OPINION: The appointment of Amy Coney Barrett to the Supreme Court should ring alarm bells for the LGBT+ community

by Richard Saenz | Lambda Legal
Tuesday, 6 October 2020 08:31 GMT

FILE PHOTO: Judge Amy Coney Barrett, U.S. President Donald Trump's nominee for the U.S. Supreme Court, meets with U.S. Senator Lindsey Graham (R-SC) (not pictured), in the U.S. Capitol, in Washington, U.S., September 29, 2020. Demetrius Freeman/Pool via REUTERS/File Photo

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

President Trump's Supreme Court nominee Amy Coney Barrett has called transgender women "physiological males" and made public statements against same-sex marriage

Richard Saenz is a senior attorney at Lambda Legal

If Amy Coney Barrett is confirmed to the Supreme Court, the body, already leaning to the right, would be an ultra-conservative court the likes that we have not seen in decades. The new make-up of the court, made up of nine justices, could slam the courthouse doors shut to many incarcerated people and LGBT+ people or those seeking to hold police officers and prison system accountable.

The court could radically change the Eighth Amendment’s prohibition against cruel and unusual punishment. In Farmer v. Breenan, (1994), a case originally filed by Dee Farmer, a Black transgender woman, the court ruled that a prison officials' “deliberate indifference” to substantial risk of serious harm to an inmate violates the Eighth Amendment.

This standard has been applied in thousands of cases, including Lambda Legal’s cases on behalf of LGBT+ people who experienced violence or sexual assault while in custody, or people who were denied medical treatment such as hormone therapy due to a discriminatory policy.

A more stringent standard could make it even more difficult for incarcerated people to bring cases against officials – especially given the fact that many of these cases are brought without an attorney.

There is already reason for alarm.

In the Fifth Circuit Court of Appeals, a Trump-appointed judge flatly stated that a policy that did not authorize sex reassignment surgery or even an individualized assessment of whether such surgery was medically necessary, did not constitute “deliberate indifference”.

This ignores decades of what the Eighth Amendment requires and installs a blanket ban against gender confirmation surgery, or even an assessment not just for this plaintiff but for other incarcerated transgender people in this circuit. If other courts were to accept this reasoning, then access to healthcare for incarcerated transgender people will be in increased jeopardy.

The modern LGBT+ rights movement was born in response to police violence.

This summer millions took to the streets to further protest against police abuses and the killing of Black and brown and LGBT+ people by officers. The question now is whether people can turn to the courts to hold police departments and officers accountable for violating our communities’ rights.

Last term, the Supreme Court declined to hear cases involving the legal defense of qualified immunity. Under this doctrine, a case can be dismissed if a police officer’s actions were not “clearly established” as a constitutional violation at the time of the event. This has led to a number of cases being thrown out regardless of how egregious the actions of the officials were. U.S. President Donald Trump has opposed limiting qualified immunity.

Finally, an ultra-conservative court undermines our communities’ belief in the criminal legal system. LGBT+ people are entitled, as are all people, to courts that treat them with fairness and respect.

Alarmingly, Judge Coney Barrett has referred to transgender women as “physiological males” and made public statements against same-sex marriage. Other Trump appointed judges have also gone out of their way to refer to trans plaintiffs as “gender dysphoric” or refuse to use correct pronouns, in referring to a trans person or misgender them, while ruling against trans people.

There is much at stake for LGBT+ people.

We know that Trump’s nominees are committed to using the constitution to deny legal protections to this country’s most vulnerable. But this is not the end. We and many others are committed to the fight for equal justice for all.


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