How Neil Gorsuch Could Help Decide the Future of LGBTQ Civil Rights in America

Legal experts explain how the future of LGBTQ civil rights will be tested over the next few years.

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Feb 1 2017, 6:25pm

Proudly waving the rainbow flag outside the Supreme Court. Photo by Flickr user Ted Eytan

On Tuesday night, President Donald Trump nominated Neil Gorsuch to fill the Supreme Court seat left vacant by Antonin Scalia's death nearly a year ago. As a federal judge for the Tenth Circuit, Gorsuch has built up a staunchly conservative record: His 2010 Burwell v. Hobby Lobby decision supported giving employers the right to not provide contraceptives to their employees in the name of "religious freedom"; in 2015, he joined an opinion to deny an incarcerated trans woman in Oklahoma the rights to gender-affirming hormone therapy and feminine clothing.

Should the Senate confirm him, as it most likely will, he'll likely have a say on cases that will affect LGBTQ Americans for decades to come, some of which will come in the very near future. Today a number of legal battles are currently playing out in state and federal courts with potential to reach the Supreme Court. These cover issues from LGBTQ employment discrimination to "religious freedom" (often meaning the freedom to discriminate) to public accommodations for transgender people. Queer and trans people at the intersection of multiple marginalized identities will bear their brunt. Precedents will be set, and Gorsuch may be the deciding vote in what those precedents are.

"Our community has made a lot of progress in the court system, which has encouraged even more [LGBTQ] people to pursue their rights through that court system," said Sarah Warbelow, Legal Director of the Human Rights Campaign, one of the nation's leading LGBTQ lobbying groups. According to Warbelow and other legal experts, cases in pursuit of those rights with Supreme Court potential can be divided into three general categories. The first seek to determine whether anti-LGBTQ discrimination is a form of sex discrimination. Under Title VII of the Civil Rights Act of 1964, sex-based employment discrimination is illegal nationwide, but discrimination based on sexual orientation or gender identity is not. (A 2014 executive order protects employees of the federal government and its contractors from that sort of discrimination; on Tuesday, Trump announced he wouldn't rescind that order.)

Inclusive anti-discrimination laws do exist at the state level, but only in about two-fifths of states, leaving LGBTQ residents in many jurisdictions to discrimination in employment, housing, public accommodations, and other areas. Since federal law supercedes state law, many attorneys hope to prove that Title VII's prohibition against sex discrimination also covers homophobic and transphobic discrimination. And there are handful of viable cases that could bring that argument before the Court. On the sexual orientation front, there are Hively v. Ivy Tech Community College and Evans v. Georgia Regional Hospital, both of which involve lesbian-identified women who allege that their former employers harassed them, denied them promotions, and even terminated their employment on account of their sexual orientation. Hively is farther along than Evans—attorneys from Lambda Legal argued the case in the Seventh Circuit Court of Appeals last November—but "if either of those [cases] made it to the Supreme Court, they could set a precedent that sex discrimination covers sexual orientation," said James Essecks, Director of the American Civil Liberties Union's LGBT and HIV Project.

As for gender identity, Blatt v. Cabela's Retail Inc. argues that Pennsylvania woman Kate Lynn Blatt was discriminated against and fired by her employer because she is trans, and that her treatment violated both Title VII and the Americans with Disabilities Act. Perhaps the most high-profile court case involving anti-trans discrimination is G.G. v. Gloucester County School Board, which the Supreme Court will review sometime this year (possibly before Gorsuch would have a chance to hear arguments). It involves Gavin Grimm, a trans high school senior from Virginia. After he publicly disclosed his identity, Grimm's school board adopted a policy prohibiting him from using communal boys' restrooms on campus. Grimm's ACLU legal team allege that's tantamount to sex discrimination under Title IX, the law that ensures equal opportunity in federally funded education regardless of sex. Also of note is Carcaño v. McCrory, a pending Title IX challenge to North Carolina's anti-trans bathroom bill, the notorious HB2.

Another group of LGBTQ-related cases Gorsuch could preside over question the legality of discrimination against queer and trans people in the name of "religious freedom," among other ethically deplorable but somewhat constitutionally sound defenses. (See the recently resurfaced First Amendment Defense Act, which Trump has promised to sign should it reach his desk.) Can a florist refuse to do business with a gay couple because she believes that homosexuality is a sin? Can a medical provider deny a transgender person transition-related coverage for similar reasons? These are the kind of questions that lie at the heart of cases like Ingersoll v. Arlene's Flowers, Craig and Mullins v. Masterpiece Cake Shop, and Franciscan Alliance v. Burwell. Given Gorsuch's record on Hobby Lobby, which involved similar principles of religious liberty, it's not hard to imagine where he might fall in these cases.

The third group of LGBTQ-related cases threaten to "roll back past victories," according to Pooja Gehi, executive director of the National Lawyers Guild, a legal advocacy group. One such victory? Same-sex marriage, which is being challenged in Texas with Pidgeon, et al., v. Mayor Sylvestor Turner and City of Houston, and in Arkansas by way of Smith v. Pavan, et al. Neither case stands a chance of overturning Obergefell v. Hodges, the 2015 Supreme Court decision that effectively legalized same-sex marriage nationwide, but that's not their intended goal. Instead, they're intended to chip away at smaller elements of the ruling—say, the right to spousal benefits or to name non-biological parents on a newborn's birth certificate. Queer and trans people won't lose the right to marry per se, but their unions won't be as inclusive as those of different-sex couples if marriage equality opponents are successful.

With the nomination of Gorsuch, Trump has pushed his envisioned Supreme Court further to the right, and away from the best interests of all but the most privileged classes of queer and trans Americans. Should he have the opportunity to nominate additional justices in the future, the bench will only become more conservative. Still, legal experts have not lost hope yet.

"For decades, the federal government was openly hostile to [advocates for LGBTQ civil rights], so we pursued a strategy of state-based incremental progress. This is very familiar to many of us who have been in the movement for decades," said Janson Wu, the executive director of the New England-based GLBTQ Legal Advocates and Defenders. "We need to fuel change at every level of government. We need to be working to make change on all fronts including elections, lawsuits, direct action, and public persuasion. No one can do everything, but everyone must do something. If we all do something together, then we will be able to create lasting change."

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