By Ann Rostow –
I Told You So
Earlier this month, the Supreme Court declined to hear an appeal from former Kentucky county clerk Kim Davis. Davis and her anti-gay lawyers at the Liberty Counsel were contesting a money damages award of $100,000 plus $260,000 in legal fees that Davis was ordered to pay to two men she refused to marry back in the day. “Back in the day” is a journalistic shortcut for, “I think it must have been 2015 but I don’t feel like checking.”
In addition to the damages case, Davis tacked a side issue onto her Supreme Court petition, asking the Court, while they were at it, to overturn marriage equality along with the legal concept of substantive due process that has underpinned a constitutional right to privacy for half a century.
Dear Readers, there was no chance in hell that the Court was going to take that case.
Yes, the Court considered it during their weekly conference, but they dispensed with it at once. Often, the Court will table a petition for weeks and weeks, keeping it in limbo. But not in this instance. Nor were there any dissents or whining and moaning and groaning from our arch enemies in the room. Indeed, even Sam Alito reminded an audience last month that the Dobbs opinion, striking abortion rights, was not meant to call marriage equality into question, nor was it designed to jeopardize other substantive due process rulings.
You may recall that Justice Thomas wrote a bizarre concurring opinion in Dobbs, speculating that substantive due process was flawed and that the Court should reconsider the vast body of legal precedents that rely on its rationale. As you know by now, substantive due process assumes that certain fundamental rights are protected under the Constitution, even if they are not explicitly listed. These include the right to privacy, parenting decisions, and other freedoms central to ordered liberty. Justice Thomas’ views are off the charts, and yet his dissent triggered hysterical panic in some quarters of our colorful community. Both same-sex marriage equality and the end of sodomy laws were based on Due Process. (Mixed-race marriage equality was based on Equal Protection.)
More recently, the presentation of Davis’ outlandish petition spurred a whole new set of crazed headlines warning that marriage equality was “headed to the Supreme Court” as if oral arguments were pending. Anyone with an appellate ruling can petition the justices for review, but the Court accepts a tiny fraction of the thousands of cases presented each year; maybe about 80 cases make it to the docket these days.
Don’t get me wrong. This Court is capable of damaging us in many ways. It is in the process of eviscerating transgender rights. It is elevating the sensibilities of evangelical Christians above and beyond the constitutional rights of everyone else. And we may well see it make exceptions to marriage rights that could lead to second-class status. Think of the stamp of approval the Court has given to the butchers and bakers and candlestick makers that object to serving gay couples or gay clients. This gives us even more reason to keep our cool when false alarms may sound.
Traveling While Trans
The High Court’s assault on transgender rights is devastating. As you recall, the justices gave states the right to outlaw transition-related health care for minors, conveniently ignoring the constitutional rights of parents by ruling on different grounds. This year, the Court will hear cases regarding transwomen in sports, and three guesses how they might handle that question.
But perhaps even more insidious is the Court’s behavior on the so-called shadow docket. When a draconian law is challenged, courts will sometimes put a hold on the law while the case is argued and decided. To simplify, such a hold will be placed when the challenger is likely to succeed, and when the law’s enforcement will cause harm. Of course, once such an injunction is imposed, the state can appeal to a higher court and ask for the injunction to be reversed and that the law can proceed during litigation. The Supreme Court is the last stop on the merry-go-round.
The question of whether or not to uphold an injunction is not like the regular Supreme Court case, which starts with many briefs and proceeds to oral arguments, well-crafted opinions, and dissents. Instead, the Court decides lickity split whether or not the challenged law will be suspended during the ensuing court battle, or allowed to take effect. There are no arguments, no extended briefings, no formal opinions, hence the opaque moniker of the shadow.
When Trump and company decided to evict transgender soldiers and sailors from the military, that move was stopped in its tracks pending legal review. But when the injunction reached the justices, they ruled the new policy could be enforced while a challenge preceded in the courts. The Trump administration then took immediate steps to oust transgender Americans from service, um, unless they transitioned back to their birth sexes.
Effectively, the High Court ruled on the matter without any discussion or explanation. And, by implication, they suggested that the anti-trans policy would survive a complicated and time-consuming trip up the courts without being overturned, and that the men and women who would be drummed out of service for no reason would not be harmed in the process. All this was done under the radar by the conservative majority at the expense of Americans who have pledged, if necessary, to die for the rest of us.
Now, using the same procedure, the justices have allowed Trump to enforce rules that require passports to use a citizen’s sex at birth. Court cases will continue to challenge the decree, which upends decades of State Department regulations. But meanwhile, thanks to the Court, transgender Americans who renew their passports or lose them will now be obliged to get birth sex passports. Obviously, these travelers will no longer be able to pass through international checkpoints without lengthy explanations, additional paper work, delays for questioning, and who knows what kinds of hurdles. A transman with a beard and muscles now carries a woman’s passport. A transwoman with breasts and long hair now presents herself as male. Of course they’re going to be stopped.
According to a New York Times piece on the subject, most Americans think there’s nothing wrong with requiring birth sex notations on passports. “Passports,” said Heritage Foundation’s Roger Severino, “should identify people based on verifiable facts, not subjective feelings.”
This notion—that transgender individuals are acting on fanciful notions of alternative identities—has fueled a careless dismissal of transgendered citizens by many who have never met anyone trans, have never read about what it means to be transgender, and who have never questioned their stereotyped images. The same people who want transwomen banned from the rest room, would be appalled if a transman washed his hands at the ladies’ room sink. The same people who decried transwomen in sports got bent out of shape when a transgender boy, forced to wrestle on the girls team against his will, won all the meets. When many of these people imagine transgender people, they think of drag queens, or cisgendered men who want a glimpse into the girls’ showers.
The policies of MAGA and the casual cruelty of the Court are founded on the public’s ignorance and indifference. The gay rights movement eventually won over the public when it became clear that we were not sex perverts scrounging around for hookups in parks and alleys. Coming out of the closets as bankers and lawyers and fathers and mothers changed society’s view, and that change changed policies and court outcomes. How long will it take to change the misconceptions that surround transgender men and women? And how will it happen?
Bah Humbug
I’m not sure I can vouch for this story, which I’m reading from Interview Magazine, but we’re going with it anyway. It seems a fashion designer, Michael Schmidt, has made some pieces of apparel using wool from gay sheep.
“Although most male sheep, in the absence of an ewe, will get it on with each other,” writes Drew Zeiba, “one out of twelve is strictly homosexual. These rams, useless for breeding, are often sent to slaughter. So, Michael Stücke, a, um, German shepard [sic], started Rainbow Wool to rescue them.” (I changed “shepard” to “shepherd” before I saw the “um.” Perhaps Drew was making a joke that I didn’t understand? I felt I should use his version.)
Let me digress to say I was briefly saddened by the idea of rams going to slaughter, before I reminded myself that rack of lamb is one of my absolute favorite dishes. I have to compartmentalize my diet and my fondness for cute animals. Have you watched videos of old cows arriving at the no-kill cow ranch and scampering around for the first time in their lives? It’s adorable, and so nice that they won’t die. Meanwhile in the steak aisle, what’s that? A sale on bone-in ribeyes!
When I was about seven, I was at a pancake restaurant with my mother (a rare excitement) and I asked her where bacon comes from. “From pigs,” she said. Confused, I squinted back for an explanation, and was led to understand that pigs, like Wilbur in Charlotte’s Web and the other friendly pigs in my limited experience, would be killed, sliced opened, and their meat would be removed and fried in order to produce bacon. Needless to say, I was appalled by this grotesque information and refused to eat any more bacon. And my mother made me sit there and finish it! Looking back, it sounds dreadful, but I was used to the tyranny of parental diktat, and, after a lengthy waiting period, I obeyed.
So, as I was saying, the context for the gay sheep story was something called “I Wool Survive,” described as a “Grindr-supported presentation of one-of-a-kind garments” by the aforementioned designer, Michael Schmidt. In Schmidt’s words, the event aimed to “tell the story of the gay sheep by expanding that concept and talking about homosexual desire universally, not just among the animal kingdom.” The sheep are “literally killed for being gay,” Schmidt says, calling it “a metaphor for what queer people are going through all over the world.” Well, not exactly, but far be it for me to condemn the gesture.
Texas Redistricting Bill Killed?
Going through my notes in search of an appropriate finale for this column, I discovered that I had saved a lengthy article about the gay goat wool, written by the New York Times fashion critic, Vanessa Friedman. Well, it’s too late to rewrite the section and I don’t feel a need to add to the story, but I guess it’s a bigger deal than I thought. (The New York Times!)
Meanwhile, I was distracted by the news that a three-judge federal panel has blocked the Texas gerrymandering bill that would possibly add five new Republican seats to the Lone Star Congressional delegation. The ruling, from a panel specialized in voting rights cases, can be appealed to the High Court. But since there is a December 8 deadline to run for the House in 2026, it’s unclear whether or not the decision can be revisited in time.
We’ve also been reading of late that various other red states have declined to jump on the gerrymandering bandwagon, even as Trump is trying to insist. And, of course, several blue states, led by California, are poised to mess around with their districts in retaliation for Texas. I also just saw something about Ohio, where redistricting might accidentally benefit the Democrats. The danger for the red states, of course, is that diluting heavily Republican districts may open the door for a Democratic victory in a wave election.
Well, you know what? I have no idea what’s going on, but it seems as if the whole plan to steal Congress might be falling apart before our eyes. Keep in mind, there’s a big voting rights case out of Louisiana on the Supreme Court docket this year. That case was carried over last year in a move that could signal bad news for the Voting Rights Act.
There also were several TV commercials I was planning to complain about, but, well, sorry about that.
arostow@aol.com
GLBT Fortnight in Review
Published on November 20, 2025
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