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Trump's Supreme Court nominee is a threat to the LGBTQ community, experts say

Trump’s pick to replace the late Justice Ruth Bader Ginsburg has shown that she is willing to imperil LGBTQ rights.

By Casey Quinlan - September 28, 2020
LGBTQ protesters, Supreme Court

Amy Coney Barrett, chosen by Donald Trump chose to take over the late-Justice Ruth Bader Ginsburg’s seat on the Supreme Court, has the capacity to do great harm to LGBTQ rights, advocates for equality say.

Barrett, who currently sits on the 7th Circuit Court of Appeals, has ties to anti-LGBTQ groups, has sided with opponents of LGBTQ rights on key legal issues, and has made a number of harmful statements about transgender people.

Republicans are ramming her confirmation through anyway.

Sen. Lindsey Graham (R-SC), the Senate Judiciary chair, has said confirmation hearings for Barrett will begin on Oct.12, and Senate Republicans are trying to get a floor vote on her nomination the week before the election.

In 2016, Barrett made comments on the issue of LGBTQ rights before the Supreme Court during a lecture for the Jacksonville University Public Policy Institute.

Barrett framed issues of transgender equality as a “debate” and referred to a myth propagated by conservatives that transgender women pose a threat to cisgender women and girls simply by using the bathroom that corresponds to their gender identity. Barrett also refrained from using the words “transgender women” when discussing them.

“People will feel passionately on either side about whether physiological males who identify as females should be permitted in bathrooms, especially where there are young girls present,” she said during the lecture.

Speaking of bathroom access, Barrett said that it “does seem to strain the text of the statute” to say that Title IX demands that protections against sex discrimination include transgender people.

During the same 2016 lecture event, Barrett defended Chief Justice John Roberts’ dissent in Obergefell v. Hodges, the 2015 landmark Supreme Court case that ruled in favor of marriage equality. Barrett said people were presenting it “as a vote for or against same-sex marriage but that’s not what the opinion was about.”

She added that Roberts’ dissent “was about who gets to decide whether we have same-sex marriage or not” and that “the dissent’s view was that it wasn’t for the court to decide.”

Barrett notably signed on to a letter in 2015 that expressed support for the idea that “marriage and family are founded on the indissoluble commitment of a man and a woman” and “the significance of sexual difference and complementarity of men and women.”

Barrett also has connections to the Alliance Defending Freedom, which the Southern Poverty Law Center has identified as an anti-LGBTQ hate group. She has spoken at the Blackstone Legal Fellowship, which is run by Alliance Defending Freedom.

The group published on its website last year, “Men who self-identify as women are still biological men. … And no amount of wishing or desire will ever change the fact that a feminized man will never truly experience what it is to be a woman.” The group also trains lawyers to “defend religious liberty,” which, for the Alliance Defending Freedom, has meant defending those who have allegedly denied LGBTQ people services or employment.

As a judge, Barrett has a record of opposing abortion access. This affects LGBTQ people as experts say they are more vulnerable to poverty, and therefore should have unencumbered access to abortion care.

A Barrett nomination presents high stakes for LGBTQ people of color as well, given her refusal to rehear a case on racial segregation in 2017. The Human Rights Campaign said the decision, which involved a lawsuit involving a business who had allegedly separated employees by race, raised “significant concerns about her approach to Civil Rights law.”

She has also criticized Roberts’ opinion in 2012 that kept a key part of the Affordable Care Act intact. An estimated 65% of LGBTQ adults have pre-existing conditions compared to 51% of the U.S. population.

For these reasons, many LGBTQ groups oppose Barrett’s nomination. 

Lambda Legal CEO Kevin Jennings stated, “If confirmed, Judge Amy Coney Barrett will unleash a Supreme Court majority that is hostile to all of our basic civil rights, and the impact will be felt for decades.”

The Human Rights Campaign has said that Barrett’s “hostility towards many of society’s most marginalized, victimized and vulnerable groups raises serious concerns about her ability to be impartial and fairly consider the rights of all who come before the Court, including LGBTQ people.”

Sarah Kate Ellis, GLAAD president and CEO, said in a separate statement, “If confirmed, Amy Coney Barrett will be a vote to undermine hard-won rights critical to all LGBTQ people, women and immigrants. Health care, reproductive rights, our legal rights to marry who we love or not be fired for who we are, are all at risk.”

In 2017, 27 LGBTQ organizations sent a letter to Sen. Chuck Grassley (R-IA), then-chair of the Senate Judiciary Committee, as well as ranking member Dianne Feinstein, stating their opposition to Barrett’s confirmation as a circuit court judge.

Barrett’s “views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to
equality, liberty, justice and dignity under the law,” they wrote.

Referring specifically to her ties to ADF, they added, “LGBT people cannot put their faith in the courts when the judge before them refuses to even recognize a brazenly anti-LGBT group as what it is.”

Published with permission of The American Independent Foundation.

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