As a queer person of color, Sruti Swaminathan knows that a bad decision from the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission could have a dramatically harmful impact on the LGBTQ community and other marginalized groups.
“It’s a shame that people fear those who are unlike them, so far as to let a person’s gender identity and sexual orientation impact their ability to treat them with human dignity,” Swaminathan told Church & State. “It is a loss of a meaningful human connection to turn someone away from a business based on an identity so innate and immutable to their person.”
Swaminathan, an Indian-American lawyer, said that there have been a number of instances in which her sexuality and gender presentation has led to personal experiences with discrimination and harassment.
“An experience that sticks out to me is when I walked into Men’s Warehouse in Washington, D.C., to buy a tuxedo shirt for my law school’s Barrister’s Ball. The minute I stepped in the store, every single employee’s eyes darted in my direction and looked me up and down,” she said. “As a queer, masculine-presenting Indian woman, I am used to the scrutiny and questioning eyes on me on the street and other public spaces. However, the store manager took it one step further. Without even asking me what I was looking for, he approached me and said, ‘We can’t help you here.’ I quietly walked out of the store.”
Although Swaminathan lives in Chelsea in New York City, a neighborhood she acknowledges some would refer to as a “gay mecca,” she said she’s experienced verbal harassment because she wears what some people perceive as “men’s wear,” which she describes as “dapper comfort.”
One morning, while walking to a subway station, a man approached her and started walking beside her, verbally abusing her about her sexuality along the way.
“I luckily had headphones in to drown out words that I assumed would be some form of catcalling. I was incorrect,” Swaminathan said. “This stranger felt the need to scream in my face repeatedly ‘change back into a woman’ followed by ‘I can f*** you back into a woman.’ These statements were screamed at me until the minute I stepped down the subway stairs. I did not respond to his commentary, tears just began pouring down my face. I felt unsafe. I felt violated. I felt undesired. I felt other.”
Experiences of discrimination, harassment and abuse like Swaminathan’s are a frightening reality for the LGBTQ community.
Unwilling to accept the advances in LGBTQ rights, Religious Right extremists are asking state legislatures, Congress and the courts for a trump card to undermine social progress. They want to use their religious beliefs to deny health care, refuse to provide services and ignore laws protecting Americans from discrimination and abuse.
The Masterpiece Cakeshop case is one of the latest examples. In this case, a Colorado bakery wants businesses to be able to use religion as a license to discriminate against LGBTQ people. Americans United and its allies are fighting back, arguing that public businesses should be open to all regardless of religion, sexual orientation, race or gender identity.
Before reaching the Supreme Court, a Colorado state court said that a suburban Denver bakery, Masterpiece Cakeshop, violated Colorado’s anti-discrimination law – which bars discrimination on the basis of sexual orientation – when it refused to provide a wedding cake for Charlie Craig and David Mullins, a same-sex couple, for their wedding reception. The court ruled that neither the bakery nor its owner had a religious-freedom right to violate the law.
The owner of the shop asked the Colorado Supreme Court to hear the case, but it declined. His attorneys at Alliance Defending Freedom, a Religious Right legal group that often defends people who want to discriminate in the name of religion, then appealed to the U.S. Supreme Court.
If the Supreme Court rules on the wrong side of history and decides to ignore nondiscrimination laws that protect marginalized communities, the human impact will be significant. That’s why Americans United filed a friend-of-the-court brief in the case, arguing that religious freedom is not an excuse to discriminate against others.
“People who tell LGBTQ people to find another business to serve them are a manifestation of what we are fighting against when we as queer people live our full lives while combating toxic masculinity and oppositional sexism,” Swaminathan said.
For other members of the LGBTQ community, a bad decision from the high court could make them uncomfortable to present their true selves for fear of mistreatment and discrimination.
“I already feel that potential to be discriminated against for my gender presentation and sexuality, so if [a bad decision] goes through, I’m most likely to do my best to continue to present as cis [somebody who identifies themselves with the gender identity associated with their biological sex] and straight, as I’m already so used to doing so in order to avoid any potential conflict,” Emory Aboulhassani told Church & State.
Aboulhassani, a Wisconsin native who now lives in Maryland, is gender non-binary and identifies by the pronoun “they.” Non-binary people neither identify as women nor men. To them and other members of the LGBTQ community, the stakes are high in the Masterpiece Cakeshop case.
How the Supreme Court will rule in the case significantly impacts people like Ayesha Malik, a culturally Muslim queer woman who asked Church & State to use a pseudonym for her own safety.
“The idea of this case resulting in a ‘religious freedom’ loophole that businesses can use to deny service is definitely concerning,” Malik told Church & State. “As a queer person of color, I already walk around in public with the knowledge that the people I interact with might treat me coldly or awkwardly, might single me out or completely ignore me, might assume bad intentions or judge me, because of my skin color or my appearance or my partner, and all of the assumptions people attach to those things.
“To also know that any business I walk into can deny me service solely based on those things? It’s unfair,” Malik added. “Why should I have fewer opportunities available to me because of what someone else believes?”
Malik believes that religion shouldn’t be used as an excuse to discriminate against marginalized communities, and noted that the way people treat her as a member of the LGBTQ community intersects with issues of racism and religious discrimination.
“With race and religion, I’ve definitely had similar microaggressions with people assuming I don’t speak English, assuming what my religion is based on my ethnicity, and assuming my thoughts and opinions on things because that’s what ‘insert group’ thinks,” she said.
Malik said that recently, a receptionist at a doctor’s office asked whether she was born in the United States while she was giving her the forms she’d filled out – forms, Malik noticed, which did not ask about place of birth.
“No one else was asked that when they turned in their paperwork,” she said. “My partner sees the same doctor and had never been asked that. When I said I was born in the U.S., the receptionist said ‘Oh, good.’ It seems relatively small, but it sends a message – that I’m not welcome, that my parents certainly aren’t welcome, and that no matter what I do or who I am as a person, my assumed ethnicity will always define how I am perceived.”
Although this instance is not the same as a denial of service, the way businesses and others perceive you, Malik said, can impact treatment and quality of service, which can lead to harassment, whether because of someone’s religion, race, ethnicity or sexual orientation.
And while Masterpiece has made national headlines, taxpayer-funded systems in several states have been denying LGBTQ teens the right to feel safe being themselves.
Vanessa Verigin, who worked in child welfare and resides in Anchorage, Alaska, shared with Americans United her observations of how LGBTQ minors continue to face the risk of abandonment in the courts because of their parents’ religious beliefs.
“In the course of my work in the child welfare field, I have seen countless children rejected and abandoned by their parents because of their sexual identity,” Verigin said. “In some cases, particularly when I worked in the religious rural South, courts would not hold parents responsible for abandonment based on parents’ assertion of religious beliefs, typically accompanied by a willingness to accept the child back into their home as long as the child successfully completed dangerous and inhumane conversion therapy.”
Verigin said that while some courts held the parents accountable, it “does very little to address the trauma to the child.”
“I share this because I believe the underlying societal belief system must be addressed in order to protect these children and hopefully, eventually, keep families together,” she said. “When people receive the message in our society that Christianity is an acceptable reason for people to be denied simple rights such as access to a restaurant, then this normalizes the framework in which children can be dismissed from their own families for religious reasons.”
Verigin’s observations are compelling, especially since abandonment and denial of service continue to be issues that further marginalize the LGBTQ community and subject its members to being treated as second-class citizens.
To diminish the incidents of harassment and discrimination LGBTQ people, especially LGBTQ people of color, face nationwide, many extremists have argued that those denied service at certain businesses because of who they are or how they’re perceived should find a different business. This, Malik said, is inhumane and an “oversimplification.”
“Firstly, there’s not always another business. Not everyone lives in a large city. Even if there is another business, what if that one is lower-quality? Or more expensive? Or farther away? Or doesn’t offer the product or service that I’m looking for? The whole reason that multiple businesses can exist within the same industry is that there are differences between them,” she said.
The denial of service for LGBTQ people, as well as the general harassment and mistreatment, is reminiscent of the way many businesses and people used to deny service and harass African-Americans throughout history.
A legal case from the 1960s raises striking historical parallels. Maurice Bessinger, the owner of a chain of barbecue restaurants in South Carolina named Piggie Park, refused to serve African-Americans, because, he said, to do so “contravenes the will of God.” Bessinger was an avowed segregationist who argued that he had a religious-freedom right to violate the federal Civil Rights Act.
The case, Newman v. Piggie Park Enterprises, Inc, went to the Supreme Court in 1968, where the high court deemed it unconstitutional to deny service to African Americans on the basis of religion. The court called Bessinger’s argument “patently frivolous.”
Advocates are hoping that the Supreme Court similarly strikes down the argument that religious freedom gives businesses the right to deny service to LGBTQ people in its Masterpiece Cakeshop decision.
“If you know that your religious beliefs can legally permit you to deny interactions with people, then we legalize bias of all kinds,” Swaminathan said. “Any discomfort with someone based in implicit biases becomes grounds for denial of services. Any sort of gender non-conformity might be interpreted to be or assumed to be a deviation from heterosexuality. Masterpiece has the potential to normalize all forms of discrimination – homophobia, transphobia, and xenophobia in particular.”
The case will have a major impact on the civil rights of all marginalized communities, Swaminathan emphasized.
“How can a business owner tell if you identify as queer? The sound of your voice? The clothing that you wear? The way you style your hair? Will they look to physical cues like a strong jawline or a prominent Adam’s apple? Allowing businesses to discriminate in the name of religion based on perceived sexual orientation will further reinforce the policing of the rigid lines of gender, masculinity and femininity alike, and subject everyone to a discriminatory business owner’s intolerant gaze,” she said.
But regardless of what happens, Swaminathan hopes that members of the LGBTQ community continue to live their lives with pride.
“To my QTPOC [queer and trans people of color] family, just know that you challenge people by living your authentic self, and that is beautiful activism,” she said.