The Courts Won't Free Us — Only We Can
Editor's Note: As LGBTQ+ Pride Month begins, the state of LGBTQ+ rights is in crisis. We are facing an unrelenting wave anti-trans legislation, a movement to censor LGBTQ+ identity-related education from classrooms, as well as the looming end to Roe v. Wade by the Supreme Court. In this op-ed, ACLU lawyer and trans justice advocate Chase Strangio reflects on this precarious moment and points us to a future focused on collective action.
On the night of Monday, May 7, 2022 I was sitting in a North Carolina hotel room watching the Met Gala red carpet and preparing to defend a deposition in a case involving access to medical care for transgender adolescents. I was feeling the crushing weight of a legislative session that resulted in close to a dozen anti-trans bills becoming law and the seemingly never-ending weaponization of trans bodies and identities in public and political discourse. Then, amid the stream of Met Gala images on Twitter, I saw Justice Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health.
At first, I was taken aback by the absolute shock of a Supreme Court leak. Then, the reality of its content sunk in. The landmark cases Roe v. Wade and Planned Parenthood v. Casey, which established and then reaffirmed the constitutional right to abortion, could be overturned, causing millions to lose access to lifesaving reproductive health care. It will likely be a pivotal moment in US legal history for many reasons: the end of certain Court decorum, the end of precedent, as well as the beginning of a more ideological, masks-off (so to speak) era of the Court that could be dire for LGBTQ+ and other marginalized people.
In the wake of this leak, the country has grappled with Roe v. Wade’s seemingly inevitable demise and the uncertain future of many seminal Supreme Court precedents. Anticipating the repercussions, both practically and doctrinally, of the Court’s forthcoming decision in Dobbs, some have begun to ask whether the court could again act with brazen disregard for precedent and overturn Obergefell v. Hodges, the case that legalized same-sex marriage in all 50 states. And while we are right to be concerned about the future of formal legal protections for LGBTQ+ people, we should also be aware: Dobbs is not a turning point. Rather, it’s a reflection of where we currently are— a reminder of the grim realities that many in the LGBTQ+ community already face. In other words, we are asking the wrong questions. Instead of wondering “What’s next?,” we should be asking, “How did we get here and where do we go?”
The current precarity of queer and trans life might be best understood as an over-reliance on legal system wins and an under investment in material redistribution. For many years, the majority of our movement resources went to establishing formal equality, such as an end to Don’t Ask Don’t Tell, the achievement of Marriage Equality, or the passage of non-discrimination laws, while survival needs like housing access, debt forgiveness and decriminalization went under-resourced or ignored altogether. Even if marriage equality is “next” in the path of Supreme Court destruction — and I actually don’t think it is — the leak alone should be a reminder that legal wins are only as useful and potent as those in power want them to be. Narrowly focusing our attention on a hypothetical future problem while so many people are under constant, immediate attack betrays the current problem: Our movement is too focused on formal legal equality and blockbuster Supreme Court victories.
There can be a false sense of security in the idea that something is “settled law” or “unconstitutional.” But all of that can change rapidly, and even where rights-based wins do establish legal norms for a period of time, they are often limited in who they protect and how. It is difficult to avail oneself of the right to marry or the right not to be fired for being gay when you are struggling to access food, shelter and medical care. A “right” does not directly nourish us without the systems in place to ensure that people can demand, enforce and realize the fruits of that right.
On June 26, 2015, I was outside the Supreme Court when it struck down remaining bans on marriage for same-sex couples with its 5-4 majority decision in Obergefell v. Hodges. Though I was (and am) a long-time critic of the LGBTQ movement’s emphasis on marriage equality as a movement goal, I worked on that case alone for two years and on the issue for over a decade. The plea to the Court, and to the country, was designed to appeal to a sense of alignment with power, a resource-intensive and assimilationist goal that leaves behind so many that don’t easily fall into a “we are just like you” frame and who are often struggling to survive.
That isn’t to say that the Court’s decision in Obergefell wasn’t monumental and important; it was. Even with my many critiques of how the movement leveraged its resources, sitting outside the Court on that day felt beautiful and historic. The ruling ushered in a new era in “gay rights” advocacy as people celebrated marriage equality becoming “the law of the land.”
But even under the best conditions, precedents such as Roe and Obergefell are limited in what they mean for people’s well-being and liberation. Even with Roe in place, comprehensive reproductive health care is severely lacking for many. Even with Obergefell and other “gay rights” precedents, trans people face staggering rates of discrimination. For one thing, the legal battle for marriage equality came with a significant cost. Some organizations and many cis gay donors immediately turned their backs on the critical work that remained for non cisgender gay members of the LGBTQ+ community. Within months of the Court’s decision in Obergefell, opponents of LGBTQ equality were parroting anti-transgender messaging to repeal a broad equal rights ordinance in Houston, Texas. With little resistance from the mainstream LGBTQ+ movement, the Right handily repealed the ordinance at the ballot and began to further weaponize anti-trans discourse. By early 2016, hundreds of anti-trans bathroom bills were introduced in state legislatures across the country, putting trans people and the larger LGBTQ+ movement on the defensive to protect against well-funded and vicious attacks on our ability to access public space.
That wasn’t the only cost to our singular movement focus on formal equality for same-sex couples and LGB people. The same week that the Supreme Court struck down the so-called “Defense of Marriage Act” (DOMA) in United States v. Windsor, it also gutted the Voting Rights Act. While the mainstream LGBTQ movement celebrated the end of DOMA, there was a lack of movement focus on the breathtaking implications of the Shelby County v. Holder decision, which led to immediate voter suppression measures being implemented across the country. Our reductive celebration ultimately diverted focus away from the post-Shelby County world in which state legislatures shifted further and further to the political right and legal protections for everyone became increasingly precarious. Landmark wins at the Supreme Court almost always come with significant cost. In order to reform our legal system, we must examine the consequences and limitations of both our victories and defeats.
The same week that Justice Alito’s draft opinion leaked and people began to speculate about the future of marriage equality, Alabama’s newly-enacted felony ban on gender-affirming health care for transgender adolescents went into effect. While minors across the South faced the terrifying prospect of their survival needs being criminalized, more national attention was paid to the possibility that same-sex couples might lose legal protections in the future than the fact that trans people faced unrelenting assaults in the present. Thankfully, a federal judge has blocked the part of Alabama’s law that stops trans children from accessing transition-related health care, but that decision will soon be tested in a higher court.
This string of back-to-back losses and victories should serve as a sad reminder that our overreliance on the state-created rights for protection and under-reliance on each other has left us increasingly unmoored as our systems fail us. Our ability to meaningfully build resistance movements in the coming years demands that we better understand the limits of law as an instrument of justice. Ultimately, we cannot trust the Supreme Court, or any court, to honor the capaciousness and complexity of our bodies and lives. If we are to ensure that transgender youth are not criminalized, that our community members are not over-policed and incarcerated, that our lives are not reduced to reductive and sensationalized headlines about “What Makes a Woman?”, then we need to do more than just ask the state for our rights.
Just as marriage equality did not bring liberation to our communities, neither will the fall of Roe or Obergefell or any other legal precedent mark the end of our fights for transformative justice and liberation. The law is only one tool and the more marginal it is forced to become, the more potential we may find in our collective organizing, care and action.