When Donald Trump’s Supreme Court nominee, in her Senate confirmation hearings on October 13, responded to California Democrat Dianne Feinstein’s question about whether she shared her mentor the late Antonin Scalia’s hostility to LGBTQ rights, her response — “I have never discriminated on the basis of sexual preference and I would never discriminate on the basis of sexual preference” — set off alarms on Twitter and LGBTQ listserves nationwide.
Sexual preference — a term widely used a generation or two ago — has in recent decades come to be understood by the precise meaning of the word “preference” — something one chooses. For many people not paying close attention, the distinction between sexual orientation and sexual preference may be lost on them.
Barrett, however, like Scalia, bases her entire judicial philosophy on the original text of the Constitution. Specific words hold great import for her and they are interpreted with very specific meanings.
What is meant and intended — politically and legally — by the term sexual preference is not lost on her.
Religious, other social conservative understand what that dog whistle says about her LGBTQ rights thinking
Sexual preference is the term of choice, as it were, for opponents of LGBTQ rights who argue that homosexuality and gender identity are choices — perhaps choices people are free to make — but being choices, they are not necessarily characteristics that deserve legal and constitutional protections.
Anti-LGBTQ legal groups, such as the Alliance Defending Freedom, are careful to use the term sexual preference and never sexual orientation. They likely took their cue from Scalia. In his 1996 dissent from the first LGBTQ rights victory handed down by the Supreme Court — in Romer v. Evans, concerning a Colorado voter initiative that barred the state or localities from enacting gay rights protections — he repeatedly put the word orientation in quotes.
Even if many Americans are vague on the issue at stake in this semantic debate, Christian and other social conservatives who spend their free time worrying about scary LGBTQ people, the distinction is clear. It’s all a choice. And, most dangerously, one that can be changed.
Matt Shurka, the co-founder and chief strategist of Born Perfect, a group that works to ban conversion therapy, particularly as practiced on minors, explained the implications of this assumption.
“Conversion therapy preys on vulnerable families and youth by promoting the deadly lie that being LGBTQ is a choice,” Shurka said in a written statement today. “Believing that lie has caused incalculable damage to LGBTQ young people, who urgently need to know that they are born perfect. We hope that Judge Amy Coney Barrett and all people in positions of visibility and influence will consider the impact of their words on these vulnerable youth.”
Shannon Minter, the legal director of the National Center for Lesbian Rights, where the Born Perfect program is housed, added, “When Amy Coney Barrett used the term ‘sexual preference’ in her testimony before the Senate today, she perpetuated the dangerous and false stereotype that being LGBTQ is not a fundamental aspect of identity, but a mere ‘preference.’ This is why so many people, including many parents who send their children to conversion therapy, think being LGBTQ is a choice. As judges know, language matters.”
In addition to the impact that the concept of sexual preference has on the culture and the legality of conversion therapy, it also has significant constitutional implications.
When LGBTQ Americans make claims for equal protection rights guaranteed by the 14th Amendment, the courts must evaluate whether those claims are owed the required heightened scrutiny by the courts. In general terms, claims of alleged racial discrimination are subjected to strict scrutiny, while gender discrimination claims are typically viewed using what is known as intermediate scrutiny. In both cases, the government has the responsibility to demonstrate a stronger than typical justification for a policy that singles Americans out based what are known as “suspect classifications,” such as race, or “quasi-suspect classifications,” such as sex.
A variety of factors going into that analysis, but one of them is the “immutability” of the characteristic that triggers disparate treatment. Race is immutable — a Black person will never not be a Black person, so any racially disparate treatment can only be justified on the strongest, most compelling possible grounds.
By definition, something that is immutable cannot be a choice, and something that is a choice is clearly not immutable.
Until this year, the Supreme Court had never made an explicit ruling on whether sexual orientation or gender identity was a “suspect” or “semi-suspect classification” — like race or sex — subject to heightened scrutiny when it comes to equal protection claims.
In the Bostock employment ruling in June, however, discrimination based on sexual orientation and gender identity were found to fall under the definition of sex discrimination in Title VII of the 1964 Civil Rights Act.
That was a good start on the path toward discrimination claims by LGBTQ people being held to an intermediate scrutiny standard. But it is just a start. Though other federal nondiscrimination laws are typically interpreted using precedents established by Title VII litigation, there is a lot more work in the courts to be done to achieve broad-based nondiscrimination protections regarding LGBTQ people in all areas of our lives.
A committed “textualist” who starts from an understanding that being gay is a preference certainly seems unlikely to be a vote in favor of broadening the victory the LGBTQ community won in Bostock.
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