James Kirchick’s recent article on “The Struggle For Gay Rights is Over” is fundamentally wrong on a number of levels, including his central premise that the battle for lesbian and gay rights has been won, and that they should move on and leave the transgender community behind. In truth, lesbian and gay rights are about to go backwards, and it all starts with using attacks on transgender people as a legal catalyst for taking down the LGB community as well.
First off, the battle has not been “won” in the first place. There are almost no federal level protections for LGBT people, and those policies that exist are being undermined by the Trump administration. The Equality Act, which would bar discrimination against LGBT people in employment, public education, access to credit, jury service, federal funding, housing, and public accommodations is dead on arrival as long as Republicans control the Senate (which could be decades). At the same time, SCOTUS appears to be poised to gut existing case law and local level protections by striking down cases that hold LGBT people are protected by Title VII and carving out vast religious exemptions to state and local non-discrimination laws.
The religious right never gave up its goal of banning same-sex marriage and gay people from the military either. They are simply carrying on by other means. It is well understood by people within the LGBT movement that the strategy underlying this goal is to separate the transgender community from the lesbian and gay community, and then to destroy transgender people first, moving on to the LGB community and defeating them afterwards as well. Leaders of the religious right have enumerated this publicly.
Additionally while Mr. Kirchick seems to think that the religious right is a spent force that is incapable of moving the course of history backwards, it is not. The Alliance Defending Freedom is one of the most powerful legal organizations in America, with a force of over 3000 pro bono lawyers and budget similar to the Human Rights Campaign’s. They are bringing a steady flow of impact litigation to SCOTUS to roll back LGBT protections.
The Family Research Council, one of the organizations responsible for the transgender military ban, has an extremely close relationship with the White House. In fact, FRC President Tony Perkins says he has never had this level of access to a President before. These organizations clearly have the ability to move both policy and the Supreme Court, and to reverse decades of progress.
Another faulty assumption is that the direction of public opinion only shifts for the better over time. This is a false assumption based both on history, and recent polling data trends. We can see how far LGBT rights fell in Germany in the 1930’s, where in the space of a few years they went from one of the most progressive societies on LGBT issues, to burning Magnus Hirschfeld’s library of works on LGBT studies in the matter of a few years. In our current times, polling has shown a sharp drop in public support by Millennials for LGBT rights under the Trump Administration.
The combination of anti-LGBT policy at the Federal level, a sharp rightward tilt of the Supreme Court, and anti-LGBT groups bringing a steady stream of impact litigation is highly likely to set LGBT rights back by decades, and undo the work people spent a lifetime on. At the same time, much of the leading edge of impact litigation that will be used to attack LGB rights will hit the transgender people at the front lines of the culture war first.
While Mr. Kirchick’s article seems to evince antipathy towards transgender people and empathy for LGB individuals, the two are inextricably connected in a legal and policy sense. For example, there’s the transgender troop ban. If transgender people lose this case at SCOTUS, it will set precedents that permit the government to bring back a form of “Don’t Ask, Don’t Tell.” Before you dismiss this, you have to understand that Trump and Pence’s closet allies in the religious right have stated that ending DADT is where it all went wrong, and trying to make a case that DADT should be brought back to reduce the incidence of sexual assault in the military. Should transgender people lose, it means that DADT will likely return in some form if President Trump gets a second term.
Then there’s the case of Doe v. Boyerstown, in which the ADF sued a Pennsylvania school district for having a transgender inclusive policy on bathrooms. The ADF alleged that the mere possibility of sharing a bathroom with a transgender person created a hostile environment in violation of cisgender student rights. While SCOTUS denied certiorari, there is nothing that would prevent them from taking such a case in the future. Losing a case based on this “hostile environment for straights” argument would be devastating not only for transgender people, but likely for LGB people as well. Remember, conservatives long argued that DADT was justified because straight people wouldn’t want to share bathrooms or showers with an openly gay person. If the transgender community loses a case live Doe v. Boyerstown, you can be certain that ADF would rapidly follow it up with challenges to gay people in bathrooms, and to justify the return of DADT.
Mr. Kirchick also seems to sneer at the idea that sweeping religious exemptions to civil rights laws would do nothing more than force LGBT people to find a different baker for their cakes. In reality, the religious right already uses it to refuse housing to seniors, deny medical care and schooling for children with LGBT parents, fire LGBT employees, and to deny educational opportunities to LGB students. Thus, the notion that this is “just about cakes” is as ridiculously reductive as the notion that it was just about water fountains or swimming pools. And thus, the LGBT community would lose over 40 years of legal and legislative progress to prevent invidious and blatant discrimination.
The religious right is also using transgender people and religion as a wedge to challenge laws prohibiting conversion therapy. They are pushing hard to establish a message that being transgender is a mental illness that can be cured with some sort of unnamed and unspecified treatment, with the intent of reestablishing the notion that homosexuality or bisexuality is also a mental illness brought about by psychological trauma, rather than an intrinsic trait and a natural part of human diversity.
Finally, there’s the cases of Zarda, Evans, and EEOC v. Harris Funeral Homes in which SCOTUS effectively lumped together the question of whether discrimination against LGBT people is an illegal form of sex stereotyping under Title VII of the 1964 Civil Rights Act. While Mr. Kirchick doesn’t consider transgender people to be linked in any logical way to the LGB community, the Supreme Court does, and their opinion counts for a lot more.
Indeed, it is likely that the results of these cases will impact any attempt to bring back DADT as well, given that the government is arguing that LGBT is a behavior that people can control and self regulate, and that since not all gay people have gay sex and not all transgender people transition, government discrimination against them as a class of people only worthy rational basis scrutiny—the lowest form of legal protection–is constitutional.
But it gets way worse from here.
While Mr. Kirchick seems blissfully content to believe that Obergefell and Lawrence v. Texas (which ruled sodomy laws unconstitutional) are safe from challenge, lawyers for both the religious right and the LGBT movement are far less sanguine. Both recognize that the court’s reliance on stare decisis has weakened, and it was apparent this session as long-standing precedents fell. Indeed, Clarence Thomas’ opinions nakedly call for an end to stare decisis in decisions he believes were wrongly decided (which includes both Obergefell and Lawrence).
Cases like Pidgeon v. Turner are attempting to deliberately chip away at the benefits and protections conferred by marriage the same way they whittled down abortion rights with TRAP laws. In short, marriage equality is in almost exactly as much danger as Roe v. Wade. Which is to say, mortal peril.
In Justice Scalia’s dissent in the case of Lawrence v. Texas Scalia lamented that, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
In other words, Scalia was arguing that “moral opprobrium” is an appropriate basis for law, and was angry at the court for deviating from that standard. He also argued that these laws should only be struck down by legislatures. Today, 14 years later, despite being ruled unconstitutional, 12 states still have sodomy laws on the books.
Fast forward to 2018, where (then) Attorney General Jeff Sessions was speaking at the Department of Justice Religious Liberty Summit. He deliberately echoed Scalia’s complaint in Lawrence, stating, “We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.”
This was not an accident. Sessions was essentially begging the ADF to help bring cases overturning Lawrence. And while Sessions may be gone, AG Barr holds the exact same belief that Christian religious views should form the basis for criminal law where LGBT people are concerned. Keep in mind that Lawrence is based on the concept that there is a right to privacy, which was found in Griswold v. Connecticut and Roe v. Wade. Court conservatives, including Roberts, loathe the concept of a right to privacy.
Let it also not be forgotten that Jay Sekulow is the chief counsel for the Center for American law and Justice, and on President Trump’s legal team. He submitted an amicus brief in support of sodomy laws in Lawrence v. Texas. One of his signature quotes is, “If anyone tells you that you cannot legislate morality, remember that legislation IS morality.”
Similarly, ADF is starting to bring cases that employers cannot punish employees who violate non-discrimination policies against LGBT people. Indeed, it is probable that they will argue that corporations have to accommodate anti-LGBT religious beliefs in the workplace under Title VII of the Civil Rights Act. An example is highly likely to be religious objections to corporate health care plans including LGBT spouses or transgender health care.
What Kirchick does not realize is that this parade of horrors will probably come to pass if Trump gets a second term. If he does, he will certainly get another Kavanaugh on the court who will happily sign off on anything the ADF petitions cert for. It isn’t just transgender people who are on the precipice of doom, it is LGB people as well. Even worse, the scenarios above are far from comprehensive. They haven’t touched on how SCOTUS ruling on gerrymandering guarantees anti-LGBT legislation will become more common and draconian, or how this article only covers the things that the religious right is doing or has strongly signaled they intend to do.
Thus, if there is a second Trump term, it doesn’t matter if hearts and minds have been won. It doesn’t matter what cases there have been in the past. The religious right already has a nearly straight shot to achieve its aims today, and another four years with another conservative justice will bring about a collapse of LGB rights that is beyond the currently imaginable.
Lesbians and gays haven’t won. They’re losing in Zarda and Evans, and are a bad 2020 election away from permanent 3rd class citizen status. Their floor for civil rights looks exactly the same as for transgender people. Throwing transgender people to the wolves is likely to hasten the fall of LGB rights by providing the legal ammunition needed to justify it.
Mr. Kirchick’s view that the battle has been won is both short-sighted, and counterproductive. The LGBT people who litigate these issues aren’t sanguine about their prospects. I’m not, and he shouldn’t be either. We may be witnessing the last call for alcohol in the cabarets of the Weimar Republic.
The SCOTUS Event Horizon for the LGBT Movement
Stop for a moment. Imagine how bad it will be…