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Every year, federal courts decide cases that impact critical rights and freedoms for LGBTQ individuals across America. Federal judges issue rulings that ensure LGBTQ persons the right to marry, protection from discrimination, equal rights in education and the workplace, and protection against sexual assault and violence. Judges play a critical role in interpreting how statutes and constitutional protections affect LGBTQ persons and families, the communities they live and work in, and the opportunities for future generations.
LGBTQ DISCRIMINATION IN THE U.S.
From anti-sodomy statutes, to denying marriage equality, to discriminating in health care, to blocking adoption and other family benefits for LGBTQ individuals, the United States has frequently infringed on the rights and equality of the LGBTQ community. Moreover, as we saw in Bowers v. Hardwick in 1986 (where the Supreme Court upheld a Georgia anti-sodomy statute as constitutional), the courts have not always been steadfast in protecting LGBTQ rights. However, as activists fought against discriminatory laws, progress slowly occurred.
FIGHTING FOR LGBTQ EQUALITY
In the 2003 landmark case of Lawrence v. Texas, the Supreme Court overruled Bowers and held that a Texas state statute criminalizing homosexual conduct violated the Due Process Clause of the Fourteenth Amendment. This decision had an enormous impact on the rights of LGBTQ persons, as it rooted the freedom to engage in same-sex sexual activity in a constitutional right and made same-sex sexual activity legal across the country.
Ten years later, the Supreme Court once again stood up for LGBTQ rights in United States v. Windsor, when it struck down a section in the Defense of Marriage Act (DOMA) that defined “marriage” as between one man and one woman for the purpose of interpreting any federal law involving marriage.
Edith Windsor, the plaintiff in the case, sought a tax refund when she was denied the spousal exception for the federal estate tax after her wife and partner of 46 years died and left her estate to Windsor. Writing for the Court, Justice Kennedy explained how “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
Another landmark victory for LGBTQ equality and civil rights came in the summer of 2015 with Obergefell v. Hodges, when the Supreme Court recognized a fundamental right to marry within the Fourteenth Amendment and held “same-sex couples may exercise the fundamental right to marry in all States.”
THE FIGHT CONTINUES
Despite the victories of the past two decades, LGBTQ rights have faced increased attacks from the Trump Administration as well as from the courts.
For example, in the 2018 decision in Masterpiece Cake Shop v. Colorado Civil Rights Commission the Supreme Court – with then-newly confirmed Justice Gorsuch – rolled back protections for LGBTQ equality. The court held that a baker could discriminate against an LGBTQ couple by refusing to sell them a wedding cake. Justice Ginsburg strongly dissented, noting that “[w]hat matters is that [the baker] would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
The Masterpiece ruling sounded alarm bells for other LGBTQ rights cases that will likely come before the Supreme Court in the near future. For example, the Court is slated to hear three cases next term in which it will decide whether Title VII, an anti-discrimination federal law, includes sexual orientation and gender identity as a basis for a discrimination claim.
Additionally, other anti-LGBTQ policies implemented by the Trump Administration are already facing challenges in the federal courts, including the transgender military ban, discriminatory health care regulations that have particular impactg on transgender patients, and discriminatory adoption rules for same-sex couples.
President Trump’s nominees to the federal bench threaten LGBTQ rights and equality, including the right to marry and equal opportunities in education and in the workplace. They would make it harder for LGBTQ individuals to fight discrimination, inequality, and violence.
HOSTILITY TO LGBTQ RIGHTS
Matthew Kacsmaryk (nominated to the Northern District of Texas) fought equal rights for LGBTQ people on numerous occasions, including supporting the Mississippi state government’s attempt to allow businesses and government workers to discriminate based on sexual orientation and gender identity. He also vigorously opposed regulations under the Affordable Care Act that forbid healthcare providers from discriminating against people based on gender identity, “sex stereotyping,” and “termination of pregnancy.” He also questioned the legality of state bans on “conversion therapy.”
L. Steven Grasz (Eighth Circuit) defended conversion therapy, claimed that only opposite-sex couples provide the optimal parental environment, and opposed legislation to prohibit LGBTQ discrimination in the workplace.
Mark Norris (Western District of Tennessee) supported legislation that prohibited cities from protecting gay and lesbian Tennesseans from discrimination based on their sexual orientation. He also disputed the effects of discrimination on LGBTQ individuals, such as increased rates of depression and attempted suicide.
Kenneth Lee (Ninth Circuit) has writings that employ harmful stereotypes about the LGBTQ community and the AIDS epidemic, alleging that HIV was spread by promiscuity in the gay community and characterizing LGBTQ campus advocacy as the work of “militant gays.”
Howard Nielson (District of Utah) argued that a judge should be recused from a case because he is gay. He defended Proposition 8, which would have banned same-sex marriage in California. After the district court ruled that Proposition 8 was unconstitutional, Nielson filed a motion to vacate the judgment, arguing that the judge “had a duty to disclose not only the facts concerning his [same sex] relationship, but also his marriage intentions.”
L. Steven Grasz (Eighth Circuit) opposed the granting of marriage benefits to same-sex couples, supported the Defense of Marriage Act (DOMA), and successfully kept a lesbian couple from adopting a child.
Gregory Katsas (D.C. Circuit) defended DOMA in two cases and strongly opposed Obergefell v. Hodges.
Don Willett (Fifth Circuit) joined the majority in Pidgeon v. Turner, which held that same-sex spouses of city workers in Houston have no inherent right to benefits under the Supreme Court’s ruling in Obergefell.
Damien Schiff (nominated to the Court of Federal Claims) criticized efforts to prevent bullying of LGBTQ students, in a blog post titled “Teaching ‘gayness’ in public schools.”
Jeff Mateer (nominated to the Eastern District of Texas) made offensive comments about transgender people, including the claim that transgender children are part of “Satan’s plan.”
Kyle Duncan (Fifth Circuit) fought to keep transgender students from using the bathroom that conforms to their gender identity and advanced arguments that construe transgender people as mentally ill. Another Trump nominee, Stephen Schwartz (Court of Federal Claims), served as co-counsel on the same case.
Britt Grant (Eleventh Circuit) opposed guidance that called for transgender students to be permitted to use facilities that conform to their gender identity.
Eric Murphy (Sixth Circuit) defended a school board’s refusal to allow a transgender student to use the bathroom that matched his gender identity.
Neomi Rao (D.C. Circuit) worked with Betsy DeVos’s Department of Education to roll back protections for LGBTQ students on college campuses that would expand schools’ ability to discriminate against LGBTQ students under the guise of religious exemptions.
Kyle Duncan (Fifth Circuit) has repeatedly attacked the rights of same-sex couples attempting to adopt children.
John Bush (Sixth Circuit) criticized the State Department for modifying passport application forms to account for the possibility of same-sex parents.
L. Steven Grasz (Eighth Circuit) argued that Nebraska law did not allow an unmarried lesbian couple to adopt.
Kurt Engelhardt (Fifth Circuit) rejected a same-sex workplace harassment claim based on his apparent skepticism that the victim’s gender was a factor, although the harasser repeatedly grabbed the co-worker in the crotch, made sexual remarks that clearly referenced the victim’s gender — including that he “would like to compare packages” — and used vulgar language to describe sex acts he would like to do.
Amul Thapar (Sixth Circuit) rejected a same-sex sexual harassment and retaliation claim because he believed the worker didn’t show he was harassed because of his gender, despite his harasser groping him and making repeated sexual comments that referenced his gender, including: “boy you have pretty lips,” as well as “you’ve got a pretty mouth,” and “you know you like it sweetheart.”