As the reality of a new and intensely conservative Supreme Court majority sinks in, some people are asking, "What's the use of fighting in the courts now? Aren't we just going to lose a lot of cases?"
Here at the ACLU, we have a clear answer: Staying engaged with the courts remains central both to making further progress for our community and to preventing opponents of LGBTQ equality from taking away the gains we have made over the past four decades. And yes, we will likely lose a bunch of cases, but we will win some as well.
Going forward, the LGBTQ movement needs to focus on three strategies: 1 ) We have to get used to being on defense, and to learn how to excel at it. 2 ) We have to choose our affirmative agenda carefully. 3 ) We have to keep our eye on the ultimate goal of our legal work, which is continually to move public opinion towards acceptance and understanding of LGBTQ people and our common humanity.
Defense. As a movement, we have spent decades strategizing about how we can use the courts to create a better world for LGBTQ people. And over the course of the last 20 years, we made some incredible progress through litigation. We won the freedom to marry, struck down bans on adoption or foster parenting by lesbians and gay men, and secured protection from employment discrimination for transgender people in big swaths of the country.
But we are not the only people who know how to use the courts to create change. Opponents of LGBTQ equality have their own plans, and they have already started filing cases to build out their hateful and destructive agenda now that the Supreme Court is more likely to side with them.
On the Saturday that Justice Kavanaugh was confirmed, conservative activists in Texas filed a case asking the courts to guarantee that any business with a religious objection to employing LGBTQ people can fire us with impunity. In Philadelphia, other activists have sued the city, arguing that they have a constitutional right to discriminate against LGBTQ people with taxpayer dollars. And still other anti-LGBTQ advocates have already asked the Supreme Court to take a case that could strip civil rights protections from hundreds of thousands of transgender people in America.
In the face of these cases, we have a choice: We can watch from the sidelines as our opponents do their best to get the courts to undo our prior victories and to create new horrors for our community. Or we can intervene in their lawsuits, argue for equality, and see if we can stop or lessen the harm they seek.
Bottom line: Even if we have limited chances of advancing our own affirmative agenda through the courts, we can and must engage through the courts to stop our opponents' affirmative agenda.
Offense. There are some cases we can win. In the federal system, there are still many federal judges who are fair-minded, and Trump won't be able to replace them all, or even a majority of them. Since the Supreme Court takes very few cases, the reality is that many lower court rulings will stand. Those rulings will help LGBTQ people all across the country.
Where it's clear that an issue on our affirmative agenda will surely reach the Supreme Court, it may well make sense for us to continue to push cases raising that issue in order to create as many lower court wins on the issue as possible before the Supreme Court ultimately gets the question. That gives our movement the best chance of winning, even if the odds may stay long.
We can also move parts of our agenda forward through state courts, as we did for years in cases about marriage and family law. For example, we are currently seeking Medicaid coverage for gender-affirming health care through the Iowa state courts, and are optimistic about a favorable ruling from the Iowa Supreme Court. Such a ruling would be immune from interference by the US Supreme Court, and at the same time would help us with the Medicaid coverage issue before other state high courts.
Culture change. The final reason to stay engaged with litigation is that it's a marvelous tool for telling stories, and telling stories is a core part of how we create change in America.
The ultimate goal of our legal advocacy is to change the way America thinks about LGBTQ people. If everyone in America already understood, valued, and embraced the common humanity of LGBTQ people, the problems our community is facing would be greatly reduced. To get there, we need to help people all across the country move past their lack of knowledge, their fear, and the stereotypes about us they have been taught since childhood. We do that by ensuring that our community can tell its stories again and again, in ways that will be noticed, will penetrate, and can lead to deeper understanding.
Court cases are fabulous ways to focus the country's attention on the stories we need it to hear. Gavin Grimm taught the nation just how harmful it is to be excluded from the common boys' restroom that all the other boys used, just because he is transgender. Edie Windsor made the country understand the indignity of being told by the federal government that her marriage to Thea, her wife of two years and partner of 44, didn't count. And Charlie Craig and Dave Mullins showed us all how humiliating it was to be turned away from a business that is open to the public simply because they're a gay couple.
We need more Gavins, Edies, Charlies, and Daves, because stories like theirs—and spokespeople like them—are how the country learns to relate to us and our daily lives.
So while we may not win as many cases in the future as we have in the recent past, the courts remain an essential battleground for our movement. They are a place for resistance, for achieving pockets of progress, and for telling our stories so that we can continue to move America forward towards justice for LGBTQ people.
James Esseks is director of the ACLU's Lesbian, Gay, Bisexual, Transgender & HIV Project.
