U.S. Federal Courts

Draft of Supreme Court opinion that overturns Roe leaked

LGBTQ activists, allies condemned reported decision

Published

3 years ago

May 2, 2022

Protesters gather outside of the United States Supreme Court on May 3. (Washington Blade photo by Michael Key)

In a stunning revelation published Monday evening in Politico, an initial draft majority opinion written by Justice Samuel Alito disclosed that the U.S. Supreme Court is poised to strike down the landmark 1973 Roe v. Wade decision.

According to Politico’s reporting; “The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right. ‘Roe was egregiously wrong from the start,'” Alito writes.

The unprecedented disclosure marks the first time in the modern history of the court that an opinion has leaked while a case is still pending. If issued, the ruling would pave the way for a majority of states to criminalize abortion — a devastating reality for millions of American women and transgender and non-binary people who rely on safe, legal abortion care.

Slate Senior Legal Writer Mark Joseph Stern noted that Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage.) He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.”

A lawyer contacted by the Washington Blade who asked to speak on background said that the greater issue for the LGBTQ community and Americans in general is that should the court proceed with the draft in present form, which although may seem unlikely, it sends a clear signal that the high court cannot be trusted to protect and preserve the rights of minority citizens.

In the draft Alito writes; “We hold that Roe and Casey must be overruled. It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.” With the current political climate leaning against LGBTQ Americans as evidenced by passage of a litany of anti-trans laws, ‘don’t say gay’ measures, and book bans, “this points to the immediate need to raise the alarm,” the lawyer continued.

Equality California, the nation’s largest statewide LGBTQ civil rights organization released the following statement from Executive Director Tony Hoang in reaction to Politico’s reporting and the draft opinion:

“Abortion is healthcare. Abortion is essential. Abortion is a fundamental human right.

“There is nothing the Supreme Court can do to change that. There is nothing five or six justices can do to stop people from needing and seeking abortion care. What they can do — and what overturning Roe will do — is cost people their lives and livelihoods. Women. Transgender and non-binary people. Our mothers and sisters and friends and neighbors and colleagues.

“Shame on us if we let this stand. We must organize, mobilize and vote like our lives depend on it. Because they do.”

Reaction to the leaked document from politicians and others came swiftly as word spread of the Politico report.

New York Gov. Kathy Hochul, a Democrat, released a statement saying;

“I am horrified by the apparent draft Supreme Court opinion leaked this evening that would overturn the right to abortion guaranteed by Roe v. Wade. For the sake of women across the country, this should not be the Supreme Court’s final opinion when it comes to abortion rights.

“We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed.

“For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what’s right — unafraid and undeterred.”

Politico did point out that deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The court is expected to rule on the case before its term is up in late June or early July.

The Blade spoke with Shannon Minter, the legal director of the National Center for Lesbian Rights (NCLR) who said;

“That someone leaked this opinion — violating the court’s most sacrosanct rule of confidentiality — speaks volumes about how extreme and dangerous much of the court’s jurisprudence has become. We don’t know if this will be the final decision, but it is shocking to read this assault on an established fundamental right. A court that would issue an opinion like this — if it does — is a court that has abandoned any pretense of protecting individual freedom.

It would be harder for the court to hold that there is no fundamental right to marry or to sexual privacy, as any such decision would apply to both gay and straight people, but it would be foolhardy to predict how extreme this court may become. LGBTQ people should recognize that we are once again in the crosshairs and that all of our hard-won protections are under serious threat.

We have become too accustomed to counting on the courts for protection, and we must realize the days when we could safely do so are past. Our hope lies in joining forces with others who are fighting to protect democracy and the rule of law and to prevent our country from sliding into the same authoritarianism that is rising across the globe.”

In Sacramento Monday evening, California Gov. Gavin Newsom issued a statement:

“This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years.

“This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away. This won’t stop with choice and the right to privacy. They are undermining progress, and erasing the civil protections and rights so many have fought for over the last half century.

“I’m furious that my own daughters and sons could grow up in an America that is less free than the one they were born into. We have to wake up. We have to fight like hell. We will not be silenced.”

California state Sen. Scott Wiener noted; “California unequivocally stands for the right to an abortion, no matter what the right-wing zealots on the Supreme Court say. We will fight hard to expand abortion access, here and in other states.”

U.S. Sen. Tammy Baldwin, (D-Wisc.), who is openly lesbian, tweeted her disgust at the leaked draft.

If #SCOTUS is going to legislate from the bench and turn back the clock 50 years on #RoeVWade, then the Senate needs to pass my Women’s Health Protection Act, and if we need to eliminate the filibuster to get it done, we should do that too. #WHPA
— Sen. Tammy Baldwin (@SenatorBaldwin) May 3, 2022

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Justice Samuel Alito in an initial draft majority opinion

Politico received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document. The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.

Link to full Politico article and the draft document here: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

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U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

Published

3 days ago

April 28, 2025

Michael K. Lavers

Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order. The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.

U.S. Federal Courts

Federal judge blocks Trump passport executive order

State Department can no longer issue travel documents with ‘X’ gender markers

Published

2 weeks ago

April 19, 2025

Michael K. Lavers

(Bigstock photo)

A federal judge on Friday ruled in favor of a group of transgender and nonbinary people who have filed a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.

The Associated Press notes U.S. District Judge Julia Kobick in Boston issued a preliminary injunction against the directive. The American Civil Liberties Union, which represents the plaintiffs, in a press release notes Kobick concluded Trump’s executive order “is likely unconstitutional and in violation of the law.”

“The preliminary injunction requires the State Department to allow six transgender and nonbinary people to obtain passports with sex designations consistent with their gender identity while the lawsuit proceeds,” notes the ACLU. “Though today’s court order applies only to six of the plaintiffs in the case, the plaintiffs plan to quickly file a motion asking the court to certify a class of people affected by the State Department policy and to extend the preliminary injunction to that entire class.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

The State Department policy took effect on April 11, 2022. Trump signed his executive order shortly after he took office in January.

Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

“This ruling affirms the inherent dignity of our clients, acknowledging the immediate and profound negative impact that the Trump administration’s passport policy would have on their ability to travel for work, school, and family,” said ACLU of Massachusetts Legal Director Jessie Rossman after Kobick issued her ruling.

“By forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of our right to privacy and the freedom to be ourselves,” added Rossman. “We will continue to fight to rescind this unlawful policy for everyone so that no one is placed in this untenable and unsafe position.”

U.S. Federal Courts

Second judge blocks Trump’s anti-trans military ban

Federal courts in D.C. and Washington State have now issued injunctions

Published

1 month ago

March 28, 2025

Christopher Kane

President Donald Trump (Washington Blade photo by Michael Key)

The U.S. District Court for the Western District of Washington on Thursday became the second court to issue a nationwide injunction blocking the enforcement of President Donald Trump’s executive order barring transgender people from military service.

The order in Schilling v. Trump from Judge Benjamin Hale Settle comes after Judge Ana Reyes of the U.S. District Court for the District of Columbia blocked implementation of the ban earlier this month in Talbott v. Trump.

Friday was the date by which the Pentagon was to begin identifying and separating transgender service members from the armed forces, per Trump’s executive action.

The lead attorneys in Talbott v. Trump, GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi and Shannon Minter, legal director of the National Center for Lesbian Rights, shared statements about the injunction in a press release by NCLR.

“Given the thousands of brave and decorated transgender servicemembers facing unthinkable harms as the result of this ban, we are heartened but not surprised by today’s decision,” Levi said. “President Trump’s executive order and Secretary [Pete] Hegseth’s implementation represent a policy that cannot be constitutionally justified. Thousands of transgender servicemembers currently serving have clearly demonstrated they meet all military standards, with many deployed to critical missions worldwide, proving their capabilities beyond question.”

Levi continued, “These dedicated servicemembers and their families have earned our nation’s gratitude and respect, and the government has a responsibility to honor the commitments it has made to them. This is about keeping faith with Americans who have risked everything to defend our freedoms.”

“In both Talbott and Shilling, it was abundantly clear to the court that it must act swiftly to protect our troops from an unconstitutional and indefensible ban that would disrupt the lives and dismantle the careers of thousands of transgender servicemembers and their families,” Minter said. “The harms associated with this ban are gut-wrenching.”

Minter continued, “In each of these cases, the government did not even attempt to claim that any evidence supported its position. There is no reason to discharge individuals who are serving capably and honorably.”