The Trouble With “Denial of Service”
Or: Why businesses are allowed to turn away LGBTQ+ customers… And why SCOTUS is more trouble than you might think.
As someone in the LGBTQ+ community myself, I am hesitant to write this piece. But, after yesterday’s Supreme Court decision to reinforce that businesses (physical or web-based) are allowed to discriminate against queer folx for whatever ridiculous reason (usually because they’re “Good Christian business owners”) the uproar surrounding that has settled uneasily in the back of my mind. So please, bear with me until the end of this article, if you can.
Also, please keep in mind that I am NOT a lawyer. I’m an autistic autodidact with ADHD that researches things that interest me… for fun. So take this as an opinion piece rather than legal advice and please do your own research before making any decisions or taking any action!
It all began with The Civil Rights Act of 1964. This law stated unequivocally that businesses were NOT allowed to discriminate according to a list of Federally approved categories. Those categories are:
- Race or color
- National origin or citizenship status
- Religion or creed
- Sex (Biological)
- Age
- Disability, pregnancy, or genetic information
- Veteran status
Since 1964, some states have added a number of other traits to this list.
For example, California added the following to its anti-discrimination law:
- Marital status
- Sexual orientation or gender identity
- Medical condition, or AIDS/HIV status
- Military or veteran status
- Political affiliations or activities
- Status as a victim of domestic violence, assault, or stalking
As you can see in this handy map provided by LGBTQmap.org, all of Twenty-Three (23) states have added amendments to the Civil Rights act protecting members of the LGBTQ+ community from discrimination.
For those having trouble with the map, the following states have added LGBTQ+ individuals to their anti-discrimination laws:
- Washington
- Oregon
- Nevada
- California
- Utah
- Colorado
- New Mexico
- Minnesota
- Iowa
- Illinois
- Michigan
- New York
- Maine
- Vermont
- New Hampshire
- Virginia
- Connecticut
- New Jersey
- Rhode Island
- Delaware
- The District of Columbia
- Maryland
- Massachusetts
- Hawaii
- And the US Territory of the US Virgin Islands.
Meanwhile, the following states explicitly interpret the existing prohibition on ‘sex’ discrimination to include sexual orientation and/or gender identity.
(Meaning that they have not added wording to the law at a state level clearly stating that LGBTQ+ people are included but believe the original law to include them via the “sex” category)
- North Dakota
- Nebraska
- Kansas
- Kentucky
- Ohio
- Pennsylvania
- Florida (… though I think Deathsantis is a great example of why the interpretation of a law isn’t as good as amending it with actual added wording)
And finally, Wisconsin is the only state that has added text to its anti-discrimination law at a state level that specifically protects those with non-heterosexual sexual orientations. They do not currently include gender.
The other 19 states and 4 territories that make up the “United” States of America have no additional traits added to the original 1964 act, thus they allow privately owned businesses to discriminate against the LGBTQ+ community however they wish. Those states are:
- Idaho
- Montana
- Wyoming
- Arizona
- South Dakota
- Oklahoma
- Texas
- Missouri
- Arkansas
- Louisiana
- Mississippi
- Alabama
- Tennessee
- Indiana
- West Virginia
- Georgia
- South Carolina
- North Carolina
- Alaska
- The US Territory of American Samoa
- The US Territory of Commonwealth of the Northern Mariana Islands
- The US Territory of Guam
- The US Territory of Puerto Rico
To reiterate —
Of the 50 states and 5 territories of the USA:
Only 23 States, 1 territory, and the District of Columbia currently have Written Laws protecting anyone based on their Sexuality or Gender from being discriminated against by privately owned businesses. In these places, it is Against The Law to discriminate against people for being LGBTQ+.
Only 7 states interpret the original wording of the Civil Rights Act of 1964 to include members of the LGBTQ+ community due to the inclusion of the word “Sex” in the originally listed categories. In these places, it is Somewhat Against The Law to discriminate against people for being LGBTQ+ but in such a way that if you get a judge that’s a stickler for specific wording you might be screwed if you tried to sue. Yes, this is ridiculous, in case you were wondering.
Only 1 state, Wisconsin, currently has added text stating that discrimination based on one’s sexuality is prohibited. This means that it is Against The Law for a privately owned business to refuse to serve you if you are not heterosexual. If you’re Trans they can legally discriminate though, unfortunately.
All 19 other states and 4 other territories adhere specifically to the original wording of The Civil Rights Act of 1964. Meaning that they are legally within their rights at both a State and Federal level to refuse service to anyone in the LGBTQ+ community.
At this moment the only Federal anti-discrimination law targeting businesses, Federal or otherwise, is the Equal Employment Opportunity Commission. This law states that it’s illegal for an employer to discriminate against a Job Applicant because of their…
- Race
- Color
- Religion
- Sex (Including gender identity, sexual orientation, and pregnancy)
- National Origin
- Age (For those 40 or older)
- Disability
- Genetic Information
Again, this is ONLY related to EMPLOYEES.
For example: If you are a gay, 40-year-old, black trans man who happens to be pregnant and you would like to work at the local bakery, you are well within your rights to apply for that job. The people who own the bakery are not allowed to refuse you employment due to being a gay, 40-year-old, black trans man who happens to be pregnant. They are legally required to consider you for the job. If you are fully qualified and capable to do the job they are not allowed to refuse to employ you due to the aforementioned traits. If they do refuse to employ you, citing or making it otherwise clear that their reasoning is due to the aforementioned traits, you are well within your rights to sue them into the ground. They also cannot fire you for said traits if you are already their employee and you choose to transition, come out as gay, get pregnant, etc.
The fact that this is at a Federal level means that it is country-wide. You can go anywhere in the United States or its Territories and know that you are legally allowed to apply for any job you desire and the employer is not allowed to discriminate based on the traits outlined above. But this has no bearing on customers.
Now that all of that is established, allow me to pivot violently into the recent mess involving the United States Supreme Court and how it’s repeatedly proven that it can’t be trusted to respect state laws regarding the LGBTQ+ community.
Way back in 2012 a Baker in Colorado raised an uproar by refusing to bake a wedding cake for a gay couple. If you didn’t catch it earlier, Colorado is one of the 23 states, 1 territory, and the District of Columbia, that Explicitely State in their State Laws that LGBTQ+ people are NOT to be discriminated against by private businesses.
Naturally, the gay couple took the Baker to court. The Colorado state court found in favor of the gay couple because they were upholding the State’s laws. Unfortunately, the bakery owners refused to accept this ruling, believing they were in the right by refusing service to the gay couple on ‘religious grounds’ (did I mention they’re “Good Christian” people? Yeah…) so they pushed back. The case was reviewed by the Supreme Court, our highest Federal court in the country… And the Supreme Court decided to rule in favor of the Bakery owners.
The trouble with this ruling is that it set a precedent. Not only that a State’s Laws mean little on a Federal level but in a country with Freedom of Religion, where anyone can practice whatever they wish (provided they’re not doing anyone harm…. The irony right now, omg) one religion was now getting special permission to be allowed to discriminate against an entire community regardless of the State’s anti-discrimination laws…
Now, here we are again, 11 years later. It’s 2023 and the Supreme Court has just ruled that a web designer based out of Colorado (Again, where discrimination against the LGBTQ+ community is ILLEGAL at a state level) is not legally liable for actively discriminating against a gay couple by refusing to create a website for their wedding.
Again, the gay couple took the web designer to court. Again, the court found in favor of the gay couple because of State Laws. Again, the bigot pushed it until it was reviewed by the Supreme Court. Again, the Supreme Court ruled in favor of the bigot. Again, State Laws were pushed aside to accommodate a religion that’s supposed to be about love and acceptance, allowing a “Good Christian” person to refuse to provide a service for paying customers who just so happen to be queer in some capacity.
BUT, we’re not done yet, folks! The added sprinkle of “Very Not Good” on top of this bullshit cake the Supreme Court is forcing down everyone’s throats is the fact that the web designer didn’t strictly fight back citing “religious freedoms”… Oh no, she cited the FULL First Amendment.
Freedom of Speech… Somehow, being asked to create a wedding website for a gay couple and being told at a state level that she was not allowed to discriminate against that couple strictly on the grounds of their sexuality not only violated her Freedom of Religion but also apparently violated her Free Speech. Because, as she puts it, “The artwork that I create is speech” she told the Colorado Public Radio back in December of ’22 before adding “Those messages must be consistent with my convictions.”
So, not only has the Supreme Court reinforced the precedent that it set back in 2012 in failing to back State Laws in favor of putting Christianity on a pedestal and allowing people to discriminate on religious grounds... It has now set a new precedent in allowing the citation of the full First Amendment. Now anyone in the foreseeable future who simply doesn’t feel like providing a service to the LGBTQ+ community can state, regardless of State Law, that not allowing them to discriminate as they like is a violation of the rights afforded to them by the First Amendment! Though, I’m sure the addition of them being a “Good Christian” would help their case with the current Supreme Court.
So, what do we do?
Personally, I believe the Supreme Court should either be abolished or cleared out and reworked. Especially due to the sheer amount of corruption that’s come to light in the last year. Ideally, before they single-handedly send us all back to 1950. Though, apart from protesting and contacting your State Senators and those in power in the country and making your concerns known, I’m unsure as to how one might achieve this.
What we CAN easily do is stop pushing these cases to court. That way they never get a chance to reach the Supreme Court and allow them to continue to whittle away at our rights.
Wait! Hear me out!
If you find yourself attempting to acquire a service from a privately owned business, regardless of the state you live in, and find that those in charge are bigoted… quietly pull out your phone and film them. Let them rant and bitch or say whatever they’re going to say. Don’t coerce or push them to say more or less, just let them go at it. Once you feel you’ve had enough or if things seem to be escalating… Leave. Just quietly turn and walk out.
Then, once you’re out of that place, tell Everyone. Share the recording with EVERYONE. Nothing wipes out a brick-and-mortar business like word of mouth and bad press. We live in a country with Free Speech where you can say anything and as long as it can be proven True nobody can do a thing about it!
- Leave a bad review on yelp
- Share the video with everyone.
- Tell all of your friends and encourage them to tell their friends.
- If you’re living in one of the 23 sane states (also 1 territory, and DC) that genuinely care about us, contact the local paper and let them know all about what happened!
- Regardless of what state you live in, find the LGBTQ+ newsletters/papers and inform them about what happened. Especially if they have a section where they highlight local businesses.
- Spread it all over social media. Let the world know that the cute little bookshop at the corner of Main and Court in Denver, CO is run by bigoted “Christians” who think all LGBTQ+ people should die and burn in hell.
This will make their lives hell and do a whole lot of damage to that business without giving them the opportunity to force a failed lawsuit to the Supreme Court level and, in turn, give a corrupt Supreme Court the opportunity to remove more of our protections. It also avoids making it look like we’re trying to sue anyone that doesn’t accept the LGBTQ+ community… which seems to be how a lot of MAGA and Qanon types take these situations.
Oh! And if you were curious… Yes, you can technically refuse to serve a customer based on being a MAGA supporter, a Republican, etc. As long as we obey the State Laws and the Civil Rights act of 1964 we can use these laws to our advantage as well. Just remember those lunatics tend to be armed and even if they aren’t, they do their best to take out anyone who doesn’t support them and, unlike the LGBTQ+ community, they’ve no trouble using underhanded, violent, terror tactics as illustrated with the many anti-LGBTQ+ attacks they’ve pulled in the last couple years, so be safe about it!
Good luck out there!
This post has been brought to you by Paradigm Pins!
Your place for handmade LGBTQ+ Pride & Pronoun goodies.
