National
Roe leak stokes fears that LGBTQ rights are now at heightened risk
Legal experts diverse on degree of threat to marriage
Fears that same-sex marriage and other LGBTQ rights could be on the chopping block are at a new high after a leaked draft opinion from the U.S. Supreme Court that would explicitly overturn precedent in Roe. v. Wade, although the degree of perceived danger differs among legal observers.
Although language in the leaked draft by U.S. Associate Justice Samuel Alito, which was published late Monday by Politico and confirmed as “authentic” by the Supreme Court, specifically distances the potential ruling from Obergefell v. Hodges, the general reasoning against finding unenumerated rights in the U.S. Constitution could apply to challenges to the landmark 2015 marriage decision.
Karen Loewy, senior counsel for the LGBTQ group Lambda Legal, told the Washington Blade if the draft decision were to become final it would “have no good implications” for either the Obergefell or Lawrence decisions.
“The analysis that Justice Alito has laid out really calls into question the sort of underlying liberty and dignity jurisprudence that really was the underpinning of cases like Lawrence and Obergefell,” Loewy said. “It requires a really cramped vision of what is constitutionally protected, that is tied to histories of oppression that are really, really concerning.”
Alito obliterates long-standing precedent, as defined in the 1973 Roe. v. Wade decision and subsequently affirmed in the 1992 decision in the Planned Parenthood v. Casey, finding a woman’s right to have an abortion is protected under the 14th Amendment.
“We hold that Roe and Casey must be overruled,” Alito writes. “The Constitution makes no references to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the 14th Amendment.”
Alito makes clear for the Supreme Court to find any unenumerated rights under the 14th Amendment, the right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Such an analysis would directly impact LGBTQ rights found under the 14th Amendment. In fact, three separate times over the course of the draft opinion, Alito compares the right to abortion to rights for LGBTQ people as defined by the U.S. Supreme Court.
Those references, however, aren’t to threaten those decisions, but to bolster the case for overturning precedent as established by Roe and limit the impact of the draft opinion.
“Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” Alito writes, “but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un-born human being.'”
In another instance, Alito includes Obergefell and Lawrence among a multitude of cases in a multi-page footnote giving examples of where the Supreme Court has decided to overturn precedent, which the draft opinion would do for Roe v. Wade. Another time, Alito rejects arguments from the U.S. solicitor general that abortion and marriage are connected, asserting “our decision concerns the constitutional right to abortion and no other right.”
Loewy, however, said the fundamental nature of the draft opinion, despite Alito’s rejection that abortion is comparable to LGBTQ rights, undermines that analysis no matter how many times he articulates it.
“The third time is where he offers a fig leaf saying, ‘This analysis is just about abortion rights. It’s not about anything else,’ and so suggests that it would leave untouched a case like Obergefell, when the analysis that he has offered in this opinion clearly leads to the opposite result,” Loewy said.
Indeed, the sweeping nature of Alito’s reasoning against finding unenumerated rights under the Constitution has led some observers to believe the draft was written by Alito alone and without the input of the other eight justices, which could mean the final decision would be a consensus different from the opinion that was leaked. (Upon publishing the leaked opinion, however, Politico did report the Supreme Court has five justices who will vote in favor of overturning Roe, which means without question such a ruling has a majority.)
Not all observers see the opinion in the same way and are interpreting Alito’s references to Obergefell and Lawrence as less threatening.
Dale Carpenter, a conservative law professor at Southern Methodist University who’s written about LGBTQ rights, downplayed the idea the draft opinion against Roe would be a prelude to overturning Obergefell based on Alito’s words denying the connection.
“The opinion tries to make it clear that it does not affect other unenumerated rights, like Lawrence and Obergefell and other fundamental rights cases, like contraceptive cases and other marriage cases,” Carpenter said. “So that’s comforting, I think, to LGBT rights advocates. Second, it says that there’s a fundamental distinction between those other cases and the abortion cases in that the abortion cases involve fetal life or potential life. And so, that I think, is a ground for setting a difference between them.”
Carpenter, however, conceded the mode of analysis in the opinion overturning Roe “is not very friendly to unenumerated rights like marriage and sexual intimacy,” so while Obergefell and Lawrence may face no immediate threat “there might be a longer term concern about decisions like those.”
A follow-up ruling from the Supreme Court rolling back the right for same-sex couples to marry would be consistent with a 2020 dissent from Alito and U.S. Associate Justice Clarence Thomas essentially declaring war on the Obergefell decision, urging justices to revisit the case to make greater accommodations for religious objections.
Jim Obergefell, the lead plaintiff in the marriage equality case and now a candidate for a seat in the Ohio state legislature, said in a statement after the leak of the draft Alito opinion he was fearful that the same forces seeking to overturn precedent for abortion rights would go after LGBTQ rights next.
“It’s also concerning that some members of the extreme court are eager to turn their attention to overturning marriage equality,” Obergefell said. “The sad part is in both these cases, five or six people will determine the law of the land and go against the vast majority of Ohioans and Americans who overwhelmingly support a woman’s right to make her own health decisions and a couple’s right to be married.”
The Supreme Court, of course, couldn’t willy nilly reverse the Obergefell decision, which would require some case or controversy to wind its way through the judicial system before justices could revisit the ruling. Mostly likely, such a hypothetical case would be a state passing a law banning same-sex marriage or simply declaring it would no longer allow same-sex couples to wed in defiance of the Obergefell decision.
No state, however, is engaged in a serious effort to challenge marriage rights for same-sex couples. The last such challenge was in 2020 and from the solicitor general of Indiana, who was seeking to challenge the decision on the basis of birth certificates for the children of women in same-sex marriages. Even the current 6-3 conservative majority on the court declined to hear the case.
Additionally, as polls demonstrate, the nation is in a different place with abortion rights compared to the right for same-sex couples to marry. A recent Fox News poll found six in 10 registered voters still think the U.S. Supreme Court should uphold Roe v. Wade, but more than half of those responders favored banning abortions after 15 weeks. Comparatively, a Gallup poll in September 2021 found support for marriage equality is at a record high of 70 percent and, for the first time, a majority of Republicans back same-sex marriage.
A question also remains about what the draft opinion means for decisions on LGBTQ rights that have yet to come before the Supreme Court but may come at a later time, such as a legal challenge to the “Don’t Say Gay” measure recently signed into law by Florida Gov. Ron DeSantis.
Carpenter said he doesn’t think the observers can glean anything about a potential ruling on the “Don’t Say Gay” law based on the fact the legal challenge would be different than challenges to abortion or same-sex marriage.
“That kind of challenge would more than likely be brought under the First Amendment,” Carpenter said. “And I don’t see the First Amendment being affected by the Dobbs decision. I suppose that someone might want to bring an Equal Protection challenge to the ‘Don’t Say Gay’ law in Florida, but it just doesn’t seem like it would have an immediate impact on even that kind of claim.”
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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