SCOTUS Neil Gorsuch on Marriage Equality and LGBTQ Rights

Neil Gorsuch was sworn in as the 113th Supreme Court Justice on April 10, 2017. As a nominee in Neil Gorsuch’s hearing before the United States Senate he said that the law making same-sex marriage legal was “absolutely settled law” but added “there is ongoing litigation about its impact and its application right now”. Beyond that he said he could not share his personal views.

When asked during his confirmation hearing in the Senate Judiciary Committee if he would support the rights of gays and lesbians he said, “No one is looking to return us to horse and buggy days. We’re trying to interpret the law faithfully, taking principles that are enduring and a Constitution that was meant to last ages and apply it and interpret it to today’s problems”.

Earlier, Gorsuch was asked about the anti-gay views of his mentor at Oxford. Gorsuch said one only need to look at his record to see his views. When asked: “What about LGBTQ individuals?” Gorsuch snapped back: “What about them? They’re people.” “I’ve tried to treat each case and each person as a person, Gorsuch added, angrily, “not a ‘this kind of person,’ not a ‘that kind of person’ – a person.  It is a radical promise in the history of mankind.” When asked if that refers to sexual orientation, Gorsuch snapped, “the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.”

Both conservative originalists and liberal originalists have concluded that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch appears to disagree. In a 2005 National Review, Gorsuch mocked the court battle for same-sex marriage as a political fight dressed in constitutional garb. 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. And his desire to accommodate corporations’ religious beliefs – even when they burden employees—raises the possibility that he would let religious businesses discriminate against same-sex couples.

Justice Gorsuch will probably not position himself as an openly anti-LGBTQ culture warrior in the mode of Justice Samuel Alito. But his more pleasant demeanor will not change the impact of his votes. And barring some kind of profound jurisprudential evolution, Gorsuch should be a consistent vote against gay and trans rights. From questioning the constitutional necessity of same-sex marriage to accepting pretextual defenses of trans bathroom exclusion, Gorsuch has repeatedly declined to defend the equal dignity of LGBTQ people. For a conservative, he may stake out some admirably unorthodox positions on the bench. But an embrace of LGBTQ rights will not be one of them.

Gender Identity And Being Transgender

The United States is now in the middle of what the New York Times has called "transgender bathroom hysteria." Across several states, conservative lawmakers are pushing laws that prohibit transgender people, who identify with a gender different than the one assigned to them at birth, from using the bathroom that aligns with their gender identity. State officials say these laws are necessary for public safety--despite no evidence that letting trans people use the bathroom of their choice causes public safety problems. At the heart of the issue seems to be a widespread lack of understanding of trans issues and gender identity. After all, until a few years ago, concepts like gender identity and express--and how they affect the hundreds of thousands of Americans who identify as transgender, gender nonconforming, and genderqueer--hardly scratched the surface of mainstream news and entertainment in any meaningful way.

The idea behind these different forms of identity and expression is that traditional gender roles--how people are expected by society to act based on the gender assigned to them at birth--are a social construct, not a biological one. This is a concept that causes a great deal of debate in religious and conservative circles, but it's largely uncontroversial for many anthropologists who indicate that gender is flexible enough the different societies and people can construct and interpret it differently. So transgender, gender nonconforming, and genderqueer are terms people use to describe their gender identity and expression, and how they differ from traditional societal standards and expectations.

Transgender--or trans--is an umbrella term that applies to at least 700,000 Americans who feel their internal gender identity does not match the sex they were assigned at birth. Gender nonconforming people don't express their genders in a way society expects them to. Some gender nonconforming people might be androgynous, meaning they don't readily exhibit traits that can easily identify them as men or women. Men who exhibit feminine traits and women who express masculine characteristics may also identify as gender nonconforming. Genderqueer people generally don't identify or express as man or women, sometimes borrowing gender roles and traits outside society's typical expectations and other times taking elements from both masculinity and femininity. Androgynous people can also fall into this category if they identify their gender as neither male nor female. Sometimes there is an overlap between transgender, gender nonconforming, and genderqueer communities. People might identify with all, so, or none of these concepts, even if they exhibit traits attributed to these three forms of identity and expression. There are dozens of ways people identify and express themselves, so these three concepts fall far short of the full realm of possibilities. 

It might be difficult for most people to fully understand the many hurdles that trans, gender nonconforming, and genderqueer people deal with on a daily basis. But they face huge disparities in nearly every aspect of society. Families shun and even disown children over their gender identity and expression. Employers and landlords may deny people jobs and homes because they don't conform to gender norms, which is legal to do under most states' laws. In social settings and media, trans people are commonly portrayed as purposely deceptive individuals and even sexual predators who want to trick or trap others into sleeping with them.

The 2011 National Transgender Discrimination Survey found trans and gender nonconforming people are nearly four times as likely to live in extreme poverty as the general population. They found 57 percent of trans and gender nonconforming people report family rejections. This rejection had horrible effects: Trans and gender nonconforming people who are rejected by their families are nearly three times as likely to experience homelessness, 73 percent more likely to be incarcerated, and 59 percent more likely to attempt suicide. Trans people, particularly trans women of color, face some of the highest rates of hate violence and murder in the country. 

As with many other issues of discrimination, the root of the problem is prejudice: the idea that people who are not cisgender are somehow inferior or wrong about how they identify. The biggest issue is the mischaracterization that people who don't conform to society's expectations of gender are always try to deceive others. It is perhaps the stereotype that underpins so many of the issues these people face in their everyday lives, making it so they have a difficult time even entering the bathroom that corresponds to their gender--much less getting a job or gaining family acceptance. 

Despite some progress at the state level, most states don't ban workplace discrimination based on gender identity. The nation appears to be at a transitional point on gender identity issues: While there has been some progress, there is a long way to go before trans, gender nonconforming, and genderqueer people have equality.

Equality for LGBT People

Equality before the law is an American value articulated in our Constitution. The struggle for equal rights in the United States is a dilemma that has helped shape our society into what it is today. We are on the cusp of recognizing the inherent need for equality in more than just skin color, gender or religion. Our growing understanding of what it means to discriminate, and the damage it inflicts, is enhanced with each passing year and has grown to reflect our collective understanding of freedom for all. However, lesbian, gay, bisexual, and transgender (LGBT) people today are denied many of the basic rights that most Americans enjoy and continue to be treated unfairly because of their sexual orientation or gender identity.

There has recently been successful movement forward in the areas of student non-discrimination, employment non-discrimination, hate crimes, immigration and LGBT partner benefits. The scale is tipping in our country toward the perception that LGBT people deserve equal human rights. Each of these areas of discrimination are addressed more in depth below.

Our nation's schools should be a place of study and social growth, preparing youth for the challenges of an ever-changing world. Unfortunately, students who are or perceived to be gay, lesbian, bisexual, or transgender are discriminated against every day. These individuals are subject to harassment, bullying, intimidation and violence. Numerous studies have demonstrated that discrimination in schools has contributed to high rates of absenteeism, dropout, adverse health consequences, and academic underachievement among LGBT youth. For a demographic that already faces higher than average suicide rates, it should be a top priority to engender a scholastic environment where every student can feel safe and encouraged. While current Federal statutes affords protected status to students on the basis of their race, gender, color, national origin, religion, and disability, they fail to provide civil protections explicitly based on sexual orientation or gender identity.

Countless qualified and hardworking Americans are denied job opportunities, fired, or other wise discriminated against just because they are lesbian, gay, bisexual or transgender. Currently, there fails to be a federal law that consistently protects LGBT individuals from employment discrimination, and as a result, they face serious mistreatment in the work force. The Employment Non-Discrimination Act (ENDA) would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity. ENDA affords all Americans basic employment protection from discrimination based on irrational prejudice. It extends federal employment discrimination protections already in place for race, religion, sex, national origin, age and disability to include sexual orientation and gender identity.

Hate crimes occur every day and in every state, perpetuating a climate of fear in minority communities--including the LGBT community. What makes these crimes so odious is that they are not just crimes against an individual; they are crimes against entire communities and the very values and ideals upon which our country was founded. Making matters worse, most local law enforcement agencies currently lack the necessary resources to effectively investigate and prosecute hate crimes based on sexual orientation or gender identity/expression.

Right now, U.S. citizens and legal permanent residents may sponsor their spouses (and other immediate family members) for immigration purposes. However, same-sex partners of U.S. citizens and permanent residents are not considered "spouses," and their partners cannot sponsor them for family-based immigration. 

In June 2009, President Obama called for equal employment benefits for federal employees and issued an executive memorandum that granted some benefits to employees' same-sex partners. It is time that the federal government steps up and recognizes the miscarriage of justice happening in its own backyard. A large and growing number of America's major corporations, as well as state and local governments and educational institutions, have extended their employee benefit programs to cover their employees' committed domestic partners. 

The fact that LGBT individuals are not allowed basic human rights is a concept that is rapidly changing in our country. Equality for all people is supposedly our given right in the Constitution. We live in an interesting time as the LGBT community finds its way toward protection from discrimination and inequality. We still have a long way to go. Hate toward us is still intense and grows in some states exponentially as rights are given. The general climate of the country seems to be becoming more accepting and open to equality for LGBTs. As equality and non-discrimination become more widely given we will be able live in this country more freely and safely. 

The Supreme Court’s Hobby Lobby Decision

Fifty years ago, the Supreme Court upheld the right of individuals to access birth control despite the opposition of some religions. Since then, mainstream attitudes have changed. But fundamentalist religious views about reproductive health and sexuality still influence our politics and law.

Hobby Lobby’s recent decision is a prime example. By a 5-4 vote, the Court held that religiously minded business owners essentially may “line-item veto” birth control coverage out of their employees’ health plans. The ruling is the fruit of an intensive strategy by today’s religious conservative movement.

The decision could mean that religious interests now trump other interests in many circumstances, with religious believers entitled to impose their views at others’ expense in ways systematically rejected in the past. This is the result Justice Ginsburg calls out in her clarion dissent. She accurately observes that the majority’s approach invites case-by-case testing of religious objections to federal laws and may give unprecedented approval to objections by finding fault with those laws, just as was done here.

In looking at health insurance, what questions may arise post-Hobby Lobby for LGBT people and people living with HIV? Given the majority’s rejection of discriminations, it seems unlikely that the Court would condone religious refusals of family coverage for workers in a same-sex relationship when coworkers receive coverage for a different-sex partner. And when a health plan includes coverage for a particular medical treatment, the Court probably will nix religiously based refusals of that treatment to LGBT people. 

So, for example, if there is coverage for hormone replacement therapy for menopausal women and men after testicular cancer surgery, it should likewise be available for transgender people. Likewise, if donor insemination or in vitro fertilization is covered for different sex couples, it similarly should be covered for same-sex couples. Finally, prescription drug coverage to manage a persistent viral infection or boost the immune system should not be excludable based on employers’ religious judgments about how a person may have contracted HIV.

In each of these examples, treating LGBT differently would be discriminatory. The work ahead includes insisting that nondiscrimination standards must themselves be nondiscriminatory. That is, “equal” must mean the same thing for everyone.

Time To Pause and Consider

I was touched by a recent article called Losing my religion for equality... written by former President Jimmy Carter ( who was president of the United States from 1977 to 1981) for the Women's Press, January 25, 2013. It is an honest plea to respect and treat women with equality and give us basic human rights. I encourage you to pause and consider...

I HAVE been a practicing Christian all my life and a deacon and Bible teacher for many years. My faith is a source of strength and comfort to me, as religious beliefs are to hundreds of millions of people around the world. So my decision to sever my ties with the Southern Baptist Convention, after six decades, was painful and difficult. It was, however, and unavoidable decision when the convention's leaders, quoting a few carefully selected Bible verses and claiming that Eve was created second to Adam and was responsible for original sin, ordained that women must be "subservient" to their husbands and prohibited from serving as deacons, pastors or chaplains in the military service.

This view that women are somehow inferior to men is not restricted to one religion or belief. Women are prevented from playing a full and equal role in many faiths. Nor, tragically, does its influence stop at the walls of the church, mosque, synagogue or temple. This discrimination, unjustifiably attributed to a Higher Authority, has provided a reason or excuse for the deprivation of women's equal rights across the world for centuries.

At its most repugnant, the belief that women must be subjugated to the wishes of men excuses slavery, violence, forced prostitution, genital mutilation and national laws that omit rape as a crime. But it also costs many millions of girls and women control over their own bodies and lives, and continues to deny them fair access to education, health, employment and influence within their own communities.

The impact of these religious beliefs touches every aspect of our lives. They help explain why in many countries boys are educated before girls; why girls are told when and whom they must marry; and why many face enormous and unacceptable risks in pregnancy and childbirth because their basic health needs are not met.

In some Islamic nations, women are restricted in their movements, punished for permitting the exposure of an arm or ankle, deprived of education, prohibited from driving a car or competing with men for a job. If a woman is raped, she is often most severely punished as the guilty party in the crime.

The same discriminatory thinking lies behind the continuing gender gap in pay and why there are still so few women in office in the West. The root of this prejudice lies deep in our histories, but its impact is felt every day. It is not women and girls alone who suffer. It damages all of us. The evidence shows that investing in women and girls delivers major benefits for society. An educated woman has healthier children. She is more likely to send them to school. She earns more and invests what she earns in her family.

It is simply self-defeating for any community to discriminate against half its population. We need to challenge these self-serving and outdated attitudes and practices - as we are seeing in Iran where women are at the forefront of the battle for democracy and freedom.

I understand, however, why many political leaders can be reluctant about stepping into this minefield. Religion, and tradition, are powerful and sensitive areas to challenge. But my fellow Elders and I, who come from many faiths and backgrounds, no longer need to worry about winning votes or avoiding controversy - and we are deeply committed to challenging injustice wherever we see it.

The Elders are an independent group of eminent global leaders, brought together by former South African president Nelson Mandela, who offer their influence and experience to support peace building, help address major causes of human suffering and promote the shared interests of humanity. We have decided to draw particular attention to the responsibility of religious and traditional leaders in ensuring equality and human rights and have recently published a statement that declares: "The justification of discrimination against women and girls on grounds of religion or tradition, as if it were prescribed by a Higher Authority, is unacceptable."

We are calling on all leaders to challenge and change the harmful teachings and practices, no matter how ingrained, which justify discrimination against women. We ask, in particular, that leaders of all religions have the courage to acknowledge and emphasise the positive messages of dignity and equality that all the world's major faiths share.

The carefully selected verses found in the Holy Scriptures to justify the superiority of men owe more to time and place - and the determination of male leaders to hold onto their influence - than eternal truths. Similar biblical excerpts could be found to support the approval of slavery and the timid acquiescence to oppressive rulers.

I am also familiar with vivid descriptions in the same Scriptures in which women are revered as pre-eminent leaders. During the years of the early Christian church women served as deacons, priests, bishops, apostles, teachers and prophets. It wasn't until the fourth century that dominant Christian leaders, all men, twisted and distorted Holy Scriptures to perpetuate their ascendant positions within the religious hierarchy.

The truth is that male religious leaders have had - and still have - an option to interpret holy teachings either to exalt or subjugate women. They have, for their own selfish ends, overwhelmingly chosen the latter. Their continuing choice provides the foundations or justification for much of the pervasive persecution and abuse of women throughout the world. This is in clear violation not just of the Universal Declaration of Human Rights but also the teachings of Jesus Christ, the Apostle Paul, Moses and the prophets, muhammad, and founders of other great religions - all of whom have called for proper and equitable treatment of all the children of God. It is time we had the courage to challenge these views.