The Future of LGBTQ+ Equality Depends on Biden’s Presidency
By: Emily Crofoot
Tags: Opinion, Supreme Court, Trump, Joe Biden, LGBTQ

In the 21st century, LGBTQ+ rights have been advanced by the Supreme Court in historic ways. From the 2003 ruling in Lawrence v. Texas that struck down the last of the nation’s sodomy laws to the most recent Bostock v. Clayton County that provides employment protections, the Court has been a crucial ally in the movement towards equality. These rulings have not come easily or quickly, leaving plenty of time for lower courts and state and local governments to fill in the absence left by a stalled Congress.

Employment nondiscrimination is a key part of the Equality Act, which is collecting dust on Senator Mitch McConnell’s desk adding one more item that requires our tears and vigilance. With the Supreme Court often ruling in favor of LGBTQ+ rights, it’s tempting to hold up the belief that it is safe to abandon the exhaustive nature of this fight. If the highest court will protect LGBTQ+ Americans, then why maintain an urgent advocacy that could be better spent at other, less likely causes?

The LGBTQ+ granted marriage equality by a single vote — Justice Anthony Kennedy’s vote — in Obergefell v. Hodges. Five years later, the court ruled in favor of the employees in Bostock v. Clayton County 6–3. This would effectively ban employment discrimination on the basis of sexual orientation and gender, providing essential protections for the 52% of LGBTQ+ Americans who lived in states without such laws. In a surprise swing, both Justice Neil Gorsuch and Chief Justice John Roberts sided with the Court’s four liberal justices in favor of the employees.

As joyous as the June 15th morning was when the Court released their opinion on Bostock v. Clayton County, it remains incredibly dangerous for us to accept this as the norm, a safe avenue for LGBTQ+ rights still needs to be expanded and granted. Despite what previous rulings might say, this 6–3 decision was a fluke; it was never supposed to happen.

Gorsuch was nominated because he satisfied the quota of a judge who would champion conservative causes in the Court. Citing that despite the original intent of the writers of the law, discrimination on the basis of sexual orientation and gender is a form of sex discrimination is an unexpected stance.

Trump, who nominated Gorsuch for his judicial seat, sent a letter to the Court expressing his adamant support for the employers, not the employees, condoning the supposed right to fire an employee for an immutable fact of life. As such, no one would be remotely surprised if Gorsuch voted to uphold the cases’ original rulings and the same could be said of Roberts. Just five years earlier in 2015, Roberts wrote the dissenting opinion in Obergefell v. Hodges. These men would hardly be held up as LGBTQ+ allies; we can’t place the very livelihoods and safety of millions of Americans in their hands.

The crucial contributions the Supreme Court has made in terms of LGBTQ+ equality are undeniable, but it would be foolish to believe that this is where it stops or that we can expect similar rulings in the future. The security of LGBTQ+ lives can not be held over dangerous waters because of a few moments of calm.

Beyond the haphazardly held pride flags and the opportunistic rallying cries, Donald Trump has made it abundantly clear that his administration does not see value in LGBTQ+ lives.

The Trump-Pence administration has a strong track record of stripping away what little security and legal rights LGBTQ+ Americans hold. Most recently, the Department of Health & Human Services finalized a rule that would strip transgender Americans of protections in healthcare. Just weeks after his inauguration, Trump withdrew federal protections for transgender students in public schools, and the following years haven’t been remotely kinder. Adoption agencies that receive federal funds can turn away LGBTQ+ families seeking to adopt on the basis of religious freedom. Prior to the Court’s June decision, federal contractors could discriminate against LGBTQ+ employees. The depth of Trump’s intentional action to strip away the rights and humanity of LGBTQ+ people is impossible to ignore and overlook. It cannot be set to the side without there being dire, irreversible consequences.

As Congress remains inactionable, with lower courts deciding the fates of LGBTQ+ Americans and with Trump flooding open seats with reliably homophobic and transphobic judges, we can know with the utmost certainty that this fate isn’t positive.

This is why Trump’s re-election remains so dangerous. In four years he can potentially fill even more seats in the Supreme Court, cementing a conservative majority and all but promising a more discriminatory future for coming generations. Worst of all, he can do so without concern for re-election. Trump has a pass to nominate who he wants without fear of political consequences. With the inevitable havoc he will continue to unleash, Trump’s strikes against the LGBTQ+ community could fly under the radar of many Americans.

Regardless of the Supreme Court’s recent rulings, which remain above all curious outliers to the current expectations of the Court. How are LGBTQ+ Americans ensured protections under an administration that has taken seemingly every step to steal away the decades’ long fight for equal treatment? The answer is simple, it’s that we can’t ensure protections during a Trump presidency. This is why we need Joe Biden.

He has a reliable, extensive record of not just tolerance, but of advocacy and advancement for LGBTQ+ equality in America. Under a Biden presidency, we would not only see four years of restoring what was lost. We would have the opportunity to witness historic strides towards a truly equal America through the creation of a framework that works to protect LGBTQ+ Americans, even years after Biden leaves office. Our hope wouldn’t be hinged on the potential of a swing vote at the last chance to grasp at protections, but rather we would be granted the ability to finally rest in knowing that the Judges he appoints and the officials he surrounds himself with are on our side.

As it stands, it would take nothing short of a miracle for the Equality Act to reach the President’s Office. If that were to happen, the likely threat of a veto looms over with a laughable chance of a Congressional override. This worry disappears under a Joe Biden presidency. For only the second time in history, LGBTQ+ Americans would have an ally in the most powerful office in the world. We could finally wake up every morning knowing that we won’t be greeted by headlines of diminished rights, but rather of newfound equality.