Trump Wants Another Scalia on the Supreme Court, Which Would Eviscerate LGBT Equality

Donald Trump has used the prospect of Supreme Court nominees as a way to get the support of the far right conservatives who run and fund the Republican Party.  He has promised to outsource the selection to ideological groups like the Federalist Society, and he pleased Republicans with his promise last March to appoint “someone as close to [the late Justice Antonin] Scalia as I could find.”  He repeated this promise in August during an interview with Sean Hannity on Fox News, promising that in his selection, “I want to get as close to Scalia as I can.”  And at the second presidential debate with Hillary Clinton on October 9, he said he was “looking to appoint judges very much in the mold of Justice Scalia.

This is chilling for all Americans across a broad range of communities and issues, and especially for the LGBT community.  It is perhaps appropriate that Donald Trump would model his next justice on Scalia.  The late justice’s unusually venomous, paranoid, divisive, and contemptuous dissents about LGBT equality were at times the judicial equivalent of a Trump campaign rally.

In 1996’s Romer v. Evans, the Court struck down Colorado’s notorious state constitutional amendment that prohibited state and local governments from protecting people from discrimination on the basis of sexual orientation.  “Amendment 2” also eliminated anti-discrimination laws already on the books.  But only one group of people was barred from seeking the rights and protections available to others, and the Court could find no reason for it but animus toward that group.

Justice Scalia’s dissent described Amendment 2 as just “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”  But his dissent in this first major civil rights victory for the LGBT community at the high court wasn’t just a legal analysis disagreeing with the majority.  His own animosity, paranoia, and rabble-rousing shone through his words like a beacon … or like Donald Trump’s inflammatory accusations toward populations he and his supporters clearly disdain.  He criticized the majority for concluding that animosity towards “homosexuality” (the term used in the opinion) is wrong, and he defended the right of a majority to pass laws against an unpopular minority based on their moral disapproval of that group.

Even worse was how he saw the struggle of LGB people in Colorado to live their lives openly and free from discrimination.  He characterized this as a “special right.”  And he saw Amendment 2 as a legitimate response by Coloradoans against a small yet wealthy population concentrated in cities and who had “disproportionate political power,” who opposed the traditional morality of the majority, and who had brought their quest for “social endorsement” from New York, San Francisco, LA, and Key West to communities in Colorado.

Scalia's dissent in 2003’s Lawrence v. Texas (striking down “sodomy laws”) was also revealing—and disturbing.  The majority opinion was remarkable in its treatment of gays and lesbians as people, stating what should have been obvious: sexual intimacy for gays and lesbians is just as central to personal autonomy and dignity as it is for heterosexuals.  As a result, it implicates the same fundamental constitutional liberties, and moral condemnation is not a sufficient justification for criminalizing it for same-sex couples.

Scalia would have none of it.  His dissent described the case not as one about the human act of sexual intimacy (and the consequences for individual liberty that flow from that), but as one about “homosexual sodomy.”  He apparently could not conceive that two people of the same sex have sex for the same reasons that two people of the opposite sex do.  And he leapt to the defense of voting majorities who consider sex between two men or two women as immoral to punish those men and women through the criminal code.

A decade later, when the Court struck down the misnamed Defense of Marriage Act in Windsor v. United States, Justice Scalia wrote a separate dissent in which he concluded that the Court lacked jurisdiction to consider the case in the first place.  But then he proceeded to consider the merits anyway.  In what might be considered unnecessarily hyperbolic language, he accused the majority of judging opponents of marriage equality to be “enemies of the human race,” “enem[ies] of decency,” “monsters,”  and “unhinged members of a wild-eyed lynch mob.”  His fury at the majority was palpable.

Similarly, in the Obergefell case, when the Court at last recognized that denying same-sex couples the right to marry violates their constitutional rights, Scalia chose to write a separate dissent.  He wrote that he agreed with the main dissent (written by the Chief Justice), but that he wanted to write separately “to call attention to this Court’s threat to American democracy” by deciding the case as it did.  Calling it a “judicial Putsch,” Scalia slammed the elitism of the Court and wrote that:

to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Essentially, Scalia was saying the Court cannot legitimately address whether same-sex couples have a constitutional right to marry because they don’t have a constitutional right to marry.  (And yet he and his fellow dissenters did address the question; they just came to a different answer than the majority.)  It seems that any opinion on this issue that didn’t agree with Scalia’s was (in his eyes) illegitimate, just as any election result where Trump loses is (in his eyes) illegitimate.

Scalia’s reasoning was circular, but the result would have been the same if his other dissents had been majority opinions: the preservation of as many methods as possible to use the force of government to marginalize, stigmatize, and harm gays and lesbians.

There will surely be cases in the coming years (and perhaps months) at the Supreme Court that will have a profound influence on the rights not only of LGB people but also of transgender people.  Donald Trump wants justices “as close to Scalia” as possible.  That is a profound threat to every LGBT person in America.

PFAW

Ted Cruz Hopes To Save Presidential Campaign With Attacks On LGBT People

This piece originally appeared on the Huffington Post.

Last month, Ted Cruz delivered a warning to the Republican Jewish Coalition: If the GOP nominates Donald Trump for president, the general election will be a “bloodbath.”

The Texas senator assured the group that he is not the right-wing firebrand he has been made out to be. The Jewish Telegraphic Agency reported that “Cruz said social issues devolve to the states and suggested he would not seek to impose his views as a president.”

“Nobody wants to elect a hectoring scold,” he said.

However, this more moderate and toned-down version of Ted Cruz didn’t last very long, as just days later he launched new attacks against transgender people, smearing them as likely sexual predators. In a television ad, Cruz’s campaign attacked Trump and Hillary Clinton for “letting transgender men go in little girls’ bathrooms”; on the campaign trail, he suggested that his daughters may be assaulted by transgender women.

Cruz then said that he doesn’t think transgender people should be let into public restrooms at all, instead saying that they should only be allowed to go to the bathroom at home.

Such attacks shouldn’t be surprising, considering that Cruz has spent his entire presidential campaign courting the support of radical anti-LGBT activists.

Cruz’s campaign is stacked with anti-gay leaders like Gordon Klingenschmitt, a Colorado state lawmaker who also happens to be an anti-LGBT exorcist who believes that gay people “should be discriminated against”; Gary Glenn, a Michigan lawmaker who wants to outlaw homosexuality; and North Carolina activists Flip Benham and Ron Baity, who have crashed gay couples’ weddings and likened gay people to “maggots,”respectively.

Two people with roles in Cruz’s campaign, Republican Rep. Glenn Grothman of Wisconsin and Family Research Council President Tony Perkins, have defended Uganda’s “kill-the-gays” bill. Cruz even gladly made a campaign ad with “Duck Dynasty” star Phil Robertson, who said at one Cruz campaign event that Americans should “rid the earth” of gay marriage supporters.

He promised a group of anti-LGBT activists that if he is elected president, “we will not use the federal government to enforce [the] lawless decision [on same-sex marriage].” Speaking with conservative pundits, he warned that marriage equality will destroy the freedom of speech and denounced what he called the gay “jihad“ on freedom.

Then there was Cruz’s attendance at a “religious liberties” conference in Iowa last year that was hosted by radical anti-LGBT pastor Kevin Swanson, who used the forum to promote the death penalty for homosexuality, rail against the Harry Potter books for supposedly turning kids gay, and promise that if his son were ever to marry another man he would show up to the wedding covered in cow manure

Even after having been warned about Swanson’s views on national TV, Cruz attended the event and participated in an onstage interview with Swanson, where he lavished praise on Kim Davis, the county clerk in Kentucky who tried to block her office from issuing marriage licenses to same-sex couples by citing “God’s authority,” and called the Supreme Court’s marriage equality ruling “fundamentally illegitimate.” The candidate eventually — after much criticism — said that he regretted his appearance at the conference and falsely claimed to have immediately denounced Swanson upon learning about his views.

Despite Cruz’s attempt to reposition himself as the more reasonable alternative to Trump, his anti-LGBT record is one more example of his blatant extremism.

PFAW

Discriminatory "Religious Freedom" Bill is Bad for Our State

This piece originally appeared on the Huffington Post.

I am one who believes that we must be vigilant about protecting true religious liberty, which has been a guiding principle throughout our country's history. As the First Amendment makes clear, all people have a right to practice, or not to practice, any religion they choose. Laws that truly protect individuals' exercise of religion prevent the government from infringing on our rights.

But the state legislature is considering a bill (HB 757) that, though framed in the language of protecting First Amendment religious freedom, at its core is about one thing: discrimination. HB 757 was recently amended and passed by the state Senate and is now being considered by the House. As Americans United explains it, the bill would allow "any individual or 'faith-based' business, non-profit entity, or taxpayer-funded organization to ignore any law that conflicts with their religious beliefs about marriage." In other words, businesses and organizations could cite religion in order to refuse service to certain groups of people.

This bill could lead to any number of nightmare situations. Restaurant owners who refuse to serve same-sex or interracial couples. Domestic violence shelters that turn away unmarried mothers and their children. Adoption agencies that refuse to place a child with parents of different faiths.

It's not the first time Georgia has considered passing a "right to discriminate" bill. Why are our state representatives wasting time, again and again, pushing legislation that would harm Georgians and threaten to drive businesses out of the state? The bill's sponsor even admitted last week that the legislation could protect the Ku Klux Klan as a "faith-based" organization. This bill is too extreme for Georgia, plain and simple. 

While the new title of part II of HB 757, "the First Amendment Defense Act of Georgia," may sound like it's about true religious protection, the bill is actually a cynical attempt to turn the idea of religious liberty into a sword to attack other people's rights, rather than to truly shield their own religious practices from improper government interference. That's not what religious liberty is about. Moreover, using religion as a tool to harm others is an idea that a strong majority of Georgians reject. According to new data from the Public Religion Research Institute, 57 percent of Georgians oppose allowing small businesses to refuse service to gays and lesbians on religious grounds.

Many faiths, including my own, teach that we should fight for the oppressed. Disguising a push for a "right to discriminate" under the mantle of First Amendment religious freedom is an insult to those moral principles. It's an insult to people of faith who take seriously the call to walk with, and fight for, the most vulnerable among us. 

As a Baptist pastor and as a Georgian, I urge our legislators to do the right thing by rejecting HB 757. On the senate floor, Sen. Nan Orrock said, "Be able to tell your grandchildren that you didn't vote for state-sanctioned discrimination." To that, I say: Amen.

Rev. Timothy McDonald III is Senior Pastor of First Iconium Baptist Church in Atlanta and Co-Chair of People For the American Way's African American Ministers In Action.

PFAW Foundation

Justice Scalia's Ironic Comments About Democracy

Justice Antonin Scalia had some interesting things to say at a speech yesterday to Georgetown University law students.  The Washington Post reports on Scalia’s response to a question about minority rights:

But a question about whether courts have a responsibility to protect minorities that cannot win rights through the democratic process — the issue that animated the court’s landmark decision this year on same-sex marriage — brought a caustic response.

“You either believe in a democracy or you don’t,” Scalia said. “You talk about minorities — what minorities deserve protection?”

Religious minorities are protected by the First Amendment, Scalia said, and so are political minorities. But beyond that, he asked rhetorically, what empowers Supreme Court justices to expand the list.

“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say] this is a deserving minority. Nobody loves them.”

“No, if you believe in democracy, you should put it to the people,” he said.

No, Justice Scalia, if you believe in democracy governed by the Bill of Rights, people have rights that cannot be violated by majorities.  The majesty of the Equal Protection Clause is that it was intentionally written broadly, rather than being limited to certain people.  And it doesn’t have a clause saying “except for gay people.”

In addition, given Scalia’s caustic dissents in cases recognizing the constitutional equality and basic humanity of gay people, it is hardly a surprise that he answered a question implicating LGBT equality by dragging in pederasts and child abusers.  From a legal perspective, can he really not see any difference between protecting innocent but unpopular people who aren’t harming anyone, and policies designed to prevent adults from committing acts of violence against unwilling children?

Legal comparisons aside, why bring up child molesters at all?  For far too long, far right extremists have long peddled the pernicious lie that gay people are inherently a threat to children.  Why did Scalia’s mind go there?  Surely there are other categories of people he could have mentioned to make the same point.

Scalia’s comment about believing in a democracy also has to be taken in context: He voted with the 5-4 majorities in Citizens United (opening up our elections to unlimited corporate and special-interest money) and Shelby County (gutting the heart of the Voting Rights Act and empowering those who seek to win elections by disenfranchising Americans who might vote against them).  And, of course, he was with the 5-4 majority in the ultimate judicial middle finger to democracy, Bush v. Gore.

At the heart of our democracy is the right to vote in free and fair elections.  That means elections without barriers designed to keep the “wrong” people from voting, and elections where the voices of ordinary people are not drowned out by a tiny sliver of phenomenally wealthy and powerful interests.  That is what a healthy democracy looks like, and it makes Scalia’s comments quite ironic.

PFAW Foundation

EEOC Says Anti-Gay Discrimination Is Illegal Sex Discrimination

The Equal Employment Opportunity Commission, the federal agency tasked with enforcing federal laws prohibiting job discrimination, issued an order yesterday with substantial impact on millions of people throughout the country.  In a case involving allegations of discrimination at the Federal Aviation Administration, the EEOC has concluded that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

In other words, the agency that enforces Title VII says that it’s illegal to discriminate against someone because they are gay, lesbian, or bisexual.  (It had already made a similar finding about gender identity.)

This makes perfect sense.  Federal courts, including the Supreme Court, have long held that employers may not rely upon sex-based considerations or take gender into account when making job-related decisions.  As the EEOC now notes:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. …

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example,  assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.

The agency also notes that just as the law prohibits employers from discriminating against an employee because of the race of that person’s spouse, the same applies to the spouse’s sex.

This is not the first time that the EEOC has expanded the frontiers of justice and equality through an obvious but overdue interpretation of Title VII, which was passed in 1964.  For instance, today it’s common knowledge that sexual harassment in the workplace violates Title VII.  Yet, as anyone who lived through the 1960s (or watched Mad Men) can tell you, sexual harassment was quite common, Title VII notwithstanding.  It was not until 1980 that the EEOC issued guidelines prohibiting sexual harassment as a form of sex discrimination.  And it took until 1986 before the Supreme Court made that interpretation the law of the land in a case called Meritor Savings Bank, FSB v. Vinson.

Some courts have already addressed this issue and reached the opposite conclusion of the EEOC.  Dale Carpenter notes in the Volokh Conspiracy:

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination.

This week’s action from the EEOC certainly isn’t the end of the story.  Usually, if an agency interprets the law it’s charged with implementing, courts are required to give substantial deference to its interpretation, as long as it’s a reasonable way of reading the law.  But courts are not required to give that same level of deference to the EEOC’s interpretation of Title VII.  So while its recognition that sexual orientation discrimination is a manifestation of sex discrimination is a step forward, it could be undone by the courts (as well as by EEOC commissioners nominated by a future administration hostile to LGBT equality).  Indeed, we may see this issue ultimately decided by the Supreme Court.

PFAW Foundation

Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
 

PFAW

A Historic Day for Liberty, Equality, and America

Wow.

The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation

North Carolina Pastor Speaks Out About Discriminatory 'Religious Freedom' Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.

PFAW

PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:

PFAW

The Courts Have to Matter to LGBTQ Americans

The following is a guest post by Erik Lampmann, a 2011 Young People For (YP4) Fellow. It is cross-posted on the Alliance for Justice blog and the YP4 blog.

Federal courts routinely hand down judgments that affect everyday Americans at an immediate, painful, and personal level – for good or ill.

Consider the case of Seamus Johnston, a transgender student expelled by the University of Pittsburgh at Johnstown (UPJ) for his use of male restrooms and gym facilities on campus. When he sought redress for his experiences at the hands of UPJ, U.S. District Judge Kim Gibson, a George W. Bush appointee, ruled he had no room to claim discrimination since he was being treated in accordance with his sex as assigned at birth and had not had sex reassignment surgery.

In some ways, Johnson was warranted in thinking he was free to live openly as a transgender man since UPJ offers gender identity and expression protections under its student nondiscrimination statement. Indeed, Johnson had lived openly and without significant difficulty as a man since 2009 — even having taken advantage of men-only exercise courses. Only in 2011 was Johnson first confronted for using a men’s locker room. After issuing Johnson citations, barring him from certain facilities, and eventually arresting him, the university expelled him for his attempt to use the bathroom in which he felt most at peace and which he believed he was permitted to use by university policy. In his appeal for justice, Johnson didn’t ask for much — simply that a university that purports to protect students based on “gender identity and expression” allow him a modicum of relief as a transgender person rather than criminalizing his attempts to live authentically.

Essentially, Judge Gibson acknowledged Johnson’s self-identification as a transgender man, but she didn’t think it really mattered in the context of the Equal Protection Clause or Title IX.  Flatly ignoring guidance from the Department of Education encouraging institutions of higher education to recognize transgender and gender non-conforming students’ right to protections under Title IX, Judge Gibson left Johnston, and other transgender students, without protection from sex discrimination. She wrote:

While Plaintiff might identify his gender as male, his birth sex is female … It is this fact … that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.

In sum, this decision reflects a sobering reality for LGBTQ people, particularly transgender and gender non-conforming individuals: The government — more specifically, a judge — holds the power to determine if the law protects how you define yourself.

This example dramatizes just one way that our courts fail to live up to the promise of the motto “equal justice under law” by protecting the vulnerable among us from exclusion and discrimination. I’ll admit that several years ago the result in this case might have led me to give up on the courts as an avenue for change.

Recent decisions from the Supreme Court and other federal courts have prompted some progressives to view the courts as a once-relevant institution home only to disconnected jurists. When we as progressives write off the courts and treat them as spaces where our communities were never meant to triumph, we concede the power to speak from our lived experience as those affected by the law and to shift the balance of power within the judiciary.

In reality, the legal knowledge of our communities paired with our deeply personal understanding of how the courts’ decisions impact real people gives us a tremendous power to affect the composition of the courts and to create legal precedents that respect rather than ignore our communities’ needs.

Seamus Johnston’s experiences with the justice system are then instructive for progressives building long-term judicial strategies. His loss in the Western District of Pennsylvania is but one battle in a much longer struggle for social justice.

The courts have to matter for LGBTQ Americans and so many others who find themselves on the losing end of cases like Johnston’s. They have to matter because we cannot afford to write off institutions, elected officials, or organizations as permanent friends or enemies. Rather, if we truly believe another world is possible, we have to build it brick by brick, precedent by precedent, judge by judge.

PFAW Foundation