The Supreme Court will soon hear oral arguments in Fulton v. City of Philadelphia, a case about whether governments can be forced to give taxpayer funding to faith-based organizations that provide government services in ways that discriminate against LGBTQ people.
If that sentence took you a minute to unravel, and then you couldn’t quite believe you read it right — well, you’re not alone. But unfortunately, it’s true.

The Fulton case, which will be heard on Nov. 4, involves the foster care system. Catholic Social Services had a contract from Philadelphia to provide services to foster youth, including screening foster parents. When the city learned CSS insisted on following its own religious screening criteria — which rejected same-sex couples as foster parents — the city didn’t renew its contract. CSS then sued the city.

In a similar case, a Protestant organization contracted to provide these services declined to place foster youth with foster parents who were not Protestants, and specifically discriminated against Jewish and Catholic families. Child welfare experts agree that these types of policies lead to more foster youth spending more time in group homes, because the agencies are turning away eligible foster parents.

But the implications of the case go far beyond the foster care system. Local, state, and federal governments often give taxpayer dollars to private agencies to provide government services. Many of these private agencies are faith-based. For example, the U.S. State Department contracts with nine organizations to provide resettlement services to refugees, including housing. Six of the nine are faith-based, and five of those six are Christian. Faith-based organizations have government contracts to provide everything from public assistance to substance use treatment, from childcare to shelters. Many of these faith-based organizations do not discriminate and follow best practices in their field to put the needs of those receiving their services first. And that’s how it should be.

In the past, the Supreme Court has said that governments can’t deny an organization funding just because the organization is religious. But our opponents in Fulton want something much more than the ability to compete for government funding on equal footing with secular organizations. They want a right for religious organizations to receive government funding to provide government services, even if they selectively refuse to provide those services and discriminate in violation of contract terms and the law. This isn’t religious liberty. It’s government-funded discrimination against the most vulnerable in our society, excused because some want to impose their religious beliefs on others.
If the Supreme Court agrees with Catholic Social Services, it is the people who are most marginalized who will suffer.

Middle class and wealthy people for the most part get to choose whether and how to engage with faith-based organizations. Working class and poor people do not. The possibilities for harm are sweeping, and there would be no clear stopping point. If you stop by your local church on your way home from work to apply for food stamps, they might stop processing your application as soon as they learn you are pregnant and unmarried. If you are a transgender woman with no housing and no place to stay, you could be turned away from a federally-funded homeless shelter run by a faith-based organization. You could end up sleeping on the street in the freezing cold because of who you are.

If you were told you had to complete a drug treatment program funded by the state government to avoid jail time, that program could insist that you embrace Christianity to complete it. You might not be allowed to bring your kids to a taxpayer-funded daycare center because you have a partner who is the same sex as you or a different religion than you. If you are a high school student interested in an after-school program paid for by your local government, you could be rejected because you are Mormon or bisexual.
These same communities are under attack in many other ways. For example, the Trump administration recently proposed a regulation designed to allow federally-funded homeless shelters to turn people away because they are transgender, or because they don’t match sex stereotypes. If this proposal were to become law, it would embolden life-threatening discrimination against some of the most vulnerable people in the nation, and lead to more early deaths of trans people.

The wrong decision in Fulton could do the same. And because a ruling in Fulton would be based on the constitution, Congress would not be able to fix it. But that’s not a reason to give up — it’s a reason to fight harder for our communities in every way we can, both before the court’s decision and after. We must insist that the court not bend the constitution to force the government to withhold services from some of the most vulnerable in our communities. We must fight for the economic security of LGBTQ people, whether that is through passing the Equality Act, decriminalizing sex work, or providing emergency COVID-19 rent relief. And we must fight for genuine religious liberty for all.

Gabriel Arkles, Senior Staff Attorney, ACLU LGBT & HIV Project

Date

Monday, October 26, 2020 - 1:15pm

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Community Concepts Wellness Shelter Attendant, marks the start of the meal line at the Lewiston Armory, in Lewiston, Maine on Wednesday, April 22, 2020.

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Alesdair H. Ittelson, Legal Director and Chief Operating Officer, interACT: Advocates for Intersex Youth

Intersex people make up as much as 1.7 percent of the population and are born with bodies that differ from what others might think of as “typically” male or female. Although being intersex isn’t that rare, this population is widely misunderstood and underrepresented, much like the trans community. Racist colonial erasure, late-stage capitalism, and the medical industrial complex have combined to create implicit assumptions (and often explicit recommendations) with which trans and intersex groups are all-too familiar. We are told, usually by cis and non-intersex people, there’s only one right way to have a body — and that that body should be as normatively close to binary and cis as possible.

At interACT: Advocates for Intersex Youth, we are working hard with our partners at Patterson Belknap LLP to prepare our friend-of-the-court brief to the Ninth Circuit Court of Appeals. This follows the district court blocking an Idaho law that targeted trans student athletes and sought to exclude trans and intersex women and girls from school sports. We’re hopeful the judges of the Ninth Circuit recognize why it is so important to stop this law from going into effect.

As we prepare our brief, we also approach Intersex Awareness Day on October 26. It is particularly important on this day to recognize why intersex people continue to show up in support of the trans community and in opposition to the unrelenting efforts to deny trans people their rights. Intersex groups and the advocates who work on their behalf joined the effort to oppose HB 500 — Idaho’s law attacking transgender student athletes — not only because many intersex people are also trans (and vice versa), and not only becase the proposed approach to sex testing in sports violates the rights of the intersex community as well.

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Intersex people are fighting this fight too because the community viscerally understands what’s at stake. As the complaint filed by ACLU clients Lindsay Hecox and Jane Doe explains, “Often, children discovered to be intersex in infancy are subjected to nonconsensual, harmful, and irreversible ‘normalizing’ surgical interventions, including reducing the size of the clitoris, creating a vaginal opening, and removing hormone-producing gonads in an attempt to erase their intersex differences based on notions of what is ‘normal’ for boys’ or girls’ bodies.” This is precisely the type of abuse (and it is abuse: this is deemed a form of torture by the United Nations) that flows from anti-trans bills like HB 500. There are intersex students in every school district in Idaho who in infancy survived the trauma of these surgeries, only to still be considered not “female” enough to participate on women and girls’ teams.

No one should be told by a surgeon or a coach or anyone else that their clitoris is too big to be female, or that their chromosomes are more real than their gender, or that their hormones are too “masculine” to allow them to compete as who they are.

The plaintiffs in this case are women who were fortunate enough to have medical decision-making power over their own bodies, at least in the realm of trans-related care, and who rightfully deserve to engage in college sports without anyone scrutinizing their sex characteristics. No one should be told by a surgeon or a coach or anyone else that their clitoris is too big to be female, or that their chromosomes are more real than their gender, or that their hormones are too “masculine” to allow them to compete as who they are. Trans and intersex communities have allied together because we know these are false boundaries invented to exclude already oppressed communities, usually along racist and ableist lines. Our bodies may transcend common conceptions of sex and gender, yet we exist within these systems (like sports, medicine, and institutional settings) every day and most often leave them better than when we found them.

Simplistic, bigoted approaches to trans and intersex people in these settings succeed because of intellectual and moral laziness. The refusal by the cis community to creatively imagine solutions isn’t surprising because they operate everyday within systems that prioritize cis-ness. But what’s especially egregious is when attempts are made to change the rules of the system with the specific intent of further harming groups that are already targeted in virtually all other areas, as in the case of HB 500.

The appropriate response when trans and intersex athletes try to work within an already flawed system is gracious celebration, rather than exclusion and derision. It’s telling that the resources in support of HB 500 are funneled toward litigation to appeal to the far right rather than actually building up women’s sports. These attacks are never about meaningfully protecting women.

The challenges faced by the plaintiffs in this case and those they represent are considerable already. As we celebrate Intersex Awareness Day on the 26th, let’s remember that a lack of awareness about trans and intersex lived realities — and the fact that many of us are actually joyful about our trans and intersex bodies — has allowed a cloud of shame and stigma to conceal what no lawsuit can change. Trans and intersex people are a part of the vast and diverse beauty of human existence. We will continue to improve upon tired understandings of sex and gender for as long as these systems exist.

Alesdair H. Ittelson is the Legal Director at interACT: Advocates for Intersex Youth, the nation’s largest and oldest organization working to protect the rights of people born with variations in sex characteristics.

Date

Friday, October 23, 2020 - 12:45pm

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In March 2018, the city of Philadelphia learned that two of the agencies it contracted with to provide foster care services would not, based on religious objection, accept same-sex couples as foster parents. The city told the agencies their contracts with the city were in jeopardy unless they complied with basic nondiscrimination requirements.

While one of the agencies agreed to comply, the other — Catholic Social Services (CSS) — refused. Instead, CSS sued the city, claiming the Constitution gives it the right to opt out of the nondiscrimination requirement. After a lower court and a federal circuit court ruled in the city’s favor, CSS appealed to the Supreme Court. The case, Fulton v City of Philadelphia, has implications not only for the future of foster care, but for the protection of all people from discrimination in the alleged name of religion. Arguments are set for November 4th.

Louise Melling, Deputy Legal Director of the ACLU, joined the podcast this week to discuss what’s at stake in Fulton.

“The ACLU has no question about the right of people and organizations to have their beliefs and to practice their beliefs, but it’s to practice your beliefs as long as they don’t hurt others,” said Melling. “And in this context, if Catholic Social Services can practice its beliefs in terms of turning away families because they’re same-sex, it is hurting others.”

The Supreme Court Case That Could Jeopardize LGBTQ Rights

Date

Friday, October 23, 2020 - 11:45am

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