The Alliance Defending Freedom (ADF), the hate group challenging LGBTQ protections all over the country, has a new client: the Downtown Soup Kitchen (“Hope Center”) in Anchorage, Alaska. Because the charity wants permission to refuse to shelter transgender women, ADF argues in a federal lawsuit that the city’s entire nondiscrimination law should be declared unconstitutional.
The suit was filed last month but only came to light in the past week, and ADF’s lack of publicity about the case is a relevant part of the case. On its face, it’s a response to a specific complaint of alleged discrimination, similar to the cases ADF has taken defending bakers, florists, and photographers who have been found in violation of nondiscrimination ordinances for not serving same-sex couples. But this particular response is actually a messy overreach mirroring ADF’s other pre-enforcement challenges that seek to override all LGBTQ protections in the name of “religious liberty.”
The Anchorage Equal Rights Commission currently has two complaints open against the Hope Center that it has not yet adjudicated. The first is a complaint filed by a transgender woman earlier this year, after she claimed having been twice refused shelter at the Hope Center. The shelter actually had perfectly plausible reasons for these two refusals. On the first occasion, the woman reportedly was drunk — a violation of the shelter’s admissions policy. On the second occasion the following day, she sought admission at a time when the shelter was closed.
The commission opened its own second complaint a few months later. In April, there was a referendum to repeal the city’s LGBTQ protections. In a March article that noted the connection between those protections and the transgender woman’s complaints, the Hope Center’s then-lawyer, Kevin Clarkson, admitted that in addition to the plausible reasons for refusing the woman entry, the Hope Center is a religious organization that would never allow a “biological man” to be sheltered there. This prompted the commission’s second complaint against both the shelter and Clarkson’s law firm for advertising an intention to discriminate, which also violates the city’s ordinance.
In its lawsuit, ADF contends that the handling of these two complaints, even though they remain unresolved, somehow demonstrates that the commission is “targeting” the shelter in an “effort to force the Hope Center to change its policies anyway.” This potential enforcement of the ordinance thus somehow infringes upon the Hope Center’s freedoms of speech, religion, and association.
The Hope Center actually has a simple path to possibly winning the two complaints against it. In addition to having reasons for refusing the transgender woman that are consistent with its policies for all clients, Anchorage’s housing nondiscrimination protections include an exemption for homeless shelters. The question of whether it counts as a public accommodation, given the other public-facing services it offers, is more complicated, but could reasonably be resolved in state court — assuming the commission even finds them in violation of the ordinance.
But rather than litigate that question, ADF’s suit assumes that the Hope Center will be considered a public accommodation — even though it claims it is not, and even though the commission’s investigation is ongoing. It deploys this assumption as part of two different strategies seen in its other suits.
One of those strategies is derived directly from its pre-enforcement challenges. These are cases where ADF has partnered with creative professionals like calligraphers and videographers who say they want to get into the wedding industry but without having to serve same-sex couples. ADF helps them design a business plan, including drafts of statements expressing their intention to discriminate that they hope to publish publicly, and then they sue to overturn a state or local LGBTQ nondiscrimination law — asking for the right to implement that discriminatory business plan.
This is why it’s notable that ADF has been totally silent about its involvement with the Hope Center. Because the Hope Center’s last attorney was subject to a complaint for publicly advertising the charity’s discriminatory intent, ADF likely doesn’t want to be found liable for doing the same. But one of its primary claims in the suit is that the Hope Center should be able to publicly post a statement refusing to shelter transgender women and that it’s a free speech violation if they are prohibited from doing so.
The other strategy follows ADF’s approach in the wake of the Masterpiece Cakeshop decision by the Supreme Court. A new complaint of anti-LGBTQ discrimination has since been filed against Jack Phillips, the baker at the center of that case, and ADF responded with a counter suit claiming the Colorado Civil Rights Commission was targeting him. The only reason Phillips won at the Supreme Court is because the justices believed the commission expressed bias against his religious beliefs, so ADF is now building cases around the claim that Christians who engage in anti-LGBTQ discrimination are the victims of a double standard simply because they are investigated as the law requires.
Rather than just protecting the Hope Center from these complaints under local law, ADF is asking a federal judge to rule the entire law unconstitutional. In fact, they’re not only claiming that it’s unconstitutional to enforce the protections against the Hope Center, they’re even claiming that the law’s very definition of “gender identity” is facially unconstitutional “because its vague terms grant unbridled discretion to enforcement officials to ban speech the government opposes and to allow speech the government supports.”
That would include, it seems, language that demonizes transgender people and rejects the legitimacy of their identities. The lawsuit itself regularly misgenders transgender people and calls it “dangerous,” a “risk,” and “beyond common sense” to allow transgender women to stay at a women’s shelter. It also mentions at least six times that many of the women who stay at the Hope Center have been “abused or battered by men,” repeatedly insinuating that the mere presence of a “biological man” [sic] in that space would be unsafe.
Incredibly, the suit claims that the Hope Center does allow “biological women who identify as men” to stay at the shelter, even though the drafted statement it wants to publish dictates that guests “must be biological females, meaning they were born with, and currently have, only anatomical and genetic characteristics of a woman” [emphasis added].
This is just another in ADF’s litany of attempts to completely eliminate any protections for LGBTQ people. But this time, the case is not about cakes or flowers, it’s about transgender people who have nowhere to go. As the 2015 U.S. Trans Survey shows, transgender people experience discrimination at every turn, including when trying to find a job or a place to live. Likewise, a 2016 study showed that only a third of homeless shelters were ready and willing to serve transgender women and house them with other women.
If ADF has its way, it’ll be easier for bigots to force trans people onto the street — and keep them there.