{"id":2683,"date":"2023-04-30T21:30:33","date_gmt":"2023-05-01T01:30:33","guid":{"rendered":"https:\/\/www2.law.temple.edu\/lppp\/?p=2683"},"modified":"2023-04-30T21:30:35","modified_gmt":"2023-05-01T01:30:35","slug":"the-u-s-supreme-court-can-protect-the-lgbtq-community-but-will-it","status":"publish","type":"post","link":"https:\/\/www2.law.temple.edu\/lppp\/the-u-s-supreme-court-can-protect-the-lgbtq-community-but-will-it\/","title":{"rendered":"The U.S. Supreme Court Can Protect the LGBTQ+ Community, But Will It?"},"content":{"rendered":"\n

Ellie Holzman, JD Anticipated May 2023, Law & Public Policy Scholar<\/strong><\/p>\n\n\n\n

There are currently over 385 anti-LGBTQ bills<\/a> that have been introduced at the state level across the country. Ninety<\/a> of these bills would prevent transgender youth from accessing age-appropriate gender affirming care, two of which have already become law. These proposed laws also target drag performances<\/a>, bathroom access, and place limits on classroom curriculums pertaining to LGBTQ+ history. These bills represent a larger movement against the LGBTQ+ community across the country that seeks to erase queer history and prevent queer people from accessing basic human rights. During a time when it seems that the LGBTQ+ community is experiencing such targeted and severe attacks from lawmakers across the country, one might wonder how any of this is legal, or if there are any legal remedies to make it stop. The long answer to that, unsurprisingly, is complicated, and requires a deeper dive into constitutional law and equal protection jurisprudence. However, the short answer is that the Supreme Court likely has the power to find that explicitly anti-LGBTQ laws are unconstitutional based on recent precedent. In fact, the Supreme Court\u2019s treatment of gender-classifications, as well as its acknowledgment of the inherent connection between sex, sexuality, and gender identity presents an opportunity to find new protections for the LGBTQ+ community. Of course, whether the Court will choose to do so is an entirely separate question. \u00a0<\/p>\n\n\n\n

One possible legal strategy for challenging these types of anti-LGBTQ laws would be to argue that sexual orientation and gender identity are protected classes that should be given intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause<\/a> holds that \u201cno state shall make or enforce any laws\u2026[that] deny to any person within its jurisdiction the equal protection of the laws.\u201d Ratified in 1868<\/a> as part of the Reconstruction Amendments, the Equal Protection Clause was originally intended to protect Black people from state-sanctioned discrimination. However, since then, the Supreme Court has steadily evolved its interpretation of the Equal Protection Clause and has considered what level of scrutiny <\/a>various classifications between and among individuals should be required to satisfy. The Court has held that any race-based classification should be required to meet the test of\u00a0strict scrutiny, gender and illegitimacy classifications should be subject to intermediate scrutiny, and everything else\u00a0should be subject to rational basis review. The higher the level of scrutiny, the less likely that the classification will be upheld. In determining what level of review a certain class should get, the Court first determines whether it is a suspect or quasi-suspect class. This requires the Court to consider whether the class is a \u201cdiscrete and insular minority<\/a>,\u201d has experienced a history of discrimination, is politically powerless, and is united by an immutable\u00a0characteristic, and the relevancy of the trait in participating and contributing to society.<\/p>\n\n\n\n

The Supreme Court has not found that sexual orientation or gender identity are suspect classes that deserve intermediate scrutiny or strict scrutiny. However, the Court has held that gender classifications receive intermediate scrutiny. In Craig v. Boren<\/em> <\/a>(1976), the Supreme Court subjected a gender classification to intermediate scrutiny for the first time. It found that gender is a quasi-suspect class because \u201ca person\u2019s gender has no relevance to his or her ability to contribute to society, and because gender, determined at birth, is an immutable characteristic of that person\u2019s being.\u201d More recently, in a surprising opinion from Justice Gorsuch, the Supreme Court found in Bostock v. Clayton County<\/em><\/a> (2020) that the term \u201csex\u201d includes sexual orientation and gender identity for purposes of Title VII discrimination claims. The Court noted that \u201cit is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.\u201d Given the Court\u2019s use of intermediate scrutiny for gender classifications, as well as its recognition that sex, sexual orientation, and gender identity are inherently linked, the Bostock<\/em> decision seemingly presents an opportunity for sexual orientation and gender identity to trigger heightened scrutiny under the Equal Protection Clause.<\/p>\n\n\n\n

Yet, the Court has failed to do this, and it is unlikely that it will do so any time soon. When looking at the list of factors the Court must consider when deciding if a certain group should be classified as a suspect-class, the immutability of the characteristics may present the greatest challenge. After all, there is vast evidence to support the fact that the LGBTQ+ community has faced a history of discrimination and are at least somewhat politically powerless. Proving that sexual orientation and gender identity is an immutable characteristic is more difficult, especially in light of the increasingly accepted viewpoint that these things are fluid and can change throughout someone\u2019s life. In Obergefell v. Hodges<\/em><\/a> (2015), the Supreme Court decision that recognized the constitutional right to same-sex marriage, the Court discussed whether sexual orientation is an immutable characteristic. In the end, it found that \u201cpsychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.\u201d While the Court\u2019s determination that sexual orientation is immutable was the legally superior outcome, it actually conflicts with more widely held views among the LGBTQ+ community that sexual orientation<\/a> and gender identity<\/a> is fluid. As conversations surrounding theories of sex, sexuality, and gender evolve over time, younger generations are approaching queerness as more a fluid spectrum, rather than always being a distinct identity that never changes. There is an argument to be made, however, that just because one\u2019s sexuality and\/or gender identity may change and evolve over the course of their life does not mean that their core identity as a queer person is something other than an immutable characteristic that they were born with.<\/p>\n\n\n\n

In the end, these conversations are complicated, and each person\u2019s experience with their queer identity is unique to them. As such, finding that sexual orientation and gender identity should be granted heightened scrutiny would require the current Court to have a much better understanding of sex, sexuality, and gender identity than it likely has, as well as a willingness to listen to the LGBTQ+ community and have a nuanced perspective on queerness. The reality is, the Court has the tools to make this happen, but the current political makeup of the Supreme Court makes it highly doubtful that they will utilize them. A willingness to provide new constitutional protections for sexual orientation and gender identity would require the Court to actually care about the safety and wellbeing of the LGBTQ community, and this is simply not the case.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ellie Holzman, JD Anticipated May 2023, Law & Public Policy Scholar There are currently over 385 anti-LGBTQ bills that have been introduced at the state level across the country. Ninety of these bills would prevent transgender youth from accessing age-appropriate gender affirming care, two of which have already become law. These proposed laws also target drag performances, bathroom access, and place limits on classroom curriculums pertaining to LGBTQ+ history. These bills represent a larger movement against the LGBTQ+ community across … <\/p>\n

Read More<\/a><\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4],"tags":[],"coauthors":[67],"class_list":["post-2683","post","type-post","status-publish","format-standard","hentry","category-blog","infinite-scroll-item","masonry-post","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-50"],"yoast_head":"\r\nThe U.S. Supreme Court Can Protect the LGBTQ+ Community, But Will It? - Law & Public Policy Program<\/title>\r\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\r\n<link rel=\"canonical\" href=\"https:\/\/www2.law.temple.edu\/lppp\/the-u-s-supreme-court-can-protect-the-lgbtq-community-but-will-it\/\" \/>\r\n<meta property=\"og:locale\" content=\"en_US\" \/>\r\n<meta property=\"og:type\" content=\"article\" \/>\r\n<meta property=\"og:title\" content=\"The U.S. Supreme Court Can Protect the LGBTQ+ Community, But Will It? - Law & Public Policy Program\" \/>\r\n<meta property=\"og:description\" content=\"Ellie Holzman, JD Anticipated May 2023, Law & Public Policy Scholar There are currently over 385 anti-LGBTQ bills that have been introduced at the state level across the country. 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