“Transgenderism must be eradicated from public life entirely–the whole preposterous ideology, at every level."

                                                                    – Michael Knowles, CPAC conference, March 2023

Daily Wire commentator Michael Knowles’ CPAC speech, which went uncondemned by CPAC and GOP conservatives, amplified the wave of violent transphobia yet again running through state legislatures. Hundreds of bills–under consideration, and already signed into law–bolster Knowles’ call to “eradicate” transgender people by denying healthcare to minors, defining transgender people out of legal existence, and excluding them from bathrooms, curriculum, school discussions, sports, and, as Knowles demanded, public life. Entirely.

“Anti-transgenderists” claim they’re not calling for the eradication of people, but rather of an ideology. That’s a preposterous level of gaslighting. Being transgender is not an “ism” or a choice; it is a fact. If an absolute gender binary established at birth is the only option, and nothing else is acceptable (“all or nothing”), transgender people–and intersex people–cannot exist in public life.

As of March 30, nineteen states already exclude trans youth from playing sports. Nine states prohibit evidence-based, best-practice health care for trans youth; bans await a governor’s signature in four additional states, with more bills sailing through committees in legislatures daily. Nearly all of these bans involve forcible detransition, removing youth from established courses of medical care, with unknown but predictably catastrophic results. Their doctors are put in the impossible position of committing malpractice or violating state law. Some states are experimenting with provisions that alter child custody arrangements to penalize affirming parents. In its briefs for the PFLAG v. Abbott case ongoing in state court, Texas makes the ugly claim that the threat of removing trans children from affirming homes does no harm. Seven states prohibit discussion of LGBTQ identity or issues in classrooms; in five additional states, parents can opt their children out of any such discussions. In “Don’t Say Gay” states, the presence of LGBTQ youth and those with LGBTQ families is studiously ignored. “Parental rights,” it turns out, does not include “affirming parents.”

For reasons including stress, discrimination, ostracism, parental rejection, and hostile school environments, trans youth already have some of the worst mental health in the country. The growing tide of hate is making it worse. According to the CDC, in 2021, almost 70% of LGBTQ students were persistently sad or hopeless during the year and more than 50% had poor mental health during the 30 days prior to the survey. Almost 25% had attempted suicide during the prior year. Amidst a torrent of state laws essentially characterizing discussion of their identities as prurient and obscene, the continuing crisis of poor LGBTQ mental health and increasing suicidality seems poised, if anything, to get significantly worse. A 2022 survey by the Trevor Project found that 93% of transgender and nonbinary youth reported worrying about trans people being denied access to gender-affirming medical care because of the legislative onslaught. Almost half of trans youth seriously considered suicide within the past year. Exactly which children is it that the GOP claims to “protect”?

The call to eradicate a group of people and persecute children of specific identities would be utterly intolerable in 2023 if it targeted any other group. The use of this vulnerable community as a wedge to drive religious authoritarianism and fascism further into American government, civil society, and public life is an existential threat to us all–one that will not stop here.

What does that mean for ACS members as progressive constitutional lawyers? It bears repeating that most, if not all, of these laws are unconstitutional. For example, the gender-affirming care bans specifically single out only trans youth, leaving treatments intact for other youth in need of them. In upholding a preliminary injunction of a similar Arkansas law, the Eighth Circuit found this distinction unconstitutional because it discriminates on the basis of sex and prohibits standard-of-care medical practice without an “exceedingly persuasive” justification. Brandt v. Rutledge, 47 F.4th 661, 669 (8th Cir. 2022) (“Because the minor's sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.”). An Alabama federal court similarly enjoined a law prohibiting healthcare for gender dysphoria, finding that it creates a sex-based classification and threatens harm to transgender youth without sufficient justification. Eknes-Tucker v. Marshall, 2:22-cv-184-LCB, at *21 (M.D. Ala. May 13, 2022) (“prohibits transgender minors-and only transgender minors-from taking transitioning medications due to their gender nonconformity. [...] The Act therefore constitutes a sex-based classification for purposes of the Fourteenth Amendment.”).

But our legal community cannot and must not be content with a line of argument dependent on court rulings. These anti-transgender and anti-gay bills and laws, and the rhetoric that backs them, are a clear and present danger not only to LGBTQ youth, but to American democracy and fundamental human rights. Law must serve human values, as Peter Rubin, a founder of ACS, said. As constitutional, civil rights, and human rights lawyers, we prioritize the inherent dignity and worth of all people. If that means anything, it means insistence that no person be excluded from the circle of public life. That must be a core ethic of our legal practice. If we allow the exclusion of some people via invidious discrimination, we open the floodgates for the exclusion of many–really, anyone deemed unacceptable to the authoritarian movement that now threatens our democracy.

How should ACS lawyers orient to this crisis? Some suggestions grounded in Timothy Snyder’s On Tyranny:

1. Do not comply–“remember professional ethics.”

Many of the people who ran Hitler’s machinery of death were lawyers following orders. American slavery would not have been possible had lawyers refused to facilitate the machinery of human trafficking. In our own day, if we lawyers refuse to comply with laws and orders and procedures that run counter to our professional ethics by refusing to prosecute or sue people who disregard these unjust and cruel laws, we can disable the fascism that continues to gain purchase. If we all refuse to comply, these laws must fail.

For a real-world example, check out the continuing filibuster in Nebraska, where a small group of senators is shutting down the legislative session in protest of LB 574, a draconian gender-affirming care ban. Co-leader Senator Megan Hunt revealed she has a trans child and then defied the legislative majority: “You don’t get that this session is over.”

That is how to refuse compliance. Ground that refusal in professional ethics. For starters, ABA Model Rule of Professional Conduct 8.4 defines engaging in harassment or discrimination on the basis of gender identity in conduct related to the practice of law as professional misconduct. The Rule excludes legitimate advice or advocacy. Ask yourself whether legal services that support the targeting of a vulnerable population of youth for exclusion from society is a form of legitimate advice or advocacy. You already know the answer.

    2. "Be kind to our language” and “believe in truth.”

The use of slurs like “groomer” and “pedophile” to refer to pediatricians providing gender affirming care, “child abuse” to describe parents facilitating best-practice medical care for their children, and “transgenderism” or “gender ideology” to split transgender people from their inherent identity tortures the ordinary meanings of words. We can all refuse to use the heated rhetoric that surrounds these debates and find our own ways to express ideas. “Do not waver into language. Do not waver in it.” –Seamus Heaney

In line with that, we can insist on facts and reality by refusing to align with those who reject expertise, science, and credentials as meaningless. Instead, align with the evidence-based advocacy of literally every large professional medical association in the United States, along with psychiatric, psychological, nursing, and social work professional associations. And recognize the twisting of words and the rejection of facts and expertise for the generalized and serious threats that they are. “Post-truth is pre-fascism.” –Timothy Snyder

   3. "Be calm when the unthinkable arrives."

Few of us likely foresaw that the United States could revert to an era when an entire category of persons would find themselves bereft of core legal rights and even legal existence. Yet this is the future we have to contemplate in many states. A transgender person living in a state where using the restroom corresponding to their identity can be a felony cannot safely participate in public life. An adult transgender man who is legally required to identify as the gender on his birth certificate has been deprived of authentic legal existence. A transgender person who cannot legally access appropriate health care, or who is removed from a prior course of care, has been denied access to fundamentally necessary health care for no reason other than animus. If it can happen to transgender people, it can happen to anyone.

The manufactured crisis–the Reichstag fire–that Snyder characterizes as the “unthinkable” turns out to be a transgender youth’s request for inclusion and peaceful existence. For “anti-transgenderism” advocates, acquiescence would be apocalyptic, requiring a denial of reality itself, and must be resisted at all costs. Hence a line in the sand: us and them. Or as right-wing pundit and self-proclaimed “theocratic fascist” Matt Walsh would have it: “I came to the conclusion years ago that the trans movement is the greatest evil our country faces.” Enter the eradicationists.

This is a test. So is the denial of abortion care without exception, regardless of risk to life. The unthinkable is already here; the question for us is whether we have the courage to recognize it as such, and whether and how we respond.

Remember that law serves human values. Remember that all people have inherent dignity. Be prepared, be clear, be strong. This is not the beginning, and it is far from the end. Don’t just resist. Fight back.

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Mary Kelly Persyn is the Founder and Principal of Persyn Law and Policy. 

In 303 Creative v. Elenis, the Supreme Court seems poised to give businesses open to the public a constitutional right to discriminate. The objecting business, a web design company, says state law requiring it to offer wedding services on equal terms to gay people compels it to speak in favor of same-sex marriage in violation of the First Amendment. It claims that its argument is limited to “expressive” or artistic businesses—whether website designing, cake baking, or flower arranging.

But 303 Creative—and soon, I fear, the Supreme Court—gets it wrong. Service to customers communicates little, if anything. Because of our social expectations of first-come, first-served, a vendor signals no approval of its customers when it makes a sale. In requiring service on equal terms, the law compels no message. For this reason, the Supreme Court had long concluded that public accommodations law “does not, on its face, target speech or discriminate on the basis of its content.” As court after court held, such laws regulated wedding vendors’ conduct—the sale of a wedding cake or website—not their speech.

What we have missed is that it is refusal of service that powerfully speaks. Refusal tells a would-be patron and the wider public that that person (or group) does not merit status as a consumer. For this reason, 303 Creative’s argument can’t be cabined to artistic or expressive enterprises. It is not the goods that express a message; it is the breaking of uniform conventions of equal service. And so, if the Court sides with 303 Creative, this right to “speak” may equally apply to all public accommodations.

First come, first served: Why Service Does Not Speak

Most spheres of life governed by civil rights laws—employment, housing, or credit—manifest selectivity. Hiring businesses are choosy and job applicants expect rejection and disappointment. By contrast, public-facing businesses—from ballparks to theaters, flower shops to website design studios—welcome all comers. People rarely anticipate or receive rejection, at least without a good reason—the tables are booked or tickets sold out. In Romer v. Evans, the Supreme Court recognized this taken-for-grantedness as central to the consumer market, describing rights of equal access as assumed “by most people either because they already have them or do not need them.”

This lack of choosiness means a public business fails to express any message, let alone a discernable one, through service. Patrons discern no communication from a business pouring a coffee, selling a cake, or cutting a person’s hair. We take for granted that the first person in line will be served, and the wedding vendor will provide its usual goods if available.

Nor does service imply endorsement. When a server brings a meal to a table, they don’t explain “you seem like a nice Christian family.” When a photographer agrees to document a wedding ceremony, they don’t say that they support your wedding, let alone opposite-sex weddings generally. You understand that the price is right and the date is available.

Whether or not the goods are artistic—a tattoo or wedding website—the public perceives no message from the business. Indeed, where “expressive” services are involved, an audience is more—not less—likely to treat any message as that of the patron, not the seller. We think that a tatted back communicates the message of the bearer, not the tattoo artist, and that a website sends the invitation of the marrying couple, not the website designer.

To be sure, service once did communicate. When the social norm was to subjugate minorities, a business that seated people side by side would send a message of support for equality both to the marginalized group and to other consumers. But after the enactment of civil rights law, this same act expressed mere legal compliance. Today, reinforced by these laws, shared norms dictate that public businesses will serve all paying customers. We anticipate being able to purchase goods in all shops, not just some shops. The “general rule”—as the Court said in Masterpiece Cakeshop—is clear: “objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Loud and clear: How Denying Service Expresses Inferiority

Refusal of service, by contrast, speaks to both the would-be consumer and a larger audience. Denied flowers for his wedding to Robert Ingersoll, Curt Freed understood the message that “our business is no longer good business.” Rejected by a bed and breakfast on their vacation, another same-sex couple heard that they were “inferior and unworthy of equal treatment in even a routine business transaction.” When a business open to the public turns a person away, it powerfully expresses—as these couples understood—an ideology of a group’s inferiority.

A long history teaches that mistreatment by public accommodations—unlike an average social interaction—sends a message that systematically alters a person’s standing among their fellows. As historian Thomas Sugrue observes, by the twentieth century, “[a]ccess to consumer goods—the right to buy—was a defining characteristic of what it meant to be an American citizen.” When Jim Crow-era businesses served white people before waiting place customers, they sent the message, in the words of one Mississippi man, “let him go first, you come last.”

It was not only black people who received a message about their place in the market and society. Before mid-century, Jewish people regularly confronted “no Jews allowed” and “fine Christian clientele” signs.  In the 1960s, proprietors forced gay men to sit alone with their back to other customers to eat a meal. As the Supreme Court observed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, public accommodations discrimination treated gays “as social outcasts or as inferior in dignity and worth.” That same decade, women too were sometimes literally put in their place. At the National Press Club awards dinner, for example, female journalists were seated separately with the wives. Experiences of exclusion and subordination prompted “the realization that society thought—as one woman said—that ‘women don’t belong in the outside world.’” While the experience of these groups differed, public accommodations discrimination designated their proper (and limited) place.

The constant threat of refusal of service by public businesses only increases the clarity of the message: you are less than. As the Supreme Court has noted, public accommodations laws structure “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” People will find themselves “invited to an establishment, only to find its doors barred to them.”

Of course, the free speech claim in 303 Creative and like cases could be equally framed around provision or denial of service. A wedding vendor could be said to speak through withholding a cake or invitations—sending a message that the would-be patron’s wedding is lesser. And, as I’ve argued, this denial would express a clear message of gay inferiority. But the desire to express such a message would make business owners less-than-sympathetic standard-bearers. So, objectors instead tend to argue that nondiscrimination compels speech in favor of same-sex marriage. On this construction, it is service to the couple—designing a website or a cake—that communicates. With this frame, objectors paint their free speech argument as narrow, applying only to the compelled provision of expressive or artistic services.

But it is denial of goods and services that most powerfully communicates a message. The “expressive” nature of the business does no work. The reality is that a free speech right to refuse to serve a marginalized group cannot be bounded. Defiance of social expectations of equal service to all speaks most clearly.

Conclusion

The line between speech and conduct may not always be clear. Unusual applications of public accommodations law—to parades, genuinely private membership clubs, or staffing of the Boy Scouts—may result in First Amendment protection. As I argued in an amicus brief together with Jim Oleske and Joe Singer, under the Court’s precedent, states may be prevented from applying antidiscrimination law where a regulated party is highly selective, does not engage in standard commercial transactions, and is an endeavor that is customarily associated with expressing a message of its own.

But states have long required nondiscriminatory service by businesses open to the public. Such obligations have co-existed with a wide array of beliefs. Business owners retained their “individual freedom of mind” and the component rights to speak and refrain from speaking. Nor was public accommodation law aimed—as Justice Thomas wrote in his Masterpiece Cakeshop concurrence—“to produce a society free of . . . biases.” Its overarching goal was to secure a consumer market of freely moving people and currency.

What is clear is that a constitutional privilege to discriminate would destabilize longstanding conventions of full and equal access to commerce and leisure. Such a decision would license public accommodations to serve only opposite-sex couples or other in-groups. Exceptions—however the lines are drawn—would undermine an identity-neutral marketplace where dollars and people flow freely without the friction of information and search costs. They quite literally would reduce the space for individual dignity.

*This blog post is an abridged version of Elizabeth Sepper, Free Speech and the “Unique Evils” of Public Accommodations Discrimination, 2020 U. Chi. Legal F. 273 (2020).

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Elizabeth Sepper is a Professor of Law at the University of Texas School of Law.

This column is the first in an ACS special series examining the First Amendment Freedom of Speech and its role in the development and evaluation of public policies regarding the regulation of the internet, campaign finance, antidiscrimination laws, and other areas.

On Tuesday, February 21, the Supreme Court heard oral arguments in Gonzalez v. Google, a case involving whether online platforms get legal immunity when they make targeted content recommendations. In 1996, Congress passed Section 230, providing online platforms with limited immunity from liability for publishing third-party content. This will be the first time the Supreme Court weighs in on Section 230 of the Communications Decency Act.

The Lawyers’ Committee for Civil Rights Under Law, joined by five civil rights organizations, filed an amicus brief highlighting for the Court the ways in which censorship and discrimination manifest online, and urging the Court to adopt a balanced interpretation of Section 230 that does not impede enforcement of critical civil rights laws or the free expression of diverse voices. As amici, we recognize that the internet is particularly important for people of color and others historically excluded from the halls of power because it enables circumvention of traditional economic and political gatekeepers. Section 230 allows people of color, women, LGBTQ communities, people with disabilities, and religious minorities to leverage online platforms for self-expression, community building, civic engagement, and entrepreneurship. Modern civil rights movements, perhaps most notably the Movement for Black Lives, have benefited from reduced gatekeeping on social media.

Our brief cautioned that limiting Section 230 immunity could lead to greater censorship of diverse voices online. Without Section 230, online platforms would minimize the risk of liability for illegal content by engaging in heavy-handed cost-effective censorship instead of carefully reviewing every piece of content. Current content moderation systems already disproportionately silence Black people and other historically marginalized populations, even when they do not violate platform rules. Increased censorship by platforms seeking to evade liability would further silence diverse perspectives on important issues like racial and gender justice.

We also noted that as we conduct more and more of our daily lives online, automated decision-making systems risk reproducing discrimination at scale.  Our brief discussed how providing overbroad immunity to platforms would jeopardize enforcement of decades-old anti-discrimination laws like the Fair Housing Act, the Civil Rights Act and Voting Rights Act. Specifically, we argued Section 230 does not immunize defendants for civil rights violations or other illegal conduct that do not involve publishing; and even if the conduct involves publishing, Section 230 does not shield it if the defendant “materially contributed” to the illegality. This two-step process follows the consensus of the lower courts, where there is no circuit split, and helps ensure that online platforms are held accountable for civil rights violations.

Step One: No Immunity for Non-Publishing Activity

Offline, a publisher (such as a newspaper or book publisher) is legally responsible for any content they publish—including content from third parties such as letters to the editor. Online, however, Congress decided in Section 230 that websites and other entities that publish third-party content online—such as tweets or YouTube videos—generally should not be liable if their users post unlawful content.

But Section 230 immunity is not absolute. Internet companies are not always immune when they use third-party information. Rather, the critical question for immunity is whether the claim brought against the internet company treats it as the publisher of third-party content. Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Thus, it is not sufficient for a defendant to simply be an online publisher in some aspects of their business.

The “publisher” question matters because many civil rights violations that occur through the internet have nothing to do with publishing. There is now extensive documentation of discriminatory decision-making that is conducted or enabled by tech companies, including through discriminatory algorithms. Mortgage approval algorithms disproportionately deny applicants of color compared to similarly-situated white applicants; they are up to 80% more likely to deny Black applicants. Mortgage lenders, often using algorithmic pricing, have charged Black and Latino borrowers higher rates than similarly situated white borrowers, costing Black and Latino borrowers $765 million in additional interest annually. Tenant screening algorithms frequently produce flawed reports and disproportionately result in denials of housing to applicants of color. Algorithms used for hiring can “reproduce patterns of inequity at all stages of the hiring process.” Facial recognition technologies have been consistently found to produce inaccurate matches on the basis of sex and race. Sweeping surveillance and data collection also raise significant civil rights concerns. This type of conduct is not publishing information to an audience; it is processing data to make a decision or for some other purpose.

Existing case law supports this position. Lower courts have rejected Section 230 defenses where the unlawful conduct did not derive from publication. The Ninth Circuit put it most clearly in Barnes v. Yahoo: “[W]hat matters is whether the cause of action inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another.” More recently, in Henderson v. Source for Public Data, the Fourth Circuit held that Section 230 “does not provide blanket protection from claims . . . just because they depend in some way on publishing information.” In Henderson, claims against a background check company for failure to provide Fair Credit Reporting Act disclosures did not treat the company as a publisher because the claims did not hinge on the impropriety of the background checks themselves. Similarly, Section 230 did not bar a product liability claim against Snapchat for encouraging dangerous behavior through its app’s design because the claim was not based on Snapchat’s publishing activity.

Section 230 must not undercut bedrock anti-discrimination protections given the real risks posed by algorithmic technology online. Just because a platform is operating online and using data generated by third parties does not automatically mean Section 230 immunizes its activity. If a claim seeks to hold a platform liable for engaging in discrimination, and publishing is not a core element of the claim, Section 230 does not apply.

Step Two: No Immunity for Material Contributions to Illegality

Critically, Section 230 only protects against liability for content produced by others, not content produced by the defendant themselves. The second prong of the Section 230 analysis acknowledges that even if a platform is engaged in publishing, it can still lose immunity if it “materially contributes” to the illegality. Material contribution entails “being responsible for what makes the displayed content allegedly unlawful,” as the Sixth Circuit put it.

The material contribution test is essential for the protection of civil rights. Complex algorithms are not passive conduits that treat all content or users equally. Datasets often explicitly reflect race, sex, disability, and other protected characteristics, or these characteristics creep in via proxies. Data drawn from a society with a history of systemic inequity reflects that inequity. In turn, algorithms that draw on this data threaten to replicate and perpetuate inequity. Facially neutral tools can still produce discriminatory outcomes.

Publishers can make material contributions by transforming benign third-party content into something illegal. For example, Meta recently settled a Fair Housing Act lawsuit brought by the Department of Justice that alleged that Facebook’s advertising algorithm disproportionately targeted housing ads toward white users and away from Black users, even when advertisers never selected such targeting. Similarly, in the Roommates.com case, the Ninth Circuit denied Section 230 immunity when a rental housing website required users to disclose protected characteristics and roommate preferences in order to steer users towards people who matched their discriminatory criteria. By inducing discriminatory content, a publisher “becomes much more than a passive transmitter of information provided by others.” As noted in Henderson, Section 230 provides no shelter for publishers who “cross the line into substantively altering the content at issue in ways that make it unlawful.”

A platform can also materially contribute to illegality when it affirmatively furthers a third party’s illegal conduct. In National Coalition on Black Civic Participation v. Wohl, defendants sent tens of thousands of voter intimidation robocalls. They were sued for violating the Voting Rights Act and KKK Act. The court held that their robocall service provider was not entitled to Section 230 immunity because it allegedly helped the defendants target the robocalls to Black neighborhoods.

The material contribution test asks the right question: Is the publisher responsible for what makes the displayed content allegedly unlawful? In the civil rights context, this means that platforms should be considered “responsible” when they take benign content and transform it into discriminatory conduct, or when they take illegal conduct and affirmatively help exacerbate the harm.

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The internet’s promise of equality and free expression remains yet unfulfilled. The law demands a more nuanced interpretation of Section 230 that can bring us closer to an equitable internet that protects both civil rights and free expression. Accountability for civil rights violations by online platforms is critical to achieve equality in a data-driven economy. The Supreme Court must strike the right balance.

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Dariely Rodriguez is Chief Deputy Counsel at the Lawyers' Committee for Civil Rights Under Law

David Brody is Managing Attorney of the Digital Justice Initiative at the Lawyers' Committee for Civil Rights Under Law