BY JAY KAPLAN
It has only been 10 days as I write this, but from the scrubbing of LGBT issues from the White House website to nominated cabinet members with a clear record of antipathy towards LGBT rights, the Trump Administration has now taken hold. There are numerous laws, public policy issues and policy players to be concerned about over the next four years. They include:
President Obama’s Executive Order 13672, signed in July 2014 protects all federal employees from discrimination based on sexual orientation and gender identity, as well as the employees of companies that contract with the federal government (which would be 30,000 companies employing one-fifth of the U.S. workforce). During the presidential campaign, President Trump vowed to rescind all of President Obama’s Executive Orders. A statement released by the White House Tuesday morning – just 24 hours after some rumors circulated that President Trump was on the verge of rescinding the executive order – says:
“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The President is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”
However, it doesn’t put us out of the woods regarding the possibility of an executive order permitting individuals, businesses, and organizations that receive federal funding to discriminate based on their religious beliefs. This has not been denied by the Trump Administration at this time. It wouldn’t surprise me if they issue an executive order like that, while reminding people that the president didn’t rescind the federal employees order (talking out of both sides of the mouth).
Repeal of the Affordable Care Act (ACA) has been a centerpiece of both the Trump campaign and the Republican majority in Congress. While the media has finally decided to focus on the benefits of this law (22 million more insured, no exclusion for pre-existing conditions, staying on parents’ insurance until age 26), little mention has been made of how beneficial this law has been for the LGBT community, particularly transgender people, where for years insurance companies have excluded coverage for medically necessary transition care. This includes Michigan’s Medicaid program which prohibits payment for trans hormone therapy. Federal non-discrimination regulations for the Act make it clear that public and private insurers cannot single out transgender people for discriminatory treatment. The regulations also ensure that health care providers cannot refuse to provide medically necessary treatment to LGBT people. In addition to Congress approving a budgetary resolution to eliminate funding for the ACA, President Trump on his first day in office signed an Executive Order calling for federal agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden” on individuals or businesses. This ambiguous language could permit insurers to refuse to cover transition medical care, falsely claiming that it’s too financially burdensome and or medical providers to refuse to provide various medical care.
During his campaign, President Trump pledged to sign into law the First Amendment Defense Act (FADA). FADA would exempt individuals from all laws, including civil rights laws based on their “religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” Providing an religious exemption for non-religious activity, the legislation has the effect of gutting any and all civil rights protections for LGBT people. Senator Ted Cruz and Representative Mike Lee announced that they will be re-introducing this legislation (which President Obama threatened to veto last session).
The Secretaries of Departments of Justice and Education have interpreted both Title VII and Title IX (federal civil rights laws that prohibit sex discrimination) to cover LGBT people. In addition the Department of HUD has issued regulations stating that LGBT people are protected against discrimination in government funded housing programs, and that transgender people should be able to access government funded homeless shelters in accordance with their gender identity. In addition the Equal Employment Opportunity Commission (EEOC) has been actively investigating employment discrimination cases against LGBT people under the theory of sex discrimination. All of this could change with the new proposed players in the Trump Administration. His nominee for Attorney General Jeff Sessions, as Senator co-sponsodred the First Amendment Defense Act. He supported a federal constitutional ban on same-sex couples marrying, voted against adding sexual orientation and gender identity to the federal hate crimes law, and voted against repealing the military’s “Don’t Ask, Don’t Tell” policy. Of the 2015 Supreme Court decision in Obergefell v Hodges, Sessions opined that he believed it to be “unconstitutional.” Betsy DeVos, nominee for Education Secretary, along with her family have donated extensively to groups which promote the idea that students who identify as LGBT must undergo “conversion” and have also affiliated with groups that oppose anti-bullying legislation. She and her family have also supported campaigns to deny same-sex couples the right to marry, including Michigan’s 2004 ballot initiative campaign. Although she stated during her confirmation hearing last week she stated she did not support “conversion therapy,” she also refused to say that charter schools and private schools receiving federal funds would be held accountable to the same standards regarding bullying of students. Secretary of HUD nominee Ben Carson stated during his presidential campaign, compared same-sex marriage to bestiality and NAMBLA, in an interview with Sean Hannity. He also stated in a CNN interview that he believes being gay is a choice “(b)ecause a lot people who go into prison go into prison straight….” He also defended Vice President Mike Pence (then Governor Pence) signing into law Indiana legislation permitting businesses and individuals to discriminate against gay people based on their religious beliefs. This week President Trump appointed EEOC commissioner Victoria Lipnick to be acting chair of the EEOC. Lipnick has dissented from EEOC opinions holding that sexual orientation discrimination can constitute actionable sex discrimination under the theory of gender stereotyping and that transgender employees may not be discriminated against regarding bathroom usage.
That’s just four of Trump’s cabinet nominees/appointees and their records on LGBT rights, and of course there is Vice President Mike Pence, who has a long history of opposing LGBT rights, from signing into law the aforementioned Indiana religious discrimination law, to opposing marriage equality. In 2000 as a member of Congress, Pence proposed cutting off funds for HIV prevention and instead diverting the money to “ex-gay” therapy programs.
If this feels overwhelming it is. It is so important that the LGBT community remain both engaged and vigilant regarding policy proposals and personnel and their impact on the LGBT community. There is so much as stake and the better informed we can be, the better advocates we can be for our cause.