Last week we saw Neil Gorsuch raised to a justice on the U.S. Supreme Court. The swearing in of Gorsuch left me and many others in the LGBT community feeling both fearful and increasingly concerned about the tilt of the Court should another justice die or retire thereby allowing Der Trumpenführer in a position to appoint a justice that could tilt the Court to the extreme right for a generation. Much of my fear stems from Gorsuch's court of appeals opinion in Hobby Lobby which make it clear that he believes "religious belief" trumps the physical and civil rights of those disliked by the "godly Christian" crowd. This concern is intensified by the reality that, while Trump has increasingly back tracked from campaign promises, he has kept his pledged to Christofascists that he would wage war on the LGBT community. A piece in The Daily Beast argues that despite all of these concerns, the federal courts are overall moving the nation forward on LGBT rights issues. Read the piece and let me know you thoughts. Here are article highlights:
Is the U.S. court system the last hope for LGBT equality the next four years? Following an avalanche of groundbreaking rulings extending existing civil rights legislation to cover sexual orientation and gender identity, it certainly seems so.
The past week has been a groundbreaking one in cementing the rights of LGBT individuals to equal protection under the law. On April 4, the 7th Circuit Court of Appeals ruled in favor of Kim Hively, a part-time professor at Ivy Tech Community College in Indiana, who claimed that the university administration declined to offer her a full-time position because of her sexual orientation. Hively, who is a lesbian, was chastised by a fellow staff member for “inappropriate behavior” in 2009, claiming that the lecturer was spotted “sucking face” with her girlfriend in the school’s parking lot. After that incident, court documents allege that Hively was not allowed the opportunity for advancement. She was let go in 2014.
The appeals court declined to say whether Hively had indeed experienced job-based discrimination. Instead the decision ruled as to whether such a claim could be made under Title VII of the Civil Rights Act of 1964, which prevents bias on the basis of sex but, until now, has never explicitly provided protections for LGBT individuals.
“It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” the court decided in an 8-3 decision.
That decision was surprising given that the ruling reversed the 7th Circuit Court’s own decision. After a trial court dismissed Hively’s claim in 2015, she appealed to the 7th Circuit in September of the same year. A three-judge panel ruled against her, citing a lack of precedent in siding with the rights of LGBT workers. The Hoosier State is one of 28 that doesn’t recognize sexual orientation or gender identity as protected classes in state civil rights codes. But last October, the court decided to rehear the case en banc, meaning that all eight court judges would hear it, not just a selected panel.
A particularly compelling aspect of the Hively v. Ivy Tech decision is that five of the judges in the majority are conservative. These include Frank Easterbrook and Richard Posner, the latter of whom penned an eloquent concurring opinion on the need to reinterpret the Civil Rights Act.
“We understand the words of Title VII differently,” Posner said, “not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
This groundbreaking ruling, which followed four months of legal arguments, was the first time a federal court argued that civil rights laws should be extended to include LGBT protections. But it wouldn’t be the last. Just a day later, a Denver court sided with a transgender woman, Rachel Smith, and her partner, who claim that their application for an apartment was turned down after the landlord said he didn’t want to attract scrutiny due to the couple’s “unique relationship.” U.S. District Judge Raymond Moore argued that the Smiths’ right to be treated just like any other couple was covered under the Federal Fair Housing Act.
A SCOTUS showdown is a concern for LGBT activists given the recent appointment of far-right jurist Neil Gorsuch to the bench. In his 2004 Oxford University dissertation, Gorsuch argued that the U.S. Constitution didn’t protect the marriage rights of same-sex couples. Referring to marriage equality as part of the liberal social agenda, he later accused progressives of being “addicted to the courtroom.”
Gorsuch’s nomination, which was opposed by 18 LGBT groups, is viewed as yet another component in the Trump’s quiet campaign to erase LGBT people from public policy. Last month, questions about LGBT seniors were removed from two annual surveys conducted by the Department of Health and Human Services, and the White House has rolled back federal oversight on workplace protections for LGBT people passed under the Obama administration.
Although the U.S. court system wasn’t always favorable to LGBT rights, that began to shift with the Supreme Court’s 1996 ruling in Romer v. Evans, which declared that Colorado could not explicitly ban protections for its LGBT residents. In a 6-3 decision, the court ruled that the Equal Protection Clause under the 11th Amendment, which states that all citizens are entitled to “the equal protection of the laws,” prevented the state from singling out LGBT people. That ruling, the first of its kind in the U.S., would pave the way for the Court’s 2003 decision to strike down anti-gay sodomy laws in Lawrence v. Texas.
Conservatives like to malign “activist judges” legislating from the bench, but the truth is that case law has increasingly laid the groundwork for LGBT protections being upheld by courts around the U.S., even in the face of an unprecedented wave of anti-LGBT hate. The trend is both striking and unmistakable.
After Mississippi signed a bill into law that allowed businesses to discriminate against LGBT people, Judge Carlton Reeves issued an injunction against House Bill 1523. “The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after [Obergefell v. Hodges],” Reeves said, referencing the Supreme Court’s 2015 ruling legalizing marriage equality. And a federal court in Pennsylvania ruled that Juliet Evancho, the transgender sister of inauguration singer Jackie Evancho, had the right to use the girls’ bathroom at her Pennsylvania high school.
Even a major setback in Gavin Grimm’s impending U.S. Supreme Court case offered unexpected hope for the transgender student’s fight to be treated with dignity and respect.
After the Supreme Court, which was set to hear arguments in G.G. v. Gloucester County School Board this term, turned the case back to the lower courts, the Fourth Circuit Court of Appeals declined to hear the 17-year-old’s case on an expedited basis. As Chase Strangio of the American Civil Liberties Union noted in a post for Medium, it would be customary for the federal court to offer a “short, one-line update” on the case to its docket. Instead, Senior Judge Henry Floyd penned a stirring ode to Grimm’s years-long struggle — which will now be decided after the Virginia student graduates.
Justice for Gavin Grimm will be delayed, but if the recent direction of the courts on LGBT rights is any indication, it’s coming sooner rather than later. The LGBT community may no longer have a friend in the Oval Office, but justice is on our side.
I hope that the author is correct. I also hope that Gorsuch will be hesitant to go against the clear trend of lower court rulings.