Trump Judges on: LGBTQ+ Americans

Trump judges and nominees who have fought fairness, equality, and opportunity for lesbian, gay, bisexual, transgender, and queer Americans:

J. Campbell Barker (Eastern District of Texas) signed Texas’s amicus brief in support of Masterpiece Cakeshop, which had refused to sell a wedding cake to a same-sex couple. Barker is also on Texas’s amicus brief supporting a flower shop’s discrimination against same-sex couples by refusing to sell flowers for a couple to use in a wedding.

Elizabeth Branch (Eleventh Circuit) praised Justice Scalia’s dissent in Lawrence v. Texas.

Andrew Brasher (Middle District of Alabama; Eleventh Circuit) filed a brief opposing marriage equality in Obergefell v. Hodges. also led other states in filing an amicus brief arguing that a photographer should be able to refuse to provide her services to a same-sex couple based on her personal opposition to same-sex marriage.

Jeffrey Brown (Southern District of Texas), as a state court judge, consistently ruled against marriage equality and expressed personal disdain for Obergefell v. Hodges. On the Texas Supreme Court he joined the majority opinion in Pidgeon v. Turner, which held that cities in Texas could defy Obergefell’s ruling and deny married same-sex couples the rights of marriage. He also joined a majority opinion that restricted same-sex sexual harassment claims.

John Bush (Sixth Circuit) criticized the State Department for modifying passport application forms to account for the possibility of same-sex parents.

Kyle Duncan (Fifth Circuit) warned of “a rapid movement towards sort of general cultural acceptance of homosexuality and homosexual practices.” Duncan co-authored an amicus brief representing Louisiana’s opposition to same-sex marriage. He wrote elsewhere that if the Supreme Court recognized that same-sex marriage was a fundamental right, the “harms” to our democracy “would be severe, unavoidable, and irreversible.” Duncan also sought to deny same-sex couples adoption rights. Duncan represented Virginia’s Gloucester County School Board and argued that Gavin Grimm, a transgender high school boy, should not be allowed to use the men’s restroom. Finally, Duncan has spoken several times before the Alliance Defending Freedom, an organization that has defended the state enforced sterilization of transgender people overseas and is classified as a hate group by the Southern Poverty Law Center.

Kurt Engelhardt (Fifth Circuit), while a district court judge, made clear his opposition to same-sex marriage, noting that a state does not need to recognize marriages that violate public policy of the state and saying that “the Louisiana Legislature has clearly stated the ‘strong public policy’ of this state against recognition of same-sex marriages.”

Neil Gorsuch (Supreme Court), while on the Supreme Court, ruled against the rights of LGBTQ Americans in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. On the Tenth Circuit he joined a panel opinion upholding summary judgment in favor of an employer who banned a transgender woman from using the women’s restroom until she could prove that she had undergone sex reassignment surgery, and then declined to renew her teaching contract. He rejected a claim by a transgender woman incarcerated in Oklahoma who alleged that her constitutional rights were violated when she was denied medically necessary hormone treatment. In an op-ed published in the National Review Online, Gorsuch attacked “American liberals” for what he said was an overreliance on litigation to “effect[] their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

Britt Grant (Eleventh Circuit) assisted on an amicus brief opposing same-sex marriage in Obergefell. Grant opposed government guidance that called for transgender students to be permitted to use facilities that conform to their gender identity.

Steven Grasz (Eighth Circuit) supported a law that would allow employers to discriminate against LGBTQ persons. He was director of the Nebraska Family Alliance, which supports conversion therapy. As Chief Deputy Attorney General of Nebraska, Grasz opposed the recognition in Nebraska of same-sex marriages contracted in other states. Further, in 1999, Grasz represented Nebraska as amicus curiae in a suit regarding the denial of marriage licenses for same-sex couples. Grasz also argued before the Nebraska Supreme Court that state law did not allow an unmarried lesbian couple to adopt a child.

James Ho (Fifth Circuit) defended Texas’s Defense of Marriage Act. Ho litigated In the Matter of the Marriage of J.B. & H.B., where a same-sex couple that had been married in Massachusetts sought to obtain a divorce in Texas.

Matthew Kacsmaryk (Northern District of Texas) has written that while the “Civil Rights Movement” was on “the right side of history,” the same cannot be said for efforts by LGBTQ persons to achieve equality.

Gregory Katsas (D.C. Circuit) defended the Defense of Marriage Act (DOMA) in two cases and strongly opposed Obergefell.

Joan Larsen (Sixth Circuit) objected to Lawrence v. Texas and criticized the Justice Department for not defending the constitutionality of the Defense of Marriage Act. As a state supreme court justice, moreover, Larsen failed to give Obergefell full effect.

Kenneth Lee (Ninth Circuit) has writings from his twenties that show extremely troubling views on LGBTQ equality, ranging from harmful stereotypes about the LGBTQ community and the AIDS epidemic, to characterizing LGBTQ campus advocacy as the work of “militant gays.”

Jeff Mateer (Nominated to Eastern District of Texas; Withdrawn) called transgender children part of “Satan’s plan.”

Steven Menashi (Second Circuit) has implied that LGBTQ identities are “outside and above nature” and those who support equality are attempting to “peer[] down on the rest of creation with a godlike power to manipulate it for our own purposes. He supported the ban on lesbian, gay and bisexual people serving in the military; he opposed court decisions which recognized marriage equality; and he defended discrimination against LGBTQ Americans in public accommodations such as restaurants and movie theaters. He accused a leading LGBTQ group of exploiting the brutal murder of Matthew Shepard for political and financial ends. During his leadership at the Department of Education, the Department weakened Title IX protections for transgender students.

Eric Murphy (Sixth Circuit) defended Ohio’s prohibition on same-sex marriage in Obergefell v. Hodges. During Murphy’s tenure as state solicitor, the state of Ohio joined an amicus brief in Gloucester County School Board v. G.G., defending a school board’s refusal to allow a transgender student to use the bathroom that matched his gender identity.

Howard Nielson (District of Utah) defended Proposition 8 in California, which would have banned same-sex marriage in California. After the district court, in Perry v. Schwarzenegger, ruled that Proposition 8 was unconstitutional, Nielson filed a motion to vacate the judgment. Nielson’s motion argued that the judge “had a duty to disclose not only the facts concerning his [same-sex] relationship, but also his marriage intentions.” Nielson continued his opposition to same-sex marriage years later, when he authored an amicus brief opposing marriage equality in Obergefell v. Hodges.

Mark Norris (Western District of Tennessee) supported legislation that prohibits cities in Tennessee from protecting LGBTQ people from being discriminated against based on sexual orientation. Norris cosponsored a joint resolution urging Congress to pass the Federal Marriage Amendment, which would define marriage exclusively as the “union of a man and a woman.” Norris supported legislation that directly conflicted with Obergefell v. Hodges, a bill that, as one supporter noted, was passed to “compel courts to side with the late Supreme Court Justice Antonin Scalia and his dissent.” In addition, ignoring legal advice from the state attorney general that Obergefell applied to state divorce and child custody proceedings, Norris tried to intervene in a matter in order to prevent a state court from applying Obergefell. Not only was Norris’s legal position in direct conflict with Supreme Court precedent, the judge in the case noted that Norris’s actions “constitute[d] an attempt to bypass the separation of powers provided for by the Tennessee Constitution.”

Peter Phipps (Third Circuit) defended the discharge of a nurse from the United States Air Force under the “Don’t Ask, Don’t Tell” policy in Witt v. Department of the Air Force.

David Porter (Third Circuit) praised Senator Rick Santorum’s 2005 book, It Takes a Family, writing that “[Santorum] argues, ‘the currency of social capital is trust’ and that ‘is first created and then nurtured by healthy families,’ a prosperous society ‘depends on healthy mom-and-dad families.’” Porter was also a contributor to The Center for Vision & Values, a think tank at Grove City College. Grove City College does not allow its students to accept federal financial aid in order to avoid complying with Title IX. The Princeton Review ranked Grove City College as one of the least LGBTQ-friendly colleges in the country.

Neomi Rao (D.C. Circuit) said that while LGBTQ people “have established themselves as a minority group fighting against discrimination” and “trendy political movements have only recently added sexuality to the standard checklist of traits requiring tolerance,” there was a major difference between sexuality and race or gender: “People who tolerate women in the workplace and blacks and Hispanics as neighbors view homosexuality as a behavior – and behaviors, unlike gender and race, are subject to change,” she said. “No one knows whether sexuality is a biological phenomenon or a social construct. The truth may lie somewhere in the middle.” Prior to Rao’s departure, the Office of Information and Regulatory Affairs (OIRA), under her leadership, was finalizing a rule proposed by the Department of Health and Human Services (HHS) that would allow health care providers to refuse to provide medical care to patients towards whom providers have “conscientious objections.” Additionally, Rao’s office worked with Betsy DeVos’s Department of Education to roll back protections for LGBTQ students on college campuses. Proposed changes to Title IX would expand schools’ ability to discriminate against LGBTQ students under the guise of religious exemptions.

William Ray II (Northern District of Georgia), as chairman of the Gwinnett County Republican Party, passed a resolution “strongly oppos[ing] any plan, legislation, or resolution which may explicitly or implicitly condone homosexual behavior. Such plans which are opposed include, but are not limited to, the passage of legislation to implement in Gwinnett County any domestic partner benefit plan.” Ray said that “[o]ur main point in passing the resolution is not to grant members of the homosexual community greater rights than exist in the general citizenry.”

Chad Readler (Sixth Circuit) was responsible for advancing the anti-LGBTQ agenda of the Justice Department as the acting assistant attorney general of DOJ’s Civil Division. He signed an amicus brief in support of the discriminatory actions of the bakery in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Readler also defended Trump’s transgender military ban.

Lee Rudofsky (Eastern District of Arkansas) defended Arkansas when two same-sex couples sued the state to require Arkansas to list the spouse of a birth mother, regardless of gender, as the second parent of their child on their birth certificate. He also fought a city ordinance banning discrimination based on sexual orientation or gender identity and has authored or edited multiple articles justifying LGBTQ discrimination. He signed an amicus brief advocating that a florist has the right to refuse to serve a same-sex couple. At his Senate Judiciary Committee hearing, he disavowed previous support for marriage equality.

Allison Rushing (Fourth Circuit) worked at the Alliance Defending Freedom, an organization that has defended the state-enforced sterilization of transgender people overseas and is classified as a hate group by the Southern Poverty Law Center. Rushing spoke favorably of the Defense of Marriage Act.

Damien Schiff (Nominated to Court of Federal Claims; Withdrawn) wrote that “I contend that the due process clause, assuming that it has a substantive component, likely does not forbid the criminalization of sodomy.” Schiff spoke out against marriage equality in California. Schiff was critical of a decision in Florida invalidating that state’s ban on same-sex couples adopting children. He also has criticized a school district’s attempt to address bullying of LGBTQ students, contending it was “teaching ‘gayness’ in public schools.”

Brantley Starr (Northern District of Texas) led Texas’s efforts to block guidance from federal agencies that protected gender identity as a form of sex discrimination under Title IX. He signed an opinion letter after Obergefell v. Hodges claiming that civil servants, including clerks, judges, and justices of the peace, could still refuse to issue marriage licenses to same-sex couples. He also defended several bills in Texas that discriminate against gay couples in the adoption and foster care systems.

Amul Thapar (Sixth Circuit), as a district court judge sitting by designation on the Sixth Circuit, rejected a worker’s same-sex sexual harassment and retaliation claims, inappropriately restricting same-sex sexual harassment claims by requiring the victim produce “credible evidence that the harasser was homosexual.

Michael Truncale (Eastern District of Texas) warned of dire consequences if Trump lost the election, writing that “liberals want to require pharmacists to sell abortion drugs despite religious objections and to force Christian photographers to use their artistic skills to celebrate same-sex weddings.”

Lawrence VanDyke (Ninth Circuit) worked as an allied attorney and a Blackstone Fellow for Alliance Defending Freedom (ADF) which, “has supported the recriminalization of homosexuality in the U.S. and criminalization abroad; has defended state-sanctioned sterilization of trans people abroad; has linked homosexuality to pedophilia and claims that a ‘homosexual agenda’ will destroy Christianity and society.” In an article for the Harvard Law Record, he promoted the myth that same-sex marriage and families will harm children and society and that LGBTQ people are deviant and dangerous. While Solicitor General of Montana, he regularly supported bans on same-sex marriage in other states.  He also supported the Defense of Marriage Act and opposed laws protecting LGBTQ Americans from being discriminated against.

Don Willett (Fifth Circuit) disparaged the right of LGBTQ people to marriage equality, when he joked about wanting the “right to marry bacon” in a tweet. He also joked about California’s laws relating to transgender students’ participation in school sports. Willett has also consistently ruled against same-sex marriage rights. In 2005, Willett attended a Texas Restoration Project event that the Austin Chronicle described as an event for then-Governor Rick Perry and “religious conservatives [to] get together to bash gays.”

Cory Wilson (Fifth Circuit) said that “gay marriage is a pander to liberal interest groups and an attempt to cast Republicans as intolerant, uncaring and even bigoted.” As a legislator, Wilson voted to allow businesses to refuse service to LGBTQ persons.

Allen Winsor (Northern District of Florida) defended Florida’s ban on same-sex marriages.