Trump's Judges Pose Danger to LGBT Rights

      The Supreme Court's decision recognizing marriage rights for same-sex couples holds out the promise of legal and social equality for gay and lesbian Americans, but only the promise: not yet the reality. Already, next-generation issues are pending at the high court, in lower federal and state courts, and in federal and state agencies, with same-sex couples still experiencing outright hostility or bureaucratic indifference when claiming rights enjoyed by opposite-sex couples.
      The Supreme Court similarly held out the promise of racial equality in 1954 with its landmark school desegregation decision in Brown v. Board of Education. Six decades later, however, the promise of that decision has yet to be realized, with the Supreme Court now in retreat on the need to diversify racially isolated schools.
      The practicalities of judicial administration required the Warren Court to leave the implementation of the school desegregation decision to lower federal court judges. President Dwight Eisenhower was ambivalent at best about Brown, but fortunately for history's sake he appointed to the federal bench in southern states judges who took their responsibilities seriously to follow the law laid down by the Supreme Court.
      Fast forward to today. With the future of LGBT rights still quite uncertain, President Trump has turned to a number of unreconciled opponents of LGBT rights to fill federal court seats. The justice he appointed to the Supreme Court may harbor no ill will toward LGBT individuals, but Neil Gorsuch has already voted in one significant case against granting the same rights to same-sex couples as enjoyed by opposite-sex couples.
      Gorsuch dissented from the Court's decision in June in Pavan v. Smith to require an Arkansas state agency to list both a biological mother and her wife as parents on their child's birth certificate just as the state would do for the husband in an opposite-sex couple who gave birth through assisted reproduction. The same issue of common-law parentage is now pending in federal court suits filed by gay couples challenging the State Department's refusal to allow a non-biologically related father to transfer his citizenship to a child born abroad.
      Other pending issues are more straightforward. The Supreme Court heard arguments in December to decide whether commercial businesses can refuse to serve LGBT individuals based on moral or religious objections — for example, to same-sex weddings. The justices are also being asked to determine whether the federal civil rights law that prohibits sex discrimination also applies to discrimination on the basis of sexual orientation or gender identity.
      Judges on lower federal courts will play a role in determining some of the future issues and implementing eventual Supreme Court decisions. LGBT advocacy groups warn that many of Trump's judicial nominees have records of outright opposition or indifference to LGBT rights.
      Lambda Legal identified Gorsuch and 15 other Trump nominees as having anti-LGBT records in a detailed analysis last fall. The report noted, for example, that Gorsuch joined an opinion while on the Tenth Circuit to allow the state of Oklahoma to deny hormone treatments to a transgender female inmate.
      Other Trump nominees evinced similar indifference to LGBT rights on the bench. While on the Texas Supreme Court, Don Willett joined an opinion denying benefits to the spouses of gay or lesbian public employees. On the Michigan Supreme Court, Joan Larsen refused to recognize parental rights for a lesbian parent after a marital breakup. Both Willett and Larsen withstood opposition from LGBT and other civil rights groups to win confirmation on mostly party-line votes to federal appeals courts in their circuits.[
      Willett and Larsen are among many Trump nominees with judicial views generally hostile to the courts' role in extending or protecting individual rights. Larsen, for example, criticized the Supreme Court's decision in Lawrence v. Texas to strike down state laws banning gay sex as "revolutionary" because it cited foreign law.
      Some other nominees have been more explicit in opposing LGBT rights. As a board director of the Nebraska Family Alliance, Steven Grasz opposed recognition of same-sex marriages and supported the use of gay conversion therapy. He was confirmed to the federal appeals court for the Eighth Circuit.
      As a member of the Tennessee legislature, Mark Norris sponsored or supported a variety of anti-LGBT bills, including a "don't say gay" bill to prohibit teachers from discussing homosexuality in schools. Norris is awaiting a Senate floor vote on his nomination to the U.S. District Court in Memphis after the Judiciary Committee recommended confirmation on an 11-10 party-line vote.
      One of Trump's anti-LGBT nominees, however, proved too much for the committee to swallow. Jeff Mateer, an assistant in the Texas attorney general's office nominated for a federal district court, withdrew after news coverage of remarks he made while with a religious liberty group describing transgender individuals as "part of Satan's plan."
      As a candidate, Trump sometimes professed support for LGBT rights, but he also sought and relied on support from evangelicals and other social conservatives. As president, Trump has pleased his political base by opposing transgender rights in public schools and supporting anti-LGBT discrimination at the Supreme Court. But long after Trump is gone, the judges he is naming to the federal bench will still be there, slowing if not reversing the movement toward equal rights for LGBT Americans.