Neil Gorsuch Has an Unacceptable, Hostile Record Towards LGBT People

Following President Donald J. Trump’s nomination of Neil M. Gorsuch, Judge of the U.S. Court of Appeals for the 10th Circuit, to the U.S. Supreme Court today, Lambda Legal took the difficult step of formally opposing his nomination, citing his record of hostility towards LGBT people and other marginalized communities. This is the first time Lambda Legal has opposed a Supreme Court nomination before a confirmation hearing.

In opposing Judge Gorsuch’s nomination, Lambda Legal cited his anti-LGBT rulings as well as his record on critical issues like religious exemptions.

“Judge Gorsuch’s opinion in the 10th Circuit Hobby Lobby decision is disqualifying,” said Rachel B. Tiven, CEO of Lambda Legal. “The Hobby Lobby decision set a terrible and destructive standard for bosses being allowed to meddle in our sex lives and decide whether or not birth control is covered by the employer’s insurance plan. In Judge Gorsuch’s decision, he calls the inclusion of health coverage that includes birth control – ‘complicity…in the wrongdoing of others.’  Even the Supreme Court, affirming that case, acknowledged how dangerous this line of thinking is: it creates a nation in which some religions are obliged to follow the law and others are not.  Troublingly, Judge Gorsuch does not even see this as a problem.

“We absolutely must not confirm a Supreme Court nominee who has ruled that the religious beliefs of employers can trump the law. It is a short hop from birth control restrictions to restrictions on the intimate relationships and health care needs of LGBT people.

“Through his decisions, Judge Gorsuch has promoted a vision of a society where some religions prevail over others, and are invited to flout the law. Judge Gorsuch’s judicial record is hostile toward LGBT people and his nomination to the U.S. Supreme Court is unacceptable—we oppose.”

Lambda Legal also cited a troubling ruling from Gorsuch in a recent transgender rights case in Oklahoma.

In several cases, Lambda Legal is fighting for the right of transgender students to use school restrooms that match who they are. The Supreme Court may decide this issue this spring. Additionally, protections against employment discrimination affecting LGBT people are likely to come before the Court very soon, as cases Lambda Legal has filed on behalf of math teacher Kim Hively and security guard Jameka Evans—both fired for being lesbians—make their way through the federal court system.

“Judge Gorsuch may very well be the decisive vote in these cases and others, and his extreme record suggests he could roll back the tremendous progress our country has made towards recognizing the fundamental rights LGBT people and everyone living with HIV,” said Tiven. “While any nominee would be difficult to accept given that this is a seat stolen from a democratically-elected president, we believe that Judge Gorsuch is an especially dangerous jurist to place on the highest court in the land.”

Lambda Legal has conducted detailed research on Judge Gorsuch, which is available in full here, and excerpted below. We will be providing questions from the LGBT community for Judge Gorsuch’s confirmation hearing, and plan to release further information about this nomination.

Judge Gorsuch on the Record

• Judge Gorsuch joined a 2015 opinion rejecting arguments made by a transgender woman who was incarcerated that the Oklahoma Department of Corrections had violated her constitutional rights by denying her medically necessary hormone treatment and her request to wear feminine clothing.

• Judge Gorsuch has supported religious exemptions from laws based on ‘complicity’—the wrongheaded idea that adhering to the law makes the objector complicit in the allegedly sinful conduct of others. He troublingly described the issue in his 10th Circuit Hobby Lobby opinion as follows: ‘All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.’

• Judge Gorsuch has expressed disapproval of civil rights impact litigation, writing in 2005 that “American liberals have become addicted to the courtroom … as the primary means of effecting their social agenda on everything from gay marriage” to other issues. It is telling that Judge Gorsuch saves his criticism for “American liberals,” even as the U.S. Supreme Court routinely has heard conservative challenges to constitutionally protected rights.