By Lisa Keen
The most pro-gay Republican presidential candidate in history will take office as President of the United States on January 20, and yet the LGBT community has much to be anxious about.
While Donald Trump used his campaign pulpit to urge the American people to stand in “solidarity” with the LGBT community following the Orlando nightclub massacre, his picks for key administration roles have been people with a history of standing solidly against that community.
No matter what Trump might do as president to signal his unique level of comfort with LGBT people compared to his Republican conservative base, the departure of President Obama, indisputably the most pro-gay president in history, will stand in stark contrast to what many LGBT people fear will become an inevitable string of disappointing inactions (at best) and hostile attacks (at worst).
And the hopes for a better tomorrow for LGBT people – hopes that Democratic presidential nominee Hillary Clinton made abundantly clear she supported – are replaced now with the uneasy feeling that anti-LGBT legislation will breeze through a Republican-dominated Congress and be signed as part of some “deal” President Trump might feel compelled to make to demonstrate his solidarity with his rabid right base and a certain admired foreign leader.
So, what exactly should the LGBT community be braced to see? Here’s a look at the most likely events in Trump’s first 100 days:
The Executive Branch:
Contractor discrimination: President Obama signed an executive order in July 2014 that prohibits contractors doing business with the federal government from discriminating based on sexual orientation or gender identity. It also added gender identity to a previously existing Executive Order 13087 that prohibits discrimination against federal employees based on sexual orientation. Trump could rescind both executive orders or, in the alternative, amend the existing order to grant a request (that Obama rejected) from a group of religious leaders who urged the non-discrimination policy include a “robust religious exemption.”
Hospital Memorandum: President Obama issued a memorandum April 15, 2010, calling for an end to discrimination against LGBT people by hospital visitation policies that limit visitors to immediate family members. The directive applies to hospitals receiving federal funds through Medicare and Medicaid. Many same-sex couples now have the benefit of marriage to protect those visitation rights, but not all same-sex couples with close, long-term relationships do.
Education discrimination: In May 2016, the U.S. Departments of Education and Justice issued a “Dear Colleague” letter advising schools that discrimination against transgender students violates a federal law against sex discrimination. The Trump administration could issue a new letter with its own interpretation of the reach of Title IX. And Trump’s pick for Secretary of Education, Betsy DeVos, was a leading supporter of a 2004 ballot campaign against marriage equality in Michigan, and her family has given millions to anti-LGBT causes and groups.
Health discrimination: In May last year, the U.S. Department of Health and Human Services issued regulations stating that the Affordable Care Act’s prohibition on sex discrimination in health coverage and care includes a prohibition on discrimination based on gender identity. The Trump HHS could issue its own interpretation of the ACA’s sex discrimination. Trump’s nominee for Secretary of HHS, Tom Price, has a long history of hostility toward the LGBT community. Plus Trump has already made clear that he would like to repeal the ACA.
The Republican-led Congress:
Nullifying executive orders: Even if President Trump chooses not to rescind any of President Obama’s executive orders or memoranda, Congress could pass legislation to nullify any or all of them, and one Trump ally, former House Speaker Newt Gingrich, predicted last month that Trump would rescind 70 percent of President Obama’s executive orders. So a Trump veto on such action by Congress seems unlikely.
First Amendment Defense Act: This bill was introduced to Congress shortly before the Supreme Court’s ruling that said state bans on marriage for same-sex couples are unconstitutional. The FADA is part of the effort to circumvent laws that prohibit discrimination against same-sex couples. It would allow a person or business discriminating against LGBT people to defend themselves by claiming the discrimination is an exercise of the person or business’s religious beliefs. It seeks to prohibit the federal government from taking any adverse action against a person who “acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.” Senator Ted Cruz Trump said last month he thinks the prospects are “bright” for passing the bill now, so if the Republican-led Congress passes it, Trump will likely sign it.
Johnson Amendment repeal: The Johnson Amendment is a law that ensures taxpayer money is not used to subsidize partisan political activity. Trump has said he wants the Johnson Amendment repealed because it prevents clergy from speaking about politics from the pulpit. A bill to repeal the Johnson Amendment was introduced January 3.
In the courts:
The Supreme Court nominee: The most long-standing influence Trump could have on the LGBT community is through his choice or choices to fill U.S. Supreme Court seats. He released lists of potential nominees last year, and they all look decidedly conservative and some have a history of hostility toward equal rights for LGBT people. He will almost certainly make his first choice within the first 100 days, to fill the seat vacated by the death of right-wing Justice Antonin Scalia last February. Replacing one right-wing justice with another right-wing justice may not tip the court’s balance, but it will re-establishes a necessary foursome that can accept conservative appeals for review. And a second Trump opportunity to nominate a justice will almost certainly bend the arc of the moral universe at the high court away from justice for the LGBT community.
The North Carolina challenge: Under the Obama administration, the Department of Justice filed a lawsuit against North Carolina’s anti-LGBT law HB2. Trump has said such matters should be left to the states. Trump’s nominee for Attorney General, Senator Jeff Sessions, has a long and consistent history of acting against the best interest of LGBT citizens. If confirmed by the Senate, it seems likely Sessions, with the support of Trump, will withdraw the U.S.’s lawsuit against the North Carolina law. It also seems likely the Trump DOJ will weigh in on the side of North Carolina should the Supreme Court eventually review the constitutionality of HB2 as other lawsuits against it continue. And a similar law is now proceeding through the Texas legislature.
The Title IX showdown: In the spring, the Supreme Court will hear arguments in a case, Gloucester v. Grimm, to decide whether Title IX’s prohibition on sex discrimination in schools should be read to include a prohibition on gender identity discrimination. Under the Obama administration, the Department of Justice supported the transgender student’s claim that Title IX protects his right to use a bathroom of the gender with which he identifies. Under the Trump administration, a DOJ led by Sessions will almost certainly take sides with the Gloucester school district. The good news is that it seems most unlikely Trump can nominate and have confirmed a new right-wing Supreme Court justice in time to join in whatever ruling the court makes in the case this year. A tie vote will leave the federal appeals court ruling below -in favor of the transgender student–intact.