This week, the Senate is set to vote on the nomination of Mr. Stuart Kyle Duncan to the U.S. Court of Appeals for the Fifth Circuit. Family Equality Council has sent a letter to all 100 Senators urging them to oppose his nomination.
Throughout his career, Mr. Duncan has sought out opportunities to oppose civil rights for the LGBTQ community, often targeting lesbian and gay parents and transgender people in particular. His pursuit of limiting the rights and opportunities of LGBTQ people and other marginalized groups renders him unqualified for this position.
While a partner at Shaerr Duncan LLP Mr. Duncan, Mr. Duncan actively pursued his interest in undermining the legal recognition of same-sex couples and our families. He organized amicus briefs against the constitutional right to marry for same-sex couples in Obergefell v. Hodges. He defended the state of Louisiana against a challenge to its ban on same-sex marriage and in its refusal to recognize same-sex marriages from other jurisdictions. He also defended the state of Alabama against a challenge from a lesbian mother whose parental rights were stripped away by the state in V.L. v. E.L. In our “Voices of Children” amicus briefs in the Obergefell v. Hodges and V.L. v. E.L. cases, Family Equality Council outlined numerous examples of the harms that children of LGBTQ people have experienced due to discrimination against their parents. Thankfully, Mr. Duncan’s legal efforts did not prevail in any of these cases, as they were based on beliefs and positions that are well outside of accepted scholastic, scientific, and legal thought.
Mr. Duncan has also worked aggressively to defeat equal opportunity protections for transgender people. He chose to do this by representing North Carolina legislators Phil Berger and Tim Moore – the drafters of the House Bill 2 (HB2), which aimed to restrict transgender people’s access to public restrooms – in seeking a declaratory judgment from the Department of Justice declaring HB2 constitutional in Berger v. United States. Mr. Duncan then also supported these legislators in a separate action by filing a memorandum in favor of intervening in litigation against former Governor Pat McCrory. In that litigation, Mr. Duncan filed expert declarations which relied on “junk science” describing transgender people as delusional, views contrary to the positions taken by bodies of medical professionals such as the American Medical Association and American Psychological Association.
While representing the authors of HB2, Mr. Duncan chose to also defend the Gloucester County School Board which implemented a discriminatory policy singling out transgender students and requiring them to use “alternative, private” facilities separate from their peers, a policy later struck down by the Fourth Circuit Court of Appeals. Mr. Duncan then filed a merit brief on behalf of the School Board with the Supreme Court appealing the decision, arguing that Title IX of the Education Amendments of 1972 does not protect transgender students. Numerous courts have held that Title IX provides protection to students from discrimination based on being transgender or gender non-conforming, and it is worrying that Mr. Duncan has chosen to urge courts to adopt a constricted view of this law, which would expose transgender children to further risk of discrimination.
Approximately 772,000 LGBTQ people live in Louisiana, Mississippi and Texas, and there are an estimated 57,000 same-sex couples living in those states. Childrearing among same-sex couples is most common in Southern, Mountain West, and Midwest regions of the country; indeed, the state with the highest proportions of same-sex couples raising biological, adopted or step children is Mississippi, where 26% of same-sex couples have children under the age of 18. In light of his words and actions, it is very unlikely that Mr. Duncan would set aside his extremist views and administer justice impartially to these families who reside in the states within the Fifth Judicial Circuit.