The Supreme Court’s next term could be its most consequential yet for LGBTQ+ rights.
The court is set to hear at least three LGBTQ+-related challenges, the most it’s heard in a single term. These cases could have broad repercussions on conversion therapy for LGBTQ+ youth and the participation of trans athletes in women’s and girls’ sports.
“It’s going to be harrowing for our community to have to engage with these cases and hope that the court does not issue sweeping negative decisions that cause serious harm — additional serious harm — beyond what they’ve already caused,” Shannon Minter, legal director of the National Center for LGBTQ Rights, told NOTUS.
Advocates for LGBTQ+ people are worried. The last time the Supreme Court granted a win for LGBTQ+ people was in 2020 when the justices ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 prohibits employers from firing someone based on their sexual orientation or gender identity.
The court has ruled against LGBTQ+ rights in every single case since then, and conservatives have taken note, pushing cases to the court that could undo civil rights protections for LGBTQ+ people.
“The court has been very much in favor of granting religious liberty,” said Mat Staver, the founder and chairman of Liberty Counsel, the conservative law firm representing Kim Davis, the former Kentucky county clerk who was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple and is now appealing her case before the Supreme Court.
The court has not yet agreed to take up that case. But it will hear arguments in Little v. Hecox and West Virginia v. B.P.J., which consider whether state laws restricting transgender athletes’ participation in women’s and girls’ sports are constitutional.
It will also hear Chiles v. Salazar, which evaluates whether state and local governments can enforce laws banning conversion therapy for LGBTQ+ youth.
Currently, 29 states have restrictions on trans youth participating in sports and 23 states and the District of Columbia prohibit conversion therapy.
Minter called the Chiles case “so critical and so concerning.” The Supreme Court already ruled this summer in United States v. Skrmetti that bans on gender-affirming care for trans minors are constitutional.
“If the court green-lights conversion therapy for LGBTQ minors … that would be a double whammy with devastating impact,” Minter said.
As for the Little and West Virginia cases, while the current focus is on whether trans youth can participate in sports teams that correspond with their preferred gender, “a major concern here is that the states in these cases will ask the court to issue a very broad ruling that allows, if not requires, discrimination against transgender people, namely transgender women and girls, in many more contexts,” said Gillian Branstetter, a communications strategist for the American Civil Liberties Union’s LGBTQ and HIV Project, which is involved in the two cases.
That could include, Branstetter added, “bathrooms, locker rooms, any public facilities that are sex-segregated and perhaps even, you know, what goes in our ID and these sorts of things.” (Both the Little and West Virginia cases ask the justices similar questions but have not been consolidated into one.)
The conservative majority on the Supreme Court has delivered a series of blows to LGBTQ+ rights advocates in recent years.
In Fulton v. City of Philadelphia and 303 Creative LLC v. Elenis, for example, the court decided that the First Amendment protects individuals who discriminate against LGBTQ+ people in specific situations if they do so based on religious grounds. Besides the Skrmetti decision, it also ruled this summer in Mahmoud v. Taylor that Maryland schools requiring LGBTQ+-themed books must provide opt-out options to not undermine parents’ religious liberties under the First Amendment.
“I think LGBTQ people know very well that this community is under assault right now,” said Camilla Taylor, interim chief legal officer at Lambda Legal, a law firm that supports LGBTQ+ rights that is involved in the West Virginia case.
“The Supreme Court has shown a great deal of hostility toward individual civil rights in recent years, and so it’s always a concern when the Supreme Court reaches out to take a case,” Taylor continued.
Conservative groups are pushing for the court to take up new cases that would further restrict LGBTQ+ rights.
Alliance Defending Freedom, for example, is involved in the three LGBTQ+ cases this term. (The organization did not respond to NOTUS’ multiple requests for interviews.)
The court could even return to one of its most impactful decisions this century: Obergefell v. Hodges, the 2015 Supreme Court decision that ruled that the fundamental right to marry is guaranteed to same-sex couples under the Due Process Clause and the Equal Protection Clause of the 14th Amendment.
Attorneys for Davis filed a petition in July arguing that the First Amendment’s religious freedom protections immunizes the former Kentucky county clerk from personal liability for denying marriage licences.
The Supreme Court in 2015 declined to hear Davis’ initial appeal to permit her to deny marriage licenses to same-sex couples, but now, “it’s a more appropriate time,” Staver told NOTUS.
Davis’ legal team feels confident that the composition of the current Supreme Court, with a 6-3 conservative majority, could decide in her favor. When the Supreme Court decided the Obergefell case, conservatives held a 5-4 majority, but then-Justice Anthony Kennedy sided with the four liberals.
Staver noted that three of the justices who dissented in the Obergefell decision remain on the bench: Chief Justice John Roberts, along with Clarence Thomas and Samuel Alito.
“Ten years is a big change in the court,” Staver said. “Time has not made Obergefell more stable, it’s continued to undermine its foundation.”
He pointed to Thomas’ concurrence in Dobbs v. Jackson, the decision that overturned Roe v. Wade, where the justice wrote that the Supreme Court should “reconsider” cases that created rights under the 14th Amendment’s Due Process Clause, including Obergefell.
Congress in 2022 passed the Respect for Marriage Act in direct response to Thomas’ concurring opinion. However, the law only established that states must recognize marriage licenses issued in other states. If Obergefell is overturned, states would be allowed to regulate marriage individually.
LGBTQ+ rights advocates say it is highly unlikely the Supreme Court takes up Davis’ case, particularly because polls continuously show a majority of Americans support same-sex marriage. Lambda Legal’s Taylor told NOTUS that “every year, there’s a brief … that demands that the Supreme Court overrule its own decision granting the freedom to marry to same-sex couples” and the justices have turned those cases away.
There are a number of ongoing LGBTQ+-related cases in the lower federal courts that are expected to make their way to the Supreme Court, including on President Donald Trump’s ban on trans people serving in the military and federal bans to prevent hospitals from providing trans health care.
As a result, LGBTQ+ rights advocates expect that the number of cases being considered by the justices could increase.
“Anti-LGBTQ conservative groups are doing everything they possibly can to get as many cases relating to our community in front of this court as they can,” Minter said. “They have recognized that they have a sympathetic audience in the current court and that this is their chance to try to get decisions that really limit legal protections for LGBT people.”
Correction: This article has been updated to correct the misspelling of the founder and chairman of Liberty Counsel’s name. His name is Mat Staver.