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.
For years, transgender Americans have been told that visibility is important. We should tell our stories, educate people, speak publicly about our experiences and show younger transgender people that a future is possible. I understand that argument because I have participated in that kind of visibility myself. Nearly a decade ago, I appeared in National Geographic’s “Gender Revolution,” in 2017, hosted by Katie Couric. I have written publicly about being transgender, participated in LGBTQ politics and spent years thinking about what it means to transition in America. My history is hardly a secret. But as I have gotten older, I have increasingly found myself wanting something considerably less dramatic: I want the right to be an ordinary man.
That does not mean I am ashamed of being transgender, nor does it mean that transgender activists should stop fighting for our rights. Many of the freedoms I enjoy exist because previous generations of LGBTQ people were willing to be conspicuous when visibility carried considerable personal risk. But equality cannot require permanent visibility. There is a strange expectation placed upon members of minority groups that our lives should contain some larger social meaning. A transgender person who overcomes adversity is called “brave.” Someone who talks openly about transition becomes “inspiring.” Someone who succeeds becomes an example of “trans resilience.” Sometimes those descriptions are deserved and sincerely appreciated. But sometimes I do not want to represent resilience. Sometimes I just want to walk my dogs, sit in a coffee shop with my laptop, complain about Northern Virginia traffic, go swimming, write books and figure out what I am having for dinner. I also want to be able to gossip with my friends in meaningless ways and do off kilter things that resemble fun: axe throwing, bowling, and karaoke.
When I was younger, being transgender occupied an enormous amount of psychological territory. Transition required decisions, explanations and difficult conversations. Other people had questions. My body seemed consequential in a way that other people’s bodies did not. There was always another milestone ahead of me, and for a while it was difficult to imagine reaching a point when gender would no longer dominate my thoughts. Eventually, however, something unexpected happened: life became life again. The questions that occupy me today are increasingly the same mundane questions that occupy millions of other adults. What kind of career do I want? Am I being a good friend? What should I write next? What kind of person do I want to become?
Most strangers who meet me today simply see a man. They do not know my medical history or what I looked like years ago. They don’t know that I looked like a skinny track star, and then was put into the resemblances of a meager nonbinary body. They do not know the chronology of my transition unless I decide to tell them. There is tremendous freedom in that, and I have come to think of it not as deception but as privacy. Nobody introduces himself by providing strangers with a complete inventory of his medical history, childhood insecurities and previous identities. Human beings reveal themselves gradually. Different people know different parts of us, and intimacy develops when we decide that somebody has earned access to more of our story.
Yet transgender people are frequently encouraged to regard disclosure as a measure of authenticity. I no longer believe that it is. There are circumstances in which being transgender matters enormously, and there are others in which it barely matters at all. When I am writing, I want somebody to care about the quality of the sentence. When I am working, I want somebody to care whether I did the job well. When I make a friend, I want that person to discover the complicated human being underneath the surface: my ambitions, flaws, anxieties, ridiculous stories and sense of humor. Being transgender may eventually become part of that conversation, but it does not have to be the first thing somebody knows about me.
That, to me, is one of the least discussed promises of equality. For decades, LGBTQ people fought for the right to be seen because invisibility was often enforced through shame and discrimination. Visibility therefore became a form of liberation. But perhaps successful visibility should eventually produce another freedom: the freedom to become unremarkable. A gay couple should be able to bore their neighbors with complaints about their mortgage. A lesbian should not have to become an ambassador for lesbianism whenever she enters a room. A transgender man should not have to turn his body into a public seminar about gender. He should occasionally be allowed to be some guy. Transgender people, in a sense, should also have the right to be flawed: sometimes we yell at our romantic counterparts, and other times we get fired from jobs for being obnoxious. But we are only human, just like you.
There are, of course, transgender people who cannot or do not want to disappear into ordinary life, and there are young transgender people desperately searching for evidence that adulthood is possible for them. Visible transgender people can provide that evidence. But there should be another story available to those young people as well: you can grow up, transition and eventually spend less time thinking about transition. You can become preoccupied with your career, fall in love, get divorced, write a terrible first draft and spend three days fixing it, worry about your parents, buy groceries and acquire all the wonderfully tedious problems of adulthood.
That might not sound revolutionary, but perhaps that is precisely what makes it meaningful. The ultimate promise of transgender equality should not be that every transgender person becomes visible, celebrated, courageous, or inspirational. It should include the possibility that a transgender man can walk into a room and nobody finds his gender history particularly interesting. He can simply be a man living his life. Increasingly, I think that ordinary freedom is what I wanted from transition all along.
Isaac Amend is a transgender man and writer based in D.C. In 2017, he starred in National Geographic’s ‘Gender Revolution’ documentary. He sits on the board of the LGBT Democrats of Virginia. His author’s portfolio is available at isaacamend.com, and you can catch him on Instagram at: @isaacamend.
Opinions
LGBTQ community must vote in big numbers
We have a chance to retake Congress and flip governors’ mansions
On Nov. 3, we have a chance to make a difference for our own community, and for so many others, who are being hurt by the lying, grifting, felon in the White House, his fascist aides, and sycophants in Congress. The danger they pose is real.
We have seen members of the LGBTQ community have their lives threatened, and some even killed. The anti-trans language, and anti-trans legislation, both supported and proposed by this administration, and their MAGA followers around the nation, is real. In the Department of Defense, we have seen trans heroes drummed out of the military. Books on our community taken off library shelves, and our history being wiped out. Even the history of the Enola Gay, the plane that dropped the atomic bomb, was wiped out before someone actually told the dangerous, moron, Pete Hegseth, Secretary of Defense, that Gay was the name of the pilot’s mother, not a reference to our community.
Many members of the Log Cabin Republicans will proudly tell you that the administration is actually pro-LGBTQ, as there are gay members of the felon’s administration. What they don’t like to dwell on, is their silence during these attacks on the community. Yes, there are people like Richard Grennell, who destroyed the Kennedy Center. He cancelled concerts by the Gay Men’s Chorus, and programs by drag queens. Then there is Scott Bessent, the highest-ranking queer, a clearly self-hating, Secretary of the Treasury. A man who benefitted from the work of all the activists in our community, so he could get married, and have children, but then won’t speak out for the community. I wrote a column suggesting when his children grow up, they will be embarrassed by what their father didn’t do. Most of the other members of the LGBTQ community in this administration are either members, or supporters, of Log Cabin, and have sworn fealty to the lying, grifting, Trump in order to get, and keep, their jobs.
So, it is beyond time, for the LGBTQ community, and our allies, to vote, and vote in large numbers, to say ‘ENOUGH’, we will not continue to stand idly by while we, and others, are being hurt by this self-serving, venal administration.
Barney Frank once said “If we aren’t at the table, we are on the menu.” But we have come to realize, not every one of us at the table, will work to protect us. There are some at the table today who either agree with what the administration is doing, or are remaining silent out of fear. They remind us every day of the truth of the slogan, ‘Silence = Death.’
So, Nov. 3 is our next chance to speak out. We can do it with our votes. If we vote in large enough numbers, we have the chance to not only take back the Congress, the House and Senate, but to impact state governments, cities, and local communities. We have the real chance to take back the governor’s mansions in Ohio, by electing Amy Acton; in Iowa, by electing Rob Sand; in Florida, by electing David Jolly; and in Georgia, by electing Keisha Lance Bottoms, among other states. These races are all close, and our voting in big numbers can make the difference. Then we can flip state legislatures, mayor’s offices, local commissions, and even school boards. We have seen even in small communities like Rehoboth Beach, Del., when we vote, we elected the first out lesbian mayor, Susan Stewart. In Key West, we elected a commissioner, Christopher Massicotte. Our votes, along with so many other decent people, do make a real difference.
It is not only electing members of the LGBTQ community. It is electing those who will have our backs, and fight for us. We must support, and vote for, candidates who will have our backs and fight against the homophobia, and vicious attacks, on our community by today’s MAGA version of the Republican Party. While the numbers vary, there have been more than 500 anti-LGBTQ bills filed in state legislatures thus far in 2026. I may have missed something, but as far as I know the felon’s administration has not opposed any of them. They have endorsed a host of them through their words and actions.
So, I beg you, as a member of the LGBTQ community, and someone who believes in equal rights, and human rights, for all; please vote. Make the effort to get all your friends and family that support you, to vote as well. Martin Luther King, Jr., who I had the honor of meeting and taking with, once told me “Each one of us can make a difference.” This is your chance!
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Commentary
Washington Blade responds to concerns over White House pool duties
Inaccurate media reports create confusion but we stand with our colleagues
Last week, President Trump announced his unconstitutional ban of CNN, MSNow, and Politico from the White House. Coincidentally, on Monday, it was the Washington Blade’s turn to serve as the print pool reporter on duty covering the president’s actions that day. This important responsibility is shared and rotated among the print members with each serving roughly once per month. The Blade is the only LGBTQ outlet with a seat in the briefing room, a slot in the pool rotation, and membership in the White House Correspondents’ Association, something we fought for decades to secure after enduring years of discrimination, ridicule, and resistance to openly queer journalists working inside the White House. We take our responsibilities there seriously.
There are two pools that cover the president: broadcast and print. The other four members of the broadcast pool — ABC, CBS, NBC, and Fox News — agreed to boycott their pool duties. There has been no boycott among the print pool, which is a separate entity. I called the president of the White House Correspondents’ Association on Monday to confirm that no outlets in the print pool were boycotting.
A boycott by the Blade would set us back and lead to our expulsion from the pool and briefing room and our replacement by a right-wing outlet sympathetic to President Trump’s approach to attacking the media. The LGBTQ community is far better served with the Blade in the room than a far-right blogger taking our seat.
Let’s be clear: the Blade stands for diversity, equity, and inclusion and we stand for the First Amendment and freedom of the press. In solidarity with the broadcast pool, we made two important decisions on Monday — the first day anyone had to think about any of this. First, we refused to take or share any videos or still photos of the president, which would have undermined the broadcast boycott. Second, when Politico’s turn comes up for pool duty in mid-October, the Blade will not fill in and cover for them while they are banned. Politico must be readmitted and allowed to do their job.
After a rough day navigating and reporting on all of this, the Advocate published a reckless and inaccurate story suggesting that the Blade had crossed a picket line. Not true, as there is no print pool boycott. They claimed that I wouldn’t talk to their reporter. Also not true. I called their reporter within 90 minutes of receiving his message and he didn’t take the call or call me back. Their story named me and our White House reporter, immediately exposing us to public criticism and worse. The environment in D.C. is so toxic and even violent these days that subjecting our staff to unfair and false accusations like this invites harassment, doxxing, and worse. To do that without even talking to us is next level irresponsible and the antithesis of journalism.
On Tuesday, I talked to two reporters and an editor at the Advocate but they refused to retract anything in their inaccurate story. If the reporter had returned my call, I could have explained all of this but they are more concerned with clickbait and sensational headlines, a dangerous practice in these troubled times.
Back to the pool. The Blade was in the briefing room in the Reagan era, when Press Secretary Larry Speakes made jokes about AIDS and the reporters in the room laughed out loud. We endured all of that abuse and worse for decades, always standing in the back of the room and never being called on. The Blade’s journalists persevered. When President George W. Bush was re-elected in 2004, the Blade’s White House credentials were revoked amid an earlier press crackdown. Notably, no one boycotted or stood up for us. When Barack Obama won election in 2008, I received an email from his communications director informing me that effective midnight on Jan. 20, 2009, the Blade’s credentials would be restored.
So we have had quite a ride navigating administrations and their changing requirements for gaining access but always playing the long game. As Barney Frank used to say, “If you’re not at the table, then you’re probably on the menu.” The Blade is at the table and we do our best to ensure the LGBTQ community’s issues are addressed by both parties.
Thanks for reading and supporting the Blade’s work. If you have questions about our approach, you can reach me at [email protected].
Kevin Naff is editor of the Washington Blade. Reach him at [email protected].
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