It’s no secret that Trump has changed the makeup of the federal judiciary, from the Supremes down through the appellate and district courts, making it far more conservative, male, and white. Consider: Forty percent of appellate court judges appointed by Trump have demonstrated anti-LGBT bias in the past, usually in their non-judicial writings. Nearly 85% of Trump-appointed circuit court judges were white and 80% were men; none were Black. Almost one-third of all circuit seats are now filled by Trump appointees. And the Trump administration has outpaced the last five administrations in number of circuit judges confirmed.
Those were just a few of the findings of Courts, Confirmations, & Consequences, a report released on Jan. 5 by the LGBTQ legal advocacy group Lambda Legal, with the subtitle, “How Trump Restructured the Federal Judiciary and Ushered in a Climate of Unprecedented Hostility Toward LGBTQ+ People and Civil Rights.” It’s a stark reminder that, no matter how bumbling and inept the Trump administration was on many things, it has—with a huge assist from Senate Majority Leader Mitch McConnell—been incredibly efficient at stacking the U.S. court system with right-wing or right-leaning judges who will hold their seats for years to come.
Such judges now populate the Supreme Court. Neil Gorsuch has said that using the courts to achieve recognition of civil rights was pushing a “social agenda,” and Amy Coney Barrett has argued that transgender people were not protected by Title IX’s prohibition against sex discrimination. On the lower courts, we have Fifth Circuit Judge Kyle Duncan, who wrote an opinion rejecting the claims of a transgender litigant—and in doing so, repeatedly and deliberately misgendered her. And those are just three among dozens.
“For us at Lambda, an organization that appears in the courts, to get into the business of calling out judicial nominees as being anti-LGBT—that was not a decision we made lightly,” says Sharon McGowan, Lambda chief strategy officer and legal director, of the report. “If there’s anything we’ve learned from the past four years, it’s that progressives need to take the courts as seriously as our opponents have. They snatched up every last possible court vacancy they could get their hands on as a way of unwinding [rights] that they can’t do through representative bodies.”
But Now a New Era Begins
Well, guess what? Now it’s our turn, because on Jan. 6—yes, the same day that Trumpers stormed the U.S. Capitol, leading to five deaths—Democrats Rev. Raphael Warnock and Jon Ossoff won their U.S. Senate runoff races in Georgia, putting the Senate in the Democrats’ hands and giving President Joe Biden the same opportunity Trump and McConnell had to fill judiciary seats as aggressively as possible. At least for two years, that is, until the 2022 midterms. How much can they offset the conservatism infused into the court system by Trump?
A total balancing-out is “definitely not something that can be done overnight or even in two years,” says McGowan, “but the civil rights community has to push Biden on his promise to examine the courts and establish a bipartisan commission in his first six months in office to look at a full range of issues.” And indeed, Biden has promised: In an October interview with 60 Minutes, Biden called the current court system “out of whack,” adding that possible reform was “not about court packing,” but that “there’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”
Those may include the possibility of adding seats to not only the Supreme Court but also to the circuit and district courts, McGowan says, “even just to move cases along faster.”
McGowan says she doesn’t know if Biden and Senate Democrat leadership will take a page from McConnell’s hardball playbook and push aging judges to retire, in order to fill their seats with newbies who’ll have years on the bench. “But,” she says, “the Biden administration needs to not treat judicial nominees as something they’ll get around to when they finish doing other stuff. Every week, they must assess their list of vacancies that need to be filled.”
What Will the Supreme Court Do in 2021?
Of course, it doesn’t look as though the new, vastly more conservative makeup of the Supreme Court of the United States (SCOTUS), the top of the judicial system, is going to change immediately. That raises the question of how SCOTUS will rule this year on a few cases of extreme importance to LGBTQ folks and people living with HIV.
One such ruling, which McGowan says could come as soon as within the next month or two, will determine the fate of the Affordable Care Act (ACA, a.k.a. Obamacare), which countless people with HIV and other chronic health conditions rely on for a range of benefits and protections. That includes everything from coverage of preexisting conditions to antidiscrimination protections for LGBTQ folks to free or varyingly affordable health plans under Medicaid or the ACA’s various plan marketplaces.
Hearing arguments on the case last November, SCOTUS judges—including the new conservative members Gorsuch, Brett Kavanaugh, and Barrett—asked questions suggesting they were not inclined to throw out the entire ACA just because one part of it, the individual mandate [that people must buy insurance or pay a penalty], has already been struck down in court.
“They expressed a lot of skepticism of the notion that the entire ACA had to go down,” says McGowan, adding that, even if the ACA is very likely salvaged, “we won’t stop fighting about parts of it” in court, such as whether plans have to cover contraception.
Then there are two cases pending before SCOTUS related to the tension between LGBTQ rights and “religious freedom,” a darling idea among evangelicals and social conservatives.
One, Fulton v. Philadelphia, involves a religious social-services agency saying that it should be above Philly law stating that agencies getting city funding cannot engage in discrimination against LGBT people. The other, Texas v. California, involves California banning state workers from traveling to Texas on the state dime because Texas allows adoption and foster agencies to turn away prospective parents because they are same-sex couples.
But McGowan says that, in both cases, SCOTUS may rule narrowly, with language pertaining only to the specific cases—as it did in the notorious case in which a baker refused to make a cake for a gay couple—rather than making a sweeping judgment about whether LGBTQ rights always trump religious freedom, or vice versa. SCOTUS may well decide the cases, she says, through the more hum-drum lens of whether any one private agency can say it is above the law of the jurisdiction it operates in.
“I don’t think [the big issue of LGBT rights versus ‘religious freedom’] will be resolved in this coming term, or even in the next four years,” she says. “It’ll be an ongoing push and pull.”
Of course, in 2020, liberals and progressives were often pleasantly surprised by rulings from the new, Trump-altered SCOTUS, such as upholding DACA [the program allowing young people not born in the U.S. to continue to stay, work, and study in the country legally] and confirming protection against workplace and other kinds of discrimination toward LGBTQ people, including transgender people.
Then again, those rulings came before the arrival of Barrett, who has not yet presided over a case that goes straight to the heart of protection or harm for LGBTQ people.
But, McGowan notes, true SCOTUS wonks should watch the court’s decisions on its so-called “shadow docket”—basically the many, many cases that SCOTUS never takes up fully, choosing instead to merely halt or let pass the decisions of lower courts. For example, she notes, when it comes to the issue of religious gatherings versus COVID-era public health bans, the pre-Barrett court upheld lower-court public health bans, but [in Roman Catholic Diocese of Brooklyn v. Cuomo] the post-Barrett court did the opposite.
Such shadow-docket decisions “can be really meaningful,” says McGowan, because they allow the court to “signal” how it feels about certain issues without actually ruling on them directly.
And What About a New Department of Justice?
On Jan. 7—only a day after the Capitol siege—President-elect Biden introduced his top picks for Department of Justice staff under attorney-general nominee Merrick Garland, including two women of color—Vanita Gupta and Kristen Clarke—who spoke movingly of their own experiences with discrimination. The picks gave hope that the DOJ, which almost seemed to be working against vulnerable communities under Trump, would return to focusing aggressively on enforcing civil rights.
That might mean that it would drop its Trump-era stances against (currently illegal but internationally proven) overdose prevention sites, where people can inject street drugs under medical supervision, and against people with well-managed HIV serving fully in the military, which a lower court ruled in favor of early last year. Lambda Legal argued on behalf of such servicemembers.
“We got a great ruling in that case, which I’m optimistic we’ll ultimately win,” says McGowan, “and if we do, it would be the perfect example [of a new DOJ] if they worked with us to make the [procedural] changes [within the military] rather than being adversaries.”
Other legal fights on behalf of LGBTQ people that Lambda is still fighting include allowing people to get a non-M, non-F gender marker on their passport—“Biden’s State Department can do the right thing and make that easy to get done,” says McGowan. There’s also the fight to get certain widows or widowers of same-sex couples Social Security survivor benefits, which only kick in if couples have been married for nine months or more—something that was not possible for all due to only recently dropped same-sex marriage bans.
“We’ve gotten good rulings on that from lower courts, so it’s another area where DOJ should stop fighting with us and work toward a solution.”
And finally, says McGowan, the Biden administration likely has the power, without legislative or court intervention, to finally and completely drop the ban on gay men donating blood—especially now, during COVID, when donations are badly needed. In April, the Food and Drug Administration (FDA) shortened from a year to three months the period of time gay men must abstain from sex before donating blood. Prior to 2015, gay men could not give blood at all—unless they were willing to lie. And in December, news broke that the FDA had launched a pilot study that could lead to its doing away with blanket gay restrictions entirely, instead evaluating donors individually.
If, in many ways, the legal climate for LGBTQ people seems once again as good as it was in the Obama era, McGowan contends that, now, it’s actually better. “So much of what we spent time on with the Obama administration was about the government enforcing protections for LGBTQ people. But now it’s all decided, and we can start stronger with Biden from Day One. It’d be great to see a definitive statement from the new administration saying that anywhere sex discrimination is prohibited by federal law, it’s now entirely clear that applies to all LGBTQ people as well.”