With many thanks to the Williams Institute at UCLA LAw School, we examine the LGBT Record of Supreme Court Nominee, Scalia like, Neil Gorsuch:
Today, President Trump nominated Judge Neil Gorsuch to be an Associate Justice of the United States Supreme Court, to fill the seat left vacant by the death of Associate Justice Antonin Scalia. In keeping with the president’s campaign promise, Judge Gorsuch is a conservative justice in the tradition of Justice Scalia. As such, he is likely to reach decisions that negatively impact many parts of the LGBT community when considering issues of race, immigration, and reproductive health.
In terms of LGBT rights, even if Judge Gorsuch is confirmed, the majority of the Supreme Court that extended marriage equality nationwide will remain intact. However, if confirmed, Judge Gorsuch will likely participate in important decisions about the constitutionality of laws disadvantaging LGBT people, such as North Carolina’s HB2 law and Mississippi’s HB 1523 law; the extent to which existing civil rights protections that prohibit discrimination on the basis of sex prohibit discrimination on the basis of sexual orientation and gender identity; and whether and to what extent constitutional and statutory provisions require exemptions from anti-discrimination laws for religious adherents.
Some of Judge Gorsuch’s past decisions as a judge on the U.S. Court of Appeals for the 10th Circuit shed some light on how he will approach these issues:
- Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) – Judge Gorsuch joined an unpublished opinion ruling against a transgender inmate’s constitutional claims seeking hormone treatment and re-assignment from an all-male facility.
- Kastl v. Maricopa County Community College District, 325 Fed. Appx. 492 (9th Cir. 2009) – Judge Gorsuch, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that “restroom safety” was a non-discriminatory reason for the employer’s decision.
- Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) – Judge Gorsuch joined an opinion in favor of companies alleging that the Affordable Care Act’s contraception mandate violated their religious rights under the federal Religious Freedom Restoration Act (RFRA). Judge Gorsuch authored a concurrence to explain his expansive view of religious liberty claims under RFRA.
The Williams Institute will provide more analysis of Judge Gorsuch as the confirmation process unfolds.