President Donald Trump nominated federal Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the Supreme Court Saturday, a choice LGBTQ rights groups are concerned could lead to a reduction in the rights of LGBTQ Americans.
The Supreme Court has historically been important for the advancement of LGBTQ rights, with its rulings giving gay and lesbian people marriage equality and, recently, protecting queer and trans people from employment discrimination under federal law.
And there are a number of important cases soon to come before the Court; for example, Fulton v. City of Philadelphia is set to be heard the day after Election Day. That case, in which a religious adoption agency is seeking the right to turn away LGBTQ couples, will determine whether taxpayer-funded organizations are allowed to discriminate against LGBTQ people.
Senate Republicans have already promised a speedy confirmation process to install Trump’s nominee before the election, suggesting Barrett will soon be on the Supreme Court.
Barrett is a Catholic and former Notre Dame law professor; she has not said how she would rule in cases about LGBTQ rights, but she has spoken and written extensively about her conservative view on reproduction and sexuality.
And these past remarks have some of her critics concerned that she will swing the balance of the Court toward a more conservative agenda on issues of LGBTQ rights.
What we know about Barrett’s record on LGBTQ rights
As Vox’s Ian Millhiser has explained, while Barrett has not served long as a federal judge, and thus does not have as long a judicial record as many Supreme Court nominees, as a law professor at the University of Notre Dame, “she frequently weighed in on many of the cultural fights that animate religious conservatism.”
One of these is the issue of LGBTQ rights, which has been a long and evolving debate for conservatives, many of whom have fought against policies such as trans people using the bathrooms that align with their gender identity and transition care for trans teens.
Some of Barrett’s most notable comments on the issue came during a lecture she gave at Jacksonville University ahead of the 2016 presidential election, while she was a professor at Notre Dame. In that lecture, she defended the dissenters in Obergefell v. Hodges, the landmark Supreme Court ruling which made marriage equality the law of the land, as well as suggesting the Title IX rights afforded to transgender people ought to be reviewed by lawmakers.
“Maybe things have changed so that we should change Title IX,” Barrett said during the lecture. “Maybe those arguing in favor of this kind of transgender bathroom access are right. ... But it does seem to strain the text of the statute to say that Title IX demands it, so is that the kind of thing that the Court should interpret the statute to update it to pick sides on this policy debate? Or should we go to our Congress?”
Also concerning LGTBQ advocates is that Barrett — who is Catholic — signed a letter in 2015 addressed to Catholic bishops that detailed her personal beliefs, and that included a statement about “marriage and family founded on the indissoluble commitment of a man and a woman.”
This, Millhiser notes, would seem to “suggest that Barrett personally opposes marriage equality — and potentially opposes extending other rights to LGBTQ people.”
In her Jacksonville University lecture, Barrett similarly deployed language suggesting an adversarial stance toward trans issues by misgendering transgender women, calling them “physiological males.”
This is one statement, but to many advocates, her words seem ominous for the nascent transgender rights movement, which scored a big win at the high court this June in Bostock v. Clayton County, which determined that trans people are protected from employment discrimination under federal civil rights law.
The Human Rights Campaign, for instance, took issue with Barrett ahead of her official nomination, highlighting her Jacksonville University speech. In a statement Friday, Alphonso David, president of the Human Rights Campaign, said, “If she is nominated and confirmed, Coney Barrett would work to dismantle all that Ruth Bader Ginsburg fought for during her extraordinary career.”
Of concern to activists like David is that Bostock isn’t the only trans rights case that will hit the Supreme Court under the next justice’s tenure. The Court will be called upon to rule on several big legal battles brewing for years, over issues such as transgender student bathroom rights, or trans women participating in women’s sports.
Should Barrett be confirmed, her work on the Court may depart from her personal views. However, as Millhiser writes, her personal and professional thinking has aligned in the past:
Barrett’s limited judicial record suggests that her approach to constitutional interpretation aligns with her conservative political views. In Planned Parenthood v. Box (2019), Barrett joined a brief dissent arguing that her court should rehear a case that blocked an anti-abortion law before that law took effect. That opinion argued that “preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure” — suggesting that Barrett would have prevented her court from blocking the anti-abortion law at the heart of that case if given the chance.
And it is this judicial record, limited though it is, that has led activists to express concern Barrett’s appointment could limit LGBTQ rights in future rulings.