The Resistance Brief: This week in the fight for justice

Setting the stage for SCOTUS

Blog by Ricardo Martinez (he/him), Executive Director

The battle for fundamental rights and protections has been waging for decades, and the United States Supreme Court has remained influential on the battlefield.

Supreme Court cases centered around LGBTQ+ rights are rare and typically focus on individual rights, due process, and equal protection. Over the past 40 years, the Supreme Court’s decisions on LGBTQ+ cases have shifted from upholding sweeping laws that criminalized “homosexual conduct” to maintaining that federal law protects LGBTQ+ employees from discrimination.

Each year, the Supreme Court receives thousands of requests to hear cases but usually takes fewer than 100. The justices vote on which ones to hear. If at least four justices agree, the case moves forward – this is known as the “rule of four.” But it’s a tradition, not a rule. The Constitution sets only limited guidelines for what kinds of cases the Court must hear, but it often takes cases that are of national significance or involve disagreements in lower federal courts.

This term, the Court is hearing many cases that will impact Americans’ daily lives and the future of our democracy. Three of the cases are particularly consequential for LGBTQ+ Americans’ ability to live freely and access life-saving care.

  • U.S. v. Skrmetti: The Court is reviewing an appeals court ruling that let Tennessee and Kentucky enforce bans on transgender health care while lawsuits against the bans continue. The key question is whether blocking transgender adolescents from accessing health care violates the Constitution’s Equal Protection Clause.
  • Mahmoud v. Taylor: The Court will consider a lower court decision that said there wasn’t enough evidence that parents’ inability to opt their children out of seeing LGBTQ-themed storybooks burdened their First Amendment right to freely exercise their religion.
  • Kennedy v. Braidwood Management, Inc.: The Court will review a ruling that struck down a key part of the Affordable Care Act. The lower court said that insurance companies don’t have to cover preventative health care services like PrEP – a drug that reduces the risk of HIV transmission by close to 100% – without out-of-pocket costs.

The opinions in these cases will have a lasting impact on the lives of LGBTQ+ people. They will shape public policy, establish good or bad precedents, impact whether we can access the health care we need, and determine if books featuring LGBTQ+ characters and stories could be banned in some schools based on the claim of religious freedom.

If the issues central to the cases give you déjà vu, it’s likely because these topics have been fought for decades. For nearly 50 years, we have fought to raise awareness, fight stigma, and remove barriers to health care. We demanded action by the federal government to address the AIDS epidemic and remove homosexuality from the international classification of diseases. And we continue the fight to maintain access to health care for transgender and gender nonconforming people and defeat and repeal “no promo homo” laws and “Don’t Say Gay or Trans” bills that remove or omit our stories from books and curriculum.

But it’s hard not to feel like this is an inflection point that will shape the fight for years to come. After years of recycling tactics from the Anita Bryant days in the 1970s, anti-LGBTQ+ lawmakers have zeroed in and coalesced around a social-political strategy that exploits knowledge gaps that people have about transgender Americans. Their goal is to challenge generally accepted values and norms of decency, liberty, and equality. By exploiting the knowledge gap about LGBTQ+ issues and filling it with disinformation, they are manufacturing outrage to then use as an excuse to attack us. The public discourse – reaching a fever pitch – has undoubtedly influenced the selection of these cases. And the decisions are in the hands of a Supreme Court with a conservative majority.

These cases – and many others now pending throughout the court system – test not only the limits of the law but also our collective commitment to equity and justice. This is an opportunity for the Supreme Court Justices to delegitimize efforts to eradicate LGBTQ+ people from public life and to signal that these attacks conflict with the Constitution.

Cases like these remind us of what’s at stake for our community. But they also emphasize that we are a community that refuses to be erased, silenced, or sidelined. We feel confident in the merits of these cases and how they should be decided, but no matter the outcomes, no court, public official, or politician can invalidate our identities. We will continue to fight for each other and for a future where we can all thrive, together.

What to know, what to do: 

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