As progressives celebrate Donald Trump’s defeat and the end of an anti-LGBTQ administration, the cold, hard reality of his damaging four-year tenure hit home last week.
A three-judge panel on the U.S. Eleventh Circuit Court of Appeals in Atlanta ruled that bans on conversion therapy for youth in Boca Raton and Palm Beach violate freedom of speech protections under the First Amendment.
The surprise ruling represents a major setback for the movement to ban so-called “conversion therapy,” the absurd and widely discredited practice of attempting to change someone’s sexual orientation or gender identity. It also illustrates that while Trump’s disastrous three Supreme Court picks are bad, his effort to pack lower courts with right-wing ideologues could be worse.
The Eleventh Circuit ruling was a 2-1 decision; both judges who voted to overturn the bans are Trump appointees. Conversion therapy for youth is banned in D.C., Puerto Rico and 20 states. The result of this decision could imperil conversion therapy bans across the country.
Because of the decision, any state or municipality within the jurisdiction — which includes Alabama, Georgia, and Florida — would be unable to enact bans on conversion therapy. Existing bans on conversion therapy in Florida — which are found in two dozen municipalities, including Miami, Tampa, and Wilton Manors — are unconstitutional, as the Blade reported last week.
Legal experts are already warning not to pursue an appeal to the U.S. Supreme Court, due to its new 6-3 conservative majority. Shannon Minter, legal director of the National Center for Lesbian Rights, told the Blade: “I do not think this issue is ripe for Supreme Court review. Today’s ruling is an outlier by two Trump-appointed judges. As the dissent points out, the decision is not well grounded in precedent and ignores what the dissent rightly describes as a ‘mountain of rigorous evidence’ that conversion therapy puts minors at risk of serious harms.”
Trump has appointed about a quarter of all active federal judges in the United States, according to a study by the Pew Research Center, which noted that 85 percent of those picks were white. Although President Obama appointed a higher percentage of federal judges in eight years, Pew notes: “Trump, however, stands out for his unusually large number of appeals court judges — the powerful regional jurists who have the final word on most appeals that do not end up in the Supreme Court.”
Meanwhile, in her first week as a Supreme Court justice, Amy Coney Barrett heard her first LGBTQ-related case. In the case of Fulton v. City of Philadelphia, Catholic Social Services argues a First Amendment right to refuse to place children with same-sex couples, despite the city’s laws barring anti-LGBTQ discrimination. Oral arguments didn’t go well for the city. As the Blade reported: “During oral arguments, conservative justices — displaying open animosity toward non-discrimination rules for religious institutions — seemed poised to rule to allow Catholic Social Services to reject LGBTQ couples in foster care services.”
It’s hard to overstate the negative impact of a bad decision in Fulton, which would trigger an avalanche of discrimination against not just LGBTQ Americans, but religious and racial minorities, in areas of life from housing to hospitals.
It may well turn out that 2020 wasn’t the most important election of our lifetime, as many insisted. Instead, that distinction belongs to 2016. Hillary Clinton’s loss will reverberate for decades to come as Trump’s right-wing judges roll back the hard-fought progress of the LGBTQ movement. Today, it’s adoption rights in Philadelphia. Tomorrow, it will undoubtedly be the Obergefell marriage ruling in the crosshairs as the court moves to create the “skim milk marriage” that Ruth Bader Ginsburg warned about.
Kevin Naff is editor of the Washington Blade. Reach him at [email protected].