As the October 2019 Supreme Court term approaches, be on the lookout for state attorneys general engaged in the art of "hidden nondefense"—in other words, filing amicus briefs that fail to disclose how their own state or local laws may be adversely impacted by the Supreme Court's decision. We're already seeing this phenomenon in the cases that will decide whether Title VII protects gay, lesbian and transgender people from employment discrimination. An amicus brief filed by 14 state attorneys general and the governor of Kentucky, for example, fails to mention that antidiscrimination laws in those states could be impacted if the Supreme Court adopts the brief's argument that "[s]ex is, and has always been, understood as distinct from sexual orientation and gender identity."

Hidden nondefense, identified by New York Law School Professor Lisa F. Grumet, was also notable in Janus v. American Federation of States, County, & Municipal Employees—what some have called the single most consequential Supreme Court ruling of 2018. In Janus, the Supreme Court invalidated an Illinois law that previously allowed unions to charge agency fees to public-sector employees who declined to join the union but still benefitted from the deals it bargained. The decision overturned 40 years of labor law in the United States and dramatically undermined the power of unions comprised of teachers, firefighters, police officers and other public employees.

Over 70 amicus briefs were filed in Janus. Among them were briefs filed by two groups of state attorneys general—one siding with unions and the other opposing them. In the amicus brief supporting unions, the New York attorney general, joined by 19 other states and the District of Columbia, defended the power of unions and included a list of related state labor laws that would be impacted, and likely invalidated, by the court's decision. On the other side, 20 other states, led by Michigan, filed an amicus brief in opposition to the Illinois law. These states, however, did not disclose their own labor laws that would be impacted by the court's decision.

At Public Rights Project, we work with state and local governments to advance civil rights and environmental justice—and to protect workers and consumers—so when hidden nondefense undermines state protections for LGBT folks or workers, we are concerned.  It is typically the job of state attorneys general—as the chief legal officers for their states—to defend state laws that are challenged in court, not to undermine their validity. Moreover, given the importance of states in our constitutional system, amicus briefs filed by state attorneys general can have considerable influence on the Supreme Court.

At the same time, state attorneys general amicus participation has also become increasingly partisan, which partially explains the rise of the hidden nondefense. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the brief led by Republican state attorneys general cited only one state law and one local law from twenty participating states, even though eighteen of the participating states had public accommodation laws that would likely have been affected by the decision.

The pending Title VII cases illustrate another way hidden nondefense can play out. Missouri's state attorney general was among a group endorsing the argument that "sex" is limited to biological sex. However, the group's amicus brief does not mention that earlier this year, the Missouri Supreme Court rejected a similar argument with regard to Missouri's anti-discrimination law.  In that case, a transgender boy challenged his school district's decision to deny him access to restrooms and locker rooms for boys. He alleged that he was discriminated against based on his legal sex (male). While the court did not reach the merits of the litigation, it allowed the lawsuit to proceed, rejecting the dissent's position that Missouri law only prohibits discrimination based on "biological" as opposed to "legal" sex.

In another case, the Missouri Supreme Court allowed gay male employees to pursue a sex discrimination claim against their employer. The potential impact of the Supreme Court's interpretation of "sex" on the development of the law in Missouri and other states that prohibit discrimination based on sex is not discussed in the brief.

Perhaps most alarmingly, hidden nondefense presents a backdoor way of advocating to undermine or invalidate state laws that have been passed by democratically-elected legislatures—while avoiding political consequences. In doing so, it subverts the legislative process and prevents courts from accessing crucial information that may be relevant to their deliberations and the full impact of their decisions.

Local governments—through their district, city and county attorneys—have already been stepping up to fill this void and protect the interests of their communities, and they should continue to do so. As the level of government closest to the American people and the primary deliverers of safety net services, local governments have an important voice to offer on the impacts of law on their communities.

Public Rights Project, along with Freedom for All Americans, brought together a coalition of nearly 100 cities, counties and mayors to sign an amicus brief urging the Supreme Court to protect lesbian, gay and transgender people in the Title VII cases. Signatories included localities in states that filed amicus briefs on the other side like Kansas City and Missouri. At Public Rights Project, we believe that state and local governments offer an important perspective as amici, both as institutions and as representatives of their residents. Now, more than ever, it's important that they take action.

LiJia Gong is the interim legal director of Public Rights Project.