The Supreme Court took action on three cases directly affecting LGBTQ+ rights, and now the term is over. One of the rulings may well turn out to be a watershed moment in trans rights, while the other two suggest that the court has reached a stalemate on the scope of religious exemptions to LGBTQ+ non-discrimination laws. While this stalemate lasts, we need to keep fighting both in court and in legislatures to protect non-discrimination laws from being pock-marked with exceptions that could render them meaningless.

The Supreme Court decided not to take up the school district’s appeal in Gloucester County School Board v. Gavin Grimm, in which a federal appeals court ruled that a Virginia school district violated federal civil rights law when it barred transgender students from using the restroom that matches their gender.

While that’s not a ruling on the merits of the issue, it leaves in place not only the lower court’s trans-affirming ruling in Gavin Grimm’s case, but also similar rulings by two other federal appeals courts. That means that school districts throughout the 11 states covered by those appeals courts must now respect a student’s gender and allow them to use restrooms and locker rooms that match their gender. That’s a huge deal. And since there is no federal appellate law going the other way, school districts in other parts of the country should do the same thing.

Indeed, Gavin’s case is the third time in three years that the Supreme Court has declined to take up cases involving disputes over whether trans students could use restrooms that match who they are. The fact that SCOTUS left those rulings alone, too, is more evidence that the court is letting a trans-affirming reality take hold. And since Gavin’s case started seven years ago, we’ve seen that a majority of our country is ready for this reality.

The denial of review in Gavin’s case reminds me of another moment when the Supreme Court refused to take up an LGBTQ+ civil rights issue and that ruling had significant on-the-ground consequences. In October 2014, the court denied review in five cases where lower courts had all ruled that same-sex couples had a right to marry. That order didn’t decide the marriage question for the country, but it meant that same-sex couples were suddenly able to marry in 12 new states, making it that much more difficult for the court to rule against the freedom to marry down the road. This could be a similar moment for trans rights.

The court’s other two LGBTQ-related actions this term came in the context of whether a government contractor (here a foster care agency) or a business (here a flower shop) can violate non-discrimination laws when they have a religious justification for the discrimination. The stakes are enormous, because a constitutional right to discriminate could potentially override every non-discrimination law in the country. That would be catastrophic and give a get-out-of-jail-free card to anyone who asserts a religious basis for discrimination in the workplace, in housing, in health care, and more.

With these two actions the situation is more complicated and the news a bit more ambiguous.

In Fulton v. Philadelphia, the court considered whether a religiously affiliated foster care agency had a constitutional right to override the non-discrimination requirement in its contract with the city to evaluate prospective foster parents. The contract said no sexual orientation discrimination and the foster care agency objected on religious grounds.

The good news is that, for the second time in three years, the Supreme Court refused to rule that there is a constitutional right to discriminate. In Fulton, the court issued a narrow decision based on a quirk in Philadelphia’s non-discrimination contract that the court interpreted as failing to treat all city contractors equally. The court issued a similarly narrow ruling three years ago in Masterpiece Cakeshop v. Colorado Civil Rights Commission, basing its decision on some anti-religion comments made by the state agency that initially heard the discrimination complaint.

While there were not five votes in Fulton to hold that there is a right to discriminate, we have to recognize that there were also not five votes to hold that there isn’t such a right.

That’s profoundly troubling, because such a ruling should not be difficult. Courts have rejected a right to discriminate in other civil rights contexts, such as when courts rejected religious schools’ claim that they could pay women less than men for doing the same job based on the schools’ religious belief that men are heads of household. There is no reason that the rule should be any different when the discrimination is based on sexual orientation or gender identity rather than sex or race.

The second action came in Arlene’s Flowers v. Washington State, where the Washington Supreme Court unanimously ruled that a flower shop’s religious objection to a same-sex couple getting married didn’t give it a right to refuse to sell them flowers for their wedding. The U.S. Supreme Court denied review in Arlene’s Flowers, dashing the hopes of anti-LGBTQ+ advocates that this would be the case where the court finally gave them a right to discriminate.

The combination of the court ducking the license-to-discriminate issue in Fulton and declining to take up the same issue in Arlene’s Flowers suggests that even this profoundly conservative court isn’t ready to undermine the nation’s civil rights laws. The current stalemate on the court about this issue may endure for a while, perhaps even for years. But when the court takes up the next case like Arlene’s Flowers or Fulton, I fear that it will signal that the court is ready to authorize discrimination against us.

Just like we shouldn’t have a country where LGBTQ+ people are celebrated only during Pride month, we shouldn’t have a country where we are protected from discrimination only in some circumstances. While the Supreme Court has put the religious exemptions issue on hold, we need to continue to tell policymakers — as well as our friends and neighbors — that discrimination hurts and that opening the door to legalized discrimination in the name of the religion will cause harm. We need to fight against these exemptions not just in court, but also in legislatures, where anti-LGBTQ+ advocates are seeking to add religious exemptions to existing non-discrimination laws and bills, such as the Equality Act. LGBTQ+ people have fought too hard and for too long to allow our community’s civil rights laws to incorporate a license to discriminate.

On President Biden’s 100th day in office, Nilson Barahona-Marriaga joined demonstrators who greeted the president at a rally in Atlanta. “End detention now!” they chanted. “Communities are afraid!”

A 39-year-old immigrant from Honduras, Nilson had been recently released from Immigration and Customs Enforcement’s (ICE) Irwin County Detention Center in Ocilla, Georgia. The Irwin detention center, which remains open despite the Biden administration’s promise to end its contract with the facility, had most recently gained attention due to multiple allegations of involuntary hysterectomies performed on women at the facility.

When Nilson was detained at Irwin last year, he learned through his lawyer that coronavirus was present at the facility. ICE officials had failed to alert or protect staff and detainees. Facility staff regularly failed to wear masks and ensure disinfection.

Out of desperation, Nilson participated in a hunger strike with other detainees. Their group made common-sense demands that ICE follow public health guidelines, provide them with masks and cleaning supplies, and release medically vulnerable people from detention. Instead, facility officials threw Nilson and his fellow hunger strikers in solitary confinement. ICE cut off the water in their cells, so they could not drink, wash, or flush the toilets. Officials also restricted Nilson’s communications with his lawyer and family. Only nine days later, when Nilson realized that a person detained in the room next to his had COVID-19, did he end his hunger strike.

In the last year, hundreds of detained immigrants like Nilson have participated in a growing number of hunger strikes nationwide, seeking protection from COVID-19. ICE officials and detention staff have met these hunger strikes—protected speech under the First Amendment–with extreme measures, including increased use of force such as pepper spray, physical force, and rubber bullets. Today, detained immigrants are currently on hunger strike for the same reason at a number of facilities, including the Northwest Detention Center in Tacoma, Washington, and Bergen County Jail in New Jersey. After several months of declines, ICE has again begun to increase the number of detained people in custody. COVID-19 cases in ICE detention are again on the rise.

Our new report, Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention, by the ACLU and Physicians for Human Rights, reveals that the scope and scale of ICE’s cruelty in response to such hunger strikes is much broader than previously known. Based on an assessment of over 10,000 pages of previously disclosed documents, the report analyzes hundreds of hunger strikes in ICE detention from 2013 to 2017, as well as the testimony of recent hunger strikers. The report finds that abuse and retaliation against hunger strikers is commonplace and dates back to President Biden’s time as vice president. ICE has responded to hunger strikes with involuntary medical procedures, solitary confinement, retaliatory deportation and transfer, and use of force — responses which are in violation of constitutional protections, international human rights law, and medical ethics.

Our report also shines a light on the many forms of day-to-day psychological coercion ICE employs to try to break hunger strikes, including denying access to basic privileges, restricting water access, and threatening prosecution.

Rather than safeguarding their patients’ health, medical professionals played a disturbing role in these abuses. During an August 2016 hunger strike of 22 mothers at the Berks County family detention center in Pennsylvania a family detention, an ICE physician sought to downplay the situation. The ICE physician also proposed family separation and force-feeding as responses to the hunger strike, noting that “If it appears they really are on a hunger strike, we will need to separate the mother and children – send mom to an IHSC facility to address the hunger strike.”

Doctors and nurses employed or contracted by ICE also violated medical ethics by supporting government motions for invasive and involuntary medical procedures, including force-feeding, forced hydration, forced urinary catherization, involuntary blood draws, and use of restraints. Our report identifies at least 14 separate ICE medical declarations supporting government motions for such involuntary procedures, in violation of physician’s ethical obligations to preserve the autonomy of mentally competent individuals, as well as international human rights law.

Our report reveals the lengths to which ICE will go to punish and deter hunger strikers rather than engage with their legitimate demands. Changing the response to hunger strikes will require addressing their underlying cause: an abusive and dangerous civil immigration detention system.

President Biden – who oversaw these abuses when Vice President – should reverse course and end the U.S. reliance on a mass immigration detention system and invest in community-based social services as alternatives to detention. Health professionals should refuse to participate in violations of medical ethics in their provision of care to detained immigrants, and government lawyers should refrain from pursuing cases for force feeding and other involuntary medical procedures.

This piece first appeared in The Hill.

Imagine being released from prison to serve the rest of your sentence at home. You begin your reintegration back to society. You get a job, rent an apartment, maybe even go back to school. You reconnect with your family. You fully abide by every single regulation related to your home confinement.

Then, all of a sudden, you are told that any day now you will have to go back to prison.

This is exactly the situation for thousands of people today.

Since COVID-19 hit prisons, a total of 25,244 people incarcerated in federal prison have been allowed to serve their sentences at home. They continued to be under federal custody, and subjected to monitoring with their freedom restricted, but they served their sentence at home. This program, known as home confinement, was encouraged under the CARES Act, which passed in response to COVID-19 and was meant to prevent the spread of the virus. Individuals are given this option based on numerous considerations, including vulnerability to COVID-19, underlying health conditions, and whether they would have better access to medical treatment at home.

Yet on Jan. 15, 2021, just five days before leaving office, the Trump administration dropped a bombshell and issued a memo declaring that people released to home confinement would be sent back to prison once the national COVID emergency ended. When President Biden took office, many were hopeful that he would rescind the order. Yet so far, the Biden administration has refused to, despite repeated requests from both Democratic and Republican lawmakers and advocates.

The concept of serving the end of your sentence at home is far from new. In the federal prison system, it has existed since the George W. Bush presidency, when Congress passed the Second Chances Act, allowing federal prisons to send people to serve the last six-months or ten percent of their sentence at home. When COVID-19 hit, Congress expanded this authority under the 2020 CARES Act.

People like 43-year-old Miranda McLaurin have benefitted from this authority. A disabled Army veteran sentenced to five years for a drug offense, she was allowed to go home to Mississippi to serve the rest of her sentence, instead of being imprisoned more than a 1,000 miles away in a federal prison in Connecticut. “I always hear them talking about giving people a second chance,” she said of the Biden administration. “I came home, I got a job. I’m working.”

Today, more than 4,500 people are in similar situations to Miranda’s. They are out of prison in home confinement but being threatened by the Biden administration to be sent back to prison. Forcing them back to prison would be cruel, legally unnecessary, would not make us safer, and cost taxpayers millions.

First, the Bureau of Prisons did not tell people they were releasing that they expected to send them back to prison. For this reason, people signed leases for homes, bought furniture, started planning their lives. They should not be forced to go back to overcrowded and unsanitary prisons.

Second, the CARES Act broadened the Bureau of Prisons authority to release people to home confinement and nothing in it states that they should be sent to back to prison once COVID is done. Sens. Dick Durbin (D-Ill.) and Cory Booker (D-N.J.) recently made this point in a letter to Attorney General Merrick Garland, stating that “The plain text of the CARES Act provides BOP with authority to lengthen the amount of time a prisoner may serve in home confinement. It is that authority (the authority to make a placement decision), not the consequences of those decisions, that is limited to the emergency period of the pandemic.” In fact, if the releases were meant to be temporary, the BOP would have been clear by calling them furloughs, and not releases. Home confinement has never been considered a temporary solution. It is meant to prepare a person to go home, not to prison.

Third, this makes little sense from a public safety perspective. Everyone released was already determined to be a “low risk”; this was part of the condition of release. Not surprisingly, only about 0.63 percent, or 151 people out of more than 24,000 people, have violated the terms of their release once transferred to home confinement.

Finally, sending thousands of people to prison will cost tens of millions of dollars. It costs approximately $37,000 a year to incarcerate an individual in federal prison. Now multiply that by thousands.

During the campaign trail, candidate Biden told the ACLU that as president, he would be committed to reducing the federal prison population by 50 percent. Yet should President Biden allow thousands of people to be sent to federal prison he would be presiding over the fastest expansion of the federal prison population in history.

Recently more than a dozen members of Congress, led by Rep. Bonnie Watson Coleman (D-N.J.), sent a letter to President Biden urging him to rescind Trump’s policy and to use the president’s clemency authority to reduce the sentences of people living under home confinement and allow them to be free. As the letter stated, “Reducing sentences for those who have successfully reintegrated into their communities would keep families together, save money, and improve public safety.”

President Biden must at the very least allow people to serve the rest of their sentences at home. Anything less would needlessly hurt thousands of people. Yet President Biden should go further, and use his power of clemency, as requested by congressional lawmakers, to commute the sentences of people who are already living at home not posing a public safety threat. Doing so will protect lives and also allow President Biden to meet his campaign pledge to help end mass incarceration by reducing the federal prison population.