Opinions
Supreme Court poised to roll back LGBTQ rights
Rebalance stolen court via expansion, term limits
LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton County this past June, a case that extended the prohibition against discrimination in employment to include discrimination based on sexual orientation and gender identity. And with the most LGBTQ-friendly President-elect in U.S. history poised to take office in a matter of days, our community has even more reason to be hopeful.
Despite these positive developments, however, the Supreme Court poses a grave danger to the LGBTQ community. As the court ushers in a new era of conservative dominance—with anti-LGBTQ justices holding a 6-3 supermajority—the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside.
Justice Amy Coney Barrett’s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Roberts’ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobic and homophobic language, and even argued that Title IX does not protect transgender people. Her extremist positions will embolden the anti-LGBTQ conservative justices on the court – Justices Kavanaugh and Alito recently held an inappropriate private meeting with an anti-gay activist who had filed briefs in pending cases — and other Trump-appointed judges, as well as state legislatures to take anti-LGBTQ stances. With equality hanging in the balance, the LGBTQ community cannot afford a Supreme Court that stands to crush any progress made.
Marriage equality: In October, the Supreme Court denied certiorari to a case involving Kentucky woman Kim Davis, who refused to issue marriage licenses to same-sex couples. However, the denial of certiorari came with warning signs: Justices Alito and Thomas wrote a section that cast doubt on the constitutionality of Obergefell, the landmark Supreme Court case in which Justice Kennedy’s opinion that held that marriage is a fundamental right guaranteed to same-sex couples by the Constitution. In the certiorari denial, Justice Thomas wrote: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” While broad majorities of the American people support marriage equality and opponents of it might not have the votes on the Supreme Court to overturn the precedent, it is nonetheless a troubling sign that two Justices would sign onto discrimination against our fellow citizens.
Discrimination: The currently pending case before the Supreme Court about discrimination is Fulton v. City of Philadelphia. The case emerged from circumstances in 2018: The city of Philadelphia had hired a number of agencies for foster care service. When the city learned that two agencies denied same-sex couples as foster parents, Philadelphia threatened to stop using the agencies unless they agreed to nondiscrimination requirements. While one of the agencies complied, the other, the Catholic Social Services (“CSS”), sued the city in federal district court. The federal district court found in Philadelphia’s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.
The CSS claims that because the city looks to several factors, including religious and racial factors, in spite of anti-discrimination law, it cannot at the same time prohibit the agency from considering the sexual orientation of foster parents under the guise of “religious belief.” If Philadelphia makes exceptions to its anti-discrimination laws in foster placement, it must also allow religious agencies an exception as well. If Philadelphia does not do so, it violates the First Amendment. The city claims that it can choose not to provide government contracts to organizations that do not adhere to its nondiscriminatory requirements. For the court to decide otherwise, it would mandate that the city discriminate.
The stakes are high, in part because a ruling against equality in Fulton could provide cover for undermining Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away at Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority, Fulton could strike a big blow against equality.
Health care and family: If the Supreme Court strikes down the Affordable Care Act (ACA) in California v. Texas, health care protections for the LGBTQ community would be eliminated. Section 1557 of the ACA is the law’s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administration’s rule interpreted Section 1557’s ban on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously important for the LGBTQ community. The uninsured rate for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likely to report having regular access to health care. For transgender Americans, who are more likely to live in poverty or be unemployed and to face enormous challenges and have negative experiences accessing health care, the ACA’s Medicaid expansion and provision of individual health insurance through the marketplaces are critical. The 6-3 conservative supermajority on the court makes the end of the ACA significantly more likely, with disastrous consequences that will disproportionately affect the LGBTQ community.
Lawsuits challenging the Obama administration’s interpretation of Section 1557, particularly in regard to its ban on discrimination on the basis of gender identity, have been percolating in the federal courts for years. The Trump administration has attempted to reverse those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule. Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Court’s decision in Bostock v. Clayton County last term interpreting similar language in Title VII (discrimination on the basis of sex) to cover gender identity should be definitive, the 6-3 conservative supermajority could decide to distinguish these cases and allow for discrimination against LGBTQ individuals in health care. Since so many of the nation’s hospitals are affiliated with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuch’s language in Bostock suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care.
Transgender rights: In addition to the massive blow that a gutted ACA could have for transgender rights, other cases about transgender rights percolating in the lower courts may someday make their way to the Supreme Court. In Saba v. Cuomo, for example, a transgender, nonbinary resident sued the state of New York for refusing to allow Mx. Saba to obtain a driver’s license that accords with Mx. Saba’s gender identity. In August, a lower court preliminarily enjoined Idaho’s law that barred transgender women from participating on women’s sports teams. That decision is currently being appealed.
Just this past year, the Fourth Circuit and the Eleventh Circuit considered whether school bathroom policies violated transgender students’ rights. Though both circuits ruled in favor of the students, the Grimm case briefly reached the Supreme Court in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorari in a case involving transgender bathrooms, leaving a lower court’s trans-affirming decision in place. But it only takes four votes for the Court to take a case, and with a 6-3 supermajority now firmly in place, there is no telling the havoc it could wreak on transgender rights.
As we celebrate the end of the Trump era, and as we prepare to work with the incoming Biden administration to restore rights that have been destroyed over the past four years while advancing the case for equality, the LGBTQ community must pay attention to the danger posed by anti-LGBTQ justices, and we must advocate forcefully for judicial reforms such as court expansion and term limits that rebalance the stolen, illegitimate court.
Aaron Belkin is the director of the Palm Center and of Take Back the Court, and a political science professor at San Francisco State University.
The state of Tennessee has a long history of political discrimination against its 225,000 LGBTQ citizens. In 2019, a district attorney remarked that gay people should not receive domestic violence protections, and in 2023, for five months in Murfreesboro, homosexual acts in public were illegal, prompting a federal judge to have the ordinance removed.
In 2022, I briefly lived in Tennessee and played rugby with the LGBTQ-inclusive Nashville Grizzlies, who welcomed me with open arms as an ally, teaching me that rugby isn’t always about winning or losing – it’s about creating a safe, inclusive, and joyful space for people looking to feel welcome.
In Tennessee, where 87% of the LGBTQ community has experienced workplace discrimination, and where, each year, countless bills that target their identities are introduced, it can be difficult to feel welcome. The Nashville Grizzlies played rugby with the exuberance of newly liberated people who were finally able to be their authentic selves. I was inspired by their brotherhood.
When I read about the Charlie Kirk Act being passed last week, I felt a visceral need to write about it.
While the bill is presented as legislation that strengthens free speech and encourages greater public discourse on campuses, it would effectively allow a school to expel a student who felt compelled to walk out on a speaker with hateful views, forcing marginalized groups to sit through existentially harmful rhetoric.
And ironically, it doesn’t seem like free speech goes both ways — a Tennessee University administrator lost their job last year for sharing negative views on Charlie Kirk, and countless LGBTQ books have been banned not only in schools, but even in adult libraries.
We like to think that as time moves forward, progress is inevitable, but this isn’t always the case. In a 2023 study, 27% of LGBTQ Tennesseans and 43% of transgender people in the state have considered relocating, forcing them to reckon with leaving home in pursuit of a better life. Nashville Grizzlies Captain Ethan Thatcher told me, “I’ve thought about leaving Tennessee. Hard not to when the government does not want you here. What has kept me here is the Grizzlies community, and the thought that existence is resistance.”
Everybody in our country deserves to feel safe. I thought that was a core value of the American ethos, but apparently, in some states, certain groups are welcome while others are ostracized.
Tennessee Gov. Bill Lee should reject the Charlie Kirk Act.
Tyler Kania is a 2025 IAN Book of the Year nominated author and civil rights activist from Columbia, Conn.
Opinions
The latest Supreme Court case erasing LGBTQ identity
Chiles v. Salazar a major setback for movement
In its recent decision in Chiles v. Salazar, the U.S. Supreme Court invalidated Colorado’s law prohibiting licensed counselors from engaging in efforts to change the sexual orientation or gender identity of minors. The decision, which puts into question similar laws in 22 other states, relied on the First Amendment to hold that the law violates counselors’ free speech rights. But the decision also strikes a blow against LGBTQ dignity, a point the court’s opinion does not even address.
The eight-member majority, which included Justices Elena Kagan and Sonia Sotomayor, who usually side with LGBTQ groups, justified its reasoning by suggesting that the law was one-sided: it permitted treatment that affirms LGBTQ identity but forbade treatment that seeks to change it. But the law is one-sided, as Justice Ketanji Brown Jackson’s lone dissent pointed out, because the medical evidence only supports one side: reams of research show that “survivors of conversion therapy continue to suffer from PTSD, anxiety, and suicidal ideation.” And major medical associations all agree, no evidence demonstrates the efficacy of conversion efforts. This isn’t surprising. Medicine often take sides — some treatments work, and some don’t.
But particularly concerning is the vision of LGBTQ identity that undergirds the majority opinion when compared to the dissent. Justice Jackson’s dissent explains that LGBTQ identity is simply “a part of the normal spectrum of human diversity” — not something to be “cured.” By contrast, for the majority, how best to help LGBTQ minors is “a subject of fierce public debate.” That can hardly be the case if LGBTQ identity stands on equal ground with straight, cisgender identity, or if LGBTQ people are as deserving of safety, rights, and dignity.
Indeed, the LGBTQ rights movement only began in earnest when advocates in the 1960s decided to end the “debate” over gay identity. Until then, community leaders would routinely cooperate with psychiatrists who were interested in researching homosexuality as a medical condition. A new generation of activists, led by Frank Kameny, a key movement founder, began arguing that this got the issue upside down: Rather than wondering if they could be “cured,” LGBTQ people had to assert a right to their identity. As Kameny put it—“we have been defined into sickness.” Only once the case was made that it was society that had to change, and not LGBTQ people, could LGBTQ consciousness, LGBTQ pride and LGBTQ rights develop. Their activism led to the first Pride parade in New York, and the official declassification of homosexuality as a disease in 1973.
The Supreme Court’s conservatives don’t just want to reignite this half-century old medical “debate”; they also treat medical claims that undermine LGBTQ identity very differently from those who support it. Last year, in an opinion backingTennessee’s law that banned gender affirming care for minors, the court sympathetically marched through the reasons Tennessee offered for “why States may rightly be skeptical” of such care, and cited three times, in some detail, to “health authorities in a number of European countries” (that is, some Nordic countries and the UK) that had curbed pediatric care. It failed to mention that most of Western Europe and every major American medical association provides access to this care.
In Chiles, by contrast, the court cites none of the evidence that Colorado amassed that conversion therapy harms LGBTQ children. None of the countries that the court had invoked to justify anti-trans policies allow conversion therapy in their health care systems (indeed, one of them criminalizes such practices). So rather than cite medical evidence, the court simply asked — why trust medical evidence at all? “What if,” asks the court, “reflexive deference to currently prevailing professional views [does] not always end well?” and cites an infamous 1927 Supreme Court case, Buck v. Bell.
In Buck, the Supreme Court embraced eugenic reasoning, backing a eugenic state law that allowed the sterilization of individuals with mental disabilities, on the grounds that such disabilities were hereditary. As Justice Oliver Wendell Holmes opined, “three generations of imbeciles are enough.” Look at what happens when we listen to medical expertise, today’s court seems to say, as an excuse to disregard the LGBTQ-affirming medical evidence they don’t like.
But the court has missed the key lesson of Buck. The law at issue in Buckdiscriminated against a certain group, seeking, through sterilization measures, to erase it from existence. Indeed, LGBTQ people (whom doctors of the day would have referred to as sexual “inverts”) were exactly the kind of people that the eugenic program of Bucksought to eliminate. Conversion therapy seeks similar erasure.
The lesson of the 1960s LGBTQ rights movement remains as relevant today as it was then. Without an unapologetic LGBTQ identity, LGBTQ Pride, LGBTQ rights and the LGBTQ movement itself can all founder. By supporting only the anti-LGBTQ side in this medical saga — and by suggesting that LGBTQ existence is subject to medical debate at all — the court is reaffirming, rather than repudiating, minority erasure.
Craig Konnoth is a professor of law at University of Virginia School of Law.
I was disappointed when the Blade didn’t publish my response to a personal attack on me in a column by Hayden Gise, in last week’s print edition. They did publish it online. To be clear, I have no problem with people disagreeing with my columns and opinions. That is absolutely fair. But when they get into personal attacks, it often means they don’t have enough to say about the ideas they are trying to criticize.
In a recent column ‘Why the Democratic Socialists of America are right for D.C.,’ the author decided to attack me personally. Here is the response I wrote to her column:
“I am responding to a column by Hayden Gise who says in her column she is a transgender, lesbian, Jewish, Democratic Socialist, and supports having the Democratic Socialists of America (DSA) in Washington, DC. She is definitely as entitled to her view on this, as I am to mine. However, I was surprised she clearly felt it important to use the column to attack me personally, without even knowing me. What she didn’t do is respond to the issues in the DSA platform I wrote having a problem with, and which I asked candidates endorsed by the DSA to respond to. 1. Are they for the abolishment of the State of Israel? 2. What is their definition of a Zionist? 3. What is their definition of antisemitism? 4. Will they meet with Zionist organizations? 5. Do they support BDS? One needs to know when a candidate claims they are only a member of the local DSA, according to the DSA bylaws no person can be a member of a local DSA without being a member of the national organization. So Hayden Gise has a little better idea of who I am she should know: I was a teacher and a union member. I worked for the most progressive member of Congress at the time, Bella S. Abzug (D-N.Y.), and supported her when she introduced the Equality Act in 1974, to protect the rights of the LGBTQ community, and have fought for its passage ever since. I have spent a lifetime fighting for civil rights, women’s rights, disability rights, and LGBTQ rights. I have no idea what Hayden Gise’s background is, or what her history of working for the causes she espouses is. But I would be happy to meet with her to find out. But she should know, I take a back seat to no one in the work I have done over my life fighting for equality, including economic equality, for all. So, I will not attack her, as I don’t know her, and contrary to her, don’t personally attack people I don’t know much about.
“I have, and will continue to attack, what the government of Israel is doing to the Palestinian people, and now to those in Lebanon and Iran. I will also attack the government of my own country, and the felon in the White House, and his sycophants in Congress, for what they are doing to our own people, and people around the world, and will continue to work hard to change things. However, I will also continue to stand for a two-state solution with the continued existence of the State of Israel, calling for a different government in Israel. I also strongly support the Palestinian people and believe they must have the right to their own free state.”
I have not heard from Gise, but I hope she knows that since she wrote her column indicating her support for Janeese Lewis George for mayor, her preferred candidate has attended a birthday party to celebrate a person who still refers to gay people as ‘fags.’
We should not personally attack people we don’t know as a way to criticize their views on an issue. Once again, I have no problem with people disagreeing with what I write, and having the Blade publish those contrary columns. But a plea to all who disagree with any columnist, or story: disagree with the issues and refrain from making personal attacks on the writer. That actually takes away from whatever point you are trying to make.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
