Friday, February 3, 2017
Justice Gorsuch Would be Dangerous for Transgender People
THIS WEEK, President Trump named federal appeals judge Neil Gorsuch to the Supreme Court. The nomination of Judge Gorsuch has seen a firestorm of opposition unlike any Supreme Court pick in decades. Gorsuch would replace the late Justice Antonin Scalia, who died nearly one year ago. That seat has sat vacant ever since the Senate majority refused to consider any nominee by President Obama.
In the coming months, the Supreme Court will consider whether to recognize the basic dignity and humanity of transgender people, whether to set limits on voter suppression laws targeting people of color. Many other critical LGBT equality cases could reach the high court in the coming terms. The Supreme Court is also likely to hear numerous challenges to potentially unlawful and discriminatory actions by President Trump.
NCTE opposes the Gorsuch nomination because his record shows hostility to fundamental freedoms. In Neil Gorsuch’s America, employers could hang a “Transgender people need not apply” sign if they believe that simply “allowing” a transgender person to come to work as their true gender would make them “complicit” in "sinful" behavior. Restaurants, shops, and doctor’s offices could refuse to serve transgender people for the same reason. Even government employees could refuse to have anything to do with a transgender person.
More Conservative than Scalia
Judge Gorsuch is frequently compared to the late Justice Scalia, and it is easy to see why: he writes very well, he is very, very conservative, and he shows a willingness to upend established legal doctrine. He has repeatedly sided with big businesses and interpreted laws protecting workers and consumers very narrowly. He has shown a clear antipathy to reproductive rights, and appears to satisfy President Trump’s promise to only nominate someone certain to reject Americans’ right to control their own body.
Judge Gorsuch is even more conservative than Scalia in one critical area that could have an enormous impact on laws that protect LGBT Americans. Gorsuch has called for reversing a long-standing legal doctrine (called “Chevron deference” by lawyers) that is fundamental to a functioning federal government. In short, Gorsuch would make it nearly impossible for administrative agencies to implement key civil rights, labor, and consumer laws, and call into question dozens of regulations that strengthen protections for LGBT people and their families.
Gorsuch has participated in very few cases directly involving issues related to gender identity or sexual orientation, but the approach to judging seen throughout his career demonstrates that he would very likely be hostile to LGBT people’s claims for dignity and equal protection under the law. Two cases he decided against transgender people seem to bear that out.
Troubling Rulings Against Transgender People
In Kastl v. Maricopa County Community College(2009), Gorsuch voted to reject a transgender woman’s claim that she was forced out of workplace restrooms and ultimately out of her job in violation of federal law. Here Gorsuch was filling in on a case in the Ninth Circuit, which had already held that anti-transgender discrimination is generally covered under federal sex discrimination laws. Although Gorsuch was bound by this precedent, he agreed with the employer that even if federal law provided any protection at all for transgender people, the employer’s unproven assertion of “safety concerns” with a trans woman using the women’s restrooms was a legitimate defense. This terrible ruling was not formally published, so thankfully it did not create any legal precedent. But if Gorsuch applied this logic on the Supreme Court, it would mean that any employer—as well as businesses serving the public—could kick out a transgender person simply by saying they had “concerns” about them using the restroom.
In another case, Druley v. Patton (2015), Gorsuch joined an opinion upholding mistreatment of a transgender prisoner—specifically denying her consistent or adequate hormone treatment, appropriate female undergarments, or a transfer to safer housing. In this case, there were already several existing decisions from the 10th Circuit that were hostile to claims by transgender people (and which Gorsuch did not participate in), which formed part of the basis for ruling against the incarcerated woman. But although it followed circuit precedent, the ruling Gorsuch joined showed a complete lack of sympathy for a vulnerable woman and uncritically parroted a false statement from thirty years ago that transition-related medical care is “medically controversial.”
A Sweeping Right to Discriminate
Perhaps even more troubling is Gorsuch’s dangerous view that businesses and individuals should have a sweeping right to impose their religious views on others.
In the infamous Hobby Lobby case—before it reached the Supreme Court—Gorsuch sided with the for-profit BUSINESS Hobby Lobby in its efforts to deny its employees contraceptive coverage. The Supreme Court would agree with that troubling outcome by a 5-4 vote, but Judge Gorsuch went further. He wrote a separate opinion to argue that when an individual or a business wants an exemption from a federal law on religious grounds, they can claim that having any interaction at all with a person whose actions they disapprove of violates their religious freedom. In Gorsuch’s words: "Whether an act of complicity is or isn't 'too attenuated' from the underlying wrong is sometimes itself a matter of faith we must respect.” In another case, Gorsuch took the position that even filling out a form stating one’s objection to covering contraceptives for employees would make a Catholic employee too “complicit” in sin, if the government agency receiving the form then took steps to ensure the employees could access separate coverage.
Religious freedom is important. It’s in our Constitution, and it’s one reason why NCTE opposes President Trump’s Muslim ban. But religious freedom is not a free pass to discriminate and harm other people. Neil Gorsuch would sign that free pass.