Supreme Court’s shift to right poses risk to LGBTQ rights

by Zach Schonfeld and Brooke Migdon - 07/16/23 11:00 AM ET

Advocates who for years saw the Supreme Court offer landmark decisions enshrining LGBTQ rights and legal protections into law are expressing deep concerns as a court reshaped by former President Donald Trump moves in a sharply more conservative direction.

The most recent warning sign for these advocates was the court’s decision last month to side with a Christian web designer who refused to make same-sex wedding websites, a significant blow to the LGBTQ community.

The court’s ruling in Dobbs v. Jackson Women’s Health Organization that struck down longstanding federal abortion protections also indirectly weakened LGBTQ rights.

A federal appeals court this month cited the Dobbs decision nine times in an order overturning the ruling of a lower court that blocked the enforcement of a new Tennessee law preventing transgender minors from accessing gender-affirming health care. The three-judge panel wrote in their order that access to transgender health care is not “deeply rooted in this nation’s history and tradition.”

Two of the Supreme Court’s conservatives appear eager to wade into cases implicating transgender protections as the new legal battles could soon be headed to the justices.

“You can’t look at the kind of extreme and radical decisions that the court has been issuing the last couple of years and not be at least concerned about what it’s going to mean for LGBTQ rights,” said Chris Stoll, a senior staff attorney at the National Center for Lesbian Rights.

The recent decisions are even more of a blow given how the Supreme Court delivered significant victories for LBGTQ rights amid changing public attitudes over the last two decades toward same-sex couples.

In 2003, the court struck down a Texas law that criminalized same-sex intimacy. A decade later, the court struck down the federal Defense of Marriage Act’s provision that defined marriage as a union between one man and one woman. In 2015, the court legalized same-sex marriage nationwide.

In all three of those cases, Justice Anthony Kennedy, a Reagan appointee who was the long-time swing vote on the court, joined four liberals to form a 5-4 majority. Kennedy authored each of the majority opinions.

But the court has since swung to the right as former Trump’s nominees joined the court, including when Trump was able to replace Kennedy with Justice Brett Kavanaugh.

Senate GOP Leader Mitch McConnell’s (Ky.) refusal to give even a hearing to former President Obama’s last nominee to the Supreme Court was another defining moment in shaping the court. McConnell and a GOP Senate then quickly confirmed conservative Justice Amy Coney Barrett to the court weeks before the 2020 election. She replaced liberal icon Justice Ruth Bader Ginsburg.

“New appointees to the Supreme Court have an unfavorable view of LGBTQ rights and civil rights in general,” said Camilla Taylor, director of constitutional litigation for Lambda Legal, an LGBTQ rights group. “We have seen a retraction of civil rights from an extremist Supreme Court determined to roll back liberties that generations of Americans have enjoyed. Its attack on LGBTQ rights is part and parcel of that.”

Never a linear path

Regardless of the composition of the court, however, the pathway to equality has never been a linear one, said Sarah Warbelow, legal director for the Human Rights Campaign.

“There’s just not a singular trajectory for LGBTQ people with the court,” said Warbelow. “There have been losses and wins mixed in with one another over the years.”

Even near the end of Trump’s presidency, the Supreme Court in 2020 still delivered a major win for the LGBTQ community. With a 6-3 majority, the court ruled in Bostock v. Clayton County that the Civil Rights Act of 1964 protects employees from being fired because of their sexual orientation or gender identity.

The majority opinion was authored by Justice Neil Gorsuch, Trump’s first appointee who is a stout textualist and defended the decision as interpreting the literal meaning of the landmark law.

This term, in a 6-3 decision narrowing LGBTQ protections, Gorsuch wrote the majority opinion ruling in favor of the Christian web designer. The vote fell along ideological lines.

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“The Supreme Court has been in favor of marriage equality, with Bostock as well, and all of these different court cases. To see this shift is really just an unprecedented power grab,” said Josie Caballero, director of the U.S. transgender survey and special projects at the National Center for Transgender Equality.

The center is one of roughly 90 organizations that recently formed a new coalition, United for Democracy, to push back against the court. The coalition also boasts several other LGBTQ groups as members and dozens of other left-leaning organizations.

Liberal Justice Sonia Sotomayor read portions of dissent in the website case aloud from the bench for roughly 20 minutes, longer than Gorsuch’s majority opinion.

Her dissent recounted the history of the LGBTQ community, referencing the Stonewall riots and a gay student who was murdered. As Sotomayor concluded by telling the story of a cemetery that refused to include the words “beloved life partner” on the headstone of a woman’s grave, in reference to her same-sex partner, Sotomayor added a remark not included in the written opinion:

“What justice is that?” Sotomayor asked from the bench.

New battles erupt

Already, new legal battles are erupting around LGBTQ rights that could soon end up at the Supreme Court.

Republican-led states’ attempts to ban gender-affirming care and drag shows have been proceeding in the lower courts. The Supreme Court so far has declined to intervene, turning away two appeals in recent months regarding transgender rights, although the issues could return to the court.

“We need to send a clear message, because if we do not act now and check the power of the Supreme Court, who knows how far it’s gonna go,” said Caballero. “So because we see no signs of slowing, it’s forcing all of us to work more diligently and more aggressively to rein in this extreme decision-making that the Supreme Court’s doing from the bench.”

When the court in April declined to step in to enforce West Virginia’s transgender athlete ban, two of the court’s leading conservatives, Justices Samuel Alito and Clarence Thomas, publicly dissented.

Alito wrote it concerned “an important issue that this Court is likely to be required to address in the near future.”

Two hours after handing down the website designer decision, the court turned away an appeal implicating transgender protections. Alito, joined by Thomas, again publicly dissented, writing “there is no good reason for delay” before taking up the case.

“This decision will raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy (both the performance of surgery and the administration of hormones) by physicians and at hospitals that object to such treatment on religious or moral grounds,” Alito wrote.

The court in 2021 also declined to weigh in on a dispute over whether transgender students should be allowed to use school restrooms that are consistent with their gender identity. Alito and Thomas said they would have heard the case.