It was 10 years ago this week — on June 26 — when gay marriage became the law of the land with the landmark Supreme Court decision Obergefell v. Hodges. Both Jim Obergefell and Freedom to Marry founder Evan Wolfson contributed to the foreword of a new coffee table book, “LOVE: The Heroic Stories of Marriage Equality,” curated by photographer Frankie Frankeny and writer John Casey.

With the current political climate, many fear that marriage equality could be overturned. In my last interview with Evan Wolfson back in 2017, Trump had just started his first term. I asked him then, “Is gay marriage safe?”

Here’s what he said:

“Look, anything can happen. So I don’t think we should ever be complacent or give up or stop working. Even though the election was a catastrophe and our country is very much on the wrong path, I actually think there are other communities, values, and causes we care about that are more in danger. If we stand in solidarity with others and keep moving forward, we will also secure our own gains.

“I’m not really worried they’re going to take away the freedom to marry. That’s a very hard thing to do. Even former or current opponents are mostly focused on other things.

“We won the freedom to marry not just in court, but by shifting public opinion—growing support from 27% when I argued the first trial in Hawaii to 63% in 2015 when the Supreme Court ruled. That didn’t go away on Election Day. More than a million gay people have gotten legally married in the U.S.—and each of those marriages represents family, friends, and allies who support them. That didn’t go away either.

“We won over a hundred court rulings before the final one, and that legal foundation didn’t disappear. We built ‘facts on the ground,’ shifted opinion, mobilized allies. We have to keep doing that work.

“And Gallup just reported record-high support for marriage equality—up to 47% even among Republicans. So yes, we need vigilance, but I don’t think losing marriage equality is the biggest threat we face.”

I recently asked Wolfson if he still stands by that statement.

“So far, I stand by everything I said,” Wolfson responded. In our new conversation, Wolfson elaborated:

“There are other communities and values in more immediate danger. If we stand in solidarity and keep moving forward, we’ll secure our own rights too.

“I’m not worried they’re going to take away the freedom to marry. That’s extremely difficult to undo. Even our opponents have moved on to other battles.

“Let’s remember how we got here: by winning over public opinion through years—decades—of organizing, storytelling, and showing up. When we stood before the court in 2015, public support had climbed from 27% to 63%. That was no accident. And it hasn’t gone backward.

“Of course people are worried now. There’s a lot to worry about. But sitting around cataloging 100 possible future disasters won’t help. If you’re worried—about marriage, about immigrants, about anti-Semitism, the economy, women’s rights, trans rights, democracy—then the answer is to get to work. Worry doesn’t protect us. Action does.”

He added:

“It’s hard to undo a right. It can happen—look at Dobbs overturning Roe v. Wade—but it’s rare. And even if the Supreme Court were to roll back Obergefell, we put a fallback in place: The Respect for Marriage Act.

“Thanks to that bipartisan legislation—signed by President Biden on the White House lawn—any marriage performed legally in one state must be recognized in all 50 states and by the federal government. Even if Obergefell fell, couples could still marry in states where it remains protected and be recognized nationally.

“That act passed with support from Republicans, including some who once voted for the so-called Defense of Marriage Act.

“So yes, I understand the fear. But fear alone won’t protect us. We all need to do the work—each in our own way.”

Wolfson also reflected on the broader threats to democracy:

“None of us is 100% safe from the assaults and corruption of this current regime. That’s why we must reclaim political power—by electing better lawmakers, reforming the courts, and reaffirming the rule of law, democracy, and pluralism.

That’s not just an LGBT issue—it affects everyone. But queer people, especially trans people, are among those most targeted. And we’ve seen how divide-and-conquer politics and demonization are weaponized to climb to power.

“The trans conversation is at an earlier stage than that for gay people, which makes it more vulnerable. Republicans are exploiting that. And yes, some missteps in our activism have made things harder. But we can course-correct.

“Books like Frankie’s remind us of what we’ve already overcome: the AIDS crisis, Reagan-era discrimination, legal persecution. We rose to those challenges, and we can rise to this one.”

As Wolfson puts it:

“This is our generation’s call to action. We have to respond. And if we do it together—with solidarity and purpose—we will protect the people and values we love.”

“LOVE: The Heroic Stories of Marriage Equality” includes more than 360 pages of wedding photos and stories that are inspiring to read. The book is available everywhere. 

Anti-trans legislation passed this week by North Carolina’s Republican-controlled General Assembly will now head to the desk of Democratic Gov. Josh Stein, potentially setting up a showdown with just a few days before the legislature is set to break for the summer recess.

State Rep. Allison Dahle (D-Wake) told the Washington Blade during a phone interview Monday that she was “as confident as I can be” that Stein will reject the bills and also that her Democratic colleagues will line up behind him to block Republicans if they try to override the governor’s veto, which would require support from three-fifths of the House and Senate.

At the same time, there is a good chance one or two members will decide the outcome. Holding 30 of the 50 Senate seats and 71 of the 120 House seats, Republicans can clear the three-fifths threshold so long as there are no defections or abstentions and at least one House Democrat joins with the GOP caucus to override a veto.

Additionally, Dahle stressed that there are no guarantees, particularly as redistricting and shifting demographics can upend expectations for how legislators might ultimately come down on controversial votes. For example, legislation easing gun control restrictions was vetoed last week but remains in limbo because 10 House Republicans did not vote while two joined the unified Democratic caucus in opposing the bill. 

With respect to the anti-trans bills passed this week, Dahle said she will “work within every inch, every millimeter of my power” to stop them from becoming law. 

First was the Parents Protection Act, which per the Associated Press would “shield parents, guardians and caregivers from being cited for child abuse or neglect because they ‘raise a juvenile consistent with the juvenile’s biological sex,'” and prohibit adoption agencies from denying applicants based on their “unwillingness to allow the child to transition.”

The General Assembly passed the measure Monday with nine House Democrats joining with the GOP caucus. If those margins hold, Republicans would easily have enough support to override a veto. 

On Tuesday, the North Carolina Senate passed a bill aimed at strengthening protections against the online sexual exploitation of women and children, legislation that had earned broad bipartisan support before Republican senators led by Buck Newton (Wilson) tacked on a series of anti-trans measures in committee last week, costing four votes from his caucus. 

The provisions targeting transgender rights are effectively extensions of culture war legislation  that was passed in 2023 during North Carolina’s last legislative session with Republicans overriding a veto from then-Democratic Gov. Roy Cooper.

Specifically, the bill passed on Tuesday would (1) extend the existing ban on most gender-affirming care for minors such that prisoners would not receive state funded gender transition hormones and therapies, (2) require officials who provide new birth certificates with updated gender markers to attach the original document with the individual’s birth sex, and (3) affirm the restrictive definitions for sex and gender that were outlined in President Donald Trump’s Jan. 20 “Defending Women” executive order.

Implications extend well beyond NC

North Carolina’s politics are often eyed as a bellwether or harbinger of trends and developments well beyond its borders because the state’s electorate is closely divided, races are often decided by razor thin margins, and control of the three branches of government is split between the two parties.

One clear take away from the anti-trans bills passed by the General Assembly this week, as noted by the AP, is how closely these efforts align with Trump’s policy agenda in his second term. 

Dahle suggested that the culture war bills proposed and supported by her GOP colleagues, including those now awaiting Stein’s signature or veto, reflect the extent to which far-right wing advocacy groups are increasing their influence and exercising their leverage over conservative-led policymaking in the Tar Heel State.

Asked whether she thinks the battle over trans rights legislation in her state will have national implications, Dahle said North Carolina and Texas tend to be where Republicans launch trial balloons to see how far they can push their extreme policy proposals and their efforts to, for instance, undermine elections or redraw district maps to disadvantage Democrats.

She pointed to Allison Riggs, a Democrat who was sworn into the North Carolina Supreme Court on May 13, more than 180 days after she was elected and following a months-long battle in which her Republican opponent and his allies and supporters sought to throw out more than 68,000 votes. Riggs during the ceremony called out “efforts to undermine our rights and our democracy.”

“That was a test case,” Dahle said. “They felt like they had to try.”

With respect to efforts to undermine trans rights through legislation, Dahle said arguments against government involvement in the private lives of its people that might once have appealed to conservatives or libertarians are not picking up traction.

“None of the old school Republicans are left,” she said. Those who have left the General Assembly “know that this is wrong,” while GOP members currently serving either believe these bills serve the best interests of their constituents because “they’ve been fed a line of B.S.” or “they’re just not paying attention and they’re voting with their caucus.”

Dahle continued, “The bills are so extreme. They’re going over anything and everything having to do with transgender people. I mean, anything that has to do with care. I still, for the life of me, don’t know how this has anything to do with family values.”

She added that Republican colleagues promised during debate over a book ban proposal earlier this year that it would be the last culture war bill for a while. “it was pretty much over, or that’s at least what I was told by my colleagues on the other side, and then this one just came out of nowhere.”

In a devastating loss for transgender youth and their families, the U.S. Supreme Court’s conservative supermajority on June 18 voted to uphold Tennessee’s law banning access to gender-affirming health care for minors in a 6-3 ruling that effectively shields similar restrictions in more than 20 other states.

Chase Strangio, a lead attorney for the plaintiffs in U.S. v. Skrmetti and the first trans lawyer to argue before the nation’s highest court, acknowledged the “setback” during a press call with reporters while stressing the need to “continue onward in the fight” because the avenues open to challenge laws like Tennessee’s Senate Bill 1 had not been fully extinguished.

Speaking with the Washington Blade on Monday, Professor Holning Lau of the University of North Carolina School of Law outlined the ramifications of the justices’ majority opinion and mapped out three ways in which cases aimed at striking down healthcare bans or other anti-trans policies and practices could play out in its wake.

An internationally recognized expert on equality rights, particularly in the contexts of sexuality, gender, and family life, Lau previously served as president of the ACLU of North Carolina’s board of directors and as a teaching fellow at UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.

He is also the co-author of a recent paper that examines the exceptions to laws prohibiting medical interventions for gender transitions in minors that permit “so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”

These carveouts, Lau and his colleague UNC Law School Associate Professor Barbara Fedders argue, cut against the reasoning cited by the lawmakers behind legislative restrictions targeting healthcare for trans youth like SB 1 and by the lawyers defending them in court.

Specifically, Lau told the Blade courts could interpret such “intersex exceptions” as evidence that gender affirming care bans were written with or are undergirded by sex stereotypes, unwarranted fears, and disgust — possible grounds to argue they should be struck down under the animus doctrine, which holds that government action motivated by hostility or prejudice towards a particular group is unconstitutional.

While there was some discussion of animus in the context of U.S. v. Skrmetti, notably in the concurring opinion by conservative Justice Amy Coney Barrett, the plaintiffs’ case focused primarily on “the sex discrimination argument because of Bostock v. Clayton County,” Lau said, referring to the 2020 Supreme Court case that determined sex-based discrimination in the context of employment, as defined by federal civil rights law, includes discriminatory conduct that is motivated by the victim’s sexual orientation or gender identity.

‘A huge, huge setback’

Five years after LGBTQ rights advocates were toasting their victory in the landmark case, which saw three of the conservatives on the High Court joining their liberal counterparts in a majority opinion written by Justice Neil Gorsuch, “a lot of folks may have reasonably thought that the logic of Bostock points towards this very straightforward sex discrimination argument,” Lau said, adding that liberal Justice Sonia Sotomayor “adopts that avenue of reasoning in her dissent” in Skrmetti.

“The way that the majority rejects the sex discrimination arguments in in the majority opinion of Skrmetti is not persuasive in my view,” he said. “I struggle for words to capture the reasoning of the majority opinion.”

Echoing Strangio’s remarks, Lau noted that Skrmetti “doesn’t completely close the door” to legal challenges but is nevertheless “a huge, huge setback.”

On the one hand, he said “lower courts might say that this was very much about the context of medical treatment and minors,” which means “there may still be cases that prevail having to do with transgender discrimination in other contexts, like the military ban or the restrictions on passports.” 

At the same time, however, Lau cautioned that “you could also read this case as signaling more obstacles ahead, especially if a case gets back to the Supreme Court” since “three of the justices have already signaled in Skrmetti that they do not view gender identity discrimination as warranting heightened scrutiny.”  

Litigation aside, young people and their families who will suffer the most direct and harmful consequences, namely the loss of access to medically necessary gender-affirming care, will have to navigate “a patchwork of state laws,” he said, which in many cases will mean relocating or traveling out of state for treatments that have been criminalized in the places where they live.

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the nationwide right to abortion, led to many of these same outcomes, he said. In an email following Monday’s phone interview, Lau further explained that “Dobbs unleashed conflicts between states, and there are signs that similar conflicts will arise with respect to gender-affirming care for trans youth.”

For example, he said “A growing number of states might seek to penalize interstate travel for gender-affirming care — targeting families who travel across state lines and/or medical providers who provide care to such families.”

“There is ongoing litigation concerning the constitutionality of interstate bans and shield laws in the abortion context, and those cases will bear significance on interstate bans and shield laws regarding gender-affirming care,” Lau said. 

Counsel for the plaintiffs in Skrmetti probably turned to Bostock because the case was “the most recent victory, and the most on point when it comes to gender identity,” Lau said.

The animus doctrine was an important element of cases that expanded equal rights and protections for LGBTQ people, he said, pointing to U.S. v. Windsor (2013), which struck down portions of the Defense of Marriage Act, a law that prohibited the federal government from recognizing same-sex marriages, and Romer v. Evans (1996) which struck down a Colorado constitutional amendment prohibiting the state from enacting any LGBTQ inclusive nondiscrimination rules.

Lau said those cases are examples of where the Supreme Court has found indirect evidence of impermissible animus in the laws under consideration by the way they were designed or structured, as opposed to more direct evidence like overt expressions of sex stereotypes, fear, and disgust toward a particular group that might arise during the legislative process.

These cases and the animus doctrine, Lau added, are closely associated with the late former Justice Anthony Kennedy, an appointee of President Ronald Reagan who was the “swing vote” responsible for ultimately deciding many of cases considered by the Roberts court where the justices were split 5-4.

Following his retirement in 2018 and the emergence of a 6-3 conservative majority, there is less certainty about how the justices might evaluate animus related arguments in the context of disputes over issues of gay or transgender rights, Lau said, especially relative to how they were expected to look at the reasoning central to the Bostock decision just five years ago. 

“I would have liked to see more” engagement with animus in the Skrmetti opinions, Lau said. Barrett in her concurrence did address the question, writing that there was a rational basis for Tennessee legislators’ SB 1, in contrast with the court’s findings in Romer, where the “sheer breadth” of law was “so discontinuous with the reasons offered for it that the [law] seem[ed] inexplicable by anything but animus toward the class it affect[ed]”.) 

“To be sure, an individual law ‘inexplicable by anything but animus’ is unconstitutional,” Barrett said. “But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied.” 

Lau said that notwithstanding her position on Skrmetti, the fact that Barrett “did make reference to the animus jurisprudence suggests that there is potentially a future for animus doctrine, even in the post-Kennedy Supreme Court.” 

Rather than the animus doctrine or Bostock’s reasoning that gender identity discrimination constitutes sex based discrimination, the court relied on Geduldig v. Aiello (1974), Lau said, which found that pregnancy discrimination “is not a type of sex discrimination” and remains a case that “strikes so many people as being incorrectly decided.” 

“Whenever I teach Geduldig v. Aiello, my students are shocked by the court’s reasoning,” he said, “and it’s so formalistic in its reasoning that it’s so divorced from people’s lived experiences.”

The same can be said for the majority opinion and concurrences in Skrmetti, Lau said, where the justices said “that even if transgender kids are the only ones seeking treatment for gender dysphoria, not all transgender kids are seeking this treatment, and kids can still get the treatment if they have a different type of diagnosis” such as any of the conditions delineated in the exceptions that were written into SB 1 and similar laws in other states. 

“One day, I imagine teaching [Skrmetti] and my students will be, likewise, shocked at the Court’s exceedingly formalistic reasoning,” he added. 

Legal challenges to anti-trans healthcare bans in a post-Skrmetti world

After Skrmetti, Lau said he expects to see cases challenging bans and restrictions on healthcare for trans youth that are based on state constitutional claims, noting “a case where there was a recent victory in Montana based on Montana’s constitution,” a win that came despite the fact that it was decided in a place that “might not strike you as particularly hospitable to transgender rights.” 

“The state constitutional law claims are particularly promising,” he said, “but it’ll be very context specific,” with the cases ultimately turning on the language contained in these different constitutions and “what sort of jurisprudence we have in each particular state.” 

Per Lambda Legal, “On Dec. 11, 2024, the Montana Supreme Court upheld a preliminary injunction that (Senate Bill) 99 was likely unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. The ruling rested entirely on state constitutional grounds, insulating transgender adolescents, their families and health care providers from any potential negative outcome at the U.S. Supreme Court.”

Lau said the remaining two primary avenues for challenging anti-trans healthcare restrictions are likely to be animus based claims and cases grounded in arguments about parental rights, a phrase that often crops up in the context of efforts to undermine rather than strengthen freedoms and protections for LGBTQ people. 

The reasoning was cited in a 2023 decision by a federal judge in Idaho who temporarily struck down the state’s ban on gender affirming care for kids, writing: “Transgender children should receive equal treatment under the law … Parents should have the right to make the most fundamental decisions about how to care for their children.”

Asked whether he believes jurists will consider parental rights or animus the more persuasive argument, Lau demurred, telling the Blade “I would be hesitant to say which one is more promising,” noting that animus claims often turn on very specific evidence that might show for example that the lawmakers behind a ban or restriction on transgender medicine were driven by sex stereotypes, irrational fear, or disgust toward a particular group.  

Animus and the intersex exceptions 

Asked whether anti-trans legislators are being counseled to avoid overt expressions of anti-trans sentiment or prejudice for fear that they might provide grounds for a successful legal challenge against their gender affirming care bans, he said “I think that’s very possible,” adding that “legislators are savvier now in terms of concealing their motives and their biases.”

“Philosopher Martha Nussbaum was monumental and unpacking disgust as an element of animus,” Lau said. “And so in my article, I try to unpack it to help readers connect the dots that there is this visceral disgust towards both intersex children and transgender minors, and that that can be connected to the doctrine of animus.”

In their paper, Lau and Fedders focused on the potential for courts to find inferred animus in laws like Tennessee’s SB 1 based on how they are structured, with sweeping restrictions on the one hand coupled with exceptions on the other that would allow families to pursue medical interventions for their children only when they have certain conditions or diagnoses. 

“If we couple that with evidence from the legislative record” pointing to animus “there may be a case to be made,” Lau said. 

Both the opinions in Skrmetti and the language of the SB 1 statute address how the law allows otherwise prohibited treatments or interventions to be administered to minors when they are indicated for diagnoses other than gender dysphoria or used for purposes other than gender transitions. 

“They don’t call them intersex exceptions,” Lau said, but rather “exceptions for congenital defects,” defined as “including DSDs, disorders in sexual development — or what many intersex advocates would now refer to as ‘differences’ in sexual development.”

Interact, an intersex rights organization, “filed an amicus brief in Skrmetti that dovetailed with my article in that they argued the intersex exceptions support the idea that there are sex stereotypes that undergird the gender affirming care bans,” he said. 

“I would like to see more discussion of the interplay between transgender rights and intersex rights,” Lau added, noting how questions about intersex vis-a-vis trans identities are relevant beyond the context of healthcare restrictions. For instance, he pointed to the Trump-Vance administration’s directive for the State Department to not allow passport holders to have the gender markers on their documents changed to align with their gender identity, also removing the option to select ‘X’ rather than the male/female binary category.

“The restrictions on passports not only affect transgender folks, but also non-binary and intersex folks as well,” Lau said. “And with respect to the bans on gender affirming care, not only do they restrict transgender youth’s access to gender affirming care, but they reflect and reinforce this understanding of intersex conditions that is very harmful and damaging to intersex youth.”