Civil and Human Rights

Neil Gorsuch’s Disturbing Record on LGBTQ Rights

By Mark Joseph Stern

Neil Gorsuch, Donald Trump’s Supreme Court nominee, is an ultra-conservative jurist with a sterling resume, a genial wit, and a great shot at becoming our next justice. Gorsuch currently serves on the U.S. Court of Appeals for the 10th Circuit, and his opinions suggest a reliably right-leaning interpretation of the law. But Gorsuch has never penned an LGBTQ rights decision or spoken at length about his legal views on the matter. That has led some progressives to speculate that Gorsuch might be persuaded to agree with an originalist argument in support of LGBTQ rights.

Optimism is always refreshing in these darks times—but here, I don’t think it’s warranted. It’s easy to fill in the gaps of Gorsuch’s public positions and conclude that he will vote the same way his idol Justice Antonin Scalia did: against the rights of LGBTQ people.

Start with gay rights and specifically same-sex marriage. Despite the relative novelty of legal same-sex unions, the constitutional question here should be easy—even for an originalist like Gorsuch. Both conservative originalists (like Steven Calabresi) and liberal originalists (like Akhil Amar and Elizabeth Wydra) have concluded that the 14th Amendment protects same-sex couples’ right to marry. But Gorsuch appears to disagree. In a 2005 National Review op-ed, Gorsuch mocked the court battle for same-sex marriage as a political fight dressed in constitutional garb.

“American liberals,” he wrote, “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 liberal issues including “gay marriage.” He also noted that voters routinely rejected same-sex marriage on the ballot, scoffing that liberals can only “win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts.”

Perhaps, as a justice, Gorsuch would vote to affirm Obergefell v. Hodges, the marriage equality decision, purely as a matter of precedent. But the court will soon consider state efforts to limit the scope of that ruling, and Gorsuch does not seem eager to interpret Obergefell expansively. Would he agree, for instance, that Texas can deny spousal benefits to same-sex couples so long as they issue them a marriage certificate? Or that Arkansas can let adoptive parents put their names on their adopted child’s birth certificate—unless they’re gay? 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.

On transgender rights, Gorsuch has an actual judicial track record—and it isn’t likely to mollify progressives. Gorsuch once joined a decision flatly rejecting the constitutional claims of a transgender prisoner who alleged that she was being given inadequately low doses of hormone treatment in violation of the Eighth Amendment, and being housed in an all-male facility in violation of the Equal Protection Clause. The court found that prison officials had not inflicted a “cruel and unusual punishment” on the woman by giving her insufficient doses of estrogen because they had not treated her with “deliberate indifference to a serious medical need.” It also held that placing the inmate in an all-male facility—and forcing her to wear some male garments—“bears a rational relation to legitimate penal interest” and thus comported with the Equal Protection Clause. (The use of this lenient standard indicates that the court did not believe anti-trans discrimination qualifies as sex discrimination, which is scrutinized more closely.)

Equally troubling is Gorsuch’s vote in a discrimination case involving trans employees’ right to bathroom access. Rebecca Kastl, a trans woman, sued her employer when it forbade her from using the women’s bathroom until she could “prove completion of sex reassignment surgery,” then let her contract expire. The court acknowledged that Kastl had stated “a prima facie case of gender discrimination under Title VII on the theory [of] impermissible gender stereotypes,” which is mildly encouraging. But it then asked whether her employer had put forward some legitimate, nondiscriminatory reason for its treatment of Kastl—and concluded that it had, by vaguely citing “safety reasons.” An unsubstantiated, irrational fear of trans people in bathrooms should not be considered a legitimate basis for workplace mistreatment, and Gorsuch’s vote to the contrary casts doubt on his willingness to thoroughly scrutinize the real intent behind laws like North Carolina’s HB2.

If confirmed, 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.

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