SCOTUS Nominee Neil Gorsuch is a Danger to LGBTQ Rights

Neil Gorsuch

While many in the mainstream media are painting Supreme Court nominee Neil Gorsuch as a moderate, sensible choice for the high court, the truth as demonstrated by his on-the-record statements and legal decisions paint a different picture. Gorsuch – who currently serves as a federal appellate judge on the United States Court of Appeals for the Tenth Circuit – prides himself on being a Constitutional originalist and supporter of textualism.

Gorsuch

Source: Twitter

That in and of itself should concern Americans concerned about the ongoing welfare of disenfranchised Americans as originalism and textualism tend to favor those who wrote the Constitution: well off white heterosexual men.

But Gorsuch’s legal decisions and history offer insight into his placement among existing justices on the court. FiveThirtyEight‘s Oliver Roeder offered a visual representation of that placement demonstrating just how dangerous the current nomination will be – and given Gorsuch’s relatively young age, that will be a threat for at least the next generation.

Among his pet issues, religious liberty usually tops Gorsuch’s list. That ideology permeates virtually every decision and every statement he makes, in fact – even if a case has no direct relation to religious freedom.

The most well known case he decided eventually made its way to the Supreme Court: Hobby Lobby. In a concurrence in the en banc 10th Circuit majority decision favoring the embattled retail giant, Gorsuch argued in part:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case.

When forced to pit two conflicting laws against one another – the Affordable Care Act (ACA) and the federal Religious Freedom Restoration Act (RFRA), there was little question which he would side with – and he wrote an eloquent concurrence justifying that placement of corporate-owned religious beliefs over individual female employees’ right to comprehensive health insurance.

That penchant to place religious belief above all else bleeds through to other areas of Gorsuch’s beliefs and career.

In the 2015 Druley v. Patton, et al, Gorsuch offered insight into how he would decide on LGBTQ issues as a U.S. Supreme Court judge. Druley dealt primarily with transgender rights and the right to adequate access to health care while in prison.

The case involves Jeanne Marie Druley – a transgender Oklahoma state prisoner who sought access to hormone therapy. Here’s background on the case as explained in the decision:

Prior to her incarceration in 1986, Ms. Druley was diagnosed with gender identity disorder (GID) and had two of three gender reassignment surgeries needed to change the gender of her body from male to female. Her name and birth certificate were changed to identify her as a female. In her § 1983 complaint, Ms. Druley alleges that the ODOC defendants violated the Eighth Amendment’s prohibition on cruel and unusual punishment by stopping and starting her prescribed hormone medications and giving her inadequately low dosages of her hormone medication. She also alleges the ODOC defendants violated the Equal Protection Clause by housing her in an all-male facility.

And here’s what Gorsuch concluded:

Ms. Druley presented no evidence that the ODOC defendants failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone treatment level appropriate for her, or otherwise deliberately ignored her serious medical needs. Thus, Ms. Druley failed to demonstrate a substantial likelihood of success on the merits. See Supre, 792 F.2d at 963. Further, in the absence of any medical evidence, Ms. Druley also failed to make any showing that she would be irreparably harmed if she did not receive the levels of hormone treatment she requested.

Ms. Druley also argues ODOC violated the Equal Protection Clause by denying her request to wear feminine undergarments and her request to be moved to a different building. Unequal treatment that does not involve a fundamental right or suspect classification is justified if it bears a rational relation to legitimate penal interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985). To date, this court has not held that a transsexual plaintiff is a member of a protected suspect class for purposes of Equal Protection claims. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1227-28 (10th Cir. 2007) (denying suspect-classification equal-protection employment rights for transgendered employees); Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (affirming the dismissal of an equal protection claim alleging the denial of estrogen treatment to a transsexual prisoner). Ms. Druley did not allege any facts suggesting the ODOC defendants’ decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose. Thus, she has not demonstrated a likelihood of success on her Equal Protection claims.

Commenting on these two cases, Lambda Legal CEO Rachel B. Tiven condemned the nomination:

“Judge Gorsuch’s opinion in the 10th Circuit Hobby Lobby decision is disqualifying,” said Rachel B. Tiven, CEO of Lambda Legal. “The Hobby Lobby decision set a terrible and destructive standard for bosses being allowed to meddle in our sex lives and decide whether or not birth control is covered by the employer’s insurance plan. In Judge Gorsuch’s decision, he calls the inclusion of health coverage that includes birth control – ‘complicity…in the wrongdoing of others.’  Even the Supreme Court, affirming that case, acknowledged how dangerous this line of thinking is: it creates a nation in which some religions are obliged to follow the law and others are not.  Troublingly, Judge Gorsuch does not even see this as a problem.

“We absolutely must not confirm a Supreme Court nominee who has ruled that the religious beliefs of employers can trump the law. It is a short hop from birth control restrictions to restrictions on the intimate relationships and health care needs of LGBT people.

“Through his decisions, Judge Gorsuch has promoted a vision of a society where some religions prevail over others, and are invited to flout the law. Judge Gorsuch’s judicial record is hostile toward LGBT people and his nomination to the U.S. Supreme Court is unacceptable—we oppose.”

Lambda Legal also cited a troubling ruling from Gorsuch in a recent transgender rights case in Oklahoma.

In several cases, Lambda Legal is fighting for the right of transgender students to use school restrooms that match who they are. The Supreme Court may decide this issue this spring. Additionally, protections against employment discrimination affecting LGBT people are likely to come before the Court very soon, as cases Lambda Legal has filed on behalf of math teacher Kim Hively and security guard Jameka Evans—both fired for being lesbians—make their way through the federal court system.

“Judge Gorsuch may very well be the decisive vote in these cases and others, and his extreme record suggests he could roll back the tremendous progress our country has made towards recognizing the fundamental rights LGBT people and everyone living with HIV,” Tiven added. “While any nominee would be difficult to accept given that this is a seat stolen from a democratically-elected president, we believe that Judge Gorsuch is an especially dangerous jurist to place on the highest court in the land.”

But his decisions aren’t the only reason to believe an appointment to the U.S. Supreme Court would be disastrous.

In a 2005 National Review article titled “Liberals’N’Lawsuits,” Gorsuch offered a frightening view of civil rights advocacy:

There’s no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

[Emphasis Mine]

Commenting on Gorsuch’s statements, Lambda Legal noted, “It is telling that Judge Gorsuch saves his criticism for “American liberals,” even as the U.S. Supreme Court routinely hears conservative challenges to constitutionally protected rights.” (You can view a full list of their other grievances against him here.)

But it goes much further than that: Gorsuch believes the popular majority should be the one to determine when a group does or does not deserve legal protections under the law. That’s not the kind of justice the Supreme Court needs – particularly under a President who has promised repeatedly to target at risk minority populations.

Commenting on Gorsuch’s nomination, OutServe-SLDN (the association for actively serving LGBT military personnel and veterans) offered the following statement in part:

“We are dismayed with the actions of the Trump Administration today, in the selection of Judge Neil Gorsuch, of the 10th Circuit Court of Appeals, to join the United States Supreme Court. His record and opinions on the expansion of religious exceptions can be utilized in the marginalization and discrimination towards the LGBT and women’s communities. These opinions should be uniquely disqualifying for an appointment to our nation’s highest court. His judicial record is hostile towards members of the LGBT community, including those that have and continue to selflessly serve this great nation.

Never before has OutServe-SLDN, a legal nonprofit focused on providing legal services for LGBT servicemembers, veterans, and their families, taken such a stance with respect to a Supreme Court nomination. However, Judge Gorsuch’s dissenting opinion in the 10th Circuit Hobby Lobby case, referenced by the Supreme Court in their opinion, has given us a fundamental purpose to comment on this nomination. The writing Justices in Hobby Lobby indicated how dangerous Judge Gorsuch’s line of thinking was, and the dangerous precedent it set, by allowing certain religions to usurp our nation’s laws. Religion should never be used as a tool for discrimination.

Writing for Slate, Mark Joseph Stern postulated on some of the important issues that will be coming before the court soon – and why having Gorsuch as a justice could be harmful to LGBTQ people:

Perhaps, as a justice, Gorsuch would vote to affirm Obergefell v. Hodges, the marriage equality decision, purely as a matter of precedent. But the court will soon consider state efforts to limit the scope of that ruling, and Gorsuch does not seem eager to interpret Obergefell expansively. Would he agree, for instance, that Texas can deny spousal benefits to same-sex couples so long as they issue them a marriage certificate? Or that Arkansas can let adoptive parents put their names on their adopted child’s birth certificate—unless they’re gay? His comments on same-sex marriage itself are discouraging enough that it seems safe to assume he’s a skeptic of related rights and privileges.

Stern also dug up another case in which Gorsuch has a terrible record on transgender rights:

Equally troubling is Gorsuch’s vote in a discrimination case involving trans employees’ right to bathroom access. Rebecca Kastl, a trans woman, sued her employer when it forbade her from using the women’s bathroom until she could “prove completion of sex reassignment surgery,” then let her contract expire. The court acknowledged that Kastl had stated “a prima facie case of gender discrimination under Title VII on the theory [of] impermissible gender stereotypes,” which is mildly encouraging. But it then asked whether her employer had put forward some legitimate, nondiscriminatory reason for its treatment of Kastl—and concluded that it had, by vaguely citing “safety reasons.” An unsubstantiated, irrational fear of trans people in bathrooms should not be considered a legitimate basis for workplace mistreatment, and Gorsuch’s vote to the contrary casts doubt on his willingness to thoroughly scrutinize the real intent behind laws like North Carolina’s HB2.

In short, Neil Gorsuch will be no friend to the LGBTQ community if confirmed to the U.S. Supreme Court. In fact, he may become the community’s largest obstacle for the next generation in securing and maintaining basic legal protections.

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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