New York Gov. Andrew Cuomo (D) signed two bills into law on Friday which seek to protect LGBTQ New Yorkers from discrimination and abuse.
The first new law, known as the Gender Expression Non-Discrimination Act (GENDA) codifies a 2015 executive order banning discrimination on the basis of gender identity. Under GENDA, New York businesses may not discriminate against transgender or non-binary New Yorkers in employment, housing, education, or public spaces.
As the Washington Blade notes, New York is now “the 20th state in the country with explicit statewide protections barring discrimination both on the basis of sexual orientation and gender identity.”
The second new law bans so-called “ex-gay” conversion therapy, a discredited form of treatment which purports to turn people with same-sex attractions away from those desires. According to the American Psychiatric Association, “the potential risks of ‘reparative therapy’ are great, including depression, anxiety, and self-destructive behavior.”
Yet, while both new laws are undoubtedly victories for LGBTQ rights, it remains to be seen whether either law will have staying power in the face of a Supreme Court that is increasingly hostile to civil rights claims brought by non-conservatives.
Even before the relatively moderate conservative Justice Anthony Kennedy left the Supreme Court — to be replaced by the arch-conservative judge Brett Kavanaugh — the Court’s Republican majority was very sympathetic to claims that the First Amendment’s free speech protections may be used to undermine progressive institutions and advance conservative policy.
Just last term, for example, the Court wielded the First Amendment to defund many unions and to strike down laws targeting anti-abortion “crisis pregnancy centers” — even as it held that abortion providers enjoy fewer First Amendment rights than anti-abortion advocates.
Several courts considered lawsuits claiming that bans on ex-gay therapy violate the First Amendment — a claim that has largely not fared well. As the United States Court of Appeals for the Ninth Circuit explained in a decision upholding California’s ban on “ex-gay” therapy, the First Amendment does not prohibit states from regulating the practice of medicine or similar professions such as therapists. Quack mental health treatments may be banned for the same reason that snake oil can be prohibited.
Yet it remains to be seen whether this reasoning will be upheld by the Republican-controlled Supreme Court.
Similarly, on Tuesday, four Republican members of the Supreme Court joined an opinion calling for a simply breathtaking expansion of the rights of religious conservatives to defy laws they disagree with — and a fifth justice, Chief Justice John Roberts, appears broadly sympathetic to this agenda.
Thus, while states like New York may be allowed to ban anti-trans discrimination, the Supreme Court is likely to immunize anyone who claims a religious justification for their anti-trans views from having to follow this law.