As 2019 winds to a close and the 2020 presidential election draws closer, many Americans will be shifting their focus to all things political. Within the LGBTQ community candidates who have pro-equality stances will be front and center for consideration. And while that is a regular trend for every election cycle, it’s worth noting that the current administration’s rollbacks in LGBTQ equality are unrivaled for a president who ran as an ally.
Because Donald Trump is running for a second term it is perhaps more important than ever to have a true sense of this administration’s anti-LGBTQ actions during the past three years. Though this list is not an exhaustive one, Between The Lines has compiled 10 examples that point to a disturbing trend of rights reversals and outright denials for LGBTQ people under Trump’s presidency.
1. Altering Policy to House Transgender Inmates Primarily by “Biological Sex”
On May 11, 2018, the U.S. Department of Justice changed an Obama-era guideline in its Transgender Offender Manual recommended by the Transgender Executive Council that inmates be housed “by gender identity when appropriate.” The Council is a group of representatives from various prison-related organizations designed to properly identify, track and provide services to the transgender population. Under the changes, “The TEC will use biological sex as the initial determination for designation.”
Within the changes, the TEC is advised to consider whether “placement would threaten the management and security of the institution and/or pose a risk to other inmates in the institution.”
Advocates say that these changes imply that housing transgender inmates with their gender identity will potentially cause harm to prison “security and good order.” However, according to LGBTQ People Behind Bars, a 2018 report created by the National Center for Transgender Equality, transgender people are already disproportionately affected by violence and this change will only serve to cause more harm.
“Transgender people are nearly 10 times more likely to be sexually assaulted than the general prison population,” the study said.
2. Banning Transgender People from Serving in the Military
It was on July 26, 2017, that President Trump tweeted his intentions to ban transgender people from serving in the military. He wrote that after consultations with “generals” and “military experts” that the military “… cannot be burdened with the tremendous medical costs and disruption that transgender (sic) in the military would entail.”
Since 2016, when transgender members of the military were officially allowed to serve, the Associated Press reported that less than 1 percent of military spending was allocated to transgender health care. According to a BuzzFeed News report on the matter, two emails sent by Gen. Joseph Dunford — the highest-ranking military general in the U.S. — on July 27, 2017 to generals of the Air Force, Army, Marines, National Guard and Navy said the announcement was “unexpected” and that he was “not consulted” before Trump’s announcement.
In 2017, Reuters interviewed Indiana National Guard reservist Cameron St. Andrew who is transgender and originally from Michigan. Despite serving more than a decade in the military, after Trump’s election he resigned from full-time service, anticipating a change like the military ban. At the time of the interview, he said he was concerned about his transgender status.
“I try to be tough about it,” he said, but added: “It breaks your spirit down.”
In April of 2019 the ban went into effect, preventing anyone openly transgender from joining the military or beginning the process of transitioning.
3. Creating Pathways for Religious Exemptions in Health Care Via ‘Conscience’ Rule
As of July 22, 2019, the Trump administration put forth a “conscience” rule that expanded legal protections for federally funded health care providers who refused to provide medical services due to moral or religious objections. Critics of this rule said that its broad definitions could reduce health care access for LGBTQ people who already struggle to find inclusive care because service providers could feel empowered to deny services.
“The Department does not dispute that people in such demographic categories face health care disparities of various forms. The Department does disagree, however, with these comments’ conclusions that the rule will create any negative effect on access to care that cannot be otherwise addressed, or that is not outweighed by gains in overall public health, overall access to care due to the removal of barriers for providers, or the benefits of compliance with the law and respect for conscience and religious freedom,” read the official response to this concern.
So far, this rule has been blocked by several federal judges. On Nov. 19 of this year, Judge William Alsup of the U.S. District Court for the Northern District of California said that the Health and Human Services Department exceeded its authority when it adopted this rule.
“When a rule is so saturated with error, as here, there is no point in trying to sever the problematic provisions. The whole rule must go,” he was quoted as saying in a Bloomberg Law report.
4. Withdrawing a Regulation Aimed at Preventing LGBTQ Discrimination at Homeless Shelters
On March 10, 2017, the Department of Housing and Urban Development withdrew a September 2016 regulation that required federally funded shelters to notify all residents of their equal rights despite their LGBTQ identity, orientation or marital status.
“HUD strives to reduce burden by providing the content of the notice to be posted and estimates it will take about six minutes for owners and operators to print and post this notice,” read the regulation. “All existing and new owners would be required to post the notice only once, and ensure that it remains visible to those accessing the shelter, housing or facility.”
Additionally, HUD removed training and guidance resources from its website that advised emergency shelters on practices to serve LGBTQ people in need of housing and on complying with federal access and nondiscrimination rules.
5. Siding with Adoption and Foster Care Agencies Against LGBTQ Adoptive Parents
The Department of Health and Human Services proposed a rule in November of 2019 to allow foster care and adoption agencies it funds to turn away potential care providers if they are LGBTQ.
“In the proposed rule, HHS would repromulgate most of the provisions of the 2016 rulemaking verbatim. HHS would revise two provisions of the 2016 rulemaking to require grantees to comply with applicable nondiscrimination provisions passed by Congress and signed into law, including legislation ensuring the protection of religious liberty, and to provide that HHS complies with all applicable Supreme Court decisions in administering its grant programs,” read the official press release.
This effectively was an announcement that the administration would reverse Obama-era regulation that prohibited HHS grant recipients from discrimination on the basis of gender identity and sexual orientation. So far, it has affected child welfare programs and same-sex couples looking to adopt children. In Michigan, Attorney General Dana Nessel has been fighting to mandate that faith-based adoption and foster agencies receiving state funding do not discriminate based on the sexual orientation of potential parents. Though this issue extends beyond the federal rule, advocates say that the Trump Administration has made religious exemptions of this sort more common around the U.S.
6. Releasing a Statement Opposing the Equality Act.
House Democrats introduced and passed the Equality Act this year, the first LGBTQ rights bill that includes protections for LGBTQ people in the U.S. in housing, employment, public accommodations, education and health care. So far stalled in the Republican-controlled Senate, The Washington Blade reported that the Trump administration opposes the bill.
“The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all; however, this bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights,” a senior administration official said via email to Blade reporters.
This comes as a stance change for Trump, who in 2000 did an interview with The Advocate in which he said he would support an amendment to the 1964 Civil Rights Act. In order for the bill to be voted on in the Senate, Majority Leader Mitch McConnell would need to bring it up for a vote.
7. Reducing Civil Rights Enforcement for Transgender Students
The Department of Education confirmed that it would no longer act on or investigate complaints filed by transgender students who were blocked from using restrooms or other school facilities that aligned with their gender identity.
Buzzfeed News interviewed a department spokesperson Liz Hill on the issue. She said that the official position was that transgender students’ complaints were not covered by federal civil rights law Title IX, which says that no person on the basis of sex be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal funding.
“Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” Hill said. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
This issue has appeared in cases across the U.S. In May 2017 a three-judge panel in Whitaker v. Kenosha Unified School District ruled that “policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender nonconformance, which in turn violates Title IX.”
8. Removing Guidance on Supporting Transgender Federal Employees
The Office of Personnel Management removed federal agency manager guidance designed to help support transgender federal employees. It was replaced with new language that links to the Department of Justice’s interpretation of the Civil Rights Act of 1964 that does not include gender identity.
“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy. The sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation or employer action,” says the new guidance. “As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress. Title VII expressly prohibits discrimination ‘because of … sex’ and several other protected traits, but it does not refer to gender identity. ‘Sex’ is ordinarily defined to mean biologically male or female.”
A similar case is currently being argued by the ACLU in the Supreme Court concerning Michigan woman Aimee Stephens who was fired from her position at a funeral home after she began transitioning. The ACLU asserts that she was fired on the basis of sex discrimination and that U.S. federal laws currently protect transgender people on that count. Though this case is not related to federally funded employment specifically, depending on the case’s outcome, the Supreme Court could rule to expand federal nondiscrimination law to include sexual orientation and gender identity.
9. HHS Proposed Cuts to Information Collection on Sexual Orientation of Foster Children, Adoptive Parents and Guardians
The Obama administration added questions to an existing case database about the sexual orientation of foster children, adoptive parents and guardians in an effort to create a “data collection system that provides comprehensive demographic and case-specific information on children who are in foster care and adopted.”
This year, HHS proposed to cut this information collection. A ProPublica report said that it was “making the change because of concerns that the information would be overly detailed, that it may be inaccurately reported, and that children’s answers may not be kept private.”
10. Removing Plans to Count LGBTQ People in the 2020 Census
After the Department of Justice decided to withdraw its request, the Census Bureau removed proposed demographic questions about sexual orientation and gender identity from the final 2020 American Community survey. According to Criminal and Economic Justice Project Director of the National LGBTQ Task Force Meghan Maury, this could have far-reaching effects on the ability of LGBTQ people to access federal funds for social programs.
“LGBTQ people are not counted on the Census — no data is collected on sexual orientation or gender identity. Information from these surveys helps the government to enforce federal laws like the Violence Against Women Act and the Fair Housing Act and to determine how to allocate resources like housing supports and food stamps,” Maury said. “If the government doesn’t know how many LGBTQ people live in a community, how can it do its job to ensure we’re getting fair and adequate access to the rights, protections and services we need?”