On October 7, the conservative majority of the Supreme Court appeared eager to set back Colorado’s LGBTQ-affirming legislative legacy—and gay and transgender rights more broadly. During oral arguments in Chiles v. Salazar, the Court’s conservative justices raised concerns about the state’s statutory ban on conversion or “reparative” therapy, on the books since 2019, and its apparent threat to Christianity-informed free speech. 

On the evidence of the Justices’ questions, a ruling against the Colorado statute seems likely. That setback would follow the Court’s anti-LGBTQ decisions from last term: Skrmetti v. Tennessee (2025), which supported bans on gender-affirming health care, and Mahmoud v. Taylor (2025), which allowed religion-compelled parents to opt their children out of public school story hours featuring LGBTQ-affirming books.  

“Conversion therapy” attempts to alter a person’s sexual orientation or gender identity so that they comply with anti-LGBTQ ideological commitments. As a therapeutic practice, mainstream medical professionals have widely rejected it—and it has been outlawed in over 23 states. Mental health professional organizations agree that identifying as LGBTQ is not a mental disorder, and that attempts to change someone’s sexuality or gender identity are at best ineffective and at worst actively harmful to patients. The practice includes anything from “talk therapy” that treats LGBTQ individuals as in need of a “cure,” to electric shock or pharmaceutical interventions. These practices persist, largely underground, in defiance of current bans. 

Colorado’s law bans medical interventions that cast LGBTQ individuals as mentally ill. A former conversion-therapy client of Colorado’s Focus on Family described the ban as “guiding people to the best version of themselves” by nurturing practices that are “beneficial, healing, and can save lives” and outlawing “therapy where [the] only…outcome considered successful is harmful.” In other words, the practices prohibited by the ban are those focused on the singular goal of encouraging a client to reject their LGBTQ identity.   

Kaley Chiles, a counselor licensed by the state to treat addictions, argues that the Colorado law violated her First Amendment rights by outlawing her ability to counsel sexuality- and gender-questioning youth who are seeking Christianity-informed therapies to help them resist their same-sex sexual desires and their gender dysphoria.  

Colorado is no stranger to Supreme Court fights over LGBTQ rights. The state is, paradoxically, home to the most vociferous anti-LGBTQ movement leaders and the most progressive LGBTQ-affirming policies—making it ripe for contentious legal and political rifts. In Romer v. Evans (1996), the Court overturned a 1992 voter initiative that branded Colorado “the hate state.” The ballot measure, organized by the Colorado Citizens’ Commission, barred gays and lesbians from seeking any state or municipal legislative protections from sexuality-based discrimination.  

Colorado quickly shed its “hate state” identity by updating its anti-discrimination measures in 2008 to include sexual orientation and gender identity. Yet almost ten years later, the state was back in Court—this time in a conflict with Christian wedding service providers. In a 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court sided with a Colorado baker’s claim that the state’s nondiscrimination laws violated his Christianity-informed expressive rights to refuse to bake a wedding cake for a gay couple’s upcoming nuptials. Six years later, in 303 Creative v. Elenis, a Christian wedding videographer blamed the state for “chilling” her desire to design wedding websites exclusively for heterosexual couples. Once again, the Court rebuked the state’s LGBTQ nondiscrimination laws in favor of Christian business owners who oppose marriage equality.  

Chiles raises parallel substantive questions about the double helix of free exercise and free speech. Does the conversion therapy ban impose similar harms to Christianity-informed free speech that the Court outlawed in Masterpiece Cakeshop and 303 Creative? 

Assuming Chiles has standing to sue (a subject of some disagreement), the Court will have to determine whether her claim should be reviewed under the highly demanding “strict scrutiny” test, and, if “strict scrutiny” is warranted, whether the Court should send the case back to the lower Court or render judgment now. Two lower federal courts agreed with the state that the ban regulates medical conduct rather than speech and thus should be reviewed under the forgiving “rational basis” standard, as are other laws regulating medical care.  

Under a rational basis review, the state only needs to provide a reasonable rationale for banning conversion therapy—one that can easily be justified within the state’s normal efforts to protect the health and welfare of its citizens. Under strict scrutiny–a standard of review used only when a fundamental right has been abridged or when a suspect or spurious social classification (such as race or religion) is targeted by the legislation–the state faces a much higher evidentiary burden. In the case of a ban on conversion therapy, they must present evidence that Chiles’s type of talk therapy harms children.  

If the Court agrees with Chiles’s request for strict scrutiny, it has two options: to decide the case under this higher standard of review immediately or to send it back to the lower courts, as is typical, with instructions to reevaluate the evidence under the more rigorous standard. Chiles requests that the Court decide immediately, as it did last term in Mahmoud v. Taylor (the case involving parental opt-outs for school-based story hours with LGBTQ-affirming books), to address the supposed “irreparable” and “ongoing harm” that legislation and pending litigation have caused Chiles and her potential clients.  

Speech v. Conduct 

At oral argument, Justice Ketanji Brown Jackson pressed James Campbell, Chiles’s lawyer, to explain how her therapy differs from the many other medical interventions the state can regulate, as the Court held last term when it affirmed Tennessee’s gender-affirming-care ban. While quizzing Campbell, Justice Jackson asked “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would be prescribing medication for that rather than talking to the client.” Cambell, however, argued that Chiles is engaging only in a “back-and-forth, one-on-one conversation [that] is a form of speech.” Talk therapy is speech, therefore, protected by the First Amendment. The medical interventions outlawed by Tennessee—puberty delaying medications, hormone replacement, and gender-affirming surgeries—are conducted. As such, Campbell argued that they do not fall within the First Amendment’s protections, while Chiles’s therapy does. 

If considered as pure speech, a ban on Chiles’s therapeutic methods would infringe on her fundamental rights and require review under strict scrutiny. Under this standard, Chiles argues, the state would need to demonstrate how talk-focused conversion therapy harms minors sufficiently to justify an otherwise unconstitutional restriction of free speech and exercise rights. According to this standard, Chiles contends that the statute would almost certainly fail. While they may have evidence that conversion therapy in general creates risks for young patients, as Chiles states, there is little empirical proof that talk-focused therapy, like the one she provides, causes any risks. An amicus brief from a professional organization supports the state’s position. It cites examples of dangers linked to different forms of conversion therapy, mainly because these therapies portray LGBTQ identities as abnormal.  

Standard of Care 

Oral arguments raised questions about the evidence that future courts might require as they are asked to review medical care. Colorado’s attorneys argued that the law follows “standard of care”—a legal term referring to the level of practice by professional practitioners–in the treatment of young people struggling with sexual and gender identity. Deviations from “standard of care,” argued the state, can be regulated or barred through legislation as a matter of ordinary state protections.  

Conservative justices argued differently. Justice Amy Coney Barrett questioned the meaning of “standard of care” when experts offered “competing strands” or when states disagree. Do states just “pick a side?” she asked. Justice Samuel Alito wondered what the role of the Court should be in accepting medical expertise, “when the medical consensus has been politicized” or “taken over by ideology.” These inquiries raise questions about the capacity for future Court cases to disregard “standard of care” and medical consensus.  

Justices on both sides of the ideological divide seemed to agree that a state cannot target therapists like Chiles who provide voluntary treatment to patients explicitly seeking to resist same-sex sexual attraction or to accept their gender dysphoria by embracing their birth-assigned gender. Justices Elena Kagan and Alito both contended that (as Kagan explained) “if a doctor says ‘I know you identify as gay and I’m going to help you accept that’, and another says ‘I know you identify as gay and I’m going to help you change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination.”  

Interestingly, Chiles’s attorneys agreed that the argument would hold on “the flip side”—in cases where a state may want to ban gender- or sexuality-affirming care that is talk-based. Implying that, if Colorado’s law is determined unconstitutional in its application to talk therapy, conservatives may not be able to outlaw professional speech that affirms gender identity or sexuality—in the context of treatment and beyond. 

This raises questions—especially as conservative lawmakers, including President Donald Trump, seek to punish individuals for engaging in speech that criticizes ICE or Charlie Kirk, or promotes “woke” pedagogies. If Chiles wins, how will that precedent apply to LGBTQ-affirming or other targeted speech?  

The post The Gay Conversion Therapy Case and Its Discontents  appeared first on Washington Monthly.

The Supreme Court rounded out its term in June with another blow to LGBTQ rights. In Mahmoud v. Taylor, the Court’s six Republican-appointed justices sided with parents in a case involving religious rights and LGBTQ-inclusive storybooks. The parents (of Muslim, Catholic, and Orthodox Christian faiths) asked the Court to require Montgomery County, Maryland, to reinstate a policy allowing them to opt their children out of story hours that include books with LGBTQ themes, including a same-sex wedding. They argued that exposing their children to the works interferes with their ability to exercise their religious values freely.

On its face, supporting the parents’ request for an injunction against the school board—effectively reinstating the opt-out option as litigation continues—may not seem like a setback for LGBTQ rights. After all, in the short term, the outcome only affects the district’s opt-out procedure. During the proceedings, the Court did not question the board’s authority to choose the content and feature the books. Neither does it directly impact other jurisdictions.

However, the Court’s rationale—and its characterization of the storybooks—opens a window for future religion-based attacks on LGBTQ-relevant content, particularly where parental rights are involved.

Yoder and Free Exercise

In 2022, the Montgomery County school district, among the nation’s largest and most religiously diverse, updated its K-5 language arts offerings to include books with marginalized communities among the many available options in a classroom library, as recommended readings or as part of classroom instruction or read-aloud. Among the books were stories featuring same-sex marriage and discussions about gender identity. The school board asked teachers to notify parents when these books were scheduled for class discussion and allow parents to excuse their children if they desired. Many parents used this option, especially for LGBTQ books. The district determined it was too difficult to manage and, in 2023, it removed the opt-out option. 

The Constitution’s First Amendment protections prevent Congress (and by extension the states) from infringing on free speech and the “free exercise of religion.” It also prohibits the establishment of any state-mandated religion. First Amendment cases, especially those involving free exercise, often require the Court to balance competing rights-based claims: an individual’s right to exercise religion without governmental interference and the state’s obligation not to favor a specific religious perspective. The Court’s long history of religious rights cases reflects the weighing of these constitutional mandates.

In Mahmoud, the Court relied primarily on Wisconsin v. Yoder, a 1972 case involving Amish parents’ rights to keep their children home after 8th grade rather than comply with the state’s compulsory education law, which dictated that they attend high school. In an opinion by Chief Justice Warren Burger, the majority determined that the law violated the parents’ religious rights to educate their children at home. Compliance would force Amish parents to expose their children to educational programs that sat “in sharp contrast with the fundamental mode of life mandated by the Amish religion.”

The Mahmoud majority relied on this logic in an opinion written by Justice Samuel Alito, who argued that, as with Yoder, without an opt-out alternative, parents were forced to send their children to schools whose curriculum contrasted with their fundamental religious values. In doing so, the Board “imposed upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.”

Sotomayor’s Dissent

The parents’ request—and the result—may seem reasonable. The Court’s argument, on its face, does not prevent the school district from including books centering LGBTQ inclusion in its curricula. And the opt-out would only, in theory, affect those students whose parents wish to keep their children home.

However, as with many Court decisions, the devil is in the doctrine. The doctrines––or rationales––allow judges to use the same logic in future cases. Despite the narrow facts of this case, Mahmoud’s logic could be used in many instances involving parental rights, free exercise, and LGBTQ content. 

In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote that the Court’s doctrine in this case “offers no limiting principle.” Its new logic could legitimize a wide range of religious-based challenges to initiatives, particularly those involving LGBTQ communities. 

The decision, according to Sotomayor, “distorts” Yoder and “invents a Constitutional right to avoid exposure to ‘subtle’ themes ‘contrary to the religious principles’ that parents wish to instill in their children.” Simply exposing children to the “message that LGBTQ people exist and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny.” 

First, the majority confected a new, and much lower, “burden” for free exercise claims to prevail in parental rights cases. Past rulings attempted to balance free exercise rights against individuals’ responsibility to comply with otherwise reasonable state laws. Mahmoud lowers that bar, all but inviting individuals to claim that state policies impose a free exercise burden. Past cases like Yoder and others argue that claims must demonstrate that a policy “substantially interferes with the [child’s] religious development and… integration into the way of life of” the parent’s faith.

In Mahmoud, Alito’s interpretation of Yoder only requires claimants to hypothesize potential religion-based burdens. He argues that “a plaintiff need not wait for the damage to occur.” He continues, “We do not need to ‘wait and see’ how a particular book is used in a particular classroom on a particular day before evaluating the parents’ First Amendment claims. We need only decide whether—if teachers act according to the clear and undisputed instructions of the Board—a burden on religious exercise will occur.” In particular, Alito suggests it would be too onerous for parents to obtain the necessary evidence.

Alito’s new “test” is unworkable in two ways: it has no limits and is highly subjective.

As Sotomayor argues, the majority opinion does not establish standards of evidence for claimants to meet in future cases that rely on Mahmoud. If parents need only suggest a plausible burden, what are the contours of that burden? And how must one demonstrate its likelihood? In Mahmoud, the parents could not point to any specific, substantial intrusions on their ability to impart their religious values to their children stemming from using the books during classroom instruction. And yet they could compel the Court to require the opt-out. How will future cases, different policies, and other contexts fare under this new doctrine when evidence is no longer required, when a plaintiff only needs to claim a plausible burden? Must schools featuring books about gay families or transgender kids offer parents a way out? 

This new test amplifies the power of judges, particularly their reliance on intuition, as they divine both the likelihood and magnitude of the burdens to religious values. This can amplify judicial bias. For example, in his effort to demonstrate the “normative” nature of the curricula and the district’s guidelines for managing related classroom discussions, Alito took aim at Uncle Bobby’s Wedding, a picture book for 3–6-year-olds that includes a same-sex wedding. In this book, a young girl, Chloe, is upset that her favorite uncle is getting married; she worries about what will happen if “Uncle Bobby no longer has time for picnics, swimming, or flying kites.” The book is about a young person’s fear that her relationship with her uncle will change after he is married, not her attitude toward LGBTQ relationships.

Alito focuses on Uncle Bobby’s partner, Jamie, who is a man. He describes the book as “coy” but threatening because, after Chloe wonders why her uncle is getting married, her mom says, “Bobby and Jamie love each other. When grown-up people love each other that much, sometimes they get married.” Specifically, Alito laments the following passage, describing those attending Bobby and Jamie’s wedding: “Everyone was smiling and talking and crying and laughing,” even adding emphasis to underscore his point.

Leaning on these passages, Alito described the book as “not simply refer[ring] to same sex marriage as an existing practice” but “present[ing] same-sex marriage as a perspective that should be celebrated.” 

Alito has made no effort to hide his opinion on Obergefell v. Hodges, the 2015 decision that outlawed bans against same sex marriage. He and Justice Clarence Thomas have been featured speakers at the Federalist Society, criticizing the decision and saying that it threatens free speech and free exercise. For Alito, Obergefell endangers the right of people to say that “marriage is a union between one man and one woman” without “being labeled as bigots and treated as such by governments, employers, and schools.”

Yet, as Sotomayor pointed out, “LGBTQ people do exist” and, thanks to Obergefell, they can—and do—get married. Indeed, it is common for those attending a wedding to be happy for the newlyweds. Regardless of one’s religious beliefs, the fact of married gay couples and their weddings cannot be refuted. Indeed, the book would read identically if Jamie were a woman instead of a man. Yet, according to Alito, the story is “unmistakably normative” about same-sex marriage. One book featuring a same-sex wedding threatens the religious rights of parents, according to Alito’s reasoning. By this logic, a children’s book that featured a Hindu wedding or an inter-denominational ceremony would potentially be so unsettling to some Christian or Jewish parents that they could demand an opt-out, especially if the attendees in the story enjoy the ceremony.

Alito uses the same interpretive lens when analyzing the board’s teacher guidance for leading class discussions. It issued specific directives for teachers to accept differing opinions about sexual orientation and gender identity. It also encouraged faculty to teach students that “in any community, we’ll always find people with beliefs different from our own and that is okay—we can still show them respect.” The guidance offers language on promoting “respect and kindness” across differing identities and perspectives.

Still, Alito described the guidance as “reprimand[ing] children who disagree” and “encourag[ing] the teachers to correct children and accuse them of being ‘hurtful’ when they express a degree of religious confusion.” But that is not the case. Sotomayor points out that the majority can only reach this opinion “by omitting portions of the student commentary to which the teachers are responding in the guidance.” For instance, the board encourages teachers to use the word “hurtful” in response to anti-gay comments, like “that’s so gay,” not, as Alito would have us believe, in the context of sincere and respectfully stated concerns about sexuality and identity. No one’s faith is being chastised.

Mahmoud and the Future of LGBTQ Rights

What does the future hold for LGBTQ cases that might rely on Mahmoud? No one knows. But the Court has supported numerous efforts to limit LGBTQ-supportive expression, especially in First Amendment cases.

In 1995, the Court sided with a Boston-based St. Patrick’s Day Parade organizer who refused to allow the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB) to march. The Court reasoned that LGBTQ people could participate as individuals. But a group with a pro-gay banner ran afoul of the parade organizer’s beliefs protected under the First Amendment. In 2000, the Boy Scouts similarly convinced the Court that, despite a New Jersey law against sexual orientation discrimination, it had a right to fire James Dale as a scoutmaster when they discovered that he was openly gay. Both Dale’s orientation and openness put him at odds with the values of the Boy Scouts. 

Mahmoud is in a similar vein. Even though the Court itself has sanctioned the rights of gay people to marry and of gay and trans people to work openly, Mahmoud opens the door for a host of questions and potential setbacks. Amid a multi-year upswing of state and federal LGBTQ rights retractions, one wonders what’s next and who gets to decide. Will opt-outs for LGBTQ-supportive topics be required for every school under Mahmoud? And if a book referencing gay nuptials is an “obvious” trigger for a parental release, what’s to stop a parent from asking for an opt-out when a classmate with gay parents discusses their family? Or when a transgender child speaks openly about their gender identity? If children’s books with same-sex weddings are threats to religious freedom, are the children of same-sex marriages threats as well? 

The post Alito’s Same-Sex Wedding Panic Threatens LGBTQ Rights appeared first on Washington Monthly.

On June 18, the Supreme Court issued its decision in United States v. Skrmetti, upholding a Tennessee law banning gender-affirming care for minors. Skrmetti represents a significant setback for transgender rights since the Court issued its 2020 opinion in Bostock v. Clayton, which extended protections against sex-based discrimination to gender identity and sexual orientation. Although the 6-3 Skrmetti majority preserved Bostock, they dismissed its applicability to Skrmetti, spelling trouble for future LGBTQ rights—and especially trans-rights—cases. 

Twenty-seven states ban hormone therapy, puberty suppression, and other medical interventions for addressing gender dysphoria, a condition in which individuals experience “significant distress or impairment” stemming from a mismatch between their gender identity and the physical markers of their birth-assigned sex. Eight states with bans for minors also have, or are considering, limitations on care for adult transgender populations.  

Puberty suppressors delay the progression of puberty and its physical changes. For gender dysphoric young people, this means staving off the process in which some sex-based physical characteristics are activated. Hormone replacement therapies allow individuals to launch a puberty of sorts that promotes the development of sex-based traits that match their gender identity, and to maintain those changes so long as hormone levels are maintained. In other words, puberty suppressors pause physical development, while hormone treatments steer development towards gender-identity-affirming sex-specific markers. 

A small percentage of youth whose gender identity does not conform to their sex-based characteristics (commonly referred to as “transgender”) seek out puberty suppressors. And even fewer pursue hormone therapies. Nevertheless, the bans could impose significant costs on the lives of the young people who may need them. While some physicians and scientists, particularly in the United Kingdom and the Netherlands, have expressed concerns about the understudied long-term effects of hormone therapies on young people, mainstream scientific organizations in the United States cite numerous studies demonstrating their benefits—particularly in decreasing the incidence and magnitude of significant and ongoing depression and suicidality that too often accompany gender dysphoria.  

Some states with bans have also passed legislation penalizing parents and physicians who help minors receive these therapies. The bans leave the parents of transgender youth with the impossible choice of living in a state with these policies and having their child forgo critical therapies, seeking therapies elsewhere (sometimes on the sly), or moving out of their state to support their children. Each of these options imposes significant risks and costs on gender dysphoric youth and their families. 

Skrmetti is a bellwether for LGBTQ rights in the aftermath of Bostock v. Clayton County, which expanded those rights. Bostock is an amalgam of several cases that highlight conflict over the federal meaning of “sex,” in the context of civil rights protections, and its application to instances of discrimination based on gender identity or sexual orientation. One of the cases included in Bostock involved Aimee Stephens, a transgender woman who was fired from her position at Harris Funeral Home in Michigan because of her gender identity. The Court determined that sexual orientation and gender identity were both included within the meaning of the word “sex” in the context of Title VII of the Civil Rights Act of 1964, which forbids discrimination by employers “because of [an employee’s] race, color, religion, sex, or national origin.” 

While Title VII does not reference gender identity, court decisions, as well as previous guidance from the Equal Employment Opportunity Commission, maintain that prohibitions against discrimination based on sex necessarily incorporate sexual orientation and gender identity, as each relies on stereotypes or misperceptions of sex and gender. Writing for the Bostock majority, Justice Neil Gorsuch concluded that “it is impossible to discriminate against someone on the basis of being homosexual or transgender without discriminating on the basis of sex.” 

The Skrmetti case, named after Tennessee’s attorney general, merged challenges to the state law brought by transgender children, doctors, and the Biden administration. Challengers argued that bans on hormone therapy for gender dysphoria violate both the 14th Amendment and the kind of statutory protections considered by Bostock. Tellingly, the state bans do not outlaw these hormone therapies for all minors. Young people experiencing “precocious puberty” (a condition in which children begin puberty before age 9, increasing the risk of infertility and cancer) have long relied on the same suppressors now banned by Tennessee for youth with gender dysphoria.  

According to the American Medical Association, the American Academy of Pediatricians and the Endocrine Society among others, puberty suppressors, such as GnRH, or Gonadotropin-Releasing Hormone, a hormone produced in the hypothalamus that regulates the reproductive system, are clinically proven to stop early-onset puberty and have been used since the 1980s to treat the condition. NIH-supported researchers describe these interventions as the “gold standard” of care.  

The Supreme Court’s majority opinion, written by Chief Justice John Roberts, rests on two questions stemming from past rulings: 1) Do policies banning gender-affirming care hinge on sex-based classifications—which would arguably violate the Equal Protection Clause of the Fourteenth Amendment?—and 2) To what degree should courts intervene in policy disputes about which there appear to be significant scientific disagreement? 

The Skrmetti majority—all justices nominated by Republican presidents—argued that the Tennessee statute is not even really about a sex-based classification. All genders are equally affected by the ban. It’s not people, but instead medical treatments for conditions that are being regulated by the state. Precocious puberty is a valid trigger for these therapies; gender dysphoria is not. Framed in this way, Bostock is rendered irrelevant. 

The Skrmetti majority argued that gender-affirming care bans do not meet the “but for” or “because of sex” criteria established by past federal precedent and confirmed in Bostock. This standard argues that, to prevail under federal civil rights statutes, plaintiffs must demonstrate that their treatment (in employment, housing, access to public accommodations, etc.) would have been better “but for” their sex. In other words, plaintiffs need to demonstrate they experienced a worse set of outcomes “because of their sex.”  

The Skrmetti majority finds that despite the ban’s narrow application to “gender dysphoria, gender identity disorder and gender incongruence,” the Tennessee plaintiffs fail to make a convincing argument that bans on medical care for transgender minors meet the “because of sex” or “because of gender identity” standard reified under Bostock. Roberts argues that children of all sexes and gender identities can still access puberty suppressors and hormone replacement therapies so long as their diagnoses are sanctioned by state law. Similarly, youth of both sexes are prohibited from receiving these treatments in the context of gender dysphoria or other related conditions. Diagnoses trigger these bans, argues the majority, not classifications of people.  

The majority opinion was easy to foresee during oral arguments. Roberts asked the challengers whether the legislation relied on sex-based classifications at all, or whether it was a simple question of the state’s long-accepted authority to regulate medical policies. States have significant latitude in monitoring and constraining medical interventions to protect the welfare of their residents.  Physicians regularly prescribe hormone therapies to minors experiencing precocious puberty, yet this fact does not prohibit the state from regulating their use for gender dysphoria, the argument runs.  

Analyzed within this framework—as simply a question of medical intervention rather than gender identity bias—the justices are free to rely on the analysis pioneered by the majority in Dobbs v. Jackson Women’s Health Organization, which voided constitutional protections for women seeking abortion. In contested medical or social issues, Justice Samuel Alito wrote in the majority opinion in Dobbs, the legislatures, not the courts, should prevail. 

That logic may seem ironclad. Of course, states can regulate medical care. Yet, to immunize decades of federal precedent when it comes to gender-affirming care, the majority engages in legal gymnastics. Gender dysphoria, gender identity disorder, and gender incongruence are conditions where patients feel trapped and acutely distressed by sex-based characteristics that conflict with their gender identity. Sex and gender identity are two sides of the same coin.  

After diminishing Bostock’s relevance, the Court reaches back more than 50 years to a tortured—and entirely repudiated—decision to bolster its arguments. In Geduldig v. Aiello, a 1974 case, the Court held that the state of California did not discriminate against women when it excluded pregnancy-related disabilities as a medical condition that triggered benefits under a state-mandated disability fund. The majority concluded that the state’s decision to exclude pregnancy-related disabilities to keep the program solvent did not “discriminate[ ]against any definable group or class.” Instead, the state exercised its authority to choose which conditions to cover and which to exclude. Only women experience pregnancy-related disabilities, but that’s irrelevant, the majority ruled. Lots of conditions are excluded, they argued, and some male applicants may find themselves in a similar situation with their disabilities exempted from coverage. 

Yet absent from the flawed analysis in Geldudig (and by extension Skrmetti) is how sex-based characteristics determine who will bear the costs of these bans. It made no difference to the majority in Geldudig that women—and only women—were impacted by policies that curtail pregnancy coverage. Geldudig ignored that 1) sex-based differences manifest different physical burdens and conditions, and 2) policies that exclude sex-determined physical ailments from coverage necessarily impose sex-determined costs and challenges. The Geduldig Court ignored the unequal imposition of costs that extend from its ruling. 

In 1978, Congress repudiated Geduldig’s misstep by passing the Pregnancy Discrimination Act, which explicitly acknowledges the reality that pregnancy is sex-determined—and that any attempt to single out pregnancy in the imposition of costs and burdens produces a sex-based violation. With this fix, courts could apply a growing body of precedent-setting cases requiring what is called heightened scrutiny for policies based on sex-based classifications to those that relate to pregnancy. 

But the Court in Skrmetti exhumed Geduldig from its grave. It revived the practice of removing medical conditions from their sex-based (or, in this case, specifically gender-identity-based) roots—as Geldudig ran roughshod over sex and pregnancy, so too with Skrmetti and gender identity and gender dysphoria. Roberts and the Court’s conservative supermajority ignore that gender dysphoric youth alone shoulder the costs of these bans.  

As with the men who served as reference points in Geduldig, young people whose sex- and gender identity-based characteristics are not in conflict—those who are commonly referred to as cisgender—will never be shackled by these bans. By definition, only young people who experience a mismatch between gender identity and sex receive the diagnoses at issue in Skrmetti. 

And, as with many wrong-headed Supreme Court decisions, Skrmetti‘s consequences will be felt beyond this case. For one, Bostock’s relevance is in doubt. If we can argue that gender affirming care does not hinge on either sex or gender-identity-based classifications, the Court will have ample room in future cases to willfully ignore the unfavorable treatment targeted at transgender persons and them alone. An ill tide that begins with children’s medical care will affect employment discrimination and beyond. 

The post The Dangerous Trans-Rights Decision from the Supreme Court appeared first on Washington Monthly.

On June 26, 2015, the Supreme Court issued its historic decision in Obergefell v. Hodges, overturning state laws barring same-sex couples from receiving marriage licenses. Justice Anthony Kennedy’s decision for the 5-4 majority seemed to end a 20-year battle launched by conservatives to prevent marriage equality.

For a minute, the country was awash in same-sex wedded bliss. Straight America celebrated gay couples—on sitcoms, in politics, as icons. Pride gear dotted the aisles of Target, Old Navy, and other big-box retailers.

Yet in the 10 years following Obergefell, LGBTQ individuals witnessed the highest rate of anti-LGBTQ legislation introduced in Congress and the states, with several consecutive record-breaking years. Gay and lesbian couples may be largely out of the closet, but attacks on their rights—and those of others in the LGBTQ community—have never been more prominent. Even anti-LGBTQ legislation and policies that failed in the heyday of the pre-Obergefell anti-marriage movement are being resurrected across municipalities, states, and the federal government as Donald Trump’s second term unfolds. Combined with a new coalition of conservative Supreme Court justices (Sonia Sotomayor and Elena Kagan are the only ones from the Obergefell majority still deciding cases), this has created an uncertain, unstable, and at times unwelcome political foundation for LGBTQ rights.

A Conservative Offensive

Gay and lesbian couples were the clear victors in the 20-year march toward marriage equality, in legal acceptance as well as public opinion. Popular support for same-sex marriage skyrocketed from 27 percent in 1996 to 60 percent by the time the Court heard arguments in Obergefell. Ten years later, support for marriage equality hovers around 68 percent. Same-sex couples are out in conservative spaces, raising families and openly participating in their communities. Many states followed Obergefell by implementing measures to protect same-sex couples and to prevent discrimination against LGBTQ residents. Also, openly LGBTQ political candidates are now finding traction in mainstream politics.

Ironically, marriage equality owes its success to the Christian Right. In 1992, shortly after the Supreme Court’s reaffirmation of abortion rights in Planned Parenthood v. Casey, conservatives sought a new issue to catalyze their base. That August, Pat Buchanan took the stage at the Republican National Convention to sound the alarm against same-sex marriage. “We must stand with [President George H.W. Bush] against the amoral idea that gay and lesbian couples should have the same standing in law as married men and women.”

At that time, national gay rights organizations had no plans to pursue marriage equality. Some prominent gay rights leaders publicly questioned the value of marriage as an institution. Nevertheless, Buchanan’s words pushed conservative voters into a panic and gay rights organizations into the fray.

By 1996, Congress had passed the Defense of Marriage Act (DOMA), which limited marriage to heterosexual couples and allowed states to do the same. By the end of that year, more than 20 states had legislative bans on their books. Within 10 years of DOMA’s passage, 44 states had constitutional amendments or statutes barring marriage equality.

In the aftermath of Obergefell in 2015, conservatives searched for loopholes in the landmark ruling. Immediately after the decision, Kim Davis, then the clerk of Rowan County, Kentucky, rejected the Court’s requirement to issue marriage licenses. Wedding photographers, videographers, venues, and cake decorators argued that the First Amendment protected their right to refuse wedding-specific services to marrying gay couples.

Conservative plaintiffs similarly tested parenting laws. States questioned whether the right to marry required both partners to be included on their children’s birth or death certificates or whether adoption agencies were now compelled to accept required married gay couples as clients.

Under Kennedy’s ruling, the Court struck a middle ground in these early post-marriage rulings. While clerks could not refuse to issue marriage certificates based on their religious opposition to same-sex marriage, and states must include married same-sex parents on their children’s vital records, wedding service providers had more latitude. The Court (under Kennedy and after his departure) determined that the First Amendment exempted photographers, videographers, cake decorators, and adoption agencies from having to work with same-sex clients.

A Second Front

Conservatives may have lost the battle over marriage equality, but they galvanized their base. Buoyed by the success of their anti-marriage campaign, conservatives sought other platforms to provoke voter engagement.

Conservative leaders revisited a page out of a well-worn playbook and pointed to children as the primary victims of LGBTQ progress. Schools and libraries became scapegoats.

Groups like Moms for Liberty frequently attend school board and PTA meetings demanding a ban on books or curricula referencing LGBTQ concepts, language, stories, characters, or notable figures. When opportunities arose, conservative activists ran for school boards. According to a Brookings Institution study, in 2023, 51 percent and 35 percent of Moms for Liberty-endorsed candidates prevailed in purple and blue counties, respectively, on a platform of book bans and “anti-woke” curricular reforms.

This was not a new strategy. Conservative leaders had focused on school-age books leading up to Obergefell as they attempted to compel moderate voters in blue states to pass state constitutional amendments barring marriage equality. Narratives about the virtues of “traditional marriage” failed to activate voter majorities in blue states. But conservatives succeeded by arguing that, because of marriage equality, school-aged children would be forced to read books or learn about gay couples or same-sex-headed families from their teachers.

After Obergefell, these arguments inspired a second front in the battle against LGBTQ rights, especially in Florida, where Moms for Liberty originated. Book banners garnered the support of Governor Ron DeSantis, who centered his failed bid for the 2024 Republican presidential nomination on a slate of school-based anti-LGBTQ policies. DeSantis, who boasted that the Sunshine State is where “woke goes to die,” signed laws and executive measures limiting whether and how K-12 and university students, teachers, and librarians could reference topics or provide resources related to gender identity or sexuality.

These so-called “Don’t Say Gay” bills first emerged in the 1990s. Groups like the Oregon Citizens Alliance proposed county and state ballot measures prohibiting public funds from “in any way condoning homosexuality.” The group convinced voters in over 20 counties to pass such bills and nearly won a statewide ballot measure. Similar efforts by conservatives in statehouses picked up in the aftermath of Obergefell.

Lawmakers combined “Don’t Say Gay Bills” with a crowd of other anti-LGBTQ bills to launch record-breaking years for LGBTQ rights rollbacks at the state level. Bills that outlaw gender-affirming bathrooms, health care, or vital records. Legislation targeting transgender youth athletes. Policies supporting the rights of health care providers to refuse to work with LGBTQ couples or families. Regulations barring schools from acknowledging student pronouns and name changes or adopting practices that address LGBTQ-centered bullying. In fact, between 2016 and 2024, more than 150 anti-LGBTQ bills were signed into law.

Courts, too, are weighing in. Thanks to efforts by Alliance Defending Freedom, the Supreme Court will consider the constitutionality of state laws barring conversion therapy–a practice that is outlawed in 27 states and more than 100 municipalities and is linked to increased rates of suicidality among LGBTQ young people.

Anti-LGBTQ groups, like the Alliance Defending Freedom, have played an essential role in this second front. The Southern Poverty Law Center, a group that tracks US-based hate groups, noted an increase in the number of anti-LGBTQ groups, specifically over the past two years. These groups are especially adept at courting judges and CEOs as lucrative supporters of anti-LGBTQ reforms. In 2024, Target, an especially prominent supplier of LGBTQ-positive merchandise, responded to these efforts by scaling back its affirming inventory. In 2025, Target joined Nissan, Walmart, Pepsi, Lowe’s, and numerous other large retailers that diminished or withdrew their support for Pride events.

This hostile policy and advocacy climate buttresses an equally hostile social context for LGBTQ communities. Hate-based violence against LGBTQ individuals is on the rise. The FBI reports an increase over the past two years in both the frequency and the proportion of hate crimes that are designated as anti-LGBTQ.

And, of course, the icing on the proverbial wedding cake is the election of a president who has delivered on the promises he made during what some call “the most anti-LGBTQ election in decades.” Drawing on Project 2025, a blueprint for Trump’s second term designed by the Heritage Foundation and other well-known anti-LGBTQ groups, Trump not only rolled back Biden-era protections for LGBTQ Americans but also nationalized many of the state-level policies attacking LGBTQ rights through executive orders and threats to funding.

Dobbs and Obergefell

One of the most significant events to transpire since Obergefell has nothing to do with marriage equality per se. Yet it has reinvigorated attacks on marriage equality: the Supreme Court’s 2022 reversal of Roe v. Wade. The rollback in Dobbs v. Jackson Women’s Health of the Court’s 50-year precedent upholding the right to privacy and bodily autonomy raises concerns about Obergefell’s legal foundation.

While the Dobbs majority does not reference Obergefell, a concurring opinion penned by Justice Clarence Thomas calls for the Court to revisit its rulings in Obergefell and an equally critical gay rights case, 2003’s Lawrence v. Texas (overturning laws criminalizing same-sex sexual intimacy). Justice Samuel Alito, who authored the Dobbs opinion for the majority, revived the call to revisit Obergefell in a 2024 shadow docket case involving employment discrimination against a lesbian employee.

Fearing a reversal of Obergefell, Congress passed, and President Joe Biden signed, the Respect for Marriage Act in 2022, which defines marriage as including same-sex nuptials for federal policies and benefits. While falling short of mandating marriage equality in the states, the act requires states to recognize same-sex marriages validated in other states. However, states still have considerable latitude in conferring marriage-based benefits and resources. A 2011 Fifth Circuit opinion argued that, under the Constitution’s Faith and Credit Clause, states must recognize same-sex adoptions legalized in other states, but they are not required to invest state resources to implement those decisions.

In this case, Louisiana did not have to issue a new birth certificate with the names of two dads who had adopted a Louisiana-born child. Although the adoption had been finalized in their home state of New York, Louisiana did not have to issue a birth certificate featuring both men’s names.

The couple appealed to the Supreme Court, which did not grant cert, leaving the matter unresolved. Obergefell and its ancillary cases rendered the decision moot. If Obergefell falls, the Fifth Circuit’s reading of Full Faith and Credit may give conservative states considerable latitude over what constitutes compliance with the Respect for Marriage Act.

Specifically, this reality implicates the 35 states whose marriage equality bans will go into effect if Obergefell is overturned. (Republican officials in nine states have initiated legislation that, if passed, could set up a challenge to Obergefell.) Trump has distanced himself from anti-marriage equality efforts, choosing to focus instead on other anti-LGBTQ policies, such as expelling trans-Americans from the armed forces. Trump tapped Scott Bessent to serve as Treasury Secretary, making Bessent the highest-ranking openly gay government official in history.

Still, the administration is no champion of gay and lesbian rights. In addition to refusing to recognize Pride month, just last week (at the beginning of Pride), Secretary of Defense Pete Hegseth demanded the removal of Harvey Milk’s name from a Naval warship. Milk was the first openly gay man elected to public office in the United States and a Naval veteran. He was assassinated while in public office, along with San Francisco Mayor George Moscone, in 1978.

Life after Obergefell is a story of extremes. On the one hand, same-sex couples experienced a seismic shift in both the availability of marriage-based benefits and widespread acceptance of their relationships. The decision inspired LGBTQ individuals to live and love openly and to demand equality. On the other hand, we have seen record-setting years of anti-LGBTQ policy reforms, increased rates of violence, and organized advocacy efforts targeting LGBTQ communities.

Shoving gay and lesbian couples—friends, co-workers, and neighbors in red and blue states alike—back in the closet may be beyond the power of the religious right. Still, LGBTQ people remain potent targets in conservative politics. Some Democratic centrists argue that the party should downplay these issues. Whether it does or does not, we can expect more (and more creative) attacks on fundamental LGBTQ rights in the coming years.

The post Ten Years After Obergefell: Is Same-Sex Marriage Safe? appeared first on Washington Monthly.

In 2013, President Barack Obama became the first president to include gay rights in an inaugural speech. His vision, he said, was a country in which “our gay brothers and sisters are treated like anyone else under the law.” During his tenure, Obama championed marriage equality, regulated against LGBTQ-based employment discrimination, investigated and addressed incidences of bias in federal housing, erected significant protections for gay and transgender students, and in general attempted to remove a range of barriers to full equality.

Early in his campaign, President Donald Trump was described by some as “the most gay friendly Republican” to serve as president. In the past, he had supported marriage equality and had even publicly opposed North Carolina’s so-called “bathroom bill.” He also recently announced that the federal government will maintain an executive order signed by President Obama that prohibits discrimination against LGBTQ federal workers. But, his authority over LGBTQ rights extends far beyond executive orders and it remains to be seen whether lesbian, gay and transgender individuals are included in his idea of “a great America.”

President Trump now supports North Carolina’s law and has promised to sign legislation that permits individuals and organizations to refuse service to gays or lesbians. He has appointed an Attorney General, Jeff Sessions, who publicly supported this policy in his recent nomination hearings. And President Trump asked Robert Jeffress—a pastor whose recent book Countdown to the Apocalypse blames the country’s downfall on the “redefinition of marriage” and describes homosexuality as “perverse”—to deliver his inaugural sermon.  Under Trump, the gay community faces a very uncertain future. 

Obama’s Accomplishments

The most visible milestone in gay rights history—marriage equality—occurred on Obama’s watch, when the Supreme Court’s ruling in Obergefell v. Hodges upheld the fundamental right to marry for all individuals.

But years before this historic decision, Obama and his administration laid the groundwork by arguing for the demise of federal legislation defining “marriage” as between one man and one woman. In 2011, Attorney General Eric Holder — acting at Obama’s direction — issued a brief concluding that the federal Defense of Marriage Act (DOMA) failed to pass constitutional muster. This brief eventually served as the government’s position in DOMA litigation and influenced the Supreme Court’s thinking when it ultimately overturned DOMA in 2013, in U.S. v. Windsor. This ruling then cleared the path for litigation on state-level bans.

Obama also understood that marriage equality would mean very little without measures that safeguard gay and lesbian families and made these protections a priority.

For example, he instituted several regulatory reforms to fill the void in federal statutory and constitutional protections in the arenas of housing and employment. He barred discrimination based on sexual orientation and gender identity in all federal employment. Moreover, his Equal Employment Opportunity Commission (EEOC)—the federal agency responsible for monitoring and litigating employment discrimination claims—voted to include sexual orientation and gender identity discrimination in any provisions that more broadly precluded sex-based employment bias. This change meant that, rather than starting from scratch, litigators supporting LGBTQ workers alleging bias could now support their arguments with concrete and long-accepted federal precedent prohibiting sex-based employment discrimination.

President Obama also authorized the first nationwide study of sexual orientation discrimination in the rental housing market to demonstrate both the scope and degree of housing bias that LGBTQ individuals and families face. The study tested whether a prospective renter’s sexual orientation mattered to landlords. Researchers found that landlords were less likely to respond to inquiries from same-sex couples than to those from heterosexual couples. Obama urged more testing to uncover additional markers of housing bias and barred housing providers receiving federal funding from discriminating on the basis of sexual orientation or gender identity.

Obama also committed significant resources to fighting discrimination in public education. Through a series of memos co-authored by the Departments of Justice and Education advising educational institutions of their federal obligations, the Obama Administration asserted that discrimination, harassment and exclusion based on sexual orientation and gender identity would not be tolerated. Obama issued these “Dear Colleagues” letters (DCL) in response to a rise in anti-gay bullying and increased state and local conflicts regarding gay and transgender students. Of particular prominence were DCLs outlining a school’s obligation to accommodate requests from transgender students to use facilities that matched their identified rather than biological gender—including bathrooms, locker rooms and housing arrangements.  Under Obama, gay and transgender students could lean heavily on federal support as they fought state, school board and community opposition.

Trump’s Threats

Gay, lesbian and transgender individuals and families stand to lose significant ground under Trump.

The decision upholding the right to marriage for gay and lesbian couples is not in any immediate danger of being overturned, so long as the five justices who voted to overturn state bans on same-sex marriage remain on the Court. Any justice that the Senate confirms to replace Antonin Scalia will not change the 5-4 split in favor of marriage equality. If one of the five justices in the majority vacates his or her seat during Trump’s presidency, there would be room to reverse the decision, but the Court would need to be presented with a new case involving a new set of facts (for example a new state law barring marriage equality, a state regulation limiting access to marriage licenses). These avenues, although by no means impossible to traverse, are more difficult.

Where opponents could make significant gains, however, is in limiting access to marriage services or benefits. For example, if Trump’s Congress successfully repeals the Affordable Care Act, which prohibits LGBTQ discrimination, insurance companies could discriminate against individuals on the basis of their sexual orientation—placing gay or lesbian spouses at risk of losing coverage.

Trump has also stated that, if brought to his desk, he will sign the First Amendment Defense Act (FADA)—federal legislation that would bar all federal officials from punishing an individual or entity that acts on their “religious or moral belief” that marriage “is or should be recognized as the union of one man and one woman.” A federal district court overturned a similar law passed in Mississippi. It is now on appeal. If the law is upheld (and if Congress delivers similar legislation), vital records clerks, bakeries, hotels, restaurants—or any service provider—may have legal coverage to refuse to work with gay or lesbian couples—despite the ruling in Obergefell.

Despite his promises to uphold the federal workplace executive orders, Trump has significant power to alter opportunities in housing and employment.  Trump’s HUD could remove resources examining LGBTQ-based housing discrimination, and void Obama-era alterations to the EEOC’s interpretation of federal employment protections. This change in EEOC interpretation would significantly limit the potential for courts to address workplace bias against gay or transgender workers who work outside of the federal government.

If the EEOC changes course, some federal judges may decide to continue following existing precedent that protects gay and transgender workers. However, this precedent is far from stable. For example, a three-judge panel of the Seventh Circuit Court of Appeals denied a lesbian professor’s claim of discrimination when her community college decided not to renew her contract.  The court found that federal laws do not cover sexual orientation discrimination. On appeal, gay rights advocates received a full panel 7^th Circuit hearing and are awaiting the decision.

Trump will also likely dismantle the Justice Department’s guidelines regarding the treatment of gay and transgender students. Currently, eight states bar any mention of gay and transgender issues in public schools and the question of transgender accommodations has become particularly contentious at the state and local level. While students on college campuses across the country have protested the treatment of transgender students—demanding that they have equal access to bathrooms, locker rooms and housing—conservative states have responded by imposing explicit limitations on the capacity of schools to assist transgender students.

North Carolina’s infamous HB2 legislation requires individuals to use public bathrooms that correspond with their biological sex. Three other states—Arkansas, Tennessee and Mississippi—have laws prohibiting all local officials from passing non-discrimination measures that include gender identity. Similar “bathroom bills” are now pending in eleven states. While Obama’s directives provided LGBTQ students with federal heft when combatting these school-based deprivations, vulnerable students could now have far less ammunition.

A final threat to the hard-won protections afforded under the Obama Administration is the growing number of Religious Freedom and Restoration Acts (RFRAs) being enacted across the country. Both the federal government and 21 states (including several that protect LGBTQ workers) have enacted RFRAs, which exempt organizations with “closely held religious beliefs” from implementing laws or policies that may violate these beliefs. Court cases regarding their application to gay rights are relatively new. However, a recent Sixth Circuit decision supported a funeral home’s RFRA right to fire a trans-female employee because she chose to adhere to the home’s female, rather than male, dress code. This decision opens the doors for increased litigation.

For gay, lesbian and transgender Americans, the dawn of the Trump administration brings with it enormous uncertainty, if not the potential for a major step backward in the march toward equality.

Under Obama, gay, lesbian and transgender Americans were emboldened by hope and by a broad rhetoric of inclusion–across religion, race, gender, and sexuality–that was matched with a demonstrated commitment to equality in the policies he passed. Under Trump, hope has turned to fear—by a rhetoric that broadly constrains equality and invites intolerance towards many of the country’s most disenfranchised communities. Trump’s promise to uphold Obama’s federal workplace policy should not be ignored, but neither should it be viewed as a sufficient measure for maintaining the extensive progress made over the past four years or for safeguarding against the very real threats to the lives of LGBTQ Americans.

The post How Trump Will Roll Back Obama’s Progress on Gay Rights appeared first on Washington Monthly.

“The Rape Election”—that’s what a Washington Post article recently dubbed this presidential election. Donald Trump’s rapid downfall in the polls has hinged on his boasts about groping women and revelations of how often he put his words into action.

Certainly this is not the first time that rape or sexual assault allegations have overwhelmed a candidate’s political aspirations. On the contrary—accusations of sexual misconduct frequently punctuate contentious political battles.

Perhaps what makes the issue more prominent than in past campaigns is the unapologetic way in which women alleging sexual assault have seen their stories exploited for political purposes. Moments before the second debate, Donald Trump paraded several women who have accused Bill Clinton of rape and sexual misconduct, and Hillary Clinton of depraved indifference, in front of the press. His hope: to rattle Hillary and deflect attention away from the video in which he brags about forcing himself on women and how his fame allowed him to “grab ‘em by the pussy.”

At the same time, those attempting to further derail Trump have welcomed the continued barrage of rape, assault and maniacal groping allegations against the Republican nominee. Trump’s response—while “standing up” for the Clintons’ accusers—has been to repeatedly disparage his own accusers, employing the same tactics that have been used to propagate sexual violence for centuries.

He has rejected their claims by arguing that they were not attractive enough to assault. “Look at her,” said Trump to a roaring crowd in response to People writer Natasha Stoynoff’s most recent allegations. “You tell me what you think. I don’t think so.”

He has excused his actions by implying that the women asked for it. He barely bothered denying the story of Jessica Drake, a porn actress and his twelfth accuser of the election season, instead saying, “Oh, I’m sure she’s never been grabbed before.”

And now he plans on suing these women.

But for all this talk of Trump’s past abuse of women, the broader issues underlying sexual violence have been sadly absent from this election. A “rape election” would treat sexual violence as a critical policy problem. Candidates would take seriously recent statistics showing that one in six women will have experienced an attempted or completed rape in her lifetime. That 18- to 24-year-olds, regardless of gender, are far more likely to be the victims of sexual violence than any other age group. That, among college students, one in five women and one in sixteen men report having been sexually assaulted on campus and that these incidences mostly go unreported.

But these statistics showing the prevalence of sexual violence have attracted little of the public and political outrage that Trump’s behavior has invoked. On the contrary, they inspire distrust. When stories and statistics of sexual assault and rape involving “regular people” appear in the news, we see skepticism instead of shock. Miles of text are spent debunking statistics on sexual violence. When President Obama took to the airwaves at the Grammys to ask Americans to help stop sexual violence, fact checkers of all stripes questioned the credibility of his data. When a woman states that she has been raped in response to an anonymous survey, reporters ask, is it really rape?

If she is drunk when it happens, does it count? After all, Stanford University student Brock Turner was sentenced to only six months of jail time, and served only three, after he decided to have sex with a woman who had passed out from intoxication. And an Oklahoma court recently argued that “forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time.”

For some reason, many Americans respond to stories of sexual assault and rape as if they are less credible than reports of other violent behavior. Rather than empathizing with the victims, skeptics fixate on legal distinctions and attempt to poke holes in their stories.

Regardless of whether these stories or statistics would pass legal muster, those who feel they have been violated are forever changed by their experiences. People who report having been a victim of rape or sexual assault are thirteen times more likely to have attempted suicide than non-crime victims. Rates of drug abuse among those who believe they have been raped or sexually assaulted are staggering. And the stress of these experiences impacts their relationships at home, at work, and at school long after the assault.

Instead of simply showcasing women at presidential debates or promoting their stories to fuel partisan rancor, a “rape election” would grapple with the challenges our legal system imposes for victims of sexual assault. For instance, we would see candidates confronting the legal standards used in rape cases. States vary considerably in whether they require evidence of force in rape cases (such as the use or threat of a weapon or physical violence apart from the rape) or whether a lack of consent from the victim is sufficient to prove rape. In many cases the force standard misses the point. For victims of sexual assault, the unwanted sexual act is the force. When a person is too intoxicated, for instance, or is otherwise unable to control or protect his or her body from unwanted sexual advances, sexual aggression alone is violent.

Certainly there is precedent for presidential intervention into the definition of rape. The Obama administration in 2012 changed the definition of rape used in national criminal data collection to include any incidence in which “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Will a Trump or Clinton presidency follow the same principle? Will they work with states to adopt a similar definition?

And, of course, acts of sexual assault and violence do more than just offend the rule of law. They rupture a person’s bodily autonomy. They violate the very core of a person’s privacy and control—the ability to dictate the parameters of their own physical intimacy.

To that end, candidate proposals in a “rape election” would reach beyond the courtroom.

In a 2014 report, the White House Council on Women and Girls stressed the significance of extra-legal investments in rape and sexual assault services. “Even at its best,” argued the council, “the criminal justice system is a limited remedy for the harm many victims have suffered.” Even with increased federal support, though, rape crisis centers are still over capacity. In some cases, those needing help are placed on a months-long waiting list. How will a President Clinton or President Trump respond to this shortfall in service delivery?

A “rape election” wouldn’t just fixate on the behavior of the candidates. It would ask us to condemn all acts of sexual violence. It would replace the knee-jerk suspicion that accompanies stories of rape and sexual assault with a collective outrage over its persistence. I, for one, would welcome a “rape election,” but this isn’t it.

The post The Conversation We’re Not Having About Rape appeared first on Washington Monthly.

Pulse – the gay bar in Orlando that was recently the scene of the worst mass shooting in U.S. history – first opened its doors in 2004, just as gays and lesbians started gaining legal support for their relationship rights. At that point, more than forty states had barred marriage equality, and their fight was contentious. But eleven years later, the Supreme Court would disband those restrictions and declare as constitutionally protected the right for same-sex couples to marry.

Many hoped that marriage equality would change the climate—that Supreme Court intervention would help heal a divided nation. And to a degree it has. But marriage equality comprises only one aspect of LGBTQ life—and affects only a portion of LGBTQ individuals.

Marriage is in fact only the beginning rather than the end of the push for full equality. The massacre at Pulse and the (increasingly vitriolic) debate over transgender bathrooms betrays a continued hostility towards members of the LGBTQ community and highlights just how far we need to go.

Transgender students and their parents are among the most recent LGBTQ advocates to demand a more expansive conception of equality—one that extends far beyond marital recognition. From elementary schools to universities, in small neighborhoods and bustling college campuses, transgender students have demanded access to bathrooms that match their gender identity.

Bathroom access represents a critical hurdle to equality. In addition to the obvious degradation that accompanies being forced to use a bathroom populated by individuals that do not share your identified gender, transgender students also endure physical and emotional threats and abuse when safe bathroom facilities and policies are not in place. In a survey commissioned by the Williams Institute, 68% of transgender respondents reported having been verbally harassed while attempting to use their preferred bathroom. Nine percent reported physical threats. A Washington, D.C.-based survey found that 70% were either verbally or physically threatened. Perhaps even more startling, one study found that a majority (61%) of transgender individuals who reported having been denied bathroom access had attempted suicide—a significantly higher rate than for participants who had not encountered bathroom hostility.

Importantly, transgender students face these threats even when they use bathrooms that match their birth-assigned genders—as some public officials and administrators currently require. Payton McGarry, a transgender male and advocate, recalls having been “screamed at, pushed, shoved or even slapped” when he attempted to use the women’s restroom after his body had begun to develop more masculine attributes. Mara Keisling, executive director of the National Center for Transgender Equality (and a transgender woman) used the women’s bathroom in the office of North Carolina Gov. Pat McCrory, who has been an outspoken supporter of transgender restrictions. Although according to state law she should have used the men’s bathroom, there would have been a commotion, she remarked, “had I used the men’s room in front of all those police officers.”

With these attendant risks, many transgender students delay bathroom use until they are at home (increasing the likelihood of urinary tract or kidney infection), travel lengthy distances to find less risky accommodations, or (if permitted) use facilities that are further stigmatizing (like a janitor’s closet or a faculty lounge).

In the face of these concerns, transgender students, from elementary school- to college-age, have compelled school boards, administrators and legislators to change policies and earmark funds to increase the number of gender-neutral bathrooms in schools, on campuses and in public spaces. California now requires all K-12 settings to provide gender-neutral facilities to students. The cities of Charlotte, North Carolina, and Houston, Texas, recently passed ordinances barring discrimination based on sexual orientation and gender identity in all public accommodations—including public or commercial restrooms.

The Obama administration has bolstered these efforts. While the federal government has yet to pass legislation barring discrimination based on gender identity, federal agencies now read current civil rights policies regarding sex discrimination as protecting transgender rights. Effectively—as long as Obama’s directives remain in place—all schools receiving federal support must allow any transgender student access to facilities that comport with their identified gender.

In several instances, the private sector has also responded. A Kroger grocery store in Athens, Georgia, was one of the first to receive national attention when it decided to replace its binary gender bathroom signs with unisex signs. Target now permits all customers and staff to use the restroom that most closely correlates with their own gender identity. Starbucks, Barnes and Noble and Saks Fifth Avenue are implementing similar measures.

But for every incremental step toward progress, there’s been equal or greater hostility and backlash.

One month after Charlotte passed its LGBTQ ordinance, North Carolina passed sweeping legislation (HB-2) outlawing any city or county in the state from enacting measures that would surpass state-level policies—an act that effectively bars LGBTQ residents from seeking non-discrimination protections.

Anti-gay advocates in Houston, Texas, went to court to pressure the city to seek voter approval for their gay rights ordinance. After anti-gay forces prompted widespread panic that the policy would permit any man to use facilities designated for women, Houston voters overturned the ordinance. The state is now considering following North Carolina’s lead.

Eleven states have signed on to a lawsuit condemning the Obama administration for its regulations regarding transgender students. And the Kansas State Board of Education just voted to officially ignore Obama’s directive.

Other states have addressed resident aversions to LGBTQ rights advances by passing faith-centered policies. Mississippi now explicitly permits any state resident with faith-based objections to deny employment, housing or any service to LGBTQ individuals. Tennessee passed legislation allowing any therapist or psychologist with faith-based reasons to refuse to treat LGBTQ clients.

Additionally, buoyed by state action, some anti-gay rights leaders have either directly or implicitly called for individuals to take up arms against LGBTQ progress. Anita Staver, the head of the anti-gay Liberty Counsel, tweeted that she will now carry a “Glock .45 to the ladies room” in Target. A Texas Republican candidate for sheriff posted a similar directive on Facebook, warning that “if my little girl is in a public women’s restroom and a man, regardless of how he may identify, goes into the bathroom, he will then identify as a John Doe until he wakes up in whatever hospital he may be taken to.”

Prominent evangelical James Dobson lamented the loss of 19^th century mores in his recent criticism of Obama’s transgender directive. “If you are a dad,” he implored, “I pray you will protect your little girls from men who walk in unannounced, unzip their pants and urinate in front of them…If this had happened 100 years ago, someone might have been shot. Where is today’s manhood? God help us!”

Paradoxically, rather than protecting women, this rhetoric is endangering women. These calls for violence against transgender women have encouraged individuals to take the law into their own hands—increasingly against birth-assigned women who identify as women but who are mistaken for men. Aimee Toms was using the women’s restroom in a Danbury, Connecticut, Walmart when a stranger called her “disgusting” and said “you don’t belong here.” Aimee realized, after a moment of shock, that, because of Aimee’s pixie haircut and baseball cap (Toms had just donated her hair to a children’s cancer charity), the stranger had assumed she was transgendered.

In all, LGBTQ individuals still face an uncertain (and unwelcoming) world. Political and social struggle remains the rule, not the exception. Marriage equality, while a necessary beginning and important accomplishment, has not changed that fact.

Hours after the Orlando shooting—yet before its full significance came into light—some public figures intimated that the slaughter may have been deserved. As Texas’s Lt. Governor tweeted shortly after the massacre (and later retracted), “Do not be deceived. God cannot be mocked. A man reaps what he sows.” Yet, despite the location, timing and victims of the crime—and the lingering homophobic responses—it has been difficult for many to acknowledge this act as a crime of hate, as an extension of our nation’s history of homophobic policies, politics and practices.

When we seek to erase the identities of the victims and the context of the violence, we disparage their legacy and downgrade its significance. This crime was committed against individuals who are routinely vilified by many Americans, in a setting lambasted by many Americans, and by an individual who recycled the homophobic rhetoric used by many American elected public officials.

As Justice Kennedy foretold in Lawrence v. Texas, “state sponsored condemnation” licenses further “discrimination both in the public and private realms.” The forces that compelled North Carolina legislators to pass one of the nation’s most crippling anti-gay policies; the beliefs that inspired 11 states to sue the Obama administration; the environment that has allowed Mississippi and Tennessee to grant the use of faith to propagate hate—these are the forces, beliefs and environments that permitted the murder of 49 innocent people whose only crime was to live openly as LGBTQ people of color—and to seek out a place of inclusion and empowerment. The fact is, this occurred on our watch, under our roof, against our community and with the encouragement of those charged with protecting our rights. Our only hope of stopping the violence is to acknowledge the nature of the crime, root out its causes and demand change.

The post After Orlando, the Road to Equality Just Got Longer appeared first on Washington Monthly.

The Alabama Supreme Court had stripped V.L. of her parental rights over the three children she had raised with E.L. since birth. The couple had, together, moved to Georgia in 2006 for a short time to secure a second-parent adoption from a Georgia court, which granted V.L. legal parental rights over the children that E.L. had conceived without requiring E.L to relinquish her own parental status. The Alabama Supreme Court, however, overturned the second-parent adoption and effectively rendered V.L. a legal stranger to her own children. Had it been upheld, it also would have made countless adoption decrees – not just in Alabama, but in all states, and not just for gay couples but all couples – similarly vulnerable to judicial review from any court, anywhere.

So when the Supreme Court summarily dismissed the case- no briefs, no arguments, just a unanimous opinion – V.L and lesbian and gay parents everywhere hailed it as a victory for same-sex couples. And they certainly have cause to celebrate.

The Supreme Court’s swift and decisive dismissal of Alabama’s ruling not only solidifies V.L.’s parental status (and lets her children have two parents) but it also prevents any future state court from supplanting another state’s adoption rulings with their own. In this way, the Court’s decision is significant.

However, we ought also remember what the Court’s decision does not attempt to accomplish. Court decisions rarely summarily resolve an issue, and this is especially true in the case of same-sex parenting laws. Despite the Court’s decision in Obergefell v. Hodges – which legalized marriage equality across the country – states are still trying to figure out whether and how their parenting laws will be affected by same-sex marital rights. In this regard, the Court’s decision does little to solve this problem (nor, to be fair, was the Court asked to resolve it).

For one, this decision is not an adoption case per se. Although the substantive focus of the Court’s inquiry concerned the parental status of an adoptive parent, the case really involves one fairly cut-and-dried legal question: did the Alabama Supreme Court have the right to intervene into a judgment issued by another state court? This question centers not on the adoption rights of gay and lesbian parents but rather on the constitutional obligation of a state court to uphold a decree issued by another state court.

Under Article IV of the U.S. Constitution, every state is required to give “full faith and credit … to the public acts, records, and judicial proceedings of every other state.” When the Alabama Supreme Court rejected Georgia’s second-parent adoption decree, the Supreme Court had to determine whether Alabama had violated “full, faith and credit.” Alabama argued that the Georgia court lacked jurisdiction to make the second-parent adoption ruling – which, according to the Alabama Court – gave Alabama license to strip V.L. of her legal status. The Supreme Court saw it differently. “Whatever the merits of that judgment,” argued the Court, “it was within [the Georgia court’s] statutory grant of jurisdiction” to issue the second-parent adoption to V.L.

In other words, no matter whether Alabama (or the Supreme Court) disagreed with or disapproved of the substance of the ruling, the question came down to whether or not Georgia had the authority to issue it – and according to the Supreme Court, Georgia had it in spades.

Second, while the Court obstructed the Alabama Court’s decision – hopefully putting an end to their continued recalcitrance towards same-sex couples – there are still significant, widespread and ongoing debates as to the co-parental rights of lesbian and gay parents. Although we may hope that the nation is awash in post-Obergefell marital bliss, the fact is that many lesbian and gay parents are facing significant challenges to their legal status, even in states where support for marriage equality is high.

Some states are now requiring that a non-biological lesbian or gay parent prove their marital status to the biological parent at the time of their child’s birth. Courts in New York and Maryland have stripped lesbian non-biological parents of their parenting rights because – although they each had eventually married their children’s biological mother – they were not legally married when their children were born.

Oregon courts have developed a similar philosophy. According to Oregon law, an unmarried same-sex couple must be treated the same as a married opposite-sex couple in custody cases if the same-sex couple conceived a child through artificial reproductive technologies (with each partner’s consent) and would have married if they had been able to do so. In a 2015 case, an estranged lesbian couple tested the limits of that doctrine.

The couple (Karah and Lorrena Madrone) had an avowed disapproval of marriage as an institution, but in every other way functioned as a married co-parenting couple. They had a commitment ceremony well before their child was born, picked out sperm donors together (even using Karah’s brother as one of their two donors), changed their last names to Madrone and gave that name to their child and eventually filed for a domestic partnership in 2008 within two months after the child was born (and shortly after the state’s domestic partnerships went into effect). The Oregon court, however, disregarded this evidence and instead focused on the gestational mother’s decision not to include her partner’s name on the birth certificate – a decision she made while the couple’s relationship was deteriorating but before they filed for a domestic partnership. In all, the court gave inordinate weight to the gestational mother’s purported intentions and largely undercut any evidence that attested to the couple’s co-parenting and relationship status.

In each of these cases – the battles between married mothers in New York and Maryland, the domestic partners in Oregon and likely many others – there would have been little legal controversy over the non-biological parent’s legal standing for custody had the couples acquired a second-parent adoption. Instead custody decisions would have been evaluated just as they are for opposite-sex parenting couples, based on the “best interests of the child.” For lesbian and gay couples intending to co-parent, then, second-parent adoptions hold significant weight. Regardless of a parent’s belief in marriage, or the couple’s relationship status at the time of their child’s birth, a second parent adoption removes any doubt about a parent’s legal relationship to their child.

But here’s the rub: Second parent adoptions are expensive – ranging upwards of $5000 – and they are only available in approximately 30 states (and are sometimes contingent on specific counties or judges).

So, while the Supreme Court’s ruling provides a welcome smack down on Alabama’s continued assault on same-sex couples by supporting existing second-parent adoptions, it does not appreciably change the landscape of options for lesbian and gay parents (especially those living in states without second-parent adoption). For lesbian and gay non-biological parents, in the absence of formal legal standing, their relationships with their children (no matter how lengthy or substantial) continue to be subject to the whims of geography, relationship status, and judicial discretion.

The post Adoptive gay parents win another Supreme Court victory (mostly) appeared first on Washington Monthly.

Michelle Conover is no longer a mother—at least according to the Maryland Court of Special Appeals. Last month, during divorce proceedings initiated by Michelle’s wife Brittany Conover, the court stripped Michelle of her parental rights over their five-year old son Jaxon.

Was Michelle an unfit mother? The court never inquired. Instead it rested its decision on biology and marital status. Brittany, not Michelle, had given birth to their son, through artificial insemination. And, at the time of his birth, the two women had not yet legally wed. Under Maryland law, then, Michelle was only a “third party.”

The court’s decision illustrates the uncertainty facing gay and lesbian non-biological parents raising children in states with similar parentage laws. The Supreme Court’s decision last June requiring states to recognize and celebrate same-sex marriage was hailed as establishing “marriage equality.” But many battles remain to be fought before the courts treat same-sex parents as solicitously as opposite-sex ones.

A couple since 2002, Michelle and Brittany Conover pursued parenthood together. They both selected Jaxon’s donor—using “someone with physical characteristics like” Michelle’s, according to a concurring opinion in the case. Jaxon, conceived in 2009, carries Michelle’s last name; both women regarded Michelle as Jaxon’s parent during the course of their relationship and immediately after their separation. In 2012, Brittany and Michelle both signed a handwritten agreement stipulating that the two women share joint custody.

And the couple did marry—but, like many gay couples, they had to wait a bit. The District of Columbia, where they lived when Brittany conceived, started issuing wedding licenses in March 2010, only one-month before Jaxon was born. They elected to wait and married seven months later when Jaxon turned six months old.

The Maryland court, however, was not satisfied by that legal marriage or by the clear fact of their co-parenting. Instead the court relied heavily on two decisions the couple had made that, unbeknownst to Michelle, would come to mean everything for her parental status. First, the couple could have received a wedding license prior to 2010 through a handful of other states. Connecticut, Massachusetts and Iowa had legalized marriage by the time Jaxon was conceived. But they waited for D.C. to issue wedding licenses. Second, they could have pursued a second-parent adoption, which would have solidified Michelle’s co-parental status regardless of biology or marriage.

To be sure, the couple’s decision to stay in D.C. to wed and to avoid second-parent adoption is not without precedent. It is not uncommon for any couple, gay or straight, to want to marry within their own state. Planning a wedding within one’s own community carries a number of legal, social and logistical advantages—and planning a wedding one month prior to having a baby could be overwhelming, to say the least. Until the Supreme Court’s decision last June in Obergefell v. Hodges, many gay couples also had political and philosophical reasons to wait for their home state to support marriage equality. Some strongly believed that until their own communities recognized their marriage, they could not truly be married.

And for heterosexual male partners, the law does not regard marriage before a child’s birth as an absolute requirement for paternity.

Had Michelle “second-parent adopted” Jaxon, her parenting claims would have stood on more solid ground. Second-parent adoptions provide non-biological parents with a legal avenue for securing their parental status.

But these adoptions are not offered everywhere. Recent estimates suggest that lesbian and gay parents in approximately 28 states have the option (including Maryland). And second-parent adoptions are expensive—depending on the jurisdiction, they can cost as much as $5,000 in payments for legal fees, home studies and court costs.

According to Michelle Conover, the couple simply could not afford an adoption at the time their son was born. And it may not have been clear to Michelle that a second-parent adoption was necessary. She may—quite reasonably—have assumed that a lesbian couple’s marriage would solidify parental rights—just as it would for a heterosexual couple that uses artificial insemination. In most states, when a married heterosexual couple uses donor sperm to conceive, the husband’s consent to artificial insemination is sufficient to prove his parental status. Although marriage was not an option for Michelle and Brittany when Jaxon was conceived, the couple went out of their way to enact the rituals of co-parenthood and married soon after their son was born.

But the timing of her marriage, and the decision to forgo adoption—which neither spouse could have predicted would be so consequential—rendered Michelle a “third party” in the eyes of Maryland law (the state where Brittany filed for divorce in 2013). In Maryland, a third party can override the desires of the biological mother only under “exceptional circumstances” —even if siding with the biological parent strips the child of a parent.

As the court explained, “The couple could have married before Jaxon was born, but did not.” In conjunction with Michelle’s “non-adoptive status,” this meant that, as a “third party,” she must “show exceptional circumstances to obtain access to a child over the objection of a fit biological parent and to overcome the natural parent’s due process rights.”

But how can we square this with the powerful principle undergirding the Court’s decision in Obergefell? In that case, the Court overturned all remaining marriage bans, in large part because they “harmed and humiliated the children of same-sex couples” and subjected them “to a more difficult and uncertain family life.”

The short answer is that states matter a lot in family law. Even with mandated same-sex marriage recognition, states retain considerable autonomy in determining the degree to which marriage matters in parenthood—even when the result is discriminatory.

Some states—many in fact—strive to adopt a generous conception of parenthood. When two people make a baby together as a couple (either naturally or through artificial reproductive technologies), their state views them both as parents.

California’s Supreme Court in 2005 recognized the parental status of both mothers in an estranged lesbian couple—in this case for the purposes of determining financial obligation. The court argued that Elisa (the non-biological parent) met the standards of legal parentage because “[she] actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child or children would be raised by [them] as co-parents, and they did act as co-parents for a substantial period of time. Elisa received the twins into her home and held them out to the world as her natural children.”

But Michelle Conover’s dilemma is mirrored in the law of other states. A New York court issued an identical ruling to Maryland’s in 2014 in a case involving a similar set of facts. In that case the non-biological mother, Jann Paczkowski, lost parental standing because, at the time of her son’s birth, she and the biological mother were not married. Jann elected not to carry their son because of her ongoing health issues. Like the Conovers, Jann and her wife married shortly after their son was born, and six months after New York’s marriage equality law went into effect.

Gender is also a factor. In order to address significant state-to-state variation in parental status assessments, the National Conference of Commissioners of Uniform State Laws, in 2002 revised the Uniform Parentage Act (UPA). The Act provides language to help states establish guidelines for legitimizing the parental status of married and unmarried parents. Its very purpose is to assure that children have every opportunity to live in a two-parent family, regardless of the marital or biological configurations of their parents.

Despite its mission, however, the language of the UPA makes it far more difficult for children raised in two-mom or two-dad households to reap the benefits of being legally attached to both parents. The UPA establishes a more exacting threshold for women attempting to legitimize their parental claims than for men. A woman is considered a legal parent only in four cases: if 1) she gives birth, 2) her egg is fertilized, 3) she is a party to a gestational agreement or 4) she is considered the legally adoptive parent.

Fatherhood, on the other hand, can be found if the birth mother’s partner lived with the child for two years and perceives himself as the parent, or has agreed to assisted reproduction. Although few states have adopted the guidelines verbatim, most employ similar gender bifurcations. Maryland, for instance, permits a man to establish paternity by co-signing an Affidavit of Parentage with the birth mother—even if they were not married at the time of the child’s birth. Women aren’t entitled to the same option.

These differences fail to account for same-sex headed families. In many states, thus, a lesbian couple’s only option for shared legal parenthood is through biology or adoption, leaving very little recourse for the non-biological parent in a lesbian relationship. When the non-biological parent is a heterosexual male, his parentage claims rest on a far broader array of criteria. As the New York court admitted, had Jann Paczkowski been able to file a paternal claim, she would have only needed to demonstrate that she had acted as a parent “for a period of time sufficient to establish a paternal bond with the boy” in order to “have standing to file a petition seeking a declaration of paternity.”

Gay male couples can be challenged in different ways. Although the path to fatherhood may be more generous, the non-biological father’s legal status may be contested if a court reads fatherhood as requiring a relationship with the biological or legal mother. Generally, as the concurring opinion in the Maryland case asserted, “differentiations between same-sex spouses on the basis of their relative biological roles will always disadvantage the spouse who did not contribute.”

Some judges construe “paternity” requirements as applying to any non-gestational parent—not just fathers (or heterosexual husbands). For instance, the California court mentioned earlier considered Elisa a legal parent precisely because she met the guidelines for paternity. Rather than reading the UPA as establishing different guidelines for mothers and fathers, the court applied a gender-neutral frame when evaluating Elisa’s parental status. But without clear guidelines accounting for the existence of same-sex headed households the opportunities for tragedy abound.

And although second-parent adoptions shore up parental status in most instances, these too are vulnerable to judicial scrutiny. Last month, Alabama invalidated a fully legal second-parent adoption that had been granted in Georgia. In a case, once again, pitting one mother against the other, the Alabama Supreme Court revoked the non-biological mother’s parental status over her three children.

Although they lived in Alabama, before their breakup the couple had established residence in Georgia precisely in order to secure a second-parent adoption permitting the non-biological parent (referred to as V.L. in court documents) to have legal parental standing. When the relationship eventually dissolved, the biological mother (E.L.) contested the second-parent adoption through the Alabama courts. According to Alabama’s high court—which has still refused to rule on whether it will even follow the Supreme Court’s Obergefell decision–Georgia could only have granted parental status to V.L. if E.L. had revoked her own.

These complications are not limited to divorce proceedings. Since Obergefell, same-sex couples in at least five states have been embroiled in fights with vital records staff and state officials to be listed as co-parents on their child’s birth certificates. Birth certificates are not sufficient for proving parenthood in custody battles; however, hospitals, schools and government institutions use them regularly as proof of a parent’s legal relationship with their child. Without a birth certificate, a parent has very few avenues to prove his or her status to teachers, doctors and the like.

Marriage provides one option for same-sex couples seeking co-parenthood, but it should not be the only pathway. Without explicit acknowledgement of LGBT parenthood both within and outside of the context of marriage, lesbian or gay non-biological parents are vulnerable to the vagaries of state law and judicial precedent in ways that don’t affect heterosexual couples. And children born to same-sex couples will continue to be subjected “to a more difficult and uncertain family life.”

The post When it Comes to Custody Battles, Marriage Equality Still Has a Ways to Go appeared first on Washington Monthly.

So, that’s what they did. After a multitude of high profile court hearings in which not only their skills, but the parenting capacity of all gay and lesbian couples were poked, prodded and dissected, the two women (along with plaintiffs from three other states) convinced five Supreme Court justices to overturn the bans—not just in Michigan, but across the nation. Now, as Justice Kennedy remarked in his landmark opinion in Obergefell v. Hodges, the children of same-sex couples would no longer be “relegated to a more difficult and uncertain family life.”

It is against this backdrop—the struggles of lesbian and gay parents—that marriage equality emerged. And yet, ironically, it is unclear exactly how relevant the Court’s decision will be for lesbians and gays raising children. Despite the significance of the ruling (and it is truly remarkable) it remains to be seen just how much more “certain” family life will be for lesbian and gay parents and their children in a post-Obergefell world.

For one, as DeBoer and Rowse’s story suggests, one (likely unexpected, but nevertheless direct) consequence of the right’s zeal to limit marriage to heterosexual couples was to force family court judges to find some way to protect the children of lesbian and gay parents who were being raised in a world without marriage. Family court judges—aided by decades of precedent shaped from cases involving unmarried or divorcing heterosexual parents—found ways to legally recognize lesbians and gays jointly raising children as co-parents without requiring any inquiry into their marital status. As one advocate explains, in these cases “it is about the child…That’s where it is different [from marriage]. The relationship between the parents is irrelevant. It is ignored.” In other words, because gays and lesbians had been denied their marital rights and left to parent in a world without marriage, family court judges had to create legal mechanisms that legitimized one’s parenting claims separate from their marital status.

Now, as those states that have yet to welcome gays and lesbians into the marital fold stand at the ready to issue licenses to same-sex couples, one has to wonder whether the chasm between marriage and parenting will persist. Will state officials or others charged with regulating America’s families read the Court’s decision as a narrow mandate to issue and recognize marriage licenses or as a broader invocation to extend to same-sex couples the privileges and presumptions of parenthood that have long accompanied heterosexual marriage? When gay and lesbian parents set out to both claim and exercise their parenting status they may be further challenged by vital records clerks, reproductive regulations or hospital or school administrators who are either unwilling or ill-equipped to recognize gays and lesbians as parents.

There is a host of ways in which gay and lesbian parents may be granted the legal condition of marriage while still being degraded by the vestiges of marriage inequality. States could continue to deny lesbian and gay parents the legal protections of parenthood despite their marital status. The same conditions of judicial autonomy and authority that aided gay rights advocates in their efforts to legally protect children raised in same-sex households despite marriage bans can similarly provide ample opportunity for anti-gay sentiments to wreck havoc on Kennedy’s mandate. In 2012, for instance, a family court judge in New York, shortly after the state legalized marriage for gay and lesbian couples, denied a lesbian mother standing to seek joint-custody of her son after she and her wife separated. Because the two were not married at the time of their son’s birth (no law would permit them to do so) the non-biological parent was left with no legal connection to her son, even after their marriage was legalized. The judge admitted that if the co-parent “were a man in the same position, the law might point toward a different ruling.”

States may also establish mechanisms for administering or disseminating vital records that rest not on one’s marital status but on the parent’s gender. In 1997, for instance, Texas modified its family code provisions to require any supplemental birth certificate (those issued to adoptive parents) to include only one mother and one father in order to continue the state’s “commitment to conservative values.” The provision remains despite attempts to remove it. Same-sex couples in Iowa, Indiana, and Pennsylvania have faced (and have litigated) similar restrictions on their ability to be co-listed as parents on vital records despite being legally married in their states. Same-sex marriage, explained a registrar in Indiana, “doesn’t really change the way a birth record is done, because birth certificates all have to do with biological parents.”

States can impose legal restrictions on artificial reproductive technologies that disadvantage same-sex couples. For instance, states may use gendered language to determine who will be recognized as the parent when surrogates or donors are used to conceive. Alabama law, for instance, stipulates “any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing.” They similarly identify only “the biological father and the woman intended to be the mother” as the legal parents of a child born through surrogacy. This is especially problematic for two-dad families whose primary method for having children is through gestational surrogacy.

But there are also a multitude of ways in which ordinary citizens–be they at schools, in hospitals, at day care facilities, or in any number of agencies that interface regularly with individuals attempting to carry out their parental duties, can drastically alter the context of parenting for lesbians and gays raising children. These de facto injuries—those emanating not from state imposed restrictions but from everyday interactions with private actors—may be even more difficult to predict or mete out. Pam Yorksmith recently experienced one extreme form of discrimination when her infant son was rushed to a Cincinnati hospital, coughing and struggling to take full breaths. In her rush to help her son she neglected to bring the birth certificate that listed both her and her wife (their son’s biological mother) as co-parents. When she arrived at the hospital, staff informed her that because they could not verify her parental status she could not make any medical decisions on behalf of her son. They waited for over an hour for their son to receive care while staff attempted to locate the biological mother who was at home caring for their other child. Despite being legally married in the state—and having proof of parentage—this mother and her son were subjected not only to humiliating but potentially life threatening treatment from hospital administrators.

So, while we should give this moment its due respect—just as we should any victory that rights a deplorable wrong—we should not, cannot, see Obergefell as something more than it is—a significant milestone along a lengthy and continuing path to full familial equality for gay and lesbian parents. The rest is up to us.

The post Gay Parenting in the Post-Obergefell World appeared first on Washington Monthly.