People For the American Way Foundation

Biden Judges and LGBTQ+ Rights

Biden Judges and LGBTQ+ Rights

As we enter LGBTQ+ pride month in June, decisions and votes by Biden judges protecting LGBTQ+ rights give us much to be proud about.  Although a number of these decisions are not yet final, they have already had an important impact in combatting discrimination against LGBTQ+ individuals around the country.  Consider the following examples:

  • Judge Toby Heytens, nominated by President Biden to the Fourth Circuit court of appeals, wrote a 2-1 decision that reversed a lower court and ruled that under federal civil rights law, a restrictive West Virginia statute could not stop a 13 year-old transgender girl from participating on her public school’s girls’ track team
  • Judge Heytens and Biden Judge DeAndrea Benjamin cast deciding votes in an 8-6 ruling of the full Fourth Circuit that state health care plans in North Carolina and West Virginia cannot exclude medically necessary gender affirming surgery for transgender patients while permitting similar treatment for others. This exclusion, the court explained, violates the Constitution and federal statutes.
  • Judge Gustavo Gelpí, nominated by President Biden to the First Circuit, reversed a lower court and ruled that a parent could pursue her claim that a Massachusetts charter school was liable for the improper harassment of her child by other students who thought he was gay or transgender. Such harassment, Gelpí ruled, violates federal civil rights law (Title IX) that prohibits harassment and discrimination “on the basis of sex” in educational institutions that receive federal funds.
  • In two cases, Biden judges issued decisions against limits on access to school library books and other materials based on their LGBTQ+ content. Judge Stephen Locher, nominated by President Biden to the Southern District of Iowa, issued a preliminary injunction against a state law that prohibited schools from providing instruction relating to “sexual orientation” or “gender identity,” and mandated removal of books related to those topics. Judge Benjamin cast the deciding vote in a Fourth Circuit decision that affirmed a lower court refusal to grant a preliminary injunction requiring a Maryland school system to allow students to opt out of using “LGBTQ-friendly” books in the school’s curriculum.

The record of the Biden Administration and the Senate in nominating and confirming LGBTQ+ judges also merits praise. In less than four years, President Biden has already named more out LGBTQ+ judges (11) than even President Obama did in eight years. This includes the first three out lesbians ever to serve on federal appellate courts. It also includes the first out LGBTQ federal judges in Rhode Island, Puerto Rico, Colorado, Virginia, and Washington DC. One of those trailblazing judges, Fourth Circuit Judge Nicole Berner, recently recognized the “importance” of “bringing her experience as an openly gay person,” as well as her “ ‘ professional background representing workers and their unions’ to the federal bench.”

The message is clear. It is crucial that President Biden continues to nominate, and that the Senate continues to confirm, such fair-minded judges to our federal courts.