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.
Opinions
SAVE Act could silence millions of trans voters
New administrative barriers pose threat to voting rights
In Washington, debates over voting rights usually arrive loudly — through court rulings, protests, or sweeping legislation that captures national attention.
The Safeguard American Voter Eligibility (SAVE) Act, now under debate in Congress, may reshape voting access in a quieter way — through paperwork. The bill would require Americans registering to vote in federal elections to present documentary proof of citizenship, such as a passport or birth certificate. Supporters argue the measure would strengthen election integrity and restore public confidence in the voting process. But for millions of eligible voters, particularly transgender Americans, the practical consequences could be far more complicated.
According to Gallup, about 1.3% of U.S. adults identify as transgender, representing roughly 3.3 million Americans. Far from disengaged politically, transgender voters participate in elections at high rates. Data released by Advocates for Trans Equality shows 75% of transgender respondents reported voting in the 2020 election, compared with 67% of the general population. Registration rates are also higher.
This is a community that shows up for democracy. Yet the SAVE Act could place new administrative barriers directly in its path. Birth certificates, the document many supporters believe should verify citizenship are among the most difficult identity records for transgender Americans to update. According to data released by The Williams Institute at UCLA Law School and the U.S. Transgender Survey, 44% of transgender adults had updated their name on government identification, but only 18% had successfully updated their birth certificates.
That gap matters.
If birth certificates become a central requirement for voter registration, millions of eligible transgender Americans could face bureaucratic obstacles that other voters rarely encounter.
History offers a warning. According to the Bipartisan Policy Center, Kansas implemented a similar proof-of-citizenship law that blocked more than 30,000 eligible voters from registering before the Kansas Supreme Court struck it down as unconstitutional.
At the same time, evidence suggests voter fraud remains extraordinarily rare. Research cited by the American Immigration Council estimates fraud at roughly 0.0001% of votes cast.
The question before lawmakers is not whether election security matters. It clearly does. The question is whether policies designed to solve a rare problem could intentionally disenfranchise legitimate voters.
The broader cultural debate surrounding gender identity often becomes emotionally charged, particularly when conversations turn to pronouns or language. Yet polling suggests the issue remains unfamiliar to many Americans. A 2022 YouGov poll found only 22% of Americans personally know someone who uses gender-neutral pronouns.
Meanwhile, the problems weighing on everyday Americans are far larger: rising grocery prices, health care costs, housing shortages, and economic struggles in both rural towns and urban neighborhoods. Yet, many conservatives choose to focus unnecessary time, energy, and resources litigating the use of pronouns.
A healthy democracy should be able to debate cultural questions without allowing them to become barriers to the ballot box.
So, what should transgender Americans, and allies, do in this moment? First, stay engaged politically. Contact legislators and explain how identification requirements affect real voters. Personal stories often reach policymakers in ways statistics alone cannot.
Second, document the impact. Write letters to local newspapers, share experiences publicly, and ensure the real-world effects of voting policies are visible.
Third, consider running for office. Local school boards, city councils, and state legislatures shape many of the rules governing elections. Finally, protest with discipline and purpose. The most transformative movements in history — from Mahatma Gandhi to Dr. Martin Luther King Jr. — were rooted in peaceful persistence and moral clarity.
The SAVE Act may ultimately pass, fail, or change significantly as Congress debates it. But the larger principle at stake should guide the conversation. America’s democracy has always grown stronger when more citizens can participate, not when the path to the ballot becomes harder to navigate. For transgender voters, and for the country as a whole, that principle remains the quiet foundation of the republic.
James Bridgeforth, Ph.D., is a national columnist on the intersection of politics, morality, and civil rights. His work regularly appears in The Chicago Defender and The Black Wall Street Times.
Opinions
The frightening rise of antisemitism, Islamophobia
Trump, Netanyahu to blame for inflaming tensions
We can lay the rise in antisemitism and Islamophobia directly at the feet of the felon in the White House, and the criminal at the head of the Israeli government. Both Trump and Netanyahu belong in jail, not leading their governments.
I am a proud Jewish, gay man, and the homophobia and antisemitism the felon in the White House is generating are truly frightening. I am assuming my Muslim friends are feeling the same way about the Islamophobia he is causing to rise. While people have always been racist, homophobic, Islamophobic, and antisemitic, Trump has given tacit permission, with his statements, actions, and now his war on Iran, for those feelings to be shouted in the public square, and in the worst-case scenarios, acted on with violent attacks.
We can clearly attribute the rise in antisemitism around the world, to the actions of the right-wing, war criminal, leader of the Israeli government, Benjamin Netanyahu, and what he is doing to destroy Gaza, murdering innocent Palestinians, and now again bombing innocents in Lebanon.
This is all seeping into the politics of our nation. One organization promoting antisemitism and expecting it of the candidates they endorse, is the Democratic Socialists of America (DSA). They went so far as to take away an endorsement at one point, from one of their most ardent supporters, Rep. Alexandria Ocasio-Cortez (D-N.Y.), because she refused to fully support their anti-Zionist platform and their support of BDS. The DSA took issue with “[Ocasio-Cortez’s] votes, including a vote in favor of H.Res.888, conflating opposition to Israel’s ‘right to exist’ with antisemitism,” and a press release in April she co-signed that “support[s] strengthening the Iron Dome and other defense systems.” In their 2025 platform DSA called for a single state from the ‘river to the sea’ as the Palestinian right to resist, thereby eliminating the State of Israel. It goes with their support of BDS and anti-Zionist positions. It is fair to see that as antisemitism.
I am a Zionist, in the sense of the term as coined by Theodor Herzl. I am a believer in, and supporter of, the State of Israel. I am also for a Palestinian state. I am opposed to what Israel’s current government, led by a war criminal, is doing. I had hoped he would have abided by what former President Biden said to him immediately after Oct. 7. “Don’t make the same mistake we did after 9/11. Temper your response.” But instead, Netanyahu has murdered Palestinians by the thousands, destroying Gaza. He was rightfully declared a war criminal and should be brought to justice. He has made things worse both for the people of Israel, and Jews around the world. He has been responsible for antisemitism around the world once again rearing its ugly head. Now, two and a half years after Hamas’s attack on Israel, he is still murdering Palestinians, and now again more people in Lebanon and Iran. He still denies the Palestinian people need a home, a state of their own. He promotes settlements on the West Bank that should be part of a Palestinian state and refuses to prosecute settlers who commit crimes against the Palestinian people there.
My parents and relatives had to flee Hitler. Some came to the United States, and some immigrated to Israel. My father’s parents were killed in Auschwitz. I believed it could never happen again. But the felon in the White House, and criminal in Israel, are abusing me of that notion. Their policies of greed and corruption are leading to danger for all the people of the world. They are leading us into a third world war. The felon is attempting to steal, yes steal, billions through his phony ‘Board of Peace’ where he is screwing the Palestinian people out of their homes in Gaza. It is insanity, and we are all suffering for it; Jews, Muslims, and the rest of the world, as we are thrown into war none of us wants.
Now as I wrote, the DSA, tells people all Zionists are the enemy, without a definition of what a Zionist is. They expect their supporters not to recognize the State of Israel. They create antisemitism, and now in D.C. we have a candidate running for mayor, Janeese Lewis George, asking for, and getting their support. They also have in their platform to defund the police. Those things should frighten all the people of D.C. Any candidate who can run on the DSA platform must be deemed unacceptable to anyone who opposes prejudice and discrimination of any kind. One prejudice leads to others and gives rise to people feeling they can be open about not only their antisemitism, but their Islamophobia, racism, and sexism, as well.
We need all the good voters in the District of Columbia to find these DSA positions unacceptable, and reject any candidate who solicits, and takes their endorsement.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Botswana
The rule of law, not the rule of religion
Bonolo Selelo and Tsholofelo Kumile are challenging the Botswana Marriage Act
Botswana was in a whole frenzy as religious and traditional fundamentalists kept mixing religion and constitutional law as if it were harmless. It is not. One is a private matter of belief between you and God, while the other is the framework that protects and governs us all. When these two systems get fused, the result is rarely justice. It results in discrimination.
The ongoing case brought by Bonolo Selelo and Tsholofelo Kumile challenging provisions of the Botswana Marriage Act has reignited a familiar debate in Botswana. Some commentators insist that marriage equality violates religious values and therefore should not be recognized by law. It is a predictable argument. It is also fundamentally incompatible with constitutional governance.
Botswana is not a Christian state. It is a constitutional democracy governed by the Constitution of Botswana. That distinction matters. In a constitutional democracy, laws are interpreted in accordance with constitutional principles such as equality, dignity, protection, inclusion and the rule of law, rather than the doctrinal beliefs of any particular religion.
Religion has no place in constitutional law and democracy
The central problem with religious arguments in constitutional disputes is simple in that they divide, they other, they contest equality and they are personal. Constitutional law by contrast, must apply equally to everyone.
Botswana’s Constitution guarantees fundamental rights and freedoms under Sections 3 and 15, including protection from discrimination and the right to equal protection of the law. These provisions are not conditional on religious approval. They exist precisely to protect minorities from the preferences or prejudices of the majority.
Legal experts, such as Anneke Meerkotter, in her policy brief in Defense of Constitutional Morality, point out that constitutional rights function as a safeguard against majoritarian morality. If rights depended on whether the majority approved of a minority’s identity or relationships, they would not be rights at all. They would merely be privileges.
This principle has already been affirmed in Botswana’s jurisprudence. In the landmark decision of Letsweletse Motshidiemang v Attorney General, the High Court held that criminalizing consensual same-sex relations violated constitutional protections of liberty, dignity, privacy, and equality. This judgment noted that constitutional interpretation must evolve with society and must be guided by human dignity and equality. The court emphasized that the Constitution protects all citizens, including those whose identities, expressions or relationships may be unpopular. That ruling was later upheld by the Court of Appeal of Botswana in 2021, reinforcing the principle that constitutional rights cannot be restricted on grounds of moral disapproval alone. These decisions were not theological pronouncements. They were legal determinations grounded in constitutional principles.
The danger of religious majoritarianism
When religion is used to justify legal restrictions, the result is what constitutional scholars call “majoritarian moralism.” It allows the dominant religious interpretation in society to dictate the rights of everyone else. That approach is fundamentally incompatible with constitutional democracy. Botswana is religiously diverse. While Christianity is the majority faith, there are also Muslims, Hindus, traditional spiritual communities, Sikh and people who practice no religion at all. If the law were to follow the doctrines of one religious group, which interpretation would it adopt? Christianity alone contains dozens of denominations with different views on love, equality, marriage, sexuality, and gender. The moment the state begins to legislate on the basis of religious doctrine, it implicitly privileges one belief system over others. That undermines both religious freedom and constitutional equality. Ironically, keeping religion separate from constitutional law is what protects religious freedom in the first place.
Judicial independence is the cornerstone of Botswana’s governance system
The current case involving Bonolo Selelo and Tsholofelo Kumile is before the judiciary, where it belongs. Courts exist to interpret the Constitution and determine whether legislation complies with constitutional rights. Political and religious lobbying, as well as public outrage, must not influence that process.
Judicial independence is the cornerstone of Botswana’s governance system. According to the International Commission of Jurists, judicial independence ensures that courts can make decisions based on law and evidence rather than political or social pressure.
When governments, political, religious, or traditional actors attempt to interfere in constitutional litigation, they weaken the rule of law. Botswana has historically prided itself on having one of the most stable constitutional systems in Africa. The judiciary has played a critical role in safeguarding rights and maintaining legal certainty. The decriminalization case demonstrated this. Despite strong public debate and political sensitivity, the courts assessed the law according to constitutional principles rather than moral panic. The same standard must apply in the current marriage equality case.
This article was first published in the Botswana Gazette, Midweek Sun, and Botswana Guardian newspapers and has been edited for the Washington Blade.
Bradley Fortuin is a consultant at the Southern Africa Litigation Center and a social justice activist.
