How a Court Decision Might Make Pending LGBT Legislation Obsolete

 | Huffington Post | December 27, 2015

On December 15, U.S. Federal Judge Dean Pregerson ruled that the line between gender and sexual orientation discrimination “does not exist.” The ruling, addressing discrimination against a pair of lesbian basketball players at Pepperdine University, has the potential to put sexual orientation under the umbrella of established civil rights laws. Such a move might render stalled legislation on non-discrimination moot and provide a firmer legal basis for the advancement of both legal rights and social acceptance.

The ruling would give new momentum to a movement that at times still struggles to define both the distinctiveness and importance of LGBT discrimination. Specific flash-points arise in debates around “locker-room” rights such as transgender inclusive changing rooms and restrooms. Despite local victories, LGBT non-discrimination efforts on employment and housing have stalled in the face of a hostile congress. Instead of having to push against the most conservative congress in decades, non-discrimination advocates would now be able to rely on a category of “intermediate scrutiny” that has been recognized by the courts since 1976.Government agencies and cities are already using this new legal tool to enact sweeping regulations breaking down reliance gender stereotypes from the bathroom to the workplace. In short, it’s a good thing that all the discrimination protections that apply to women would now apply to gay and transgender Americans.

The decision has clear social implications which make gay rights opponents’ task more difficult. Conservatives hoped, in light of June’s Supreme Court Obergefell ruling legalizing gay marriage, to characterize advances in gay rights as “inventions” of a new and nebulous legal category. Long-term, marriage traditionalists hope that if the public sees the ruling as “judicial activism” on sexual behavior, they can wage the same cultural war of attrition that has made them partially successful in shifting the public’s opinion on abortion. Conservative Justice Antonin Scalia derided the Majority decision’s legal rationale, which relied on a right to “self-definition” through marriage, as akin to “the mystical aphorisms of the fortune cookie.” Ted Cruz argued for the removal of judges who “invented a constitutional right to same-sex marriage.”

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