Judge Gorsuch Ruled Twice Against Transgender Rights. Confirmation May Give Him A Third Chance

March 6, 2017
Guest Post

by Yuvraj Joshi, Fair Courts Project Fellow at Lambda Legal

The Supreme Court announced on Monday that it would no longer hear a case brought by Gavin Grimm, a transgender high school student whose school has refused to let him use the boys’ bathroom.

Gavin’s fight is not over, only taking a legal detour. The Supreme Court has sent the case back to the Fourth Circuit for further review in light of the new guidance from the Trump administration, which rescinded the Obama administration’s guidance that federal laws require schools to allow transgender students to use bathrooms that match their gender identities.

Should Gavin Grimm, or any of the other transgender students with cases pending on this issue, wind up in the nation’s highest court, they could face a man who has already ruled twice against transgender rights: Neil Gorsuch, Trump’s nominee to the Supreme Court.

Judge Gorsuch’s most recent rejection of transgender rights came in 2015, by which time several federal courts had already issued decisions supporting coverage for discrimination against transgender individuals as sex discrimination.

Judge Gorsuch joined an opinion of the Tenth Circuit rejecting arguments made by Jeanne Marie Druley, a transgender woman who was incarcerated, that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing. The Tenth Circuit opinion Judge Gorsuch joined stated:

“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. . . . 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.”

As Lambda Legal has documented, Judge Gorsuch’s anti-LGBT record goes deeper than his refusal to protect transgender rights. In 2005, he authored an essay, “Liberals’N’Lawsuits,” in which he expressed disapproval of civil rights impact litigation. He wrote in part:

“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. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

Perhaps most significantly, Judge Gorsuch has supported sweeping religious exemptions from laws based on ‘complicity’—the idea that adhering to the law makes the objector complicit in the allegedly sinful conduct of others.

“All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch declared in his Hobby Lobby opinion—without so much as alluding to the harmful effects of denying access to reproductive healthcare on female employees and dependents, or the requirement to balance the business owners’ religious liberty claim against Congress’s interest in protecting women’s health.

It is a short leap from limiting reproductive freedom to denying LGBT rights. Religious exemption claims are being advanced by individual and government actors to chip away at federal protections for LGBT people and judicial landmarks like Obergefell. The Trump Administration is reported to be preparing an executive order that would seek to legalize anti-LGBT discrimination in the name of religion and would certainly be challenged in court.

Judge Gorsuch’s confirmation would place on this nation’s highest court a man who has readily allowed the religious convictions of a few to govern the lives of all Americans. The civil rights of the most vulnerable members of our society—including transgender youth—hang in the balance.

You can read Lambda Legal’s review of Judge Gorsuch’s record on LGBT issues here.