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As the 2020 presidential primaries continue and November draws nearer, it’s vital for LGBTQ voters to familiarize themselves not only with the pro-LGBTQ platforms of existing candidates but the anti-LGBTQ measures taken by the Trump Administration. Last month, The American Civil Liberties Union of Michigan hosted a town hall to answer questions and showcase those harmful actions to an audience at Ferndale’s Affirmations LGBTQ community center. The evening was hosted by LGBT Project Staff Attorney Jay Kaplan, who outlined some key differences in policy that have occurred since Trump took office.
Discrimination in Health
First on the agenda for the evening was the topic of health care. Perhaps most notably, Kaplan talked about litigation surrounding the Affordable Care Act’s Section 1557, which provides protections for LGBT rights. Specifically, this section of the act codified nationwide nondiscrimination protections for LGBTQ people in health facilities and activities that receive federal funds. Under the Trump administration, these nationwide protections are at rist.
“The Trump Administration has issued some new guidelines this year and they say it’s very clear that LGBT people are not protected under section 1557. In other words, they can be discriminated against in health insurance coverage as well as accessing health care services,” Kaplan said. “This rule has not been finalized, and I’m sure we’ll see a great deal of litigation that have said that this is clearly sex discrimination. But it’s created a very precarious situation, and our fear is that even though this hasn’t become a finalized rule, that many insurance companies will say, ‘Well now we can go to our [previous] blanket exclusions on trans-related health care.'”
Kaplan then referenced the Trump Administration’s medical conscience rule that would allow health care providers to refuse service to LGBTQ people because of “sincerely held religious beliefs.”
“Two federal courts issued injunctions against this rule,” Kaplan said. “And there’s been litigation in four different cases in the federal courts in regards to this. And during discovery — that’s the period where you take depositions and try to gather information — they got information from the administration that admitted that a receptionist in a medical doctor’s office could [for example] refuse to schedule an appointment for a lesbian couple who may by trying to have children through in vitro fertilization.”
The rule creates a broad interpretation of the term “health care provider,” meaning that anyone from the doctor, to the receptionist, to the ambulance driver involved in someone’s treatment could be protected in their employment if they refused their services. As of the time of the town hall, there were 200 bills across state legislatures attacking doctors who agreed to provide treatment to transgender youth.
In the arena of education, Kaplan outlined that the Obama Administration secured civil rights protections for transgender students under Title IX federal law on the basis of sex. This allowed for students to participate in gender-segregated activities, including bathroom use, based on their gender identity without fear of discrimination.
“One of the first things that happened early in the days of the Trump Administration is that they rescinded those guidelines and they didn’t say that transgender students were not covered under Title IX, but they did rescind the guidelines for school districts, giving school districts a lot more discretion to decide whether or not a transgender student is able to participate in school activities,” Kaplan said. “We’ve seen a lot of good federal court decisions on behalf of transgender students in their ability to use the bathrooms, but ultimately there will be a school district that will point to the Trump administration rescinding these guidelines as a basis as a justification to support the policy of saying, ‘You can only use a restroom, you can only participate in an activity in accordance with your biological sex that was assigned to you at birth.'”
Kaplan added that increasingly, anti-LGBTQ rights groups are using the argument of sex to target transgender student athletes and increase anti-transgender sentiment in legal arguments.
“When the Equality Act had hearings in the House of Representatives we were anticipating the arguments that they were going to make, and they stayed away from some of the bathroom arguments, but they wanted to talk a lot about sports. Like how this is unfair, competitive advantage and things like that,” he said. “And in our case with Aimee Stephens in the supreme court, she worked in the funeral home, she was an embalmer, but Justice Scalia raised the question about transgender people playing sports, which had nothing to do with the case at hand. So we’re going to be seeing more of this happen.”
Foster Care and Housing
In another case close to home, Kaplan pointed to a fight the ACLU had with legislation from the previous administrations of Gov. Snyder and Attorney General Bill Schuette. Specifically, the suit was against taxpayer-funded contracts that allowed religious foster care and adoption agencies to discriminate against potential LGBTQ parents.
“We sued the state in federal court, won and thought everything was taken care of, but then two of the faith-based agencies turned around and filed a lawsuit in the western district for the federal court on the other side. Rasing the same issues, they hoped to get a more conservative judge and they did,” Kaplan said. “And what happened is we have a federal judge in one of those case that has issued an injunction against the state of Michigan saying that, ‘State of Michigan, you have to give these agencies a contract, and they are committed to refuse to work with same-sex couples.'”
These types of exemptions have extended to homeless shelters, too. Specifically, an Obama-era guidance to permit homeless transgender people to stay in shelters that align with their gender identity was removed by the current administration.
“They have said homeless shelters can use their own religious privacy and safety concerns to consider an individual’s sex when making a determination about how and whether or not to accommodate someone seeking shelter,” Kaplan said. “So what we’ve seen in the past is often transgender women being turned away from the women’s shelter and being told they have to stay at the men’s facility and many times their own safety is at rist.”
This is also the case in Michigan prisons, where female transgender inmates risk being sexually assaulted and otherwise attacked when they aren’t permitted to stay with inmates of their gender identity.
Lastly, Kaplan pointed at the current administration’s astoundingly speedy court appointments, showing that Trump has appointed more judges in four years than Obama was able to do in eight.
“He has appointed 50 circuit court of appeals judges and 133 district court judges that have been confirmed,” he said. “Basically the recommendations for these judgeships, are coming from the Federalist Society. It’s known as a conservative legal organization and their legal philosophy is if it’s not specifically mentioned in the constitution … it’s not there.”
And the judges being appointed are serving lifetime terms.
“If they’re in their 40s, they might be on that bench for 50 years, and it can really influence how we interpret our laws,” Kaplan said. “I know it doesn’t get a lot of attention, but it’s really important because I think a lot of times with LGBT civil rights we haven’t paid enough attention to the rulings of the courts. It’s not the whole enchilada, but it’s certainly an important factor to move our rights forward.”