court could make a broader ruling on a similar case.
In Klein v. Oregon Bureau of Labor and Industries, the owners of the now-shuttered Oregon bakery Sweet Cakes by Melissa were fined $135,000 for refusing to bake a wedding cake for a lesbian couple, a violation of the state’s nondiscrimination law. According to The Oregonian, the Oregon Court of Appeals ruled against the bakery owners and “upheld the order, and the state Supreme Court declined to hear the case earlier this year.” Their lawyers -- from the anti-LGBTQ legal group First Liberty Institute (previously known as Liberty Institute) -- filed a petition for Supreme Court review in September. At least four of those lawyers have connections to ADF: Kelly Shackelford, the president and CEO of First Liberty Institute, and Hiram Sasser have both been identified as ADF allied attorneys, and Michael Berry and Stephanie Taub both participated in ADF’s legal fellowship program.
ADF has filed another petition asking the Supreme Court to weigh in on an LGBTQ-related issue in the Joel Doe v. Boyertown Area School District case. In that case, cisgender students represented by ADF sued their school district after Boyertown Area High School passed an inclusive policy that allows transgender students to use facilities that align with their gender identity. This differs from the high-profile Gavin Grimm v. Gloucester County School Board case, in which a trans student sued his school district for passing a discriminatory policy.
The 3rd U.S. Circuit Court of Appeals ruled in favor of Boyertown’s trans-inclusive policy and against ADF’s client in July, citing Title IX of the Education Amendments of 1972, which “prohibits discrimination ‘based on sex’ in federally funded educational programs.” ADF has also attempted to leverage Title IX in its arguments, saying that the school’s trans-inclusive policy would create a “hostile environment” in violation of Title IX because its cisgender clients would have to interact with trans students in school restrooms and locker rooms. ADF thus contended that cisgender students who feel “embarrassed and harassed” by being in the same restrooms as trans students would be discriminated against “on the basis of sex.”
There are several potential outcomes if the Supreme Court does take up the case. The Daily Beast’s Samantha Allen wrote that if the court ruled against the plaintiffs, it would likely decide “that local school districts like Boyertown cannot be barred from establishing transgender protections” rather than making a more sweeping decision “to affirm that all transgender students nationwide are protected under Title IX.” However, Allen noted the increasingly conservative makeup of the court and contemplated what could happen if it ruled in favor of ADF’s clients:
There’s another outcome that has the potential to be catastrophic for a generation of transgender students: The Supreme Court—now with a conservative majority and two Trump picks—hears the case and agrees that transgender students cannot be protected by school policies. In the worst case, they agree that Title IX not only doesn’t protect transgender students, but actually requires schools to discriminate against them.
Extreme anti-LGBTQ groups, including ADF, have united around Supreme Court Justice Brett Kavanaugh’s confirmation to the court, assuming he would champion their issues and cement the conservative majority on the court. Like the Trump-Pence administration, these groups have been emboldened to push for discriminatory policies in the courts, such as overturning protections against conversion therapy for LGBTQ youth. ADF and others like it also have unprecedented influence over the administration; the White House even briefed ADF President Michael Farris about the FBI's Kavanaugh investigation not long after U.S. senators received the FBI’s report. Farris and ADF argued twice before the Supreme Court during the last session, and ADF has played a role in more than 50 other cases before the high court.
Additional research by Kayla Gogarty and Brianna January.
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As Colorado Gov.-elect Jared Polis makes history, an anti-LGBTQ group and right-wing media outlet have dubiously attempted to pit religion against the LGBTQ community
Anti-LGBTQ groups and right-wing media outlet The Daily Wire have used the successful campaign of Colorado Gov.-elect Jared Polis, the first openly gay man to be elected governor, to push a false narrative pitting religion against the LGBTQ community. Specifically, they have leveraged the story of anti-gay Colorado baker Jack Phillips -- who went all the way to the Supreme Court in a case involving his refusal to bake a cake for a gay couple -- to say that the state is persecuting Christians and that Polis’ election would result in religious people losing their rights.
Extreme and influential anti-LGBTQ group Alliance Defending Freedom represented Phillips in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. The Supreme Court narrowly ruled in Phillips’ favor based on the particulars of the case, citing “inappropriate and dismissive comments” from one of the Colorado civil rights commissioners as “hostility” toward Phillips’ religion. Polis called the Supreme Court’s decision “disappointing, but thankfully narrow in scope,” adding that Congress should pass the Equality Act, a bipartisan federal bill that would amend civil rights protections in employment, housing, education, public accommodations, and other areas of life to include sexual orientation and gender identity.
After Polis’ historic win, The Daily Wire’s Paul Bois published an article headlined “Colorado Elects First Openly Gay Governor In U.S. History As The State Persecutes Christians.” Bois highlighted Polis’ “commitment to LGBTQ principles” and wrote, “The ascension of Polis in Colorado comes at a time when the state has increasingly positioned itself as an enemy of religious liberty, most notably in its persecution of baker Jack Phillips.”
Before Election Day, anti-LGBTQ group Family Policy Alliance also featured Phillips in a campaign ad against Polis. According to LGBTQ news outlet INTO, the ad said, “Assaults on Jack’s faith – and yours – could get even worse if Boulder’s own Jared Polis becomes governor,” and a statement released alongside the ad asserted that “the decision Colorado voters make will impact Jack Phillips and other people of faith in Colorado—and beyond—for years to come.” Family Policy Alliance sent an email promoting the ad on October 24, which claimed that Polis’ election “means that things could get even worse for Jack and other people of faith in Colorado.”
The group deleted the ad within days and scrubbed references to the video from its website. A Family Policy Alliance spokesperson told Baptist Press on November 2 that the group “was no longer featuring Phillips in its ad online but was ‘pivoting to the next phase in our strategy with an ad that focuses on candidate Jared Polis and the threat to religious freedom he poses for people of faith in our state.’" That second ad, titled “Jared Polis vs. Freedom,” asserted that if elected, Polis would threaten “the freedom of people of faith throughout Colorado.” (During the 2018 election, Family Policy Alliance and its member group Massachusetts Family Institute worked extensively to undo a trans-inclusive nondiscrimination law in Massachusetts. The repeal effort failed.)
The Family Policy Alliance ads and The Daily Wire’s story rest on the false premise that the LGBTQ community and people of faith are at odds, or that equal rights for LGBTQ people somehow result in the loss of rights for people of faith. Anti-LGBTQ figures often set up this “God vs. Gay” dichotomy to gin up sympathy for individuals and groups who wish to discriminate against LGBTQ people by citing their faith. But these figures, often right-wing evangelical Christians, do not represent all people of faith or even speak for all of Christians. The majority of Americans believe that homosexuality should be accepted -- including majorities of most religious groups. Almost 1,300 faith leaders filed an amicus brief defending the gay couple at the center of the Masterpiece Cakeshop case and condemning the use of “religious freedom” arguments to discriminate against LGBTQ people. According to the brief’s press release, the faith leaders represented 500,000 congregants “from approximately 50 unique faith traditions across the U.S.” And though the Supreme Court ruled against the couple, the decision did not indicate how similar court cases should play out. But Alliance Defending Freedom, which represented the baker in the case, is litigating several other cases that may determine whether businesses serving the public have the right to discriminate against LGBTQ people under the guise of “religious exemptions.”
Additional research by Brianna January.
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National anti-LGBTQ groups are aligned with and have worked alongside a campaign in Massachusetts that would repeal the state’s trans-inclusive nondiscrimination protections, which protect transgender people from discrimination in housing and the workplace and give them equal access to public facilities such as bathrooms and locker rooms that align with their gender identity. The anti-trans Keep MA Safe campaign was started by Massachusetts Family Institute, a state anti-LGBTQ group with direct ties to major national groups Family Policy Alliance, Alliance Defending Freedom, and Family Research Council.
While MSNBC aired segments featuring six LGBTQ people, Fox News hosted anti-LGBTQ group leader Tony Perkins and two anti-trans gay women
The Trump-Pence administration is “considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth,” which would be “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people,” according to an October 21 New York Times report. When TV news reported on the proposal, only MSNBC hosted LGBTQ guests to condemn it, while Fox hosted primarily anti-trans voices, including two gay women and major anti-LGBTQ group leader Tony Perkins.
The Times reported that the definition would be established under Title IX, which bars “gender discrimination in education programs that receive government financial assistance.” Title IX is enforced in part by the “Big Four” federal agencies -- the departments of Education, Justice, Health and Human Services, and Labor -- most of which currently employ anti-LGBTQ group alumni who would potentially implement the policy. According to the Williams Institute, there are roughly 1.4 million American adults who identify as transgender, all of whom would be impacted by the proposed change. CNN reported that “if adopted, such a definition could exclude transgender people from existing federal civil rights protections in education, employment and access to health care.” The move is part of a greater trend of the Trump-Pence administration going after transgender people, and transgender advocates and their allies have sounded the alarm about the proposal and are fighting back.
Following the Times’ reporting on the Trump-Pence administration’s proposal, broadcast and cable TV news spent a moderate amount of time covering the issue. MSNBC turned to transgender and queer guests to discuss the impacts of the proposal, while Fox News hosted primarily anti-transgender guests, including Perkins. Though generally critical of the proposal, CNN’s segments relied entirely on CNN hosts, commentators, and reporters, none of whom openly identify as LGBTQ.
In discussing the proposal, MSNBC hosted six LGBTQ people, four of whom identify as trans, who were able to explain the personal impact the Trump administration’s proposal would have on the trans community.
On October 23, MSNBC Live with Hallie Jackson hosted Laverne Cox, a transgender actress and activist, who outlined the Trump-Pence administration’s history of anti-trans policies, as well as those proposed around the country in state legislatures. Cox said that state legislatures “are continually trying to introduce legislation banning transgender people from public life” but noted that “we have fought those battles, and we have won.” She explained that “over and over again the courts have held that transgender people are covered by Title IX and Title VII.” Cox said, “They want to make us afraid, but we need not be afraid.”
MSNBC Live with Hallie Jackson aired an October 22 segment featuring National Center for Transgender Equality's (NCTE) Raffi Freedman-Gurspan, who was the first out transgender person to be appointed to a White House job. Freedman-Gurspan called the proposal “an abomination” and highlighted that the new definition does not align with medical consensus or the lived experiences of trans people. She also noted the many anti-trans actions and rhetoric of the Trump-Pence administration and highlighted activism by the trans community and their allies who are ready to fight the proposal. Freedman-Gurspan ended the segment by saying, “We won’t be erased. We are standing up. … We are going to get through this.”
During other segments, MSNBC also hosted Mara Keisling, a trans woman and president of NCTE; Hannah Simpson, a trans woman and activist; Masha Gessen, an LGBTQ journalist; and Sarah Kate Ellis, a lesbian and president of GLAAD. Additionally, Rachel Maddow, an out lesbian, did a monologue on her October 22 show about the proposal in which she contextualized the history of Republican administrations rolling back LGBTQ rights.
While MSNBC turned to LGBTQ people who were either transgender or trans allies for their insights on the potential impact of the Trump-Pence administration’s proposal, Fox News hosted primarily anti-transgender guests, including two gay women and extreme anti-LGBTQ group Family Research Council’s (FRC) President Tony Perkins.
In Fox News’ first substantial segment about the proposal, Fox News at Night with Shannon Bream aired a debate between liberal radio host Ethan Bearman and FRC’s Perkins, who was also appointed to the U.S. Commission on International Religious Freedom in May. During the segment, Perkins praised the proposal and resorted to fearmongering when presented with historical facts about gender identity. Perkins also pushed the the thoroughly debunked myth that trans-inclusive policies pose a threat to the safety of women and girls. From the segment:
What we’re doing by this policy that was put in place without an act of Congress -- this was the Obama administration -- we’re putting people at risk. We're actually denying people equal protection under the law, because under this, we would force women that are going to battered shelters for abused women, we would force them under government policy to be housed with men, biological men. This makes no sense.
On October 23, Tucker Carlson, who has an anti-transgender track record himself, hosted Tammy Bruce, an anti-trans lesbian and president of the conservative group Independent Women’s Voice. In the past, Bruce has criticized trans-inclusive restrooms and compared being transgender to “a child” thinking they are “a cocker spaniel. She has also defended Jack Phillips, the Christian baker who refused to bake a wedding cake for a gay couple and who was represented by extreme anti-LGBTQ powerhouse Alliance Defending Freedom at the Supreme Court. During the segment, Carlson claimed that the government recognizing the trans community would hurt women, and Bruce leveraged her identity as a lesbian to dismiss the impact of the proposal on trans people.
Additionally, Fox News’ The Story with Martha MacCallum hosted Camille Paglia, also an LGBTQ-identified person who is critical of trans identities. During the segment, Paglia pushed anti-trans narratives about biology and said that trans-inclusive policies are “unfair” in areas like athletics. She also described herself as transgender while criticizing the trans community. Paglia has made similar comments in the past, saying, "Although I describe myself as transgender (I was donning flamboyant male costumes from early childhood on), I am highly skeptical about the current transgender wave." In other reporting, it appears that she identifies as gay and uses female pronouns.
CNN had at least eight separate significant discussions, news reads, or reports covering the proposal but failed to host a single LGBTQ person in its reporting. Though the network’s coverage was generally critical of the proposal, CNN’s shows only used staff commentators and reporters to discuss it.
Broadcast TV news outlets ABC and CBS barely covered the story at all, only airing news reads with no comprehensive segments or reporting, and both networks failed to feature any LGBTQ voices. NBC, however, aired a package on NBC Nightly News with Lester Holt that included a clip from NCTE’s Freedman-Gurspan’s appearance on MSNBC Live with Hallie Jackson. It also aired a report on Today.
Additionally, PBS aired a segment featuring LGBTQ legal group Lambda Legal’s Sharon McGowan and was the only TV outlet so far to contextualize the anti-LGBTQ track record of Roger Severino, head of the Department of Health and Human Services’ Office for Civil Rights, the department spearheading the proposal.
Media Matters searched Nexis transcripts for cable TV coverage appearing between October 21 and 23 on CNN, Fox News, and MSNBC -- as well as transcripts of broadcast TV coverage on ABC, NBC, and CBS -- for mentions of the words “transgender” or “health and human services” as well as mentions of the words or variations of the words “trans,” “sex,” or “gender” occurring within 10 words of the words or variations of the words “memo,” “policy,” “definition” or “Trump.” Additionally, Media Matters conducted searches on Snapstream for the same time frame for the same terms. “Significant discussion” is defined as two or more speakers in the same segment discussing the proposal with one another.
The Trump-Pence administration is “considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth,” according to an October 21 story in The New York Times. The definition would be established under Title IX, which bars “gender discrimination in education programs that receive government financial assistance.” Title IX is enforced in part by the “Big Four” federal agencies -- the departments of Education, Justice, Health and Human Services, and Labor -- where numerous alumni and allies of major anti-LGBTQ groups currently work.
According to the Times, the move is considered “the most drastic” yet in the administration’s onslaught against transgender rights, and “the new definition would essentially eradicate federal recognition” of the trans community. The effort is being led by the Department of Health and Human Services (HHS) and its Office for Civil Rights, whose director, Roger Severino, formerly worked for the right-wing Heritage Foundation alongside many other anti-LGBTQ staff who fill the Trump-Pence administration.
The departments charged with enforcing Title IX are staffed with several alumni from anti-LGBTQ groups, including the extreme and influential Alliance Defending Freedom (ADF) and Family Research Council (FRC). The following people with positions in the departments of Justice, Education, Labor, and HHS have ties to anti-LGBTQ groups:
Kerri Kupec, deputy director of the Office of Public Affairs, Department of Justice
Former legal counsel and communications director at ADF
Matthew Bowman, deputy general counsel, Department of Health and Human Services
Former legal counsel at ADF
Shannon Royce, director of the Center for Faith-Based and Neighborhood Partnerships, Department of Health and Human Services
Former chief of staff at FRC
Former ADF Blackstone Legal Fellow
Former director of litigation projects at ADF
A person named Paul Quast worked at ADF in the summer of 2013 as a law student
In addition to their former work at anti-LGBTQ groups, several of these agency staff have said or supported extreme anti-LGBTQ measures. DOJ's Kupec was a visible spokesperson for ADF and made numerous media appearances defending the group’s anti-LGBTQ work. HHS’ Royce has promoted the dangerous and ineffective practice of conversion therapy, saying that “the ex-gay movement is a very important part of the story” and that she had counseled “people who were in a homosexual lifestyle.” She contended then that they “generally found themselves in a desperate place” and “have tried to find fulfillment in ways that are against God’s principles,” using that claim to argue against same-sex marriage. Her former employer, FRC, has vehemently supported conversion therapy. Another HHS staffer, Bowman has said that advocates for same-sex marriage have an “appetite for McCarthyism” and compared them to thugs. Additionally, two other FRC alumni -- Charmaine Yoest and Teresa Manning -- temporarily worked for the Trump-Pence HHS. Yoest moved to a White House job, and Manning abruptly stepped down from the job.
HHS’ suggested language defines sex “as either male or female, unchangeable, and determined by the genitals that a person is born with,” which defies medical consensus and the lived experiences of trans and gender-nonconforming people all over the world. Vox’s German Lopez described how the proposal would affect the everyday lives of transgender Americans:
The proposal would effectively erase protections for trans people, who identify with a gender different from the one assigned to them at birth, from federal civil rights laws — ensuring that the laws do not prohibit discrimination against trans people in any setting, including the workplace, housing, schools, and health care.
Furthermore, the Human Rights Campaign’s Charlotte Clymer outlined other examples of severe consequences that could result in the administration’s “severely restrictive and narrow definition of sex”:
Same-sex couples and their families could be turned away from emergency shelters
A transgender person could have their insurance deny them coverage for transition related care
A gay man could be harassed about being gay at a job skills training
An elderly same-sex couple could be denied in home meal service
A transgender woman could be turned away from a hospital for a broken ankle
Additional research by Kayla Gogarty.
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The massive anti-LGBTQ organization has been working to push its goals internationally, including in Romania, where same-sex partners already cannot marry
A Romanian referendum that would have amended the country’s constitution to define marriage as “between a man and a woman” failed this past weekend after it did not receive the 30 percent turnout required to be valid. Influential and extreme anti-LGBTQ group Alliance Defending Freedom (ADF) worked extensively in favor of the referendum and has been actively working against marriage equality in Romania for more than a decade.
Though the referendum failed to draw more than roughly 20 percent of voters, the BBC reported that polls taken before the vote “indicated support for the change was as high as 90%.” Romanian LGBTQ advocates successfully urged their supporters to boycott the polls to invalidate the vote, even though the government took the “unusual step” of extending the referendum to two days at a cost of $46 million.
This was not the first campaign against marriage equality in Romania. The Los Angeles Times reported that Peter Costea of Coalition for Family, the Romanian organization “leading the charge on the referendum,” first pushed to change the country’s constitution 13 years ago by working with “local Christian groups.” The Times continued, “This time, he’s backed by far more firepower. Costea turned to the Alliance Defending Freedom, an Arizona-based association that has emerged as an influential legal force for the American religious right — part of a larger pattern of conservative evangelical and other Christian groups finding fertile new ground for pressing an agenda against marriage between same-sex partners.”
But Costea has actually worked with ADF for more than a decade. He is listed as one of its 3,200 allied attorneys, and Costea and ADF “provided instrumental legal counsel to Romanian Parliament” regarding a civil code enacted in 2009 that defined marriage as between “man and woman.” It does appear, however, that Trump’s election was a catalyst for their latest push, as the Times wrote:
Within days of Trump’s election victory, the Coalition for Families was “contacted by higher-ups in the Romanian government to say that things had changed in Romania because things had changed in the White House,” Costea said. They promised to help jump-start the referendum campaign, he said.
To that end, the Alliance Defending Freedom has held conferences and run an informational campaign backing the Coalition of Families to promote the Romanian measure. Along with Liberty Counsel, it also submitted friend-of-the-court memos to Romania’s Constitutional Court.
Over the last two years, ADF worked extensively to boost Romania’s anti-LGBTQ referendum from its initial petition to the final vote. In July 2016, ADF International filed a friend-of-the-court brief at the Romanian Constitutional Court in support of the referendum, and ADF co-hosted a conference with the Coalition for Family at the Romanian Parliament in Bucharest in 2017. ADF continued advocating for the constitutional amendment through social media posts, news releases, videos, official reports, and analysis. In a related event, ADF also submitted an intervention in 2017 to the European Court of Justice (ECJ) against a gay Romanian and American married couple who were fighting for their right to live together in Romania. The ECJ ultimately backed the legal residency for same-sex couples under the definition of “spouse,” which was the language the 2018 referendum attempted to amend. According to the Los Angeles Times, U.S. groups including ADF have aligned with Eastern European conservatives because their ideology “meshes perfectly with the goals of Christian conservatives in the U.S.”
Additionally, a 2012 book by Duquesne University political science professor Clifford Bob detailed work by ADF and Costea in Romania a decade ago that has striking similarities to their most recent work together, demonstrating that the alliance between ADF and Eastern European conservatives is not new. According to the book, ADF became involved in the Romanian marriage debate a decade ago after Costea contacted the extreme anti-LGBTQ group for legal help with his first campaign to amend Romania’s constitution to define marriage as “between a man and a woman.” Bob wrote that Romanian religious groups “had gathered the necessary signatures for validation by the Romanian Constitutional Court” by December 2006, and Costea “engineered the filing of amicus curiae briefs, a tactic unprecedented in Romanian jurisprudence,” to bolster the petition. According to the book, ADF “reviewed Costea’s brief and filed its own.”
After the petition “failed to meet the Constitution's geographic distribution requirement for citizen initiatives” and thus did not make it to a referendum, Costea set up a formal organization, the Alliance of Romania’s Families (ARF), which he said was “absolutely” modeled on anti-LGBTQ groups “Family Research Council, Focus on the Family, [and] ADF.” ADF helped launch ARF, and former ADF chief counsel Benjamin Bull said ADF worked to “shape and define the organization.” ADF also sponsored Costea’s attendance “at one of its multiday, all-expenses-paid National Litigation Academies.”
According to Bob’s book, ADF offered “to assist any government in defending its marriage laws” when ARF began its first campaign, in 2008, to amend Romania’s family code “with a defense of marriage provision similar to those in the United States.” That year, ADF provided legal arguments defending the amendment, and its ally the World Congress of Families (WCF) sent a petition signed by anti-LGBTQ leaders from across the world, including ADF’s Glen Lavy, to the Romanian Parliament. In 2009, “ARF worked with ADF and Romanian legislators to draft defense of marriage language even broader than the recent amendment,” resulting in a bill that prohibited same-sex adoption and refused to recognize same-sex marriages performed in other countries. When the bill passed, ADF hailed Parliament’s decision and noted that it had provided “legal counsel to several prominent Romanian parliamentarians” who introduced and helped pass the policies.
Other U.S.-based extreme anti-LGBTQ groups also assisted with Romania’s referendum, including Liberty Counsel and the World Congress of Families (WCF). Liberty Counsel lawyer Harry Mihet and client Kim Davis, the Kentucky clerk who made national headlines after refusing to sign same-sex marriage licenses, traveled around Romania for nine days to support the referendum. They held conferences in Romania’s largest cities; met with archbishops of the Romanian Orthodox Church and members of Parliament; and appeared together in TV and radio interviews. The day before the 2018 vote, Liberty Counsel founder Mat Staver discussed the impact the trip had on the referendum in a podcast. Prior to the group’s campaigning trip, Liberty Counsel also provided legal support in an amicus brief to the Romanian Constitutional Court.
WCF, which sent the 2008 petition against marriage equality in Romania, invited a member of the Coalition for Family to speak about the importance of the referendum at its 2017 conference in Budapest. WCF also used social media to encourage Romanians to vote in support of the referendum, with WCF President Brian Brown actively posting his support on Twitter. Additionally, CitizenGo, a campaign linked to WCF, posted a video in April in support of amending the Romanian constitution.
URGENT: Looks like the voter turnout is low in Romania. They may not reach the 30 percent threshold. If you have friends and family urge them to get and and vote NOW. There are still a few hours left. #1manand1woman #tcot #profamily https://t.co/OfNiChGEUE
— Brian S. Brown (@briansbrown) October 7, 2018
Though anti-LGBTQ groups failed in their latest effort to further marginalize LGBTQ Romanians, the country’s LGBTQ residents still do not have the right to marry, while LGBTQ people across Eastern Europe are regularly detained, prevented from peacefully organizing, tortured, and even killed. Yet anti-LGBTQ groups in American ignore these human rights atrocities and continue to target the community, helping contribute to the culture of fear that LGBTQ Eastern Europeans face every day.
ADF President Michael Farris deleted a post about the White House calling him with “information about the Kavanaugh-FBI investigation”
In a since-deleted Facebook post, Michael Farris, president of the influential and extreme anti-LGBTQ group Alliance Defending Freedom, wrote today that the White House had called him “with information about the Kavanaugh-FBI investigation” not long after U.S. senators received the FBI’s report on the matter. Farris and his organization argued twice before the Supreme Court over the last session, and ADF has played a role in more than 50 other cases at the high court.
The FBI investigated Supreme Court nominee Judge Brett Kavanaugh after professor Christine Blasey Ford testified before the Senate Judiciary Committee that he sexually assaulted her and after two other women reported incidents of sexual misconduct by Kavanaugh. It is not clear who at the White House contacted Farris or why they would be giving such information to him, particularly as he and his group are likely to argue in the future before the Supreme Court, which could include a Justice Kavanaugh.
One reason for alarm about Farris receiving private information from the White House about the Supreme Court confirmation process is that he and his group have argued before the high court several times before and are very likely to do so again, meaning they will be particularly affected by the nomination decision. ADF says it has played “a role in 54 victories” at the Supreme Court, and it won both cases that it argued there in the most recent session. In one case, Farris argued on behalf of ADF’s client in National Institute of Family and Life Advocates v. Becerra. The Supreme Court ruled in favor of ADF’s client, NIFLA, a network of fake health clinics. The court also ruled in favor of another ADF client during the past session in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, determining that the commission had shown “hostility” to a Christian baker who refused to bake a wedding cake for a gay couple. The ruling was considered narrow and did not indicate how the court should rule on other cases regarding religious discrimination. The Department of Justice issued an unusual brief in favor of ADF’s client.
ADF will likely be before the Supreme Court again, potentially even this year. It is spearheading at least a half-dozen other cases regarding religious exemptions through the courts, and the group -- along with attorneys general from 16 states -- have asked the Supreme Court to take up its R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission case. The case involves a transgender woman, Aimee Stephens, who was fired after she came out as trans to her employer, a funeral home. According to CNN.com, “If the court takes up the case, it could have broader implications for the definition of sex-based discrimination” and “could impact case law that precludes firing anyone -- gay, straight or cisgender -- for not adhering to sex-based stereotypes.” With ADF’s record, it is extremely likely that Harris or one of its dozens of other cases will eventually be decided by the Supreme Court.
The Trump White House has long been cozy with ADF and other extreme anti-LGBTQ groups, and ADF has directly impacted anti-LGBTQ administration policies, actions, and guidelines including at the Department of Justice, the Department of Health and Human Services, the Department of Education, and the Bureau of Prisons. Trump has also nominated several attorneys with ties to ADF for federal judgeships.
ADF has not publicly endorsed Kavanaugh and claims publicly that it does not “take a position on the merits of supreme court nominees,” but several anti-LGBTQ groups that it works closely with have vehemently advocated for him to be confirmed. These groups have claimed he “will be strong on [their] issues” and that he is “the right kind of judge.” They have even launched attacks on Ford and her story to defend their man. Other extreme anti-LGBTQ groups, including Liberty Counsel, are trying to push discriminatory policies through the courts, such as cases attempting to overturn protections for LGBTQ youth from conversion therapy. They have been encouraged by the court’s decisions in NIFLA and Masterpiece Cakeshop and by the potential of a Justice Kavanaugh.
While it is not surprising that Farris and ADF are in contact with the White House about sensitive matters, it raises ethical questions for the White House to contact them with private information that will directly affect ADF’s work as the group continues to push for discriminatory policies through the courts. Farris’ deletion of the post only adds to those questions.
Research support provided by Carrie Resnick, part of the NARAL research team.
To learn more about the anti-LGBTQ positions of ADF, check out Media Matters’ interactive research book, “The extremism of anti-LGBTQ powerhouse Alliance Defending Freedom.”
National Organization for Marriage president Brian Brown is exporting his bigoted agenda abroad with help from pro-Russian leaders
The 2018 anti-LGBTQ World Congress of Families (WCF) began today in Moldova, led by former National Organization for Marriage (NOM) president Brian Brown and attended by several pro-Russian leaders, including Moldovan President Igor Dodon. Although Brown has lost much of his influence domestically in the time since the U.S. Supreme Court overturned his anti-marriage equality effort in California, he has cozied up with pro-Russian foreign leaders and worked to export his anti-LGBTQ agenda abroad.
Brown serves as president of both WCF and NOM, which he also co-founded and which was instrumental in banning marriage equality in California in 2008 through the Proposition 8 ballot initiative. Proposition 8 defined marriage as between a man and a woman in the state’s constitution, but same-sex marriage was reinstated in California in 2013 after a lawsuit over the proposition made it to the Supreme Court. In the years since, NOM has lost much of its domestic influence and funding (though it still works with prominent anti-LGBTQ groups such as Alliance Defending Freedom), but Brown has focused his efforts abroad and particularly worked to increase his profile in Eastern Europe.
Brown was named president of WCF in 2016, although he had worked with the group for years before then. Brown and WCF worked closely with Russian lawmakers, activists, and officials as the country shaped its so-called “gay propaganda” law, including Brown directly meeting with the law’s architect, Yelena Mizulina, a regular attendee of WCF conferences. That law “has been seen as effectively criminalizing any public expression of same-sex relationships,” according to Mother Jones, and it has led to both activist arrests and increased violence against LGBTQ people in Russia.
In 2014, Mother Jones mapped out many of the relationships between WCF and anti-LGBTQ Russians, noting that they “were already deeply connected before they kicked off their planning this fall through ties forged while advancing anti-gay sentiment and legislation in Russia.” In the years since, Brown and WCF have cozied up to even more high-profile leaders in the region. Hungarian Prime Minister Viktor Orban spoke at last year’s WCF conference, held in his county, and this year’s event includes Moldovan President Igor Dodon (who spoke at the 2016 conference just months before his election) and several other influential politicians and individuals. Dodon’s wife’s foundation, Din Suflet, is supporting the event.
Brown seems to have cultivated a close working relationship with Dodon over the last few years, posting about several meetings with him on Twitter this year. Dodon is a supporter of anti-LGBTQ Russian President Vladimir Putin, who has tolerated the execution and imprisonment of LGBTQ people in Chechnya. Dodon has called him a “patriot” and campaigned on running “Moldova just the same way Putin runs Russia.”
This year’s WCF schedule features several anti-LGBTQ and anti-choice sessions: “Against the Family - The International Networks Undermining Family and Faith,” “Human Life - The Challenges Facing the Sanctity of Life, and the Strategies to Confront Them,” “New Media - Promoting Life, Marriage and Family in the Age of Hashtag Activism,” “Motherhood - Where the Sanctity of Life, the Meaning of Marriage, and the Ideology of Gender Intersect,” and “Gender Ideology - The Latest Attack on the Family and the Legal Challenges It Poses.” In past conferences, speakers have made extreme and hateful remarks, such as Pastor Rafael Cruz, Texas Republican Sen. Ted Cruz’s father, who said in 2015 that LGBTQ people are working to legalize pedophilia. Additionally, extreme anti-LGBTQ group Alliance Defending Freedom has been listed as a WCF partner as recently as 2017 and has been active in supporting the conference for years.
In addition to Dodon, the conference includes other notable attendees: Mizulina, a Russian politician and the architect of the country’s “gay propaganda” law; Cardinal Pietro Parolin, the Vatican secretary of state; Russian politicians Olga Epifanova and Tamara Pletneva; Moldovan politician Irina Vlah; Slovakian politician and member of the European Parliament Anna Zaborska; and several religious leaders, including Russian Orthodox Church Archpriest Dmitriy Smirnov.
Additional research by Brianna January.
The same anti-LGBTQ groups who have heavily endorsed Brett Kavanaugh for Supreme Court are clamouring at the possibility of overturning protections for LGBTQ people from conversion therapy
As Judge Brett Kavanaugh faces confirmation hearings to become the next Supreme Court justice, the same anti-LGBTQ groups who have heavily endorsed him are also pushing cases through the courts to overturn measures protecting LGBTQ youth from conversion therapy. Conversion therapy is a harmful and discredited practice that seeks to change one’s sexual orientation or gender identity. These groups have seized on a June Supreme Court decision that may signal a shift in how the court handles communications in professional settings -- such as in therapists’ offices or clinics offering even limited health care services -- that have otherwise been regulated, claiming that those communications would be protected under the First Amendment. They argue that the decision suggests that regulating mental health professionals from subjecting LGBTQ people to a harmful practice like conversion therapy would be ruled unconstitutional because it would be imposing limits on “professional speech.” Media should consider these cases and a lack of transparency on Kavanaugh’s record on LGBTQ issues as he faces his hearing.
Kavanaugh’s Senate confirmation hearings began on September 4 after LGBTQ advocates raised numerous concerns about how the court would rule on future LGBTQ cases if he is confirmed. There are many open questions about his record on LGBTQ issues, including his involvement with debates around “same-sex marriage, non-discrimination protections, and Don’t Ask, Don’t Tell” during his time as President George W. Bush’s White House staff secretary. Senate Republicans had long blocked access to records from Kavanaugh’s time as staff secretary, and LGBTQ legal organization Lambda Legal filed Freedom of Information Act requests for documents from that time to determine what role he played in anti-LGBTQ initiatives that the Bush White House supported. Just hours before hearings began, Bush's former lawyer "turned over 42,000 pages of documents from the nominee's service in the Bush White House," and Senate Democrats in turn asked to adjourn the hearing.
Kavanaugh has also highly praised late anti-LGBTQ Supreme Court Justice Antonin Scalia and called him a “role model” and “judicial hero.” Kavanaugh said that Scalia’s dissent in Obergefell v. Hodges, in which he decried the ruling that brought marriage equality to the entire country, demonstrated a judicial philosophy that the courts had “no legitimate role … in creating new rights not spelled out in the Constitution.” Additionally, extreme anti-LGBTQ groups have united behind Kavanaugh’s nomination and are calling for him to be confirmed. These groups have called him an "outstanding pick" and said he would "be strong on [their] issues."
Advocates working to protect LGBTQ youth from conversion therapy have made history this year by “recalling” the dangerous and discredited practice and working to pass protections at the state and municipal levels at a record-breaking pace. This year alone, five states -- Delaware, Hawaii, Maryland, New Hampshire, and Washington -- have signed protections from conversion therapy into law. That means 14 states, Washington, D.C., and dozens of municipalities across the country now have laws and policies protecting LGBTQ youth from the practice. What’s more, these protections have bipartisan support, and governors from both sides of the aisle have signed conversion therapy bills.
But according to the Williams Institute, conversion therapy still remains prevalent throughout the country. In a groundbreaking January report, it estimated that 20,000 LGBTQ youth would “receive conversion therapy from a licensed health care professional before they reach the age of 18” in the 41 states that at the time did not protect youth from the practice. Furthermore, the report estimated that approximately 698,000 adults in the United States have undergone conversion therapy, including around 350,000 who underwent the practice before turning 18 years old.
On June 26, the Supreme Court decided NIFLA v. Becerra, a case involving a California law called the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act. The law requires anti-abortion fake health centers to post a certain type of notice, depending on whether the center is licensed by the state. Licensed clinics are required to post a notice informing clients that California provides low-cost or free reproductive health care. Unlicensed clinics are required to post a notice informing people that they were not a licensed medical facility. As BuzzFeed News reported, “The court held in a 5–4 majority opinion written by Justice Clarence Thomas that the notice required of licensed clinics under the law ‘likely violates’ the First Amendment, but the notice required of unlicensed clinics ‘unduly burdens speech’ and is unconstitutional.”
Alliance Defending Freedom (ADF), an influential and extreme anti-LGBTQ group working to undermine LGBTQ equality in all aspects of life, represented clients in NIFLA. The group also represented a Christian baker who refused service to a gay couple in another Supreme Court case this year, Masterpiece Cakeshop v. Colorado Civil Rights Commission; the case saw a narrow ruling in favor of the baker and “left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.”
ADF and other anti-LGBTQ groups welcomed the NIFLA ruling, and some claimed that it signaled a shift in how the courts would treat “professional speech” under the First Amendment, including how it would treat protections from conversion therapy. The Atlantic’s Emma Green described “professional speech” as “a somewhat fuzzy legal category that allows states to require doctors and lawyers to disclose medical or ethical facts, for example.” In other words, in NIFLA and potentially other cases involving communications in medical and other regulated fields, the courts are weighing whether those communications are protected under the First Amendment even though these fields are typically regulated and patients and other people seeking medical advice could be put at risk if they receive inaccurate information.
According to Christian conservative outlet CBN News, Mat Staver, chairman of extreme anti-LGBTQ group Liberty Counsel, declared the ruling a "prize" for his and other anti-LGBTQ groups’ advocacy against a shelved bill in California (AB 2934) that would have categorized conversion therapy as fraud. Staver said that the bill, if passed, would have been dead on arrival because of the NIFLA ruling and that sexual orientation change efforts (SOCE) “cases are going to be a thing of the past." Liberty Counsel had been preparing to file a lawsuit againt the bill had it passed. ADF senior counsel Matt Sharp came to a similar conclusion and predicted that the ruling would “strongly call into question the foundation of AB2943.” Pro-conversion therapy group Alliance for Therapeutic Choice and Scientific Integrity (ATCSI) responded to the NIFLA ruling in an email blast, saying it and other recent decisions “have opened the door for overturning the therapy ban laws that have been passed over the past five years” and that it was “seeking to reopen” two of its previous challenges to conversion therapy laws alongside Liberty Counsel. Additionally, Family Research Council’s (FRC) Peter Sprigg wrote:
Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities. In challenges to laws banning sexual orientation change efforts (SOCE) with minors by licensed mental health providers in California and New Jersey, they argued that such laws in effect limit what a counselor or therapist may say to a client in the privacy of his or her office, and thus infringe upon the free speech of the caregiver.
By affirming that “professional speech” is protected by the First Amendment, the Supreme Court has cast serious doubt on the constitutionality of bans on sexual orientation change efforts.
Conservative state-level advocacy groups affiliated with extreme national anti-LGBTQ groups are also enthusiastic for the NIFLA ruling’s potential impact on conversion therapy cases. For instance, the Pennsylvania Family Institute and the Massachusetts Family Institute (MFI) -- both affiliates of the Family Policy Alliance -- claimed the ruling could indicate that the high court could find protections from conversion therapy unconstitutional. (Family Policy Alliance is a partner of anti-LGBTQ group Focus on the Family that also works with ADF and FRC.) Similarly, the Illinois Family Institute announced that it is considering challenging the state’s protections against conversion therapy in light of the Supreme Court’s NIFLA’ ruling.
National anti-LGBTQ groups like ADF and Liberty Counsel have a long history of supporting and advocating for conversion therapy, and they are actively working to undermine protections from conversion therapy in courts and state legislatures across the country.
In June, Liberty Counsel filed a lawsuit on behalf of conversion therapy practitioners Dr. Robert Otto and Dr. Julie Hamilton against Boca Raton and Palm Beach County in Florida for their measures protecting LGBTQ youth from conversion therapy. In a press release about the suit, the group framed the issue as a matter of protecting “the speech of licensed professionals in the city and county who offer change counseling” and as a First Amendment violation, similar to the messaging around NIFLA’s impact on protections from conversion therapy. Liberty Counsel is also representing out-of-state conversion therapy practitioner Dr. David Pickup, among others, in a separate lawsuit against conversion therapy protections in Tampa, FL. Local news outlets have given platforms to Hamilton and Pickup to spread misinformation about conversion therapy. And before the Massachusetts legislature failed to get its bill on the governor's desk this year, MFI President Andrew Beckwith said that his group was "already working with attorneys at Liberty Counsel and Alliance Defending Freedom to challenge this bill should it become law" before asserting that the NIFLA decision "undermines the legal basis upon which" protections from conversion therapy rely.
These challenges aren’t new or unique for the group; Liberty Counsel has worked to overturn efforts to protect LGBTQ youth from conversion therapy for years, including failed attempts to challenge measures in New Jersey and California. According to ATCSI, the group is “seeking to reopen” those cases “and to challenge the laws passed in every state where ‘therapy ban’ legislation has be (sic) enacted.” Liberty Counsel's Staver even went on an anti-LGBTQ rant before a House subcommittee in which he called California and New Jersey laws prohibiting the practice “religious discrimination” and “one of the greatest assaults on children and families that has arisen in recent times.”
The Supreme Court has previously turned away multiple challenges to laws protecting LGBTQ youth from conversion therapy, but it could take up a case in the future given the recent ruling in NIFLA and new justices sitting or potentially sitting on the court. Following the NIFLA ruling, journalists have already speculated that the Supreme Court could take up a conversion therapy case in the future. While it is unclear how Justice Kavanaugh would side on a case about protections from conversion therapy, it is clear that the same extreme anti-LGBTQ groups challenging those measures in court are clamouring for his confirmation. These groups have claimed that Kavanaugh will defend their issues as a Supreme Court justice, and conversion therapy very much could be one of those issues that Kavanaugh has a chance to defend.