National
How will Supreme Court rule on marriage?
Parsing statements, records for hints as to how justices will decide DOMA, Prop 8 cases
Justices on the U.S. Supreme Court are expected to issue rulings on the Prop 8 and DOMA cases in June. (Photo public domain)
The nine members of the U.S. Supreme Court are expected to reach a decision by the end of June in two high-profile LGBT rights cases on which they heard oral arguments last week challenging California’s Proposition 8 and the federal Defense of Marriage Act.
The justices could reach any number of decisions on either or both of the cases — upholding the anti-gay measures, dismissing the cases for lack of standing or jurisdiction, striking down Prop 8 and DOMA on grounds they violate the rights of same-sex couples under the U.S. Constitution — or even issuing a national ruling in favor of marriage equality.
Predicting how they might rule is tricky. But several of the justices made statements and asked questions during the oral arguments that offered some hints. Perhaps more significantly, many of them have a record of ruling in gay rights cases that might indicate their leanings on marriage. The Washington Blade has compiled profiles of the justices to assess how they might rule in the two marriage cases before them.
In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws.
The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Law’s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.
Chief Justice John Roberts (Photo public domain)
1. Chief Justice John Roberts
The chief justice of the Supreme Court seemed skeptical during oral arguments that Prop 8 and DOMA should be struck down as unconstitutional. He also seemed dismissive of the notion that LGBT people lack political power.
In an exchange with attorney Robbie Kaplan, Chief Justice John Roberts disputed that gay people lack political power — a characteristic that the court has considered in weighing whether a group should be considered a suspect class.
“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
The chief justice was likely referring to the trend of U.S. senators announcing their support for marriage equality, which just this week added Sens. Bob Casey (D-Pa.), Tom Carper (D-Del.) and Mark Kirk (R-Ill.). When Kaplan pointed out that no group has been subject to referenda in recent years like gay people, Roberts seemed unmoved.
“You just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side,” Roberts said.
Roberts, who was appointed by President George W. Bush, hasn’t ruled on many gay rights cases during his time on the bench. Still, Roberts ruled as part of the dissent that deemed exclusion of LGBT students was acceptable in the Christian Legal Society case.
On the other hand, Roberts in 1996 helped gay rights activists as part of his law firm’s pro bono work in preparation for the Romer case. He also has a lesbian cousin, Jean Podrasky, who attended arguments on Prop 8.
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, pointed to another comment Roberts made indicating a parent forcing a child to make friends with another child changes the definition of friendship.
“It suggested that he might be less open to recognizing marriage rights for same-sex couples than the Olson-Boies team had anticipated,” Goldberg said.
Associate Justice Antonin Scalia (Photo public domain)
2. Associate Justice Antonin Scalia
Associate Justice Antonin Scalia, viewed by many as the most anti-gay of the justices, mused that being raised by gay parents may not be good for a child — an argument made by many anti-gay groups.
“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” Scalia said. “Some states do not permit adoption by same-sex couples for that reason.”
Those words are consistent with anti-gay views that Scalia has expressed in the past. Most notably, speaking at Princeton in December, Scalia compared bans on sodomy to laws against murder, saying, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Since his confirmation to the court, Scalia has not only made anti-gay rulings, but has taken the lead on the opinions. The Reagan-appointed justice wrote the dissenting opinions in the Romer and Lawrence cases and joined with other dissenting justices in ruling for LGBT exclusion in the Christian Legal Society case.
Doug NeJaime, who’s gay and a professor at Loyola Law School, said Scalia is likely to rule to uphold Prop 8 and the Defense of Marriage Act.
“Justice Scalia has made clear in earlier opinions … that legislation can be justified merely by moral disapproval of homosexuality, even though a majority of the court has rejected that position,” NeJaime said. “Moreover, under his theory of constitutional interpretation, he does not believe that lesbians and gay men have a constitutional basis for their claims in these cases.”
Associate Justice Anthony Kennedy (Photo public domain)
3. Associate Justice Anthony Kennedy
The justice who’s being most closely watched because of his reputation for being a swing vote — and his previous rulings in favor of gay rights — conveyed mixed sentiments during the arguments.
Associate Justice Anthony Kennedy contemplated the effect that overturning or sustaining Prop 8 would have on children based on the newness of same-sex marriage.
“We have five years of information to weigh against 2,000 years of history or more,” Kennedy said. “On the other hand, there is … what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”
A Reagan appointee, Kennedy authored the majority opinions in the Romer and Lawrence cases that struck down anti-gay measures in those lawsuits. In the Christian Legal Society case, Kennedy also ruled in favor of requiring student groups to be open to all students regardless of LGBT status.
That’s what makes Kennedy’s comment questioning the Ninth Circuit ruling against Prop 8, which was largely based on his opinion in Romer, particularly noteworthy.
“The rationale of the Ninth Circuit was much more narrow,” Kennedy said. “It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.”
Nan Hunter, a lesbian law professor at Georgetown University, said the “single most powerful vibe” she received from Kennedy during arguments was his ambivalence.
“My best guess is that in the Perry case, he will rule in some way that avoids discussion of Prop 8’s constitutionality and that in the Windsor case, he will conclude that DOMA is unconstitutional, but his opinion may invoke federalism as much as it does the Equal Protection Clause,” Hunter said.
Associate Justice Clarence Thomas (Photo public domain)
4. Associate Justice Clarence Thomas
In accordance with his custom, Associate Justice Clarence Thomas remained silent for the duration of oral arguments in the marriage cases.
Thomas is known for not asking questions. In January, after seven years of silence, the George H.W. Bush-appointed justice made news when he broke his tradition and cracked a joke about the competency of an attorney during a case unrelated to marriage.
But Thomas has a history of taking the anti-gay side. He ruled in the dissent in the Romer and Lawrence cases and ruled for LGBT exclusion in the Christian Legal Society case.
Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, said oral arguments don’t offer any information on how Thomas might rule, but noted the justice’s history of anti-gay opinions.
“He is quite conservative and historically has voted with the other conservative justices in cases involving LGBT equality,” Stoll said.
5. Associate Justice Ruth Bader Ginsburg
Associate Justice Ruth Bader Ginsburg (Photo public domain)
One justice who has a history of ruling in favor of gay rights indicated a disdain for DOMA during oral arguments.
Associate Justice Ruth Bader Ginsburg said the 1996 law creates two different kinds of unions for same-sex and opposite-sex couples: “the full marriage, and then this sort of skim milk marriage.”
While questioning attorney Paul Clement, Ginsburg more distinctly articulated the problems for gay couples under DOMA by enumerating benefits denied to them under the law.
“The problem is if we are totally for the states’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people — if that set of attributes, one might well ask, what kind of marriage is this?” Ginsburg said.
Ginsburg also has a history suggesting she’d be willing to rule against Prop 8 and DOMA. The Clinton-appointed justice ruled in favor of LGBT advocates in the Romer, Lawrence and Christian Legal Society cases. Prior to her confirmation as a Supreme Court justice, Ginsburg was a women’s rights advocate and co-founder of the women’s rights project at the American Civil Liberties Union.
David Gans, civil rights director for the progressive Constitutional Accountability Center, said he considers Ginsburg a likely vote to strike down DOMA and Prop 8 based on her history of rulings and comments made in court.
“I think her comments tended to be across the board very skeptical of the justifications offered, and, of course, her record, both as an advocate and justice is to honor the constitutional guarantee of equal protection applies to all persons,” Gans said.
Associate Justice Stephen Breyer (Photo public domain)
6. Associate Justice Stephen Breyer
The other Clinton appointee on the bench also made comments during the Prop 8 arguments suggesting he might rule in favor of marriage rights for gay couples.
Associate Justice Stephen Breyer was dismissive of Cooper’s assertion that marriage is for procreation, observing California allows straight couples who cannot have children to marry.
“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” Breyer said. “I mean, there are lots of people who get married who can’t have children.”
And Breyer’s earlier rulings suggest he would be amenable to striking down Prop 8 and DOMA. Breyer joined Kennedy and other justices in the pro-gay rulings for Romer and Lawrence and sided with LGBT inclusion in the Christian Legal Society Case.
Gans said Breyer’s comments during the Prop 8 arguments indicate his rulings on the anti-gay measures will likely be consistent with his earlier decisions.
“Justice Breyer’s questions during oral argument suggested that he would find that discriminatory marriage laws violate the constitutional guarantee of equal protection for all persons,” Gans said.
Associate Justice Samuel Alito (Photo public domain)
7. Associate Justice Samuel Alito
Associate Justice Samuel Alito expressed concerns about same-sex marriage, quipping that it’s “newer than cell phones or the Internet.”
“Same-sex marriage is very new,” Alito said. “I think it was first adopted in the Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.”
An appointee of President George W. Bush, Alito hasn’t been on the court long enough to have ruled in the earlier landmark Lawrence and Romer cases. But he wrote the dissenting opinion in favor of LGBT exclusion in the Christian Legal Society case.
Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, said he expects Alito to be consistent and issue an anti-gay decision in the cases before him — taking note of the exchange in the Prop 8 case.
“This line of thinking was disappointing; it not only belittled the fight for equality, but suggested that Justice Alito would first need to be convinced of the ‘effects’ of same-sex marriage before he could determine whether gay and lesbian Americans have a constitutionally protected right to marry,” Soloway said. “This exchange suggested to me that Alito will most likely vote to uphold Prop 8, preferring that legislatures continue to wrestle with this issue.”
Associate Justice Sonia Sotomayor (Photo public domain)
8. Associate Justice Sonia Sotomayor
Another justice — this one appointed by President Obama — asked some of the most pointed questions about whether there’s any reason anti-gay laws could survive the court’s lowest standard of review.
Associate Justice Sonia Sotomayor pressed attorney Charles Cooper on whether he could conceive of anti-gay laws on other issues other than marriage that could survive rational basis review. The answer from Cooper was that he could not.
“If that is true, then why aren’t they a class?” Sotomayor responded. “If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing?”
Sotomayor’s response suggests she might agree with the Obama administration that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.
A newcomer to the court, Sotomayor hasn’t had the opportunity to rule on many of the earlier LGBT rights cases that have come before the bench. But in the Christian Legal Society case, she joined four other justices in ruling student groups had to accept all students regardless of LGBT status.
Notably, Sotomayor was the only one among nine justices who responded to a letter from a North Carolina 6th grader named Cameron urging justices to rule in favor of marriage equality. The justice said she had no comment on the marriage cases, but urged Cameron to keep “dreaming big.”
NCLR’s Stoll pointed to Sotomayor’s exchange with Cooper as evidence she’d rule against Prop 8 and had similar expectations for how she’d rule on DOMA.
“She seemed perplexed and unpersuaded by Cooper’s argument that excluding gay people from marriage somehow promotes ‘responsible procreation’ by different-sex couples,” Stoll said.
Associate Justice Elena Kagan (Washington Blade photo by Michael Key)
9. Associate Justice Elena Kagan
Yet another justice appointed by President Obama seemed skeptical about arguments presented by proponents of Prop 8 and DOMA.
Associate Justice Elena Kagan suggested to attorney Paul Clement that Congress may have had another motive other than uniformity when it determined to pass the anti-gay law.
“This was a real difference in the uniformity that the federal government was pursuing,” Kagan said. “And it suggests that maybe something — maybe Congress had something different in mind than uniformity.”
Clement offered a lengthy response in which he talked about federal bans on polygamy and laws after the Civil War allowing freed slaves to marry. But Kagan responded by reading from the House report on DOMA, which states the law was passed “to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” — deemed a “gotcha” moment that elicited laughter from those in the courtroom.
During the Prop 8 arguments, Kagan was also skeptical of Cooper’s argument that the purpose of marriage is procreation and asked for a legitimate reason for excluding same-sex couples from marriage.
“Is there any reason that you have for excluding them?” Kagan said. “In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?”
Like Sotomayor, Kagan is a relative newcomer to the court and hasn’t had the opportunity to rule on gay cases. During her confirmation hearing, Kagan wouldn’t say whether the she thinks the U.S. Constitution guarantees same-sex couples the right to marry.
Still, Loyola’s NeJaime said Kagan seemed bothered during oral arguments by equal protections concerns presented by Prop 8 and DOMA.
“Given her lengthy questions about the relationship between age and procreative ability, she seems unconvinced by the ‘responsible procreation’ rationale for same-sex marriage bans,” NeJaime said. “And given her reading of the House report on DOMA regarding the ‘moral disapproval of homosexuality,’ she is suggesting that the law may not survive rational basis review.”
North Carolina
Authorities investigate officer-involved shooting outside Asheville gay bar
Incident took place near Shakey’s on Wednesday
An officer-involved shooting outside of a gay dive bar, Shakey’s, in downtown Asheville, N.C., left one man dead Wednesday.
The bar released a statement the following morning regarding the incident, stating that bar staff had asked a patron to leave earlier in the night citing concerning behavior. The bar said that later the man was spotted with a gun in the parking lot.
The bar proceeded to call 911, locked the doors to the establishment, and followed dispatcher instructions on how to keep patrons of the bar safe while officers arrived. These protocols included getting patrons away from the windows and staying low to the ground.
According to Shakey’s, shots were fired outside of the business. When the Asheville Police Department officers arrived, they fired back. The individual died from their injuries, according to the police.
“Because of everyone’s quick actions, cooperation, and concern for one another, every customer and every employee inside Shakey’s made it home safely. We are incredibly thankful,” Shakey’s said on their Instagram page. They thanked Asheville police, emergency dispatchers, EMS, and all first responders who were on scene.
On Thursday, a spokesperson for the North Carolina State Bureau of Investigation, Chad Flowers, stated that the suspect involved in the shooting was Arturo Castillo Palomar.
The Washington Blade reached out to the North Carolina State Bureau of Investigation for a comment regarding the possibility of the event being considered a hate crime. They said the issue is currently under investigation and that the findings would be turned over to the district attorney for review.
Pentagon
Hegseth announces testosterone initiative as trans troop ban continues
SPARTA Pride criticized Pentagon policy
The U.S. military will begin testing and treating service members with hormone therapy despite banning similar medical care for transgender service members.
Defense Secretary Pete Hegseth said Wednesday that troops ages 30 and older will be subject to annual testosterone screenings, while younger service members will have the option to voluntarily opt in. Some troops may then be recommended for hormone therapy, he explained in a video posted to social media.
“Under the supervision of our world-class medical professionals, warfighters age 30 and older are going to be tested annually as part of their periodic health assessment,” Hegseth said in a video posted to X, captioned “The High-T Department of War.”
This push to test testosterone levels, as the hormone is commonly referred to as “T,” runs counter to current medical guidelines. Physicians are generally advised to discuss testosterone therapy only with men who have symptoms consistent with low testosterone and documented low hormone levels on two separate blood tests.
Testosterone is a vital sex hormone that all humans naturally produce. It helps regulate muscle mass, bone density, and sex drive. In men, it is primarily produced in the testicles, while in women it is produced in the ovaries and adrenal glands.
Natural testosterone levels in men decline with age and have long been associated with issues such as erectile dysfunction, low libido, mood changes, and weight gain. However, experts continue to debate whether these conditions should routinely be treated with testosterone therapy.
Hegseth’s announcement aligns with other actions taken by the Trump-Vance administration — including efforts by Health Secretary Robert F. Kennedy Jr. — to make testosterone therapy more accessible for men, particularly those assigned male at birth.
Last month, the Food and Drug Administration proposed easing prescribing restrictions on testosterone gels, pills, patches, and injections following a December advisory panel that recommended reducing regulatory hurdles to expand access to testosterone therapy.
Currently, FDA labeling specifies that these medications are approved only for men with hypogonadism, a medical condition that causes abnormally low testosterone levels.
The announcement came as a shock to many LGBTQ advocates because Hegseth and the Defense Department have cited the use of hormone therapy by trans service members as justification for their dismissal under President Donald Trump’s 2025 executive order, “Prioritizing Military Excellence and Readiness.“
The Pentagon continues to pursue implementation of the trans military ban as litigation proceeds. As a result, many trans service members have had their gender-affirming medical care halted, even as similar hormone therapy is now being expanded for cisgender service members. Under the executive order, the military currently disqualifies individuals diagnosed with gender dysphoria and has begun formal administrative separation proceedings for trans personnel.
SPARTA Pride, a nonpartisan nonprofit organization made up of trans service members, veterans, and their allies, issued a statement to the Washington Blade following Hegseth’s announcement.
“If hormone therapy helps warfighters perform at their best, then it cannot simultaneously be used as evidence that transgender service members are unfit to serve,” said Kara Corcoran, executive director of SPARTA Pride. “The same class of evidence-based medical treatment cannot be characterized as readiness-enhancing for one group and readiness-destroying for another.”
The legal fight over trans military service remains ongoing.
On June 1, the U.S. Court of Appeals for the D.C. Circuit ruled that trans service members already serving in the military could continue to do so, while allowing the armed services to continue refusing to enlist new trans recruits.
The Blade reached out to the Pentagon to ask why cisgender service members could receive hormone therapy while trans service members could not, but did not receive a response by the time of publication.
National
Democrats are trying to disqualify trans candidates. Here’s how
Jordan Korgood suspended Mass. Governor’s Council candidacy after opponent questioned residency
Uncloseted Media published this article on July 14.
By HOPE PISONI | Jordan Korgood has come a long way. In 2023, she ran into financial difficulties while studying at Northeastern University in Boston and ended up unhoused. Ordinary shelters are hotbeds of discrimination and mistreatment for transgender women like her, and the only trans shelter was full. So for five months, she slept in her car, in public libraries and anywhere she could find in order to continue her studies and campus activism.
Korgood, now 24, started a bid in March for a seat on Massachusetts Governor’s Council, a state board tasked with approving judicial candidates. Despite running against an incumbent who has been in office for 41 years, she secured key endorsements from local Democrats and racked up more than 7,000 Instagram followers, the equivalent of nearly one-tenth of primary voters during the last election cycle.
But last month, her momentum was ripped away. It started when Ronald Iacobucci, one of her opponents, noticed that she was still registered to vote in the 2024 election with an old New York address. He proceeded to file an objection with the state, alleging that Korgood didn’t meet the five-year residency requirement. While Korgood has lived in Massachusetts since 2019, she didn’t have a valid address to register in the state while she was unhoused. So she used her mother’s address, where she had lived before moving.
In an email to Uncloseted Media, Iacobucci wrote: “Because serious questions have arisen concerning compliance with those requirements, an objection was appropriate so the matter can be reviewed through the lawful process established by the commonwealth. This objection was nothing personal, it was always about the integrity of the process.”
While most residency challenges like this fail in Massachusetts, the State Ballot Law Commission disqualified Korgood on June 18. While she initially attempted to appeal the decision, the financial and logistical burden became too much — she estimates it drained about 40 percent of her campaign funds. So on July 10, Korgood suspended her campaign.
“I am incredibly frustrated that this is what I have to do at this point,” Korgood told Uncloseted Media. “I’ve spent thousands of hours, I’ve sacrificed my own mental health, my social life, friendships, my professional aspirations and advancement to work on this campaign, and this is how they’re ruling.”
“These are cherry-picking remote issues to target specific individuals,” Eliot Tracz, assistant professor of law at New England Law Boston, told Uncloseted Media. “They’re legitimate laws, but what they’re looking for is a selective application.”
Korgood isn’t the only trans candidate facing barriers. While a 2025 report by the LGBTQ+ Victory Institute found that trans representation among elected officials has increased by over 700 percent since 2017, candidates still face major hurdles.
Uncloseted Media found examples of trans candidates running for public office in Ohio and Michigan who have been threatened with disqualification over challenges to their eligibility. Often, the challenges come from their primary opponents: fellow Democrats.
“It should be voters, not political opponents, who decide who represents them,” Daniel Hernandez, vice president of political programs at the LGBTQ+ Victory Fund, a nonprofit supporting queer candidates for public office, told Uncloseted Media. “This is not a legitimate way to fight — if you have a disagreement on policy, that’s one thing, but to try and target trans people just because of who they are is completely unacceptable, especially in a Democratic primary.”
A growing strategy
The first widely publicized eligibility challenge against a trans candidate Uncloseted Media identified took place in Stark County, Ohio, in 2024. The Stark County Board of Elections, which has the same chairman as the county’s Democratic Party, disqualified Vanessa Joy, a trans woman who was running for a seat in the state legislature. The board cited an obscure state law requiring candidates who changed their name in the last five years to list their former name on candidacy petitions — in Joy’s case, her deadname.
“The original spirit of the law I kind of agree with,” Joy told Uncloseted Media. “But there’s hardly any information about this law ever being enforced.”
Days later, Arienne Childrey and Bobbie Arnold, two other trans candidates, had their eligibility challenged based on this law. While both candidates were cleared to run, that wasn’t the case for Joy, who never made it on the ballot.
Tom Sutton, a political science professor at Baldwin Wallace University, told Spectrum News 1 he had never seen this law enforced in his 30 years of study. At the time, the relevant forms didn’t include a space to list former names, an omission that has since been corrected.
“The only way to find out about it was to dig deep into all of the additional documents on their website,” says Joy. “They used this law against me.”
Similar challenges cropped up in Michigan this year. Joanna Whaley, a trans woman running for a seat in the state legislature, faced a legal complaint from her Democratic primary opponent Frank Liberati, who claimed in April that she should have filed campaign paperwork under her deadname.
“Because both the original and amended affidavits of identity filed by ‘Joanna Michelle Whaley’ contain FALSE statements, she/he cannot be certified to appear on the Aug. 4, 2026, primary election ballot,” the complaint argues.
The county clerk denied the challenge, which deadnames Whaley, because she had legally changed her name. Liberati’s complaint was widely condemned, with the Michigan Legislative LGBTQ+ Caucus calling it “meritless” and “transphobic.”
“It completely backfired on him,” Whaley told Uncloseted Media. “We tripled our cash on hand within a week because of the support that we’ve gotten from our community, and actually are in a stronger position now to win this race.”
While Whaley benefited from the challenge, that’s not the norm. Toni Mua, a trans woman running for a seat in the Michigan legislature, received a complaint from political activist Robert Davis in April who alleged that she also should have run under her deadname.
One of Mua’s opponents, Democrat Arthur Harrington, had discussed the challenge with Davis before it was filed, according to DeNiro Jones, Harrington’s former campaign manager. Jones told Uncloseted Media he sat in on a meeting between the two where they discussed the plan.
Jones also sent Uncloseted Media a screenshot of what he says is a text thread that Harrington sent him. In the screenshot, Davis tells Harrington, “The transgender candidate will be eliminated,” and Harrington responds that “Toni also won’t have the money to fight it.” Those texts were from April 22, two days before Davis filed the challenge.
In an email to Uncloseted Media, Davis called this story “baseless and meritless” and referred to Mua as “an illegitimate candidate seeking attention.”
“A candidate who happens to identify as transgender clearly violated Michigan Election Law and should not have been allowed to appear on the ballot,” Davis wrote. “A person’s sexual orientation nor identity played no part in the litigation seeking to have the person who filed a false affidavit of identity properly removed from the ballot.”
Arthur Harrington did not reply to multiple requests for comment. But in a June statement to Michigan Advance, he denied allegations that he was involved in Davis’s challenge.
These legal fights cost a lot. Korgood paid her lawyer $5,000. And while Mua defeated her challenge, she also had to use an estimated 40 percent of her campaign funds, or $10,000, to fight it.
In its opinion rejecting Davis’s challenge of Mua’s candidacy, the state court of appeals wrote, “Plaintiff misreads the statute … The Court of Claims did not err by concluding that Mua complied with the law or that the Wayne County Clerk did not err in rejecting plaintiff’s challenge.”
“I had to leave my job to run for this open seat,” Mua told Uncloseted Media. “It truly pisses me off, because [Democrats] have always said that they were better than this, and it’s showing truly where their support lies.”
Quinn Allred, executive director at Let Us Lead, a youth-focused voting rights nonprofit, finds these eligibility challenges from Democrats “despicable.”
“Instead of saying ‘trans people shouldn’t be running,’ [they’re entering] into this respectability politics and saying ‘oh, it’s actually because the names don’t match up, or it’s because of this residency law,’” Allred told Uncloseted Media. “[It’s a] special brand of cowardice that it takes for a Democrat to target a queer person who is also running for office.”
Uneven enforcement
While challenges to candidates’ residency aren’t uncommon in Massachusetts, they usually fail, according to Western Mass Politics & Insight, a long-running blog by local political and legal analysts.
The blog says most officials with authority over elections have a “great reluctance … to remove an individual from the ballot.” This makes Korgood’s removal unusual.
And while the State Ballot Law Commission says it considers many factors when determining a candidate’s residency and “no factor standing alone can be dispositive,” it largely cited Korgood’s voter registration in its decision despite other evidence that supports her eligibility, including apartment leases and membership in city programs.
“While there’s an undertone of legitimacy to some of those claims, it’s very selective,” Tracz says. “Most of us, when we move to a new state, don’t bother to go through the process of getting rid of our registration to vote in the prior state.”
Throughout history, Massachusetts candidates who faced similar challenges have been left on the ballot. These include former Massachusetts Gov. Mitt Romney, who received a tax credit in Utah reserved for primary residences, and Brockton, Mass., mayoral candidate Hamilton Rodrigues, who had gotten his voter registration in Brockton removed and hadn’t voted in the city for over 10 years.
Months after Joy’s disqualification in Ohio, the Mahoning County Board of Elections struck down a similar challenge against Republican Tex Fischer, a cisgender man who changed his legal name. They allowed him to stay on the ballot.
Tracz says a judge would likely find selective enforcement like this questionable.
“[That rule is] applicable to any candidate, and the question then becomes ‘Is this only being enforced against a select group of candidates?’” he says. “Why are we only investigating a specific type of candidate? I think that will give some courts pause.”
Making existing challenges worse
Trans candidates face hurdles beyond eligibility challenges. A June report from the LGBTQ+ Victory Institute found that nearly two-thirds of LGBTQ candidates face in-person harassment and nearly 80 percent of them face online harassment.
“Whether it’s threats of violence, coordinated harassment campaigns, attempts to remove people from the ballot, the cumulative effect is the same: public service becoming more difficult and less accessible to the LGBTQ community,” says Hernandez of the Victory Fund.
Whaley says the increased attention from Liberati’s challenge brought even more harassment her way. She says she reports death threats to the police weekly and has a security detail at every public appearance. Security has become her second-largest campaign expense, and for good reason; in October, her team intervened when a man wearing a Make America Great Again hat followed her around with a gun at a No Kings rally.
“At the end of the day, I want to get home to tuck my kids in bed,” Whaley says. “We could be using that money for other things, but we’re having to use it to just keep me alive.”
Eligibility challenges distract from the candidates’ policies. Childrey remembers one woman telling her she couldn’t vote for her because she’s “only about the rainbow people.”
“Most of what [I’m] talking about is affordability, funding for our public schools … bread and butter issues,” Childrey told Uncloseted Media. “There is an assumption, because we’re trans, that that’s all it is.”
Barriers also pile up intersectionally. Nearly one-third of trans people experience homelessness at some point in their lives, a rate eight times higher than the general population. This means barriers for unhoused people disproportionately affect trans candidates.
“Trans youth, trans people of color, students, those who are unhoused like [Korgood] was, or who are disabled or low-income — those barriers only compound,” Allred says.
What could change?
Zein Murib, a political science professor at Fordham University, says these incidents demonstrate the need for more leniency with official documentation, arguing that a candidate’s deadname or legal sex aren’t relevant information. Today, 45 states accept common-law names, or the name a person uses in everyday life regardless of their ID, for other legal procedures, and Whaley says this should apply to campaigns as well.
Besides these policy changes, Allred says LGBTQ advocacy groups should allocate more funds to defend trans candidates from eligibility challenges. And Hernandez says that more people should condemn these tactics and show support for those targeted.
“We need to make sure that we set the expectation that everyone … is rejecting these tactics that are disproportionately burdening our trans candidates,” he says. “We have to call it out when we see it, and we have to make sure that we are not just letting candidates fight these fights themselves.”
Mua says that she doesn’t see a future for herself or other trans people with the Democrats unless the party stands up for them. “I refuse to put myself into a party where I don’t see my safety and protection being vital.”
While Korgood says she is saddened by this outcome, she doesn’t intend for her political career to end.
“I’m incredibly proud of what we were able to accomplish, and while I am beyond disappointed and frustrated that this is how this is ending, I am so grateful that I earned the support and the attention of thousands of people in this race.”
Uncloseted Media also reached out to the Stark and Mahoning County Boards of Elections as well as the office of the Secretary of State in Ohio, and the Elections division of the Secretary of the Commonwealth of Massachusetts, under which the State Ballot Law Commission serves. None replied.
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