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The recent confirmation of Supreme Court Justice Amy Coney Barrett has worried some in the LGBTQ community. Public policy and court decisions are major drivers of LGBTQ mental health, and they can be key determinants of suicide rates.
In 2015, Obergefell v. Hodges established marriage equality in the U.S. But just this October, two conservative justices blasted the decision, raising concern from LGBTQ legal experts that new cases will be brought to challenge its precedent. Given that Barrett publicly defended the dissenters in the Obergefell decision, it seems likely she could join those conservative justices.
Should Obergefell be successfully challenged, it's likely that public health would be substantially impacted. A 2012 study in The American Journal of Public Health found that the legalization of same-sex marriage in Massachusetts, which was established in 2003, resulted in decreased health care utilization among gay and bisexual men. Five years later, a landmark study in The Journal of the American Medical Association (JAMA) Pediatrics found that marriage equality resulted in fewer suicide attempts among gay and bisexual adolescents.
Dr. Julia Raifman, author of the latter study and Assistant Professor of Health Law, Policy, and Management at The Boston University School of Public Health explained that such legal protections have health impacts far beyond marriage itself. "Laws and policies shape attitudes and how people treat one another,” she notes. If the Supreme Court overturns Obergefell v. Hodges, and we take into account the results of these rigorous studies, it is possible that there will be cultural shifts that will result in the worsening mental health—and potentially deaths—of more young LGBTQ people in America.
Barrett joined a bench that heard whether to uphold The Affordable Care Act (ACA) when the justices heard oral arguments for California v. Texas on Nov. 10. In a 2017 law review article, Barrett disagreed with Chief Justice Roberts’s decision to uphold the act, which raised concerns among its defenders that she might vote to dismantle it. Many have noted that repeal of the law will have implications for many Americans, as many people will likely lose health insurance and protection from discrimination based on preexisting conditions.
But the impact may be much more dramatic for LGBTQ people. One key reason lies in section 1557 of the ACA, which prohibits health care discrimination against LGBTQ people. The Trump administration recently tried to remove these protections and failed, and the recent decision in Bostock v. Clayton County will work towards protecting them. But if the court dismantles the entire ACA, these protections will be gone, too.
This is important because LGBTQ people frequently avoid medical care out of fear of discrimination, which can lead to fewer preventative health screenings and skirting treatment for medical conditions. (Of note, some have argued that oral arguments indicated that the justices may vote in favor of "severability," which could protect the full ACA from being dismantled.)
We also have a new circuit split regarding whether conversion therapy bans are constitutional. In large part, these cases hinge on whether conversion therapy is so dangerous that the government needs to limit the speech of therapists in order to ban it. Given that conversion therapy has been strongly linked to suicide attempts, it seems clear the answer is yes. However, the 11th circuit essentially argued that it doesn't believe the scientific consensus when it decided to overturn conversion therapy bans in Florida. Given Barrett's refusal to acknowledge that climate change is established science, I personally worry about how she will approach a likely forthcoming case on whether to undo conversion therapy bans around the nation.
In an interview with me, Dr. Kenneth Mayer, Professor of Medicine at Harvard Medical School, explained that in his view, U.S. public health is in a precarious position with this new court, “There is no other industrialized democracy that is currently trying to remove access to health care or basic human rights for their population at this time… Judge Barrett's elevation to the high court is a giant leap backward for mankind.”
The fears over uncertainty for the LGBTQ community don’t stop there.
On Nov. 4, the court heard oral arguments for Fulton v. City of Philadelphia, in which they will decide whether faith-based taxpayer-funded organizations can discriminate against LGBTQ people. The court recently side-stepped a similar question in the 2017 Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. The plaintiffs in that case, who argued that they should be allowed to discriminate against LGBTQ people because of their religious beliefs, were supported by the legal powerhouse Alliance Defending Freedom (ADF), which has paid Barrett for multiple speaking engagements. The CEO of ADF attended the announcement of Barrett’s nomination in the White House rose garden.
Barrett also served on the board of Trinity Schools, which discriminates against LGBTQ people and bars admission for the children of same-sex couples. Because of Barrett’s connections to ADF and her history of being involved in discriminating against LGBTQ people through Trinity Schools, LGBTQ legal advocates worry about how she will vote on this case. Research has shown that denial of services to same-sex couples based on their sexual orientation results in substantial adverse mental health outcomes for LGBTQ people.
Homophobia and transphobia are public health crises. They require legislative interventions that must be upheld by the courts. I urge the Supreme Court to remember this and to protect LGBTQ lives.
Another version of this piece was published by The Hill.
