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Jun 27, 2023, 6:19pm EDT
politicsNorth America

Republicans are losing in court on LGBT issues. They won’t take no for an answer.

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The News

On Friday, Ron DeSantis told a room full of Christian conservatives that he’d “taken action to prohibit puberty blockers and gender surgery” for minors. Lost in the applause: The judge who partially stopped that law from going into effect earlier in June had also just thrown out a new Florida rule barring Medicaid payments for transgender care.

The move by U.S. District Judge Robert Hinkle was just the latest in what looks like a legal trend. Red states have passed bill after bill targeting transgender health care, and courts are starting to send them back. Judges in Arkansas and Indiana have, like Hinkle, blocked laws that banned minors from accessing puberty blockers.

And it wasn’t just health care where recently passed LGBT-related laws ran into trouble. In Tennessee, a federal judge threw out a “drag ban” on First Amendment grounds, while another judge blocked a DeSantis-signed law that prevented minors from attending drag shows.

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But on the trail, DeSantis has plowed ahead, describing the presidency as an office where judicial appointments and executive orders can do what lower courts are preventing.

“These are the tactics of activists who seek to impose their will on people by judicial fiat,” DeSantis spokesman Bryan Griffin said after Hinkle’s ruling. “These attempts to circumvent the will of the legislature are not indicative of anything beyond the failure of the left’s ideas at the ballot box.”

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David’s view

If elected next year, either Donald Trump or DeSantis would inherit a Supreme Court with a 6-3 conservative supermajority. No Republican president has had that, at the start of his term, since the 1920s.

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That’s emboldened Republicans at every level of government. Reversals by lower courts are seen less as defeat, and more as the first steps in challenging liberal precedents — first at circuit courts loaded with Trump appointees, than at a high court that Trump shifted to the right.

“Off to the 8th Circuit we go,” said Arkansas Rep. Robin Lundstrom, the sponsor of Arkansas’s SAFE Act, after a federal judge in Little Rock blocked that ban on gender transition care for minors. “I kind of feel like they’ll look at the science and the facts, and not stick their finger up in the political wind and decide to go with the woke liberal agenda.”

Those legislators, like the GOP’s candidates, object to how mainstream expert groups like the American Medical Association have endorsed transgender care, arguing that professional organizations have been overtaken by a progressive political fad.

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But conservatives finding it harder to advance that argument in courts, where judges are more reluctant to brush aside the medical establishment consensus than contrarians on Twitter.

“The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear,” Judge Hinkle wrote in the recent Florida decision. He criticized Florida for hiring “only consultants known in advance for their staunch opposition to gender-affirming care” when formulating its rule.

Chase Strangio, the deputy director for transgender justice with the ACLU’s LGBT & HIV Project, has frequently testified at legislative hearings on these bills, warning them that the courts will step in. Being right about that, he said, had not changed the legislators’ approach.

“I’ve found that one of the least convincing things you can say to a lawmaker is that a piece of legislation that they are considering is unconstitutional,” said Strangio. “State lawmakers feel incredibly emboldened to pass unconstitutional legislation, even with the knowledge that that legislation will be struck down in court, and that it will cost taxpayers significantly, because they aren’t punished by their constituents for passing it.”

Matt Sharp, a senior counsel at the conservative legal group Americans Defending Freedom, said that the “adverse court decisions” halting the new laws were expected, and that “bigger cultural awareness about this issue” could change how higher courts ruled.

Conservatives have been emboldened to push the legal envelope by their victory overturning Roe v. Wade. For forty-nine years, abortion legislation was stymied by the Supreme Court. Thanks to the new majority, it isn’t. That’s the new reality that DeSantis and Trump are running in and it’s changed how candidates are approaching the next round of social issue fights, not only around LGBT issues, but on issues like immigration as well.

On Monday, DeSantis adopted Trump’s idea of an executive order that would deny automatic citizenship to people born in America, a right currently guaranteed by the 14th Amendment. The former president never acted on that, but is running on it again; DeSantis told reporters in Eagle Pass, Tex. that taking action would “force the courts and Congress to finally address this failed policy.”

Ralph Reed, who hosted most of the field at this past weekend’s Faith & Freedom Coalition, told Semafor that the candidates were only now starting to explore how they could challenge precedents that held conservatives back.

“They could take the position that states that don’t restrict it are impacted in some federal funding stream,” said Reed of transgender medicine. “They can take the position that they’re going to appoint judges at the federal level that are going to give states the leeway they need. There’s lots of things they can say, and then once they become president that they can act upon.”

DeSantis has said the most about this, directly and in coded language. He’s described Florida’s update to the death penalty, which would subject child sexual predators to it even if a jury doesn’t unanimously convict them, as a way to get the new Supreme Court majority to revisit its precedent on cruel and unusual punishment. He’s also suggested that he’d pick more reliably conservative judges than Donald Trump did, citing his own transformation of the Florida Supreme Court.

“I respect the three appointees he did, but none of those three are at the same level of Justices Thomas and Justice Alito,” DeSantis told the conservative radio host Hugh Hewitt last month, before telling an audience of conservative radio broadcasters that he could build a 7-2 conservative majority if he won in 2024. (Like Trump, DeSantis has thought about replacing Sonia Sotomayor, who turned 69 on Sunday and has type 1 diabetes.)

What DeSantis doesn’t say is that Alito and Thomas have been willing to reject concepts like gender identity — while the 2020 Bostock decision, which Justice Neil Gorsuch wrote, prevented federal employment discrimination based on gender identity, a problem for Republican legislators who have tried to define it out of the law.

Sen. Josh Hawley, R-Mo., who lambasted Bostock at the time, told Semafor that the judges who were blocking the new state laws on transgender medicine were simply wrong, and a conservative president needed to pick judges who got it right.

“We need judges who will actually follow the science,” Hawley said. “I think these judges are going to be embarrassed to look back and see what they did and how wrong they were.”

This isn’t the first primary where candidates have promised to act in ways that would test the courts. In 2020, Democrats promised to enact sweeping student debt forgiveness via executive action, for instance. Republicans now expect the Supreme Court to knock out Biden’s plan.

But take note of the way DeSantis and other conservatives discuss their challenges. Duly-elected legislators are acting; unelected judges are telling them they can’t. They aren’t putting up with that anymore.

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Room for Disagreement

Former Arkansas Gov. Asa Hutchinson told Semafor that Republicans were on treacherous ground if they wanted to appoint judges based on how they’d overturn specific precedents. He’d vetoed an earlier version of the state’s ban on gender medicine for minors, and the court had shown everybody why.

“If it had been a more narrow law, that I advocated, that limited the government overreach action, then I believe it would have been upheld,” said Hutchinson. “The court was right in striking it down.”

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Notable

  • In Vox, Ian Millhiser reviews the legal victories for the ACLU and pro-LGBTQ attorneys, while assessing that “it is far from clear that this very conservative Court will agree with the medical and scientific consensus that transgender identity is real.”
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