There are 484 anti-LGBTQ bills in the United States that have been introduced, defeated, advanced, and passed into law, all within 2024. These bills target drag performances, bathroom access, gender affirming care, and aim to censor classroom curriculums surrounding LGBTQ+ topics. These bills are part of a larger movement across the U.S. that targets the LGBTQ+ community and aims to erase queer history and deny queer people basic human rights.
During a time when the LGBTQ+ community is experiencing such severe and targeted attacks from lawmakers, questions about the legality of such actions arise, and the search for solutions to stop them intensifies. The answer, unsurprisingly, is complicated.
However, in short, The Supreme Court likely has the power to find these bills unconstitutional in one way or another. In fact, the way The Supreme Court has treated gender classifications in the past and their acknowledgement of the inherent connection between sex, sexuality, and gender identity suggests that they have an opportunity to provide protections for the LBGTQ+ community. Whether the Court will choose to do so remains a mystery.
Law and Public Policy scholar Ellie Holzman questions if the Supreme Court will support the LGBTQ+ community by making fair rulings.
“The US Supreme Court can protect the LGBTQ+ community,” said Holzman. “But will it?”
When a court is determining whether a law is discriminatory and violates the Equal Protections clause under the 14th Amendment, it uses one of three types of scrutiny: rational basis review, which is the lowest level, intermediant, and strict scrutiny. In order for strict scrutiny, the highest level, to be invoked, the legislature has to determine that either a fundamental right or a suspect classification was violated.
A suspect classification is an immutable trait, something that one is born with, that is innate to them. Discrimination based on one of these traits would be unconstitutional. There are four commonly agreed upon suspect classifications: race, religion, national origin, and alienage. This is important because the higher the level of scrutiny used by the court, the less likely that a law will be upheld. Essentially it’s a higher standard of examining whether discrimination is occurring because it’s relating to something that’s, again, immutable.
“In determining what level of review a certain class should get, the court first determines a suspect or quasi suspect class,” said Holzman. “This requires the court to consider whether the class is a ‘discrete and insular minority,’ has experienced a history of discrimination, is politically powerless, and is united by an immutable characteristic, and the relevance of the trait in participating and contributing to society.”
Right now, gender is subject to intermediate scrutiny, but gender identity and sexual orientation have not been found to deserve strict or intermediate scrutiny. This is where the conflict lies. There is tons of historical data suggesting that the LGBTQ+ community meets the first two criteria of a suspect class, both being politically powerlessness, and having a history of discrimination. But proving that sexual orientation and gender identity are immutable characteristics is far more challenging. This is because it’s becoming increasingly accepted that these identities are fluid and can change throughout someone’s life as opposed to something like race, which must stay fixed.
In 2015, the Court ruled that sexual orientation is an immutable characteristic. This conflicts with a lot of the queer communities’ beliefs, and beyond that, society’s understanding, that these parts of identity are fluid and have the capacity to change. Now, what can be argued is that the queer identity itself is not something that changes over the lifetime. That is something that is innate, and stable, and rather the labels or factors within a person’s queer identity can shift and evolve.
Nuanced conversations around queerness and issues related to it are important, and while engaging in conversations can understandably feel threatening for those in the community, they must be had. Queer folks want to be protected, and arguing for immutability is vital because that’s what will lead to greater protection under the law.
At the same time there is a need to argue that gender and sexuality are fluid. The situation is not cut and dry, and legal protection will continue to be something queer people have to fight for. The LGBTQ+ community deserves human rights and the safety of knowing their oppressors will be held accountable and liable for prosecution.
