Trump’s Supreme Court pick has given hints on how he’d rule in LGBTQ cases
President Trump’s nominee to the Supreme Court, federal appeals court Judge Neil Gorsuch, has not ruled on cases involving LGBTQ rights in the past, but if he’s confirmed to the nation’s highest court, he certainly will in the future.
If confirmed, Gorsuch will likely rule on a case involving Gavin Grimm, a transgender teenager whose fight against his Virginia high school’s bathroom policy exemplifies the nationwide “bathroom bill” debate over whether trans people can use the bathrooms corresponding to the gender they identify with or must use bathrooms that correspond to the gender shown on their birth certificates.
The case, Gloucester County School Board v. G.G., hinges on a challenge by a Virginia school district to an Obama administration Title IX mandate that schools allow trans students to use bathrooms corresponding to their gender identity.
The Gloucester County School Board adopted a policy in 2014 requiring trans students to use private bathrooms. Grimm’s lawyers from the ACLU challenged that policy, filing a motion for a preliminary injunction that was rejected by a district court. That initial ruling was overturned by a U.S. Court of Appeals for the Fourth Circuit, and the Gloucester County School Board in turn appealed the case to the Supreme Court.
If the court rules in Grimm’s favor, it will set a nationwide precedent and grant a victory to champions of trans rights. If the court rules against, bathroom bills could proliferate across the country; 11 state legislatures that have introduced similar bathroom bills are in various stages of the legislative process.
Though he hasn’t handled any cases that are directly linked to LGBTQ rights, Gorsuch did reference gay marriage in a now widely cited 2005 article for the National Review in which he accused liberals of abusing the justice system to advance their own agenda, specifically regarding same-sex marriage.
“American liberals have become addicted to the courtroom,” Gorsuch wrote, “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.”
Because the guidelines issued by the Obama administration on Title IX are not legally binding, Gorsuch may rule based on the original statute and regulations, neither of which make reference to transgender students. Trans rights groups are expecting the worst.
“President Trump has nominated an extreme judge hostile to fundamental freedoms,” Mara Keisling, executive director of the National Center of Transgender Equality, said in a statement. “Judge Neil Gorsuch has a record of supporting the use of religion to trample the rights of others.”
It’s generally believed that Gorsuch would decide cases in a fashion similar to his onetime mentor Antonin Scalia, whose seat on the court he would fill if confirmed. Like Scalia, Gorsuch is a keen advocate of religious freedom, which has often been invoked by opponents of LGBTQ rights. He ruled in favor of religious freedom in a controversial 2013 decision involving the retail crafts chain Hobby Lobby, finding that the chain had the right to deny female employees contraception under its health insurance policies because the use of contraception conflicted with the founders’ religious beliefs.
Proponents of religious freedom argue that an “undue burden” is placed on employers or individuals who are forced to comply with laws that conflict with their religious beliefs: Hobby Lobby’s owners, a baker who does not want to bake a cake for the wedding of a gay couple — or, theoretically, a business or school district that does not want to allow transgender people to choose their own bathroom.
“Issues of LGBT rights tend to come from decisions about a right to privacy,” said Stephen Wermiel, a professor of practice in constitutional law at the American University Washington College of Law. “The right to privacy is not expressly mentioned in the Constitution. So [Gorsuch] might have trouble finding it in the Constitution, and if he has trouble finding it in the Constitution, then he can’t find a right to privacy for LGBT issues.”
The right to privacy has historically served as the basis for the advancement of LGBTQ rights. In 2003’s Lawrence v. Texas, Supreme Court justices heard a challenge to a state anti-sodomy law. The legal challenge hinged on a right to privacy argument that consenting adults have a constitutional right to engage in intimate sexual conduct with whomever they choose. The Court ruled in favor of the plaintiff; Justice Anthony Kennedy in his opinion wrote that the government should not “demean their existence or control their destiny by making their private sexual conduct a crime.”
That ruling, along with one in Loving v. Virginia in 1967 that invoked the right to marital privacy when challenging a state ban on interracial marriage, formed the basis of the argument for same-sex marriage.
There’s an excellent chance that Gorsuch will not be able to demonstrate where he stands on the Grimm case due to the lengthy process expected for his confirmation. Sen. Chuck Grassley of Iowa, who chairs the Judiciary Committee, said via a spokesperson that hearings on his nomination won’t even begin for another six weeks. If he isn’t confirmed before April, Gorsuch will miss opening arguments in the Grimm case.
But it may all become moot anyway. Trump’s education secretary, whoever it is, could revoke the Obama administration letter regarding Title IX clarification and transgender students, making the entire case moot.