We Know Judge Gorsuch Refuses to Protect Transgender Rights. Now We Need Answers.

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March 7, 2017
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The moment Donald Trump nominated Neil Gorsuch to the U.S. Supreme Court, Lambda Legal’s Fair Courts Project released a comprehensive review of Judge Gorsuch’s judicial record.

We found that his views on civil rights issues are antithetical to Lambda Legal’s mission. His anti-LGBT record drove our decision to oppose his nomination from that first moment, before confirmation hearings, a first for our organization.

In the weeks ahead, the Senate has the responsibility to closely scrutinize Judge Gorsuch’s record and to use the confirmation hearings to ask him serious questions — and get answers. The burden is on Judge Gorsuch to demonstrate that he is qualified to serve on the Supreme Court.

Below are questions emerging from Lambda Legal’s scrutiny of Judge Gorsuch’s record on transgender rights to which LGBT people and everyone living with HIV need answers.

We need to know. We are not going back.

Judge Gorsuch’s 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. 
Does Judge Gorsuch recognize that discrimination against transgender people is sex discrimination?

Why It Matters

  • 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 sent transgender student Gavin Grimm’s case back for further review by the lower Court of Appeals. If confirmed, Judge Gorsuch would hear Gavin’s case if and when it returns to the Supreme Court. 
  • 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.

We Need To Know: Does Judge Gorsuch recognize that discrimination against transgender people is sex discrimination?

Here are the questions Judge Gorsuch needs to answer:

  • Do you agree that the “simple test” for sex discrimination is, as the Supreme Court said in City of Los Angeles v. Manhart, “‘treatment of a person in a manner which, but for that person’s sex, would be different”?
  • Do you agree with the analysis of the majority of the Supreme Court in Price Waterhouse v. Hopkins that treating employees differently in the workplace based on whether they conform to sexual stereotypes is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964?
  • Do you agree with the analysis of the unanimous Court in Oncale v. Sundowner that courts must entertain all Title VII claims that meet the requirements of the statute, that is, whenever employment discrimination occurred because of the individual’s sex, regardless of whether the claims were the principal concern of the legislators who passed Title VII?

What You Can Do

Our best opportunity to find out what Judge Gorsuch believes is at his Senate confirmation hearing on March 20th. Senators on the Senate Judiciary Committee will be the ones asking him questions during his hearing.

Tweet at them now to make sure they ask Judge Gorsuch these extremely important questions addressing his anti-LGBT record!

Sen. Richard Blumenthal (D-CT)

.@SenBlumenthal #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Dick Durbin (D-IL)

.@SenatorDurbin #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Christopher Coons (D-DE)

.@ChrisCoons #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. John Cornyn (R-TX)

.@JohnCornyn #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Mike Crapo (R-ID)

.@MikeCrapo #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Ted Cruz (R-TX)

.@SenTedCruz #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Dianne Feinstein (D-CA, Ranking Member)

.@SenFeinstein #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Jeff Flake (R-AZ)

.@JeffFlake #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Al Franken (D-MN)

.@senfranken #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Lindsey Graham (R-SC)

.@LindseyGrahamSC #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Chuck Grassley (R-IA, Chair)

.@ChuckGrassley #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Orrin Hatch (R-UT)

.@orrinhatch #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Mazie Hirono (D-HI)

.@maziehirono #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. John Kennedy (R-LA)

.@senjohnkennedy #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Amy Klobuchar (D-MN)

.@amyklobuchar #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Patrick Leahy (D-VT)

.@SenatorLeahy #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Michael Lee (R-UT)

.@senmikelee #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Ben Sasse (R-NE)

.@bensasse #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Thom Tillis (R-NC)

.@thomtillis #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Sen. Sheldon Whitehouse (D-RI)

.@SenWhitehouse #Transgender rights are protected by federal law. Does Judge #Gorsuch agree? http://bit.ly/2mkHGo6

Lambda Legal’s Fair Courts Project works to advance an independent, diverse and well-respected judiciary that upholds the constitutional and other legal rights of LGBT people and everybody living with HIV.