Are there any LGBTQ fingernails left?
On Sunday nights and early Monday mornings the online LGBTQ chatter is focused on whether the Supreme Court will issue—at 10 a.m. on that Monday morning—its long-awaited decision about whether it is OK to fire someone because they are LGBTQ. Nerves are shredded. On Monday morning this week, Lambda Legal’s tweet summed up the feelings of many waiting for news.
Mondays come, Mondays go, and there is still no decision over whether the court believes that Title VII of the 1964 Civil Rights Act protects LGBTQ people from discrimination.
The LGBTQ case isn’t the only major decision campaigners are awaiting from SCOTUS. The court is set to rule on whether the Trump administration illegally ended DACA (Deferred Action for Childhood Arrivals); on a Louisiana case that could have major implications for the access to abortion; on whether asylum seekers should be able to present their cases in court; on whether religiously affiliated institutions like hospitals, charities, and universities can restrict access to birth control; and on whether the president should have to respond to subpoenas (three words: Trump tax returns).
Alphonso David, president of the Human Rights Campaign, the nation’s largest LGBTQ advocacy organization, told The Daily Beast that he confronts the weekly anxiety by waking up at 6 a.m. on the Monday (“sometimes 5:30”), and working out in some form—yoga, running, biking, and weights. His fearsome-sounding routine includes 200 sit-ups.
“The waiting game is tortuous,” David said. “I wake up every Monday morning with a pit in my stomach, recognizing at 10 a.m. there could be a significant sea change in the lives of LGBTQ people. I think about the person who is already unemployed trying to get job in one of the 29 states where there are no state law protections for LGBTQ people. I think about the person who can’t pay their rent and is subject to discrimination because there is no federal law to protect them.”
The ACLU’s deputy legal director, Louise Melling, told The Daily Beast that Sunday nights and Monday mornings are “suspenseful and stressful.” Occasionally, she tweets a picture of her beloved cat Dolly, lit up by her laptop—and sometimes snoozing—before any decision.
Melling is part of an ACLU “SCOTUS huddle” that congregates on Zoom to watch the decisions be issued—on Monday they were paced at a gratuitously tense 10 minutes apart, a “longer period of stress than when it was 5 minutes,” she said. Melling remained “cautiously optimistic” based on previous case law and because “the ruling means so much to people, I prefer to stay hopeful.”
“Every Sunday night and Monday morning, a feeling of dread settles over me in anticipation of the release of SCOTUS opinions,” Chase Strangio, deputy director for transgender justice at the ACLU’s LGBT & HIV Project, told The Daily Beast. “I am nervous for the moment of pressing refresh and seeing that an opinion in our cases has come down. In part, it is just the anticipation of having to mobilize a response and in part, it is fear of the substance of what the opinion(s) will say. At the same time, those feelings of fear combine with a feeling of being energized for whatever may come.”
“The longer it takes, the more worried I am. But it’s hard to know,” said the activist, author, and broadcaster Michelangelo Signorile.
Last month, one of the SCOTUS case figureheads, trans woman Aimee Stephens, died. Jay Kaplan, staff attorney at the ACLU of Michigan’s LGBT Project, told The Daily Beast staff keep in touch with Donna Stephens, Aimee’s wife, “and let her know when opinions are going to be issued, as well as whether or not a decision came down in Aimee’s case.
“Donna is grieving the loss of Aimee, and it especially hurts knowing that Aimee won’t be there when the court finally issues its opinion. That was one of Aimee’s wishes before she died, to live to read the court decision.”
How does Kaplan face every Monday morning? “It feels like pins and needles, and we know that it could be any day now.”
LGBTQ people are at least used to the cycle of big-deal June cliffhangers. One of the strange quirks of Pride month is that it also falls at the end of Supreme Court terms or coincides with other big LGBTQ moments—sometimes on the eve of Pride marches themselves.
In 2011, New York state legalized same-sex marriage on June 24; the Supreme Court struck down the Defense of Marriage Act on June 26, 2013 and ruled in favor of marriage equality on June 26, 2015. People congregated on those evenings at the Stonewall Inn and then enjoyed very happy Pride celebrations that weekend.
In 2015, to celebrate marriage equality, President Obama bathed the White House—back when it was unfortified—in the colors of the rainbow. For LGBTQ people living under the Trump administration’s legislative attacks and cultural warfare, that seems a long five years ago.
“Literally, millions of LGBTQ people would be affected by a negative ruling from the court,” said Alphonso David. “I vacillate on two different spectrums. One spectrum recognizes that the court could not overturn decades of case law that people have relied on. At the other end of my personal spectrum, I worry about a strained interpretation of the law that would affect how LGBTQ people are affected.”
David’s “rational” side wins out mostly, he said, hoping the court would follow in the tradition of case law, particularly a 1989 SCOTUS case involving Ann Hopkins, a Price Waterhouse employee who sued her employer after she was denied partnership because her firm objected to how she dressed and did her makeup.
When the Supreme Court ruled in favor of Hopkins, it made clear that gender stereotyping was as actionable as sex discrimination.“That legal rationale extends to LGBTQ people,” David said.
Many readers may be surprised that the issue of whether someone can be fired because of their sexual orientation and gender identity is up for debate, or the Supreme Court’s adjudication, in 2020.
Indeed, a just-released CBS News poll revealed that 82 percent of Americans believe LGB people should be protected by civil rights laws (94 percent of Democrats; 71 percent of Democrats, and 79 percent of independents); while 55 percent see “a lot of discrimination” affecting trans people. For the majority of the public, anti-LGBTQ discrimination is wrong.
The nervousness of LGBTQ people and their allies every Monday morning is because social and cultural progress stands at a sharp variance with the Trump administration’s mission to eradicate LGBTQ rights and his success at appointing two judges of his choosing—Neil Gorsuch and Brett Kavanaugh—to the court.
The Equality Act, which would protect LGBTQ people from discrimination, passed successfully in Congress but is beached, and will remain beached, in a Republican-led Senate. Alphonso David told The Daily Beast that whatever the Supreme Court’s decision, HRC’s determination to vote out President Trump, and swing the Senate to a Democrat majority, remains urgent.
Positive or negative result at the court, HRC is continuing to press for the successful passage of the act “so future generations don’t have to face another legal challenge.”
HRC is mobilizing 57 million pro-equality voters to cast their ballots in November “and to remind voters how the Trump administration is trying to erase LGBTQ people,” especially in 7 “priority states”: Arizona, Michigan, Nevada, Ohio, Pennsylvania, Texas, and Wisconsin. A Democratic-controlled Senate could pass the Equality Act.
The CBS News poll found respondents tending to the liberal positions on DACA and access to abortion, and split by party on Trump and his tax returns.
“The Title VII cases and the DACA case are the only outstanding cases argued in 2019,” said Chase Strangio. “Now it feels like a lifetime ago. Though I don’t necessarily think the length we have been waiting foreshadows anything in particular about the outcome, I do think that in these past eight months our communities have gained momentum, and the court will be releasing the opinions into a world more ready to challenge the systems that have hurt too many for too long.”
SCOTUS-wise, with two Trump appointees smoothly installed, the mood online every Monday morning, at least on the LGBTQ case, is decidedly qualified when it comes to optimism. It feels more like hoping against hope that equality and justice may prevail. Public pro-LGBTQ support is one thing; the very visible ideological stacking that Trump has sought to do to the Supreme Court is another.
Melling said the ACLU had mapped out a future strategy of campaigning, whatever the result.
“Win or lose, we have so much fighting left to do,” said Strangio. “We must fight to ensure that our trans siblings of color, particularly our black trans sisters, do not have to face the epidemics of racist violence at the hands of individuals and the state.
“I think about my mentors who have not lived to see this moment but who have left a legacy of lessons behind for us to follow. I think about our leaders, still living, who remind me that it is not from the court that we will find justice but from our collective power, the fact of our existence, and our ability to imagine a future that has never been but is now within reach.”
So how to survive next Sunday night or Monday morning? Alphonso David advises making sure “every person you know is registered to vote” and downloading the Team app to interact with all your personal contacts about election-related matters. “Volunteer if you can,” said David; HRC calls voters in swing states every Tuesday. Ensure friends and loved ones go out and vote, he added.
But how to face—in the moment—that Sunday night/Monday morning pins-and-needles anxiety, if you’re waiting for the Supreme Court to rule?
David laughed. “Do as many sit-ups as possible.”