The 2017 Top 3 Developments for LGBT Rights in the Courts

What a year. Trump and his administration launched an unprecedented attack on the rights of LGBT people. State courts tried to chip away at the Supreme Court’s marriage equality ruling. And who knew there were so many bigoted bakers out there?

I am not going to attempt to summarize all the major legal developments for LGBT rights in 2017. But here are my top three.

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1. Justice Gorsuch and the Anti-LGBT Judge Picks

Federal courts have been the one thing standing between Donald Trump and his unconstitutional policies. Unfortunately, things are about to change. Trump and far right special interest groups, including the Heritage Foundation, Federalist Society, and the Judicial Crisis Network have been stacking the courts with anti-LGBT extremists. And despite its important role to oversee judicial confirmations, the Senate has been quickly rushing these Trump nominees through with a rubber stamp. Neil Gorsuch, Trump’s SCOTUS pick has been as bad, or worse than we thought. For example, in June, Gorsuch dissented in a case where SCOTUS overturned a decision of the Arkansas Supreme Court that allowed the state to treat same-sex married couples differently. In Pavan v. Smith, Gorsuch wrote: “Nothing in Obergefell indicates that a birth registration regime based on biology… offends the Constitution.”

But Gorsuch isn’t alone in his anti-LGBT views. Let’s take a look at some of the worst anti-LGBT #TrumpJudges.

John Bush (6th Circuit): John Bush used a “secret” online identity to post bizarre rants. In one post, he called then-House Speaker Nancy Pelosi “Mama Pelosi” and wrote for her to be gagged. He used the word “faggot” in a public speech. And he compared abortion to slavery and Roe v. Wade to Dred Scott.

Steven Schwartz (Court of Federal Claims): Schwartz defended extreme anti-transgender policies, including HB2. He filed brief arguing that Title IX does not protect transgender students and that Gavin Grim shouldn’t be able to use the male restroom.

Steven Grasz (8th Circuit): Grasz received a unanimous unqualified rating from the American Bar Association for issues concerning his inability to set aside extreme bias. Grasz served on the board of the Nebraska Family Alliance, an anti-LGBT group that supports conversion therapy. He fought efforts to prohibit anti-LGBT discrimination, arguing that it threatens religious liberty.

Jeff Mateer (District Court, TX): Jeff Mateer called transgender kids evidence of “Satan’s plan.” What more do you want? Fortunately, his nomination was stopped thanks, in part, to the efforts of advocacy groups like Lambda Legal and the National Center for Transgender Equality.

Damien Schiff (Court of Federal Claims): Schiff wrote a piece titled “Teaching ‘Gayness’ in Public Schools,” arguing that California was teaching that “the homosexual lifestyle is a good, and that homosexual families are the moral equivalent of traditional heterosexual families.” In another piece, he referred to SCOTUS Justice Anthony Kennedy as a “judicial prostitute.”

2. W. W. K. D?

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Speaking of Justice Kennedy… There were several LGBT rights cases that were presented to the SCOTUS Justices this year. Once again, it’s all Kennedy, Kennedy, Kennedy.

Masterpiece Cakeshop: On December 5, SCOTUS heard argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case concerns the appeal of a ruling against a Denver-based bakery that refused a same-sex couple a wedding cake, citing religious beliefs. The Masterpiece case isn’t about cakes. It’s an attempt to gut our nation’s nondiscrimination laws. The ruling will have a huge impact on the lives of LGBT people.

As Professor Art Leonard noted in LeGaL’s Law Notes:

“Most commentators writing in advance of the argument predicted that the decision would come down to the views of Justice Anthony M. Kennedy, the author of the Court’s quartet of extraordinary pro-gay opinions in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges.”

Oral argument left many people worried that Justice Kennedy might try to strike a balance, rather than issuing a straight up pro-equality ruling.

Turner v. Pidgeon: On December 4, SCOTUS denied review in this case where the Texas Supreme Court held that the marriage equality ruling in Obergefell does not clearly require that a public employer, here Houston, provide equal benefits to same-sex and different-sex marriages. SCOTUS’s decision not to hear the case, could simply be because the case itself is not ready. After all, the Texas Supreme Court sent the case back down to the trial court for further consideration. Pidgeon is clearly inconsistent with SCOTUS’s summary reversal of the Arkansas Supreme Court’s ruling in Pavan v. Smith. In Pavan, SCOTUS made plain that states may not treat same-sex married couples differently than other married couples.

The Justices wrote:

“As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

At the time it was decided, Lambda Legal’s Ken Upton had this to say about the ruling in Pidgeon:

“This absurd contortion of the Obergefell ruling defies all logic and reason, especially in light of the Supreme Court’s explicit ruling on Monday that marriage is marriage and equal is equal.”

Evans v. Georgia Regional Hospital: This case is an appeal of a ruling by the 11th Circuit’s in Lambda Legal’s workplace discrimination case. The case was brought on behalf of Jameka Evans, who worked as a security guard at Georgia Regional Hospital, where she was harassed and denied equal pay because she is a lesbian. Nevertheless, a three-judge panel of the 11th Circuit court held that sexual orientation discrimination was not prohibited by Title VII’s ban on sex discrimination in employment. The ruling created a split among the circuit courts. Earlier in the year, Hively v. Ivy Tech Community College, the entire 7th Circuit ruled that employment discrimination based on sexual orientation violates federal civil rights law.

But SCOTUS denied review. Once again, the decision not to hear the case could simply turn out to be that Evans was not the right vehicle. Perhaps the Justices are waiting for the decision of the entire 2nd Circuit in Zarda v. Altitude Express on the Title VII issue. But with rumors of a Kennedy retirement swirling, the denial in Evans leaves many SCOTUS-watchers nervously asking: “W. W. K. D?”

3. The Transgender Military Ban

Trump barely waited a month before attacking transgender people. Right out of the gate his administration withdrew guidance which protected transgender students in schools, leaving them vulnerable to harassment and discrimination. This October, Jeff Sessions wrote a memo to his Department of (In)Justice saying that courts would no longer recognize Title VII as protecting transgender people in the workplace.

But nothing tops Trump’s transphobic tweets.

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After Trump followed through on his tweets threatening to ban transgender military service, several of the national LGBT litigation groups, including Lambda Legal, NCLR, GLAD, ACLU and OutServe-SLDN, filed federal lawsuits challenging Trump’s directive. In October, a district court judge in D.C., granted a preliminary injunction, stopping the ban from taking effect. In November, a district court judge in Maryland issued a similar injunction. Then, in December, a federal court in Seattle also ordered an immediate halt to the discriminatory ban. Finally, late on December 29th, in a big win, the Trump administration announced it would not ask SCOTUS to block the district court’s order in the D.C. case requiring enlistment of transgender individuals.

As NCLR’s Legal Director Shannon Minter put it:

“This is a major victory in the litigation and great news for transgender troops, transgender military academy and ROTC students, and transgender people who have been waiting to enlist. There is no reason to exclude transgender people from military service, especially when they have already proved their ability to serve. Transgender people are part of this country, and their willingness to take on the hardships and sacrifices of military service should be honored, not banned.”

On January 1, for the first time ever, transgender Americans will be able to openly enlist in the military.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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