Opinions
The unclear future of LGBTQ rights at the Supreme Court
Is there reason to hope the justices will surprise us?

(Washington Blade file photo by Michael Key)
The Supreme Court’s new term began Oct. 1. The justices have not yet accepted any cases squarely addressing LGBTQ rights questions; however, numerous appeals raising key issues for our community are waiting in the wings. As Brett Kavanaugh settles into his new position on the Court after a fractious confirmation process, many in the LGBTQ community are wondering which, if any, pending cases the Court will choose to hear and, if it does take on any such cases, how it will rule.
There’s no question that there’s a lot at stake.
There are four petitions now pending before the Court asking it to decide whether federal sex discrimination laws encompass discrimination based on sexual orientation or gender identity. If the Court agrees to hear any of these, its ruling could determine whether LGBTQ people are protected under current federal laws prohibiting discrimination in employment, education, housing and credit.
Two cases challenging President Trump’s attempt to bar transgender people from the military are at the federal courts of appeals, one step from the Supreme Court. One of them—Lambda Legal’s and OutServe-SLDN’s Karnoski v. Trump case—is being argued to the Ninth Circuit on Oct. 10.
Several cases already on appeal could again put before the Court as to whether there are circumstances in which businesses have a constitutional right to discriminate. In one, a Hawaii bed & breakfast owner is expected to soon petition the Court to review a decision that rejected her claim of a right to refuse a lesbian couple lodging.
Three suits questioning whether schools can bar transgender students from restrooms that match their gender identity also are now on appeal. So, too, is a case asking whether the city of Philadelphia acted properly in terminating its contracts with two religiously affiliated foster care agencies that refused to abide by the city’s sexual orientation nondiscrimination policies.
Accordingly, it could be a big year for LGBTQ Americans in the highest court of the land—but it might not be. The Supreme Court doesn’t have to consider any of these cases. Out of approximately 7,000 requests that the Court review lower court decisions each year, the Court agrees to hear about only 80, or slightly more than one percent of them.
Brett Kavanaugh’s recent confirmation brings even more uncertainty to the Supreme Court this year. Lacking a record of LGBTQ rulings, we still do not know for sure how Kavanaugh will rule on sexual orientation or gender identity questions. He has a record of ruling conservatively on many issues. Nonetheless, during his confirmation hearing, he repeatedly quoted from an opinion authored by his mentor, Justice Anthony Kennedy, that, “The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.”
Even if the new Justice Kavanaugh does end up siding with members of the Court who have dissented from the Court’s prior landmark victories for LGBTQ rights in any cases the Court agrees to hear, it may be possible to swing Chief Justice Roberts to join with the four justices who have ruled in favor of LGBTQ people in the past. Roberts previously voted with those justices in decisions rejecting a challenge to the Affordable Care Act, allowing cities to sue banks that targeted people of color for high-risk loans, and restricting the police’s ability to obtain suspects’ cellphone location data without a warrant. And notwithstanding Roberts’ criticism of the Court’s marriage equality decision, he subsequently voted to summarily reverse the Arkansas courts’ judgment that the state did not have to list both same-sex spouses’ names on their children’s birth certificates.
The Chief Justice’s votes sometimes reflect institutionalist concerns with preserving the Court’s legitimacy and stature. That impulse may cause him to decline to overturn certain prior precedents. It also may lead him to vote against hearing cases that may be especially divisive or to find ways to avoid particularly controversial outcomes that would subject the Court to criticism. That’s especially likely to weigh on his mind because of how partisan Justice Kavanaugh’s confirmation turned out to be.
There also are important cases already on the Court’s docket that go beyond LGBTQ concerns. For example, the Court has agreed to hear Gamble v. United States. That appeal asks the Court to overturn its precedent that the Constitution’s bar on double jeopardy—which prohibits prosecuting someone twice for the same offense—does not bar separate prosecutions for violation of state and of federal law based on the same conduct. The issue is important because, if that precedent were reversed, a presidential pardon of those indicted for federal crimes could preclude states from prosecuting them as well.
Time will tell. In the meantime, it’s imperative that we not give up hope and that we not put all our apples in the Supreme Court basket.
Jon Davidson is chief counsel for Freedom for All Americans.
When we’re out with friends, we ask a question that sometimes surprises people: Are you on PrEP?
PrEP is a medication that reduces the risk of getting HIV by about 99 percent when taken as prescribed. We’re both on it. And we both talk about it openly because too many people in our communities still haven’t heard of it, can’t access it, or have been made to feel like asking for it says something about who they are.
It doesn’t. Taking PrEP is about taking control of your health. It’s that simple.
But getting there wasn’t simple for either of us. Our paths to PrEP looked different.
Del. Martinez learned this firsthand. When he asked his primary care doctor about PrEP, the response wasn’t medical — it was judgment. Instead of a prescription, he got a lecture. He had to leave Maryland entirely and go to Whitman-Walker in D.C. just to get basic preventive care. He serves on the Health Committee and sits on the public health subcommittee. Even he couldn’t access HIV prevention in his own state. That reality was soul-crushing, not just for him, but because he immediately thought about every person in his community who doesn’t have the resources to find another way.
Phillip came to PrEP through his work at FreeState Justice, where he was learning about HIV transmission rates and the gap in PrEP access for queer people of color. Black Marylanders account for 65 percent of new HIV diagnoses but only about 35 percent of PrEP users. Latino Marylanders account for nearly 19 percent of new diagnoses but fewer than 8 percent of PrEP users.
Seeing those numbers, he had to ask himself why he wasn’t on it. When he walked into Chase Brexton’s HIV Prevention clinic in Baltimore, the experience was easy and affirming, exactly what it should be for everyone. No judgment, just care. That’s the kind of experience every Marylander deserves.
A proposed bill would make it the standard in Maryland. HB 1114 would let people walk into their neighborhood pharmacy and access PrEP without waiting months for a doctor’s appointment, remove insurance barriers that slow things down, and connect them to ongoing care.
Our stories are not unusual. When we talk to friends about PrEP — and we do, regularly — we hear the same things. People who didn’t know about it. People who tried and gave up. People who assumed it wasn’t for them. People who couldn’t afford it or couldn’t find a provider. There’s still misinformation out there, and there’s still stigma. Among women in Maryland, most new HIV diagnoses come from heterosexual contact, but PrEP is still rarely part of the conversation from their doctors.
When we talk to our friends about PrEP, we lead with honesty. Here’s what it does, here’s what it costs, here’s where to go. We talk about the different options: daily pills or long-acting shots. Generic options are available, and in many cases, free. If you’re sexually active, it might be right for you. It’s not a morality question. It’s a health question.
We try to make it feel approachable, because it should be. We answer every question, because sometimes we’re the first person someone has had this conversation with. It’s a conversation between people who trust each other. And it works, but it can only go so far when the system itself is still in the way.
We have the medical tools to virtually end new HIV transmissions. What we need now are the policies to make sure everyone can reach them. At a time when the future of federal HIV prevention programs is under attack, Maryland has both the opportunity and the responsibility to lead.
We’re asking our friends to take charge of their health. We’re asking Maryland to make it possible.
If PrEP sounds right for you, talk to your provider. If you know someone who could benefit, share what you know. And if you want to see Maryland get this right, tell your legislators to support HB 1114.
State Del. Ashanti Martinez represents District 22 in Prince George’s County in the Maryland House of Delegates, where he serves as Majority Whip and sits on the Health Committee. Phillip Westry is the executive director of FreeState Justice, Maryland’s statewide LGBTQ+ advocacy organization.
Opinions
A dream: Democrats focus on candidates who can win
Defeating every Republican has to be the goal in 2026, 2028
I know this is just a dream, but I am a dreamer and continue to hope Democrats can get beyond Black or white, gay or straight, man or woman; to look at who can win in 2026, and then in 2028. It’s often said each election is the most consequential in our lifetime. The next two actually are.
The reality is without change; we face losing our democracy. We have a racist, sexist, homophobic, lying felon, in the White House. He has a Cabinet of vile incompetents, and a cadre of fascist advisers, controlling our government. They threaten our freedoms, and even our health. They think the military is theirs to use at will, without restrictions. Again, my dream for elections in 2026 and 2028, is we put our personal desires aside, for the good of the nation.
Everyone is being hurt by Trump. Black women being fired in huge numbers. Transgender people literally having their lives threatened. The LGBTQ community facing new threats. Civil rights are being undermined, and the Latino community across the country is targeted. Women are losing the right to control their bodies. Our voting rights are being threatened, and all this is happening with the consent of the Republican sycophants in Congress who are either in complete agreement with the felon, or threatened into submission by him, and his fascist cohorts. This is what we are facing in the next two election cycles as we try to take back our country. As the opposition party, we must first take back Congress in 2026. If we succeed, we must replicate that success as we work to reclaim the White House in 2028.
I believe we must all be represented in our elected officials. For years I felt comfortable looking at the equality issue in choosing a candidate, as even in the worst-case scenarios, when losing meant the election of the likes of a Richard Nixon or Ronald Reagan, I never believed my country’s existence was threatened. They, and others like them, may have been vile, but none professed wanting to be king. They didn’t go to court seeking full immunity for anything they did and getting it from judges they appointed.
I am a proud gay man but will not automatically vote for an LGBTQ candidate in the next elections. In 2024, I worked hard, and proudly, to see two strong Black women elected to the United States Senate. In the 2008 primary I was proud to stand with Hillary Clinton, then support Barack Obama when he won the nomination. In 2016, I again stood with Hillary. In 2020, I proudly supported Kamala Harris as vice president and then supported her for president in 2024.
Today, I am looking at the next two election cycles differently. I have written the only way to win back my country is to look at which Democrat can win in a particular race. I will support a Democrat committed to voting for the Democratic leadership in the House and the Senate, and in their state legislature, even if they don’t support fully everything I want. Because when Democrats win the leadership, they set the agenda. The Democratic platform has been about the same for many years. It stands for equality in every area. Have we accomplished all we stand for, clearly NO. Have we made progress, clearly YES.
In these upcoming elections each Democrat may win their race with a different set of issues at the forefront. I have suggested in the morning they go to the diners in their district, and in the evening to the bars, to find out what people are talking about, and concerned about. Then respond to that by running on those issues. If there is a primary, demand each candidate pledge to fully support the winner. Think about what is said about Democrats and Republicans, “Democrats fall in love; Republicans fall in line.” Well in the next two election cycles, Democrats need to fall in line with every Democrat on the ballot in the general election willing to say, “if elected I will vote for, and support, the Democratic leadership.”
If we don’t commit to doing that in the next two election cycles, we may actually not have future elections. It is the only way we can stop the felon, and his fascist government, from winning. Defeating every Republican in 2026 and 2028, has to be the goal for all who care about our country, and moving on to the next 250 years. Not winning is not an option.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Opinions
Capital Pride must be transparent about sexual misconduct investigation
More questions than answers after two board members resign
We are living through some very difficult times in our country. We have a felon in the White House who has surrounded himself with incompetent sycophants and fascists. A Congress that bows down to him, often based on his threats. Things have gotten so bad that his supporters are beginning to wake up to the fact that he cares not a whit for them. They are demanding he stop hiding his involvement with the convicted sex trafficker, Jeffrey Epstein, and come clean. So, to distract them from this, he began a war in the Middle East in which members of the American military have already lost their lives. He says more lives will be lost. He hopes this war of distraction will have Americans forget his failed domestic policies and the Epstein scandal.
But at the same time that all of this is happening, I am forced to look around at organizations I support and ask if they are being open and honest in the way we are demanding of the felon in the White House.
Recently, I have received calls about an organization I have the utmost pride in: Capital Pride. The calls are about Capital Pride’s internal investigation of “a claim” made against a former board chair, who resigned and no longer has any role with the organization. There has been no public proof of any wrongdoing. At the time, Capital Pride announced it had retained an “independent firm” to investigate the complaint. Now, more than four months later, a second board member has resigned sharing her letter of resignation with the Blade.
Taylor Lianne Chandler, a member of the Capital Pride board of directors since 2019 who served as the board’s secretary, submitted a letter of resignation on Feb. 24 that alleges the board has failed to address instances of “sexual misconduct” at Capital Pride.
“This board has made its priorities clear through its actions: protecting a sexual predator matters more than protecting the people who had the courage to come forward. … I have been targeted, bullied, and made to feel like an outsider for doing what any person of integrity would do – telling the truth,” Chandler wrote in her resignation letter.
The Blade reported the organization announced, “As we continue to grow our organization, we’re proactively strengthening the policies and procedures that shape our systems, our infrastructure, and the support we provide to our team and partners.”
Again, it is four months later, and there has been no information from Capital Pride regarding that investigation.
Chandler said a Capital Pride investigation identified one individual implicated in a “pattern” of sexual harassment related behavior over a period of time. She added she was bound by a Non-Disclosure Agreement that applies to all board members and she cannot disclose the name of the person implicated in alleged sexual misconduct or those who came forward to complain about it. She added, “It was one individual, but there was a pattern and a history.”
Again, reading that letter from Chandler and because of the news being full of the Epstein scandal, it makes me want assurances that no organization representing my community will ever think it can cover up issues like this. Capital Pride leadership must be totally transparent.
Capital Pride is a wonderful organization with so many incredible people working and volunteering there. They make our community proud. I never want to see a blemish on the organization. So, I am calling on them to be open and transparent about the investigation they themselves announced, and let the community know what they found, in detail. More important even than the entire community knowing, is for their staff and volunteers to know what they found. No one should be bound by an NDA, which leads to people thinking something really bad is going on.
I thought twice, even three times, before writing this column. I don’t want it to be seen as casting aspersions on all of Capital Pride, or anyone who may have worked there, or volunteered there. But again, because of the focus on the Epstein scandal, and my writing about the felon and his Cabinet officials involved in it, my calling for them to come clean and tell us all they know, I feel compelled to say the same to the organization I have supported over the years, which even honored me as a Capital Pride Hero in 2016. I want them to move forward and be a beacon of light for our community for many years to come. The work they do makes a difference for so many.
I wrote in my memoir that coming to a Pride event helped me to come out, and I am sure it has done the same for so many others in our community. What Capital Pride does is important and it must be as transparent as we demand of any other organization.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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