March 25, 2014
Today, March 25, 2014, the Supreme Court will hear argument in yet another case that could dramatically affect LGBT people, but this time it’s not about marriage equality. In Sebelius v. Hobby Lobby Stores, Inc., a for-profit business is challenging its obligation under the Affordable Care Act to provide employees with access to birth control. If accepted by the Court, the arguments Hobby Lobby is advancing may pose a serious threat to anti-discrimination protections for LGBT people.
In what will likely become a landmark case, the Supreme Court will determine (1) if corporations such as Hobby Lobby have the same religious protections as individuals under federal law, and (2) if requiring that such businesses offer plans that provide coverage for contraceptive benefits impermissibly burdens those protections.
Understandably, this case is receiving significant attention in the reproductive rights movement. However, the LGBT community should be equally invested in the outcome given the considerable intersections between these movements. The LGBT and reproductive rights movements have a shared legal past and continue to be linked in legal discourse. Many of the initial LGBT legal successes built on the legal successes of the reproductive rights movement. Both movements are strongly based on the principle that individuals have a constitutionally protected right to control their sexual lives without interference by the government. The same arguments used to attack reproductive freedom are often used to undermine protections against sexual orientation and gender identity discrimination. And even more fundamentally, access to safe and affordable abortions and contraception are critically important to lesbian and bisexual women and to transgender people. Because of these tangible intersections, the Hobby Lobby case has the potential to harm the LGBT community in a number of significant ways.
Perhaps most obviously, a Supreme Court decision allowing employers to restrict employee contraceptive coverage would directly harm many queer women and families. Many members of our community engage in sexual activity that can lead to unintended pregnancy and are also, tragically, sometimes targeted for sexual assault and rape, which can result in unwanted pregnancy. Some studies even suggest that LGBT youth are at a higher risk for teen pregnancy than their heterosexual counterparts. These segments of our community urgently need the access to contraceptive coverage that the ACA requires.
But the Hobby Lobby case threatens LGBT people’s reproductive rights in other, perhaps less obvious ways. LGBT people already face disproportionate discrimination in accessing health care services, including denials for treatment. This is especially true for reproductive health care and access to reproductive health technologies. These barriers almost certainly would be exacerbated if employers are able to pick and choose which services are covered based on discriminatory factors. For example, citing religious objections, employers could refuse to cover reproductive health care for transgender individuals or fertility services for same-sex couples.
A negative outcome in the case could also roll back crucial victories for LGBT equality at the state and local level. While federal laws expressly prohibiting discrimination against LGBT people in employment, housing, and public accommodations have yet to be enacted, several states and localities have enacted such measures. However, because those laws exempt religious organizations, a Supreme Court ruling in favor of Hobby Lobby could open the door for businesses to argue that they must be given similar leeway to violate state and local anti-discrimination laws.
Given these implications, the Hobby Lobby case is indeed another major moment for the LGBT community. The Supreme Court’s resolution of the case will directly affect our reproductive rights and other health care needs. Equally concerning, it could result in devastating exceptions to protections for LGBT people at the state and local level, jeopardizing literally decades of advocacy and progress.