But in the days and weeks after the leak, other civil rights advocates began ringing alarm bells over the future of their movements as legal experts examined how the drafted decision could ripple far beyond the topic of abortion.
Legal groups and advocates are now gearing up for more challenges to LGBTQ rights as they face an unprecedented amount of legislative pushback from conservative lawmakers. Organizations like the American Civil Liberties Union and the Human Rights Campaign are beefing up their litigation teams while others such as the Transgender Law Center are focusing on outreach to address the needs of their community members.
"From the night [Justice Ruth Bader Ginsburg] died, it was essentially cemented in stone that this day was coming," said Andrew Ortiz, a staff attorney at the Transgender Law Center. The Dobbs decision, he said, "isn't only about denial of abortion access. It's about denying people bodily autonomy and denying them possibilities in life."
In the last two decades, the Supreme Court has awarded the LGBTQ community some key victories, including Obergefell v. Hodges
, which legalized same-sex marriage.Most recently, the 2020 Bostock v. Clayton County
decision established that Title VII of the Civil Rights Act of 1964 extends to discrimination based on sexual orientation and gender identity, making workplace discrimination against LGBTQ people illegal.Despite these victories, LGBTQ rights still remain a highly contested arena in federal and state courts. Many of the LGBTQ rights cases currently working through the federal court system are challenges to state laws, a growing number of which are directed at curbing the rights of transgender people, James Esseks, director of the LGBT & HIV Project at the American Civil Liberties Union, said in an interview.
Out of 123 anti-LGBTQ bills currently working their way through state legislatures, 107 are targeted at trans people, according to the ACLU. So far in 2022, 14 anti-LGBTQ bills, all targeted at trans people, have been signed into law. This does not include executive action, including an order by the Texas governor that makes it illegal for parents to allow their children to receive gender-affirming care, deeming it a form of child abuse.
LGBTQ rights lawsuits that currently hang in limbo in federal courts include a challenge to that Texas directive and a lawsuit opposing Florida's new ban on classroom instruction on gender identity and sexual orientation to younger elementary school students, which detractors call a "Don't Say Gay" law.
According to Esseks, the ACLU is currently litigating 38 cases, of which 31 focus on trans justice issues.
As LGBTQ legal groups battle to roll back these policies, Esseks said most of their arguments can fall into two different categories.
He refers to one legal category as the "liberty bucket," which contains cases that rely on arguments about substantive due process. The substantive due process clause of the 14th Amendment maintains that there are some liberties, unspecified in the Constitution, that are so important they cannot be infringed upon by the government.
The argument for abortion rights in Roe v. Wade
rests on this clause, and so does Lawrence v. Texas , the Supreme Court ruling that legalized same-sex intimacy.Cathryn Oakley, state legislative director and senior counsel and the Human Rights Campaign, said the overturning of Roe v. Wade would represent a massive threat to the LGBTQ rights, starting with its foundation: Lawrence v. Texas.
"If Roe is overturned, that puts Lawrence on much shakier legal ground," Oakley said. "This is going to be tremendously disruptive to all kinds of things. The potential for unintended consequences is extremely high."
The other category that legal advocates often turn to in LGBTQ rights cases is what Esseks calls the "equality bucket," which contains cases that rely on equal protection arguments. Obergefell v. Hodges and United States v. Windsor
, which struck down Congress' Defense of Marriage Act, were both decided on equal protection arguments.Esseks said the drafted Dobbs decision does not address equal protection arguments.
"So I'm not saying there's nothing to worry about," he said. "But we have some very significant tea leaves from the Dobbs draft about liberty-protected rights going forward, and we have very little tea leaves about how this court will apply the equal protection doctrine."
The drafted decision would more directly affect litigation that hinges on personal liberty arguments. The right of transgender people to have government identification that corresponds with their names and gender is one such example.
Esseks said that the right for parents to make medical decisions for their child could also be affected. This would come up in cases around parents allowing their children to receive gender-affirming care, like hormone blockers, and gender-affirming talk therapy.
"It's a long-standing, well-established right for parents to control the custody and care of their kids, which includes deciding what kind of health care they will receive," he said. "Some of these health-care-restriction statutes say that even if the medical professional and the parent agree that gender-affirming care is necessary for the kid, the state can still step in and prohibit that."
Beyond these cases, much of the litigation surrounding LGBTQ rights rest on equal protection arguments, but LGBTQ legal groups say these cases are not in the clear yet. The Dobbs decision indicates the conservative court's willingness to toss well-established precedent.
"If a decision on this applies to topics like health care and abortion, then why wouldn't it also apply to so much more beyond that?" Oakley said. "The Dobbs decision is poised to set up an ongoing legal conversation that revisits the entire idea of privacy and what is beyond the scope of the government to regulate."
David Brown, legal director of the Transgender Legal Defense & Education Fund, said they worry the Dobbs decision will fundamentally shift the way judges approach LGBTQ cases.
Brown describes a phenomenon they call trans exceptionalism, in which standard procedure, such as having judges pull only from evidence submitted in court, is often ignored when a litigant is transgender. Judges will refer to things they see on television or create hypotheticals that "seem completely untethered to reality" in cases revolving around transgender people, Brown said.
"If respect for precedent and respect for fundamental human rights matters less, then we all worry that courts will feel like they've been given permission to engage in such behaviors," they said. "Rather than following the traditional ways of resolving a case, they'll think about how they want this case to come out and then work backwards from there."
LGBTQ advocates may try to keep cases in state courts as much as possible, Esseks said, but this would succeed only in places where there are progressive-leaning judges.
They could also attempt to lean into the equal protection arguments when fighting for queer rights. Esseks said he's "not optimistic" about the fate of the equal protection cases.
"But I'm not as despairing as I would be if all our eggs were in the liberty bucket," he said.
Ultimately, LGBTQ legal groups say the only thing advocates can do is persevere.
"I think by just familiarizing courts and the public with the issues that we are grappling with, they will eventually come around to realizing that these are important issues that deserve to be resolved correctly," Brown said. "The best thing we can do is not lose faith, or hope."
Both the ACLU and HRC said they have been putting more resources toward LGBTQ-related litigation in the last several years.
Ortiz said the Transgender Law Center has been looking for ways to address the impacts of anti-LGBTQ legislation. The difference between the pre-Roe era and now is the level of policing present in vulnerable communities.
"Police resources disproportionately target people of color, trans folks, low-income people, and those with disabilities," he said. "They are all under heightened levels of scrutiny from the state and will bear the brunt of the eventual criminalization of legislation coming out of this."
Ortiz said the Transgender Law Center began reaching out to defense attorneys in Alabama in response to its law that banned medical care for transgender youth. He said the organization would likely employ a similar tactic in other states.
"We are trying to make sure we have good connections to defense attorneys in Alabama that will be willing to defend folks who are targeted, investigated and charged under these new laws," he said.
But the path to LGBTQ equality may become steeper if the Dobbs decision is finalized, said Oakley, of the Human Rights Campaign. The decision would likely embolden state legislators to introduce more laws aimed at restricting LGBTQ rights.
"What we have learned from state legislatures in the last seven years is that there is really no bottom for them," she said. "They will do anything it takes for them to push back on acceptance and equality for LGBTQ people."
Omar Gonzalez-Pagan, senior attorney and health care specialist for Lambda Legal, said in an interview that LGBTQ legal advocates will also continue to push for solutions outside the courtroom. He said Lambda and other queer law groups have helped draft nondiscrimination laws across the country and would continue to do so after the Dobbs decision.
"Change happens when we are doing the litigation, the policy and the public education work that is necessary for people to respect and recognize the rights of LGBTQ people," he said.
The next Supreme Court case that could determine the future of LGBTQ rights in the nation is 303 Creative LLC v. Elenis
when the court will weigh whether a Colorado website designer has a constitutional right to refuse to provide her services for same-sex weddings.In taking up this case, the justices are once again revisiting the contentious battleground between the LGBTQ community and religious companies, which has resulted in conflicting rulings in the lower courts. In 2018, the court sided with a Christian baker who refused to make wedding cakes for same-sex couples but it did so without answering the core constitutional questions of the case.
"If the court sides with the website designer and says these folks have a free-speech-based right to discriminate based on sexual orientation, then I don't see any reason that you couldn't have that same right to discriminate against someone based on gender identity, or race, or age, or nationality," Esseks said. "Where does this end? This case really has the potential to end all civil rights laws as we know them."
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--Editing by Katherine Rautenberg.