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Legal expert maps out how gender-affirming care bans may be challenged post-Skrmetti

Ruling leaves door open to state constitution claims

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Activists protest outside the U.S. Supreme Court on Dec. 5, 2024, when the justices heard oral arguments in the Skrmetti case. (Washington Blade photo by Michael Key)

In a devastating loss for transgender youth and their families, the U.S. Supreme Court’s conservative supermajority on June 18 voted to uphold Tennessee’s law banning access to gender-affirming health care for minors in a 6-3 ruling that effectively shields similar restrictions in more than 20 other states.

Chase Strangio, a lead attorney for the plaintiffs in U.S. v. Skrmetti and the first trans lawyer to argue before the nation’s highest court, acknowledged the “setback” during a press call with reporters while stressing the need to “continue onward in the fight” because the avenues open to challenge laws like Tennessee’s Senate Bill 1 had not been fully extinguished.

Speaking with the Washington Blade on Monday, Professor Holning Lau of the University of North Carolina School of Law outlined the ramifications of the justices’ majority opinion and mapped out three ways in which cases aimed at striking down healthcare bans or other anti-trans policies and practices could play out in its wake.

An internationally recognized expert on equality rights, particularly in the contexts of sexuality, gender, and family life, Lau previously served as president of the ACLU of North Carolina’s board of directors and as a teaching fellow at UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.

He is also the co-author of a recent paper that examines the exceptions to laws prohibiting medical interventions for gender transitions in minors that permit “so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”

These carveouts, Lau and his colleague UNC Law School Associate Professor Barbara Fedders argue, cut against the reasoning cited by the lawmakers behind legislative restrictions targeting healthcare for trans youth like SB 1 and by the lawyers defending them in court.

Specifically, Lau told the Blade courts could interpret such “intersex exceptions” as evidence that gender affirming care bans were written with or are undergirded by sex stereotypes, unwarranted fears, and disgust — possible grounds to argue they should be struck down under the animus doctrine, which holds that government action motivated by hostility or prejudice towards a particular group is unconstitutional.

While there was some discussion of animus in the context of U.S. v. Skrmetti, notably in the concurring opinion by conservative Justice Amy Coney Barrett, the plaintiffs’ case focused primarily on “the sex discrimination argument because of Bostock v. Clayton County,” Lau said, referring to the 2020 Supreme Court case that determined sex-based discrimination in the context of employment, as defined by federal civil rights law, includes discriminatory conduct that is motivated by the victim’s sexual orientation or gender identity.

‘A huge, huge setback’

Five years after LGBTQ rights advocates were toasting their victory in the landmark case, which saw three of the conservatives on the High Court joining their liberal counterparts in a majority opinion written by Justice Neil Gorsuch, “a lot of folks may have reasonably thought that the logic of Bostock points towards this very straightforward sex discrimination argument,” Lau said, adding that liberal Justice Sonia Sotomayor “adopts that avenue of reasoning in her dissent” in Skrmetti.

“The way that the majority rejects the sex discrimination arguments in in the majority opinion of Skrmetti is not persuasive in my view,” he said. “I struggle for words to capture the reasoning of the majority opinion.”

Echoing Strangio’s remarks, Lau noted that Skrmetti “doesn’t completely close the door” to legal challenges but is nevertheless “a huge, huge setback.”

On the one hand, he said “lower courts might say that this was very much about the context of medical treatment and minors,” which means “there may still be cases that prevail having to do with transgender discrimination in other contexts, like the military ban or the restrictions on passports.” 

At the same time, however, Lau cautioned that “you could also read this case as signaling more obstacles ahead, especially if a case gets back to the Supreme Court” since “three of the justices have already signaled in Skrmetti that they do not view gender identity discrimination as warranting heightened scrutiny.”  

Litigation aside, young people and their families who will suffer the most direct and harmful consequences, namely the loss of access to medically necessary gender-affirming care, will have to navigate “a patchwork of state laws,” he said, which in many cases will mean relocating or traveling out of state for treatments that have been criminalized in the places where they live.

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the nationwide right to abortion, led to many of these same outcomes, he said. In an email following Monday’s phone interview, Lau further explained that “Dobbs unleashed conflicts between states, and there are signs that similar conflicts will arise with respect to gender-affirming care for trans youth.”

For example, he said “A growing number of states might seek to penalize interstate travel for gender-affirming care — targeting families who travel across state lines and/or medical providers who provide care to such families.”

“There is ongoing litigation concerning the constitutionality of interstate bans and shield laws in the abortion context, and those cases will bear significance on interstate bans and shield laws regarding gender-affirming care,” Lau said. 

Counsel for the plaintiffs in Skrmetti probably turned to Bostock because the case was “the most recent victory, and the most on point when it comes to gender identity,” Lau said.

The animus doctrine was an important element of cases that expanded equal rights and protections for LGBTQ people, he said, pointing to U.S. v. Windsor (2013), which struck down portions of the Defense of Marriage Act, a law that prohibited the federal government from recognizing same-sex marriages, and Romer v. Evans (1996) which struck down a Colorado constitutional amendment prohibiting the state from enacting any LGBTQ inclusive nondiscrimination rules.

Lau said those cases are examples of where the Supreme Court has found indirect evidence of impermissible animus in the laws under consideration by the way they were designed or structured, as opposed to more direct evidence like overt expressions of sex stereotypes, fear, and disgust toward a particular group that might arise during the legislative process.

These cases and the animus doctrine, Lau added, are closely associated with the late former Justice Anthony Kennedy, an appointee of President Ronald Reagan who was the “swing vote” responsible for ultimately deciding many of cases considered by the Roberts court where the justices were split 5-4.

Following his retirement in 2018 and the emergence of a 6-3 conservative majority, there is less certainty about how the justices might evaluate animus related arguments in the context of disputes over issues of gay or transgender rights, Lau said, especially relative to how they were expected to look at the reasoning central to the Bostock decision just five years ago. 

“I would have liked to see more” engagement with animus in the Skrmetti opinions, Lau said. Barrett in her concurrence did address the question, writing that there was a rational basis for Tennessee legislators’ SB 1, in contrast with the court’s findings in Romer, where the “sheer breadth” of law was “so discontinuous with the reasons offered for it that the [law] seem[ed] inexplicable by anything but animus toward the class it affect[ed]”.) 

“To be sure, an individual law ‘inexplicable by anything but animus’ is unconstitutional,” Barrett said. “But legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied.” 

Lau said that notwithstanding her position on Skrmetti, the fact that Barrett “did make reference to the animus jurisprudence suggests that there is potentially a future for animus doctrine, even in the post-Kennedy Supreme Court.” 

Rather than the animus doctrine or Bostock’s reasoning that gender identity discrimination constitutes sex based discrimination, the court relied on Geduldig v. Aiello (1974), Lau said, which found that pregnancy discrimination “is not a type of sex discrimination” and remains a case that “strikes so many people as being incorrectly decided.” 

“Whenever I teach Geduldig v. Aiello, my students are shocked by the court’s reasoning,” he said, “and it’s so formalistic in its reasoning that it’s so divorced from people’s lived experiences.”

The same can be said for the majority opinion and concurrences in Skrmetti, Lau said, where the justices said “that even if transgender kids are the only ones seeking treatment for gender dysphoria, not all transgender kids are seeking this treatment, and kids can still get the treatment if they have a different type of diagnosis” such as any of the conditions delineated in the exceptions that were written into SB 1 and similar laws in other states. 

“One day, I imagine teaching [Skrmetti] and my students will be, likewise, shocked at the Court’s exceedingly formalistic reasoning,” he added. 

Legal challenges to anti-trans healthcare bans in a post-Skrmetti world

After Skrmetti, Lau said he expects to see cases challenging bans and restrictions on healthcare for trans youth that are based on state constitutional claims, noting “a case where there was a recent victory in Montana based on Montana’s constitution,” a win that came despite the fact that it was decided in a place that “might not strike you as particularly hospitable to transgender rights.” 

“The state constitutional law claims are particularly promising,” he said, “but it’ll be very context specific,” with the cases ultimately turning on the language contained in these different constitutions and “what sort of jurisprudence we have in each particular state.” 

Per Lambda Legal, “On Dec. 11, 2024, the Montana Supreme Court upheld a preliminary injunction that (Senate Bill) 99 was likely unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. The ruling rested entirely on state constitutional grounds, insulating transgender adolescents, their families and health care providers from any potential negative outcome at the U.S. Supreme Court.”

Lau said the remaining two primary avenues for challenging anti-trans healthcare restrictions are likely to be animus based claims and cases grounded in arguments about parental rights, a phrase that often crops up in the context of efforts to undermine rather than strengthen freedoms and protections for LGBTQ people. 

The reasoning was cited in a 2023 decision by a federal judge in Idaho who temporarily struck down the state’s ban on gender affirming care for kids, writing: “Transgender children should receive equal treatment under the law … Parents should have the right to make the most fundamental decisions about how to care for their children.”

Asked whether he believes jurists will consider parental rights or animus the more persuasive argument, Lau demurred, telling the Blade “I would be hesitant to say which one is more promising,” noting that animus claims often turn on very specific evidence that might show for example that the lawmakers behind a ban or restriction on transgender medicine were driven by sex stereotypes, irrational fear, or disgust toward a particular group.  

Animus and the intersex exceptions 

Asked whether anti-trans legislators are being counseled to avoid overt expressions of anti-trans sentiment or prejudice for fear that they might provide grounds for a successful legal challenge against their gender affirming care bans, he said “I think that’s very possible,” adding that “legislators are savvier now in terms of concealing their motives and their biases.”

“Philosopher Martha Nussbaum was monumental and unpacking disgust as an element of animus,” Lau said. “And so in my article, I try to unpack it to help readers connect the dots that there is this visceral disgust towards both intersex children and transgender minors, and that that can be connected to the doctrine of animus.”

In their paper, Lau and Fedders focused on the potential for courts to find inferred animus in laws like Tennessee’s SB 1 based on how they are structured, with sweeping restrictions on the one hand coupled with exceptions on the other that would allow families to pursue medical interventions for their children only when they have certain conditions or diagnoses. 

“If we couple that with evidence from the legislative record” pointing to animus “there may be a case to be made,” Lau said. 

Both the opinions in Skrmetti and the language of the SB 1 statute address how the law allows otherwise prohibited treatments or interventions to be administered to minors when they are indicated for diagnoses other than gender dysphoria or used for purposes other than gender transitions. 

“They don’t call them intersex exceptions,” Lau said, but rather “exceptions for congenital defects,” defined as “including DSDs, disorders in sexual development — or what many intersex advocates would now refer to as ‘differences’ in sexual development.”

Interact, an intersex rights organization, “filed an amicus brief in Skrmetti that dovetailed with my article in that they argued the intersex exceptions support the idea that there are sex stereotypes that undergird the gender affirming care bans,” he said. 

“I would like to see more discussion of the interplay between transgender rights and intersex rights,” Lau added, noting how questions about intersex vis-a-vis trans identities are relevant beyond the context of healthcare restrictions. For instance, he pointed to the Trump-Vance administration’s directive for the State Department to not allow passport holders to have the gender markers on their documents changed to align with their gender identity, also removing the option to select ‘X’ rather than the male/female binary category.

“The restrictions on passports not only affect transgender folks, but also non-binary and intersex folks as well,” Lau said. “And with respect to the bans on gender affirming care, not only do they restrict transgender youth’s access to gender affirming care, but they reflect and reinforce this understanding of intersex conditions that is very harmful and damaging to intersex youth.”

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U.S. Supreme Court

Supreme Court upholds state laws banning trans athletes from sports teams

Justices heard oral arguments in two cases in January

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday upheld state laws that ban transgender athletes from school sports teams that correspond with their gender identity.

The justices in January heard oral arguments in two cases — Little v. Hecox and West Virginia v. B.P.J. — that challenged laws in Idaho and West Virginia respectively.

Both cases question the constitutionality of laws from both states that block trans girls from participating on girls’ teams at publicly funded schools — specifically if these bans violate the 14th Amendment’s Equal Protection Clause and Title IX. Since 2020, 27 states have banned transgender youth from playing school sports.

In a 6-3 decision made on party lines, the conservative justices asserted that laws prohibiting trans women and girls from participating in sports programs at publicly funded schools does not violate either constitutionally protected right. Notably the ruling does not require any state to categorically bar transgender girls from participating on girls’ sports teams, or transgender boys from participating on boys’ sports teams.

In the majority for the case, Justice Brett Kavanaugh delivered the opinion. It holds that schools can determine eligibility for women’s and girls’ sports teams based on biological sex. It also holds that West Virginia did not violate Title IX, which bars educational programs that receive federal funding from discriminating based on sex.

“Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex,” Kavanaugh wrote. “The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America.”

The Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett joined Kavanaugh’s majority opinion. It permissibly maintains female sports for biological females.

In his conclusion, Kavanaugh shares his belief of the importance of sports to women and girls but also a caution that “[n]o student-athlete on either side of the issue … deserves to be ostracized or vilified.”

Justice Sonia Sotomayor opinion was concurring in the judgment in part and dissenting in part. Justices Elena Kagan, and Ketanji Brown Jackson joined Sotomayor’s opinion.

In her dissent, Sotomayor explains that the majority opinion, while attempting to protect one groups Constitutional rights (those assigned women at birth), it puts another group’s constitutional rights (trans women) at its expense and in principle violates the Equal Protection Clause of the 14th Amendment.

“Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent,” Sotomayor wrote, eventually pointing to how the states had evaluated issues of trans sports participants prior to these bans as evidence of general omission. “The ban eliminated this individualized approach in favor of categorical exclusion.”

She also pointed out that these rules to not equally exclude, further bolstering her argument that the majority opinion was not created with the truest sense of the Equal Protection Clause at its center.

“Teams “designated” for “females” “shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Teams “designated” for “males” do not have the same restriction.”

Jackson wrote in her dissent that this ban does explicitly allow for sex discrimination in any school or education program that receives federal funding.

“A transgender woman penalized for being perceived as aggressive has experienced discrimination ‘on the basis of sex’ just as much as a cisgender woman has, no matter that the transgender woman’s behavior matches expectations of her sex assigned at birth,” Jackson said. “Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated Title IX.”

In West Virginia v. B.P.J., the case centers on B.P.J., a trans girl who was barred from competing on her school’s girls’ cross-country and track teams under West Virginia’s Save Women’s Sports Act, enacted in 2021. Under the law, it requires participation to be based on the athlete’s biological sex as indicated on their original birth certificate issued at the time of birth.

In Little v. Hecox, the details are slightly different, but ask the same 14th Amendment and Title IX questions but against Idaho’s Fairness in Women’s Sports Act. In this case Hecox, a trans woman and student at Boise State University wished to join the women’s cross-country team, but couldn’t under the law. She, with a cisgender athlete filed a suit against the governor, arguing the Equal Protection Clause of the 14th Amendment explicitly protects their rights to participate on the woman’s team.

Trans rights activists have criticized the highest court in the land’s decision, highlighting it legally allows for discrimination based on gender identity — something they argue is a foundational element of the spirit of the Equal Protection Clause.

Jennifer Levi, senior director of Transgender and Queer Rights at GLAD Law outright called the six conservative justices view of Equal Protection and Title IX as “wrong.” 

“Today’s ruling gets it wrong. And it’s kids who will suffer for it. By upholding these blanket bans, the Supreme Court has allowed states to deny students even the chance to try out for a school team, simply because they are transgender,” Levi told the Washington Blade in a statement. “Policies that categorically bar students don’t advance fairness; they mandate exclusion.” 

She continued, pointing out excluding some for the protection of others does not ensure fairness as the justices are arguing in their opinion.

“When a law bars every transgender girl regardless of age, hormones, or physiology, it isn’t about competitive fairness. It’s about keeping transgender kids out. We can protect women’s sports without doing that. Most of the country already does.”  

Chris Erchull, senior staff attorney at GLAD Law, pointed out that while disappointing, the court does not mandate discrimination as the policy.

“This ruling does not require any state to follow West Virginia’s or Idaho’s cruel, overly-broad approach, and it does not mandate categorical bans on transgender students participating in school sports,” Erchull said. “It also leaves intact broader nondiscrimination protections for transgender students in education, including Title IX’s protections against sex discrimination for LGBTQ+ students. Discrimination has no place in our schools, and we can and should ensure that every student has the opportunity to learn, to thrive, and to know that they belong.”  

Sasha Buchert, senior attorney and director of the Nonbinary and Transgender Rights Project at Lambda Legal, also emphasized the bad faith argument the majority opinion pushes for the sake of one exclusionary view of the Equal Protection Clause and Title IX.

“This ruling is deeply harmful for transgender women and girls who only asked for the ability to participate in sports with their peers,” Buchert said. “Countless studies have demonstrated the myriad benefits that come with participation in team sports. Now, one population, transgender youth and collegians, are targeted for specific and baseless discrimination. We will not be deterred and will continue to fight back to secure the equal participation that all youth, including transgender youth, deserve.”

Joshua Block, senior counsel for the American Civil Liberties Union’s LGBTQ & HIV Rights Project also echoed the lasting negative impact this ruling will have for trans Americans.

“This is a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers.” Block said. “The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls. We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”

Shannon Minter, legal director for the National Center for LGBTQ Rights, who himself is trans, issued a statement, reassuring that while upon face value the decision seems to undermine the rights of trans sports participants, it does not make that the rule.

“Today’s limited decision means that states and schools across the country still have the power to make reasonable rules to ensure fairness without banning all transgender girls,” said Minter. “Like other health or medical considerations in sports, reasonable policies for transgender student athletes rely on individual assessments rather than blanket bans. Every child deserves the chance to play sports with their friends and learn the lessons sports teach, including determination, resilience, and teamwork.” 

Kelly O’Neill, an attorney for Legal Voice’s from Idaho also provided a statement to the Blade.

“It is profoundly unfair to deny a young person the benefits of teamwork and dedication because of who they are,” O’Neill said. “We should be removing barriers for girls and women in sports, not creating new ones.”

Human Rights Campaign President Kelley Robinson came to a similar conclusion.

“No kid — not my kid, not your kid, not any kid — deserves to be discriminated against. Yet this ruling is heartbreaking for transgender student athletes who are being forced to sit on the sidelines simply for who they are. When politicians convince the public that any girl could be ‘the wrong kind of girl,’ they invite harassment, intimidation, invasive questioning, or even an inspection of their body by a total stranger,” Robinson wrote in a statement shared with the Blade. “It’s sadly just the latest decision by the conservative justices on the Supreme Court to roll back protections for marginalized communities and create a second class citizenship for millions of people. We are sacrificing the dignity, privacy, and safety of America’s young people to solve a problem that was manufactured and exploited for political gain … We must continue this fight with full force until freedom, justice and equal opportunity are not flimsy promises, but nationwide guarantees.”

GLAAD President Sarah Kate Ellis, who presides over the world’s largest LGBTQ media advocacy organization, issued a statement on the ruling.

“This decision is at odds with the fundamental principles of fairness, freedom, and family that define our country and our communities. By allowing sweeping restrictions on a very small number of transgender students who simply wanted to participate in sports alongside their peers, the ruling creates an unnecessarily unfair playing field,” Ellis said. “Personal freedom and opportunity are best served when our legal protections expand access and guarantee safety for everyone. Today’s decision unfairly strips the rights of a few and threatens the ability of every girl and woman to play the sports they love.”

On the other side of the ideological isle, U.S. Sen. Jim Risch (R-Idaho) applauded the Supreme Court’s decision to uphold the state’s women and girl trans sport ban. In a statement the Republican called the court’s conservative view of as a win for “women, fairness, and the Gem State.”

“Idaho was the first state in the nation to ban biological men from competing in women’s sports and uphold the opportunities Title IX promised more than 50 years ago,” Risch said in a statement. “The Supreme Court’s decision affirms those protections and the generations of women who fought for fair, equal athletics.”

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U.S. Supreme Court

11 years after Obergefell, marriage equality remains under scrutiny

Landmark ruling issued on June 26, 2015

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(Washington Blade photo by Michael Key)

Friday marks 11 years since the U.S. Supreme Court ruled the Constitution protects same-sex marriage in Obergefell v. Hodges. Despite that major win for LGBTQ people nationwide, the case may be on shakier ground than originally thought.

Obergefell v. Hodges, the case that determined the Constitution extends its protection of rights to same-sex couples and that states must recognize marriage licenses for same-sex couples from other states, was decided using a combination of cases from several states.

The central arguments in the case rested on the 14th Amendment’s Equal Protection Clause, Due Process Clause, as well as collateral spousal and parental rights.

Cases in play

The first case came from Michigan with DeBoer v. Snyder, where a lesbian couple, who were not legally allowed to marry in the Mitten State, attempted to adopt their third child but could not both obtain legal parental rights. April DeBoer and Jayne Rowse initially received a favorable ruling in district court, with the judge finding that the Michigan Marriage Amendment — which barred same-sex marriage in the Midwestern state — violated the Equal Protection Clause. The same day, the case was appealed to the 6th U.S. Circuit Court of Appeals, eventually making its way, along with the other five cases, to the highest court in the land.

Ohio had multiple cases that ultimately contributed to the judicial acknowledgment of same-sex marriage rights in the U.S.

The Supreme Court case most commonly associated with the fight for same-sex marriage — Obergefell — originated in Ohio. Beginning as Obergefell v. Kasich in the state, James Obergefell knew his longtime boyfriend, John Arthur, was suffering from ALS. Knowing Arthur’s life would end shortly — and understanding the couple could not legally marry in Ohio — they boarded a medically equipped plane, accompanied by a nurse and Arthur’s aunt, Paulette, and flew to BWI Airport in Maryland. There, they were legally married. Over the next several months, Arthur’s health continued to decline until he eventually passed away in October.

The legal battle began after Arthur died, as Ohio law refused to acknowledge that Obergefell was his husband and would not list him as Arthur’s surviving spouse on his death certificate. Obergefell challenged the decision, arguing it was unconstitutional and pursuing legal action. The local Ohio registrar agreed that refusing to recognize their out-of-state marriage license — which Ohio had recognized for different-sex couples in the past — discriminated against the couple. Despite that, the state attorney general continued to defend Ohio’s same-sex marriage ban.

The judge ultimately ruled that “a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized,” marking another step toward marriage equality. Ohio appealed the ruling, and the case ultimately contributed to the establishment of same-sex marriage protections under the federal Constitution.

The second Ohio case, Henry v. Wymyslo, much like DeBoer v. Snyder, involved parental rights for adopted children. The case included four couples — three lesbian couples who lived in Ohio and adopted children while residing there, and one gay couple from New York with an adopted son born in Ohio. The four couples filed a lawsuit against Ohio, seeking to require the state to list both parents on their children’s birth certificates.

Eventually, the judge — the same one who presided over Obergefell v. Kasich — ruled that the state must list both parents on their children’s birth certificates. Like many cases that make their way to the Supreme Court, it went through multiple appeals before ultimately reaching the nation’s highest court.

Kentucky also had two cases that contributed to the legal battle for same-sex marriage.

The first, Bourke v. Beshear, revolved around Gregory Bourke and Michael DeLeon, a same-sex couple married in Canada in 2004, and Randell Johnson and Paul Campion, who were married in California in 2008. Like DeBoer v. Snyder and Henry v. Wymyslo in their respective states, the plaintiffs challenged Kentucky’s ban on same-sex marriage and its refusal to recognize same-sex marriages performed in other jurisdictions so that both parents could be acknowledged on their children’s birth certificates.

The judge ultimately ruled, much like in Obergefell v. Kasich, that states constitutionally must recognize legally performed out-of-state marriages.

Love v. Beshear is the second case from the Bluegrass State.

Maurice Blanchard and Dominique James were denied a marriage license by Kentucky county clerks. The couple’s legal team filed to join Bourke v. Beshear, another case actively challenging the state’s ban on same-sex marriage, and the motion was approved, with the case restyled as Love v. Beshear. The judge ultimately ruled that Kentucky’s bans on same-sex marriage explicitly “violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable.”

The final case, Tanco v. Haslam, involved four same-sex couples who filed suit in Tennessee. Each couple had married outside Tennessee before moving to the state, with nearly all relocating for employment. One worked for the military, whose marriage was already recognized by the Department of Defense; one worked for the state; and two were professors. Seeking to have their out-of-state marriages recognized in Tennessee, the four couples filed Tanco v. Haslam in U.S. District Court for the Middle District of Tennessee. The court eventually granted a preliminary injunction requiring the state to recognize the marriages of the three plaintiff couples but denied the request to overturn Tennessee’s same-sex marriage ban.

To SCOTUS

All of these cases contributed to the legal challenge against same-sex marriage bans across the country and ultimately led to a 5-4 ruling that allowed same-sex couples to have their marriages recognized in all 50 states, Guam, Puerto Rico, and D.C.

The justices voted as follows: Anthony Kennedy, who authored the majority opinion, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan supported Obergefell while Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito all dissented.

The court held that the 14th Amendment — specifically its Due Process Clause — guarantees the right to marry as one of the fundamental liberties it protects, regardless of the gender of those getting married.

The court also ruled that another provision of the 14th Amendment — the Equal Protection Clause — extends the right to marry enjoyed by different-sex couples to same-sex couples, finding that denying same-sex couples that right violates their right to equal protection under the law.

Some of the Supreme Court justices who dissented argued that this was a state issue, not a federal one, because the Constitution makes no mention of same-sex couples. They said it was beyond the purview of the court to decide whether states must recognize or license such unions. The dissenters argued that the majority was engaging in judicial policymaking, which they contended is not permitted under U.S. law.

Another argument made by the dissenting conservative justices was that the majority opinion infringed on religious freedom by engaging in this “judicial policymaking” rather than allowing state legislatures to determine the laws governing marriage.

Since the ruling

According to data from the Williams Institute, 823,000 same-sex couples are now legally married — more than twice the number in 2015 — as a result of the Supreme Court’s decision.

The ruling also increased the number of same-sex families raising children, largely because it removed legal barriers and paperwork restrictions that had prevented same-sex couples from being listed as parents. The data shows there are nearly 299,000 children under the age of 18 being raised by married same-sex couples as a result of Obergefell.

The states that saw the largest increases — and the most favorable changes to marriage rates — were in the South. The percentage of cohabiting same-sex couples who were married between 2014 and 2023 increased from 38 percent to 59 percent.

Many of the married same-sex couples surveyed said marriage improved their sense of safety and security (83 percent), life satisfaction (75 percent), and relationship stability (67 percent).

“Marriage equality has significantly benefited the lives and well-being of same-sex couples, their families, and the communities where they live,” said Christy Mallory, interim executive director and legal director at the Williams Institute.

Future of Obergefell

While same-sex marriage remains the law of the land, there have been multiple attempts by conservative and religious figures in America to reverse it.

In 2025, Kim Davis, the clerk of Rowan County, Ky., who made headlines 10 years earlier after refusing to issue marriage licenses following the striking down of same-sex marriage bans, approached the Supreme Court with the goal of getting Obergefell overturned.

She argued that the ruling put her religious beliefs at odds with her job and asked the court to strike it down. The consensus was nearly unanimous, holding that when a person serves as an agent of the state, they cannot place their personal religious beliefs above state policy because they are acting on behalf of the government.

Thomas, one of the Supreme Court’s most conservative justices, has also attempted to plant the seeds for overturning Obergefell.

In Dobbs v. Jackson Women’s Health Organization, which ultimately restricted abortion access in the country, he wrote a concurring opinion suggesting that Obergefell, along with several other precedents, should be “reconsider[ed].”

Later, without directly addressing Obergefell, Thomas told an audience at Catholic University’s Columbus School of Law that he didn’t “think that … any of these cases that have been decided are the gospel.”

While President Donald Trump has not implemented any executive restrictions on same-sex marriage during his presidency, his administration has made it clear that it opposes continued efforts to expand protections for same-sex couples, particularly when doing so conflicts with claims of “religious freedom.” The administration has attempted to remove sexual orientation and gender identity from federal health care and housing nondiscrimination protections and has significantly restricted the rights of transgender Americans.

Currently, same-sex marriage remains federally protected by the Respect for Marriage Act, and the Supreme Court has thus far declined to overturn Obergefell.

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Colo. activists condemn SCOTUS conversion therapy ruling

8-1 decision could have sweeping implications

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Activists protest in front of the U.S. Supreme Court on Oct. 7, 2025. The justices on that day heard oral arguments in Chiles v. Salazar. (Washington Blade photo by Michael Key)

The Supreme Court ruled in Chiles v. Salazar that a Colorado law banning conversion therapy is unconstitutional, striking down the state’s 2019 statute and potentially impacting similar laws across the country. Religious advocates have hailed Tuesday’s decision as a victory for the First Amendment and evangelical Christians, while LGBTQ activists warn it could lead to increased harm for LGBTQ youth.

The conservative majority, joined by two progressive members of the court, sided 8–1 with Kaley Chiles on March 31 in what some critics are calling a landmark ruling for religious zealots, placing the teachings of the Bible above established medical consensus. Chiles, a Christian therapist who practices what she describes as “faith-based talk therapy for children,” challenged Colorado’s House Bill 19-1129, a law prohibiting licensed professionals from engaging minors in efforts to change their sexual orientation or gender identity through conversion therapy. She successfully argued that she and her clients have a constitutional religious right to choose the type of therapy they seek, effectively nullifying the Colorado law banning conversion therapy.

When the court heard oral arguments in October 2025, early questions indicated that the justices were likely to rule against the state in a matter involving LGBTQ rights, making this the fourth major LGBTQ rights case to come from Colorado since 1996.

In 1996, the Supreme Court overruled state initiative Amendment 2 in Romer v. Evans, which tried, but ultimately failed to restrict rules on gay people’s protected status in Colorado. Then in 2018, SCOTUS presided over Masterpiece Cakeshop v. Colorado Civil Rights Commission, when a Lakewood baker refused to make a cake for a gay client, which the state argued violated it’s civil rights commission order, but the court sided with the baker, ruling the commission had violated his Christian beliefs. In 2023 the court ruled in 303 Creative LLC v. Elenis  that a Denver-based web designer is legally allowed to refuse to make wedding websites for same-sex couples, and successfully arguing she was constitutionally protected under the First Amendment.

Chiles, who practices in Colorado Springs, combines traditional psychological approaches — including cognitive, behavioral, psychodynamic, and humanistic therapies — with Christian beliefs. She argued that the law violated her First Amendment rights by restricting her ability to practice therapy aligned with her religious values, as well as limiting the rights of clients seeking that form of care.

Conversion therapy, widely discredited by major medical and psychological associations, is defined as practices that attempt to change a person’s sexual orientation or gender identity. Under Colorado law, providers found in violation could face fines up to $5,000, suspension, or loss of licensure.

Lower courts — including a district court and the 10th Circuit — previously upheld the law, finding it regulated professional conduct rather than speech and therefore required only minimal constitutional scrutiny. However, the Supreme Court, with three Trump-appointed justices, determined that the lower courts failed to apply “sufficiently rigorous First Amendment scrutiny,” raising concerns about violations of both the Establishment Clause and the Free Exercise Clause. The ruling sends the case back to a lower court for further review.

The decision reflects a broader trend in recent years, with the current court — often referred to as the Roberts Court — more frequently siding with religious liberty claims, particularly those involving Christian plaintiffs.

To better understand the implications of the ruling, the Washington Blade spoke with Colorado-based LGBTQ advocacy organization Rocky Mountain Equality, which has spent decades organizing, educating, and providing services across the state.

Founded in 1994 as Boulder Pride, the organization has since expanded into a statewide force addressing LGBTQ issues, including healthcare, housing, and youth services. Now operating as Rocky Mountain Equality, the group saw a 62 percent increase in 2024 operating revenue, growing to more than $3.765 million while running the Equality Center of the Rocky Mountains in Boulder.

Mardi Moore, the chief executive officer of Rocky Mountain Equality, sat down with the Blade to discuss the ruling and its impact on the broader LGBTQ community, calling it both expected and deeply concerning.

“When the ruling came out today, I think we all knew it wasn’t going to be a winning battle after hearing arguments, but the 8-1 decision made me sad, and honestly, it’s turning into anger,” Moore told the Blade on Tuesday morning. “This is a really sad day — not just for LGBTQ kids, but for all kids in Colorado.”

Moore explained that the law passed with support from Colorado lawmakers and felt like progress toward making the state safer for LGBTQ residents.

While oral arguments were being heard in October, the Blade spoke to a group of conversion therapy survivors who came to the nation’s capital to protest the ban’s removal and support one another. Their stories detailed the emotional and physical toll of conversion therapy.

“We all know the horror stories, and we know conversion therapy is pseudoscience,” she continued. “About a decade ago, Colorado passed a bill — under the leadership of then-Rep. Daniel Ramos — that banned conversion therapy with religious exceptions, which was a huge step forward.”

That step forward now feels like a step back, Moore suggested. While the ruling currently applies to Colorado, she warned it could embolden similar legal challenges nationwide.

“In our initial reading, this ruling only impacts Colorado and isn’t a broader issue for other states. But that doesn’t mean people who oppose LGBTQ rights won’t start fighting state by state,” Moore said. She pointed to the state’s history, including the fight against Amendment 2. “Here in Colorado, we’re used to these battles — we fought Amendment 2, and we’re still fighting now. There are two ballot measures this November: one targeting gender-affirming care for minors, and another banning trans youth from sports at all levels.”

These ballot measures, Moore explained, represent another attempt to restrict trans youth. One would limit gender-affirming surgeries for minors — procedures that research shows are extremely rare — while another would restrict sports participation based on sex assigned at birth.

“These efforts are trying to wipe trans kids off the map. This ruling is sickening — the religious right is still very active, and people who think voting doesn’t matter need to understand that presidents shape Supreme Courts.”

Moore emphasized that while national advocacy is critical, the fight increasingly comes down to local organizing and direct support.

“Here at Rocky Mountain Equality, we advocate for the community, train providers, and support people who have gone through conversion therapy. We have a strong youth program and will continue supporting young people in every way we can.”

“Colorado may seem progressive, but it’s still a purple state,” she added. “Messaging that works in Denver doesn’t always reach families who might send their kids to conversion therapy.”

The timing of the ruling — released on Trans Day of Visibility — also drew criticism.

“Releasing this decision on Trans Day of Visibility feels calculated. It takes a day meant for joy and turns it into another setback,” Moore said.

When asked about next steps, Moore pointed to state-apponited officials who support LGBTQ rights are likely reviewing options.

“I don’t have specifics yet on organized legal responses, but our attorney general, Phil Weiser, argued this case,” she said. “I imagine his office is reviewing every possible option right now.”

Despite the opinion dropping so recently, the emotional toll is already being felt.

“I texted a colleague this morning who went through conversion therapy — it was a sad emoji kind of day,” she said, also referencing a similiar feeling to the one she has now the case of Alana Chen, a University of Colorado Boulder student who died by suicide after experiencing conversion therapy.

“Her story devastated so many, including her mother,” she shared, adding that despite her death “is still advocating for young people” in the battle over conversion therapy — one that feels like it is getting worse with each ruling, with no end in sight.

“I think the real battle started this morning at kitchen tables. There are parents telling their kids, ‘I told you being queer was wrong — the Supreme Court says so,’” Moore said. “Those are the conversations we don’t hear, but they’re happening.”

Rocky Mountain Equality says it will continue focusing on direct support, specifically in rural communities which will face a particularly difficult time as LGBTQ rights become restricted.

“When people reach out to us from rural communities, we help connect them with affirming providers — locally if possible, or in places like Boulder County. We also help with financial support so they can access care. This work is about meeting people where they are,” she explained. “We’re working with organizations across the state, including in more conservative areas like Mesa County. The environments are very different, but we collaborate to share resources and support each other. Leading an organization right now is incredibly tough work.”

The organization is also mobilizing politically ahead of the ballot measures, using the anger from this case as fuel for the long hual to getting LGBTQ rights protected.

“Just last night, we had over 100 people at a kickoff event in Boulder for our campaign to defeat these ballot measures. People signed up to volunteer, donate, and write letters. We’re going to fight to make sure Colorado doesn’t become a ‘hate state’ again,” she said. 

Moore also explained that as Colorado has become a leading destination for affirming healthcare and LGBTQ rights, people from more conservative neighboring states are seeking care there. She added that if the Centennial State can provide access to specialized care that has been politicized elsewhere, it should work to protect those services.

“People are coming to Colorado from surrounding states for gender-affirming care, abortion access, and support. We’re not going to let a small group of hateful voices take that away.”

She called on allies to take action, regardless of how small or meaningless it might seem at first.

“People can help by having conversations in their own communities about the value of every person. They can connect others with resources and support systems,” she said. “And for Colorado specifically, they can donate, share our work, and stand in solidarity.”

Moore drew parallels from past crises the LGBTQ community has had faced, yet many of the LGBTQ people she faught with in the seemingly impossible times of the past are still here and still fighting, emphasizing the community’s resilience..

“I was telling my staff — I’m an old dyke, and I remember the fight during the AIDS crisis. We were trying to make sure people were fed, cared for, and treated, all while our rights were under attack. We lost many lives, but we made it through — and we will again,” she recalled.

“They think if they attack us from every direction, they can erase us, but they’ve only made us stronger. We will continue supporting LGBTQ youth and all children who deserve protection from unregulated, harmful practices like conversion therapy.”

Other LGBTQ advocates also spoke out about the ruling’s impact.

Carl Charles, a member of the Elayne Cassidy Nicholas Memorial Counsel for Trans and Nonbinary Rights at Lambda Legal, issued a statement following the court’s ruling, while touching on and his personal experience with conversion therapy.

“I know firsthand the long-lasting harms of conversion therapy, having been subjected to it when I was 15 years old. This practice did not change my sexual orientation or gender identity. Instead, it destroyed important relationships and created shame and fear that took time and effort to undo. For many survivors, it is a reverberating life-long harm,” he said as he shared his story to the world via a friend-of-the-court brief with the Conversion Therapy Survivor Network, detailing the harms of conversion therapy they experienced.

“I am fortunate to have been able to transcend the trauma of that experience, to celebrate my identity as a transgender man, and to nurture a loving relationship with my husband. But so many young people do not have the familial or community support to withstand the impact of this unethical practice. LGBTQ+ youth do not need to be changed. Rather, like all youth, they need to be supported and celebrated for the unique and important people they are becoming.”

Human Rights Campaign President Kelley Robinson issued a statement following announcement of the court’s verdict, condemning the homophobic ruling as thinly veiled intolerance as masquerading a religious right fight. Before the case was heard, the HRC submitted amicus brief detailing how the legislation in question was not religous in nature, but is regulatory speech restriction that helping LGBTQ Americans.

“The court has weaponized free-speech in order to prioritize anti-LGBTQ+ bias over the safety, health and wellbeing of children,” her statement reads. “So-called ‘conversion therapy’ is pseudoscience, not real therapy. It has been condemned by every mainstream medical and mental health association and harms families, traumatizes children, and robs people of their faith communities. It is cruel and should never be offered under the guise of legitimate mental healthcare. To undermine protections that keep kids and families safe from these abusive practices is shocking — and our children deserve better.”

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