Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.
Mr. Duncan has spent his entire career working to annihilate civil rights progress — and not just for LGBTQ people. He has also worked aggressively to eradicate immigrant rights, reproductive rights, voting rights, and more. Lambda Legal and many other organizations have urged the Senate Judiciary Committee to oppose his nomination, but the committee has voted him out of the committee.
It is clear that Mr. Duncan is ideologically-driven. He has heartlessly worked to undermine the protections of LGBT people and other vulnerable communities. And in almost every case, he has sought a final determination on the merits from the Supreme Court that would cement discrimination into the law.
Mr. Duncan asked the Supreme Court to uphold Louisiana’s marriage ban, asked the Supreme Court to strike down a Fourth Circuit Court of Appeals decision striking down a marriage ban, defended Louisiana in the Supreme Court from having to legally recognize same-sex marriages from other states, and asked the Supreme Court to uphold a Fifth Circuit Court of Appeals decision denying visitation rights to a same-sex parent. Mr. Duncan also organized an amicus brief of 15 states that he filed with the Supreme Court in opposition to marriage equality in the Obergefell v. Hodges case. In response to the Supreme Court decision in Obergefell, Mr. Duncan questioned the legitimacy of the Supreme Court in his personal statements and threatened that the decision would “imperil civic peace.”
After Obergefell was decided, Mr. Duncan shifted to target transgender kids. He defended the North Carolina legislature after it passed the notorious transgender bathroom bill (H.B. 2), and then moved on to serve as lead counsel for the school district that targeted Gavin Grimm, a transgender student. During the litigation, Mr. Duncan routinely peddled hate-mongering language about transgender people, including filing expert declarations that relied upon junk science that described transgender people as delusional (arguing in essence, that transgender people don’t exist) and advocating that parents should discourage ‘transgender persistence.’ It is critical that Mr. Duncan not be given the power to do as a judge what he was unable to do as a lawyer.
Mr. Duncan has also worked to undermine civil rights for other vulnerable communities. He worked aggressively to eliminate the Affordable Care Act’s contraceptive mandate as lead counsel in the Hobby Lobby case by advancing the position that for-profit corporations have religious rights that can override the government’s interest in eliminating historic discrimination against women in health care. He also asked the Supreme Court to overturn Fourth Circuit Court of Appeals decision striking down a voter ID law, that the Fourth Circuit said targeted African-Americans with almost surgical precision. Mr. Duncan also filed amicus briefs in litigation at the Supreme Court that argued that the DAPA and DACA programs are unconstitutional.
Obergefell v. Hodges
Kyle Duncan authored an amicus brief at the Supreme Court, on behalf of 15 states, opposing marriage equality.
Carcaño v. Cooper (formerly Carcaño v. McCrory)
Kyle Duncan led the charge on defending North Carolina's infamously sweeping anti-LGBT law, H.B. 2.
G.G. v. Gloucester County School Board (Gavin Grimm’s case)
Kyle Duncan was opposing counsel in Gavin Grimm’s case at the Supreme Court. This lawsuit brought against the Gloucester County School Board for adopting a discriminatory bathroom policy that segregates transgender students from their peers.
Robicheaux v. George
Kyle Duncan asked the Supreme Court to uphold Louisiana’s ban on marriage for same-sex couples. This would have resulted in the opposite outcome of what happened in Obergefell. It would have been a final determination on the merits of marriage equality.
Schaefer v. Bostic
Kyle Duncan, as lead counsel, asked the Supreme Court to overturn a U.S. Fourth Circuit Court of Appeals decision that ruled that Virginia’s state’s ban on marriage for same-sex couples was unconstitutional.
V.L. v. E.L.
Kyle Duncan represented the birth mother of three children who refused visitation from her same-sex spouse. Duncan argued that she shouldn’t have visitation rights. The Alabama Supreme Court agreed. That decision was eventually struck down by the Supreme Court because of Obergefell, but not without a fight from Mr. Duncan.
Adar v. Smith
This case led to a Fifth Circuit ruling that held that a state could deny an out of state judgment of adoption. The case was appealed to the Supreme Court on the question of whether a state can – based on its disapproval of the unmarried status of a child’s adoptive parents – refuse to issue the child an accurate, amended birth certificate. The Supreme Court did not agree to hear this case.
Sebelius v. Hobby Lobby
Kyle Duncan’s work in this case allowed Hobby Lobby stores to deny contraceptive coverage to employees because of the owners’ religious objections, opening the door to challenges from corporations over laws that they claim violate their religious liberty. And it even lay the groundwork for Trump Administration’s new unit that shields healthcare workers who refuse to treat transgender patients, or to provide other services because of moral objections. Mr. Duncan’s involvement in the Hobby Lobby case shows that he lacks the ability to recognize non-religious interests, and to appreciate the stakes of his arguments for the most vulnerable members of society.
North Carolina v. NC NAACP
Kyle Duncan defended, at the Supreme Court, a law that was passed by the state of North Carolina that reduced the number of days of early voting, eliminated same-day registration, and that imposed an ID requirement before allowing a person to vote. Mr. Duncan asked the Supreme Court to overturn a lower court decision which held that the voter ID law “targets African-Americans with almost surgical precision.” Mr. Duncan also chose to represent a repressive voter ID law passed in Texas, again, by appealing the case to the U.S. Supreme Court.
United States v. Texas & Brewer v. Arizona Dream Act Coalition
Kyle Duncan argued in an amicus brief that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program threatened public safety because many “violent criminals” would be eligible for it. Mr. Duncan also argued in a separate amicus brief that the Deferred Action for Childhood Arrivals (DACA) should be enjoined because it was not legally valid. Mr. Duncan further filed an amicus brief arguing that an immigrants counsel should not have to inform their client that the consequence of a plea deal that could lead in deportation.
