June 8, 2023

Federal Judges on the Frontlines of LGBTQ+ Rights

Russ Feingold President

The last few years have seen an explosion of state legislation aimed at erasing the trans community from public life. State legislators on the Right are proving relentless in their campaign against trans healthcare, trans student athletes, drag shows, and any other facet of LGBTQ+ life that they think they can score political points by targeting. It’s repulsive and so dangerous for our communities. Over the past week, the law struck back.

U.S. District Judge Thomas Parker, appointed by former President Trump, ruled that Tennessee’s ban on drag shows is unconstitutional. In his decision, Judge Parker reminded state legislators of the First Amendment, which demands that any law infringing on speech be narrow and well-defined. Tennessee’s ban on drag performances is neither. As Judge Parker wrote in his decision: “the legislative transcript strongly suggests that the [state law] was passed for an impermissible purpose,” and that “impermissible purpose” was “chilling constitutionally-protected speech.”

The ruling out of Tennessee was followed this past Tuesday by U.S. District Judge Robert Hinkle’s ruling that Florida’s bans on gender-affirming healthcare for minors were not rationally related to a legitimate state interest and are likely unconstitutional. Judge Hinkle barred Florida from enforcing the ban on puberty blockers and hormones for transgender minors. This includes barring enforcement of the criminal penalties for doctors who provide such gender affirming care. Judge Hinkle also sent a strong message to the legislators who supported these bans: “The elephant in the room should be noted at the outset, gender identity is real.”

These are only two cases versus the dozens and dozens of horrific state laws that have been enacted in recent years against the LGBTQ+ community. And we still await the Supreme Court’s decision in 303 Creative v. Elenis, which could make it optional for businesses to comply with non-discrimination protections for LGBTQ+ folks. Such a decision would be devastating and undermine years of progress towards LGBTQ+ lived equality.

To undo the devastation being inflicted by many state legislatures will take time. These two decisions are small steps in that regard, but positive steps they still are. They are reminders of the positive impact that individual judges who are committed to the rule of law and to vindicating fundamental freedoms can have. As we celebrate Pride Month, we celebrate the incredible work of the LGBTQ+ community and its allies in fighting back against oppression, including with litigation like these two cases, and in pursuit of the promise of a multiracial, representative democracy.

Civil rights, Judicial Independence, LGBTQ Equality