As voters ponder the likely choice of Donald Trump or Hillary Clinton for president, LGBT rights advocates are sounding the alarm over just how much Trump could roll back the progress seen during the past eight years.
With divided government throughout much of the Obama administration, many advancements on LGBT rights came thanks to executive action. Because they don’t have the force of law, a new president could undo those with the stroke of a pen.
Chief among those actions is Obama’s 2014 executive order prohibiting federal contractors from engaging in anti-LGBT workplace discrimination. Obama signed the executive order after the Republican-controlled U.S. House failed to pass the Employment Non-Discrimination Act (and after many LGBT groups dropped support for the bill over a religious exemption more expansive than one under current civil rights law).
TJ Helmstetter, a spokesperson for the Democratic National Committee, said Trump is “reckless, incoherent and dangerous” on a range of issues a poses a “serious threat” to advances in LGBT rights if elected president.
“The LGBT community would be set back decades,” Helmstetter said. “Trump would rescind President Obama’s pro-equality executive orders and he would appoint pro-discrimination Supreme Court justices. He would sign laws that allow businesses to kick out gay customers and ban transgender people from using the bathroom. The stakes could not be higher for our community and for all Americans.”
The Center for American Progress has compiled a list of eight executive actions benefiting LGBT rights enacted under the Obama administration that Trump could undo. Among them is a rule prohibiting anti-LGBT discrimination in health care and insurance, a Department of Housing & Urban Development regulation prohibiting anti-LGBT bias in government-sponsored housing and endorsement of federal LGBT non-discrimination legislation known as the Equality Act.
Laura Durso, senior director of the Center for American Progress’ LGBT research and communications project, said the initiatives show the breadth of leadership on LGBT rights under Obama.
“These actions are in stark contrast to the outright hostility we have seen in a conservative-controlled Congress and, unfortunately, we have no reason to believe that a President Trump would advocate for LGBT issues in opposition to these members,” Durso said. “It is instructive that his list of potential Supreme Court nominees includes demonstrably anti-LGBT jurists.”
It’s hard to say to what extent — if at all — Trump would seek to roll back the advancements under his administration. After all, Trump hasn’t been as vitriolic in attacks on LGBT people as he has been with other minorities, including Latinos, women, the disabled and black activists. Still, Trump has said he’d consider appointing justices to the U.S. Supreme Court who would reverse the ruling in favor of nationwide marriage equality and would sign the First Amendment Defense Act, a religious freedom bill seen to enable anti-LGBT discrimination, if Congress delivered it to his desk.
Trump has sworn to undo Obama’s executive actions that he deems unconstitutional — as soon as in one hour or even two minutes – after taking the oath of office on Inauguration Day. At a campaign town hall rally in December, Trump lamented, “the system is supposed to work” with Congress passing bills that are signed into law by the president, not executive orders.
“And then, all of a sudden, I started hearing: ‘Oh, well, he tried. He can’t do it.'” Trump said. “And boom. And another one, boom. And you have these executive actions. I don’t even think he tries anymore. I think he just signs executive actions.”
The candidate was speaking in reference to Obama’s immigration actions and it’s unclear he would include initiatives benefiting LGBT people among the orders he would undo. The Trump campaign didn’t respond to the Washington Blade’s request for comment for this article on whether pro-LGBT initiatives would be among the actions he would undo.
But Trump already has vowed to rescind one LGBT action in particular. In an interview last month with the Washington Post, he said he would rescind the joint guidance from the Departments of Justice and Education prohibiting schools from discriminating against transgender students and guaranteeing them access to the restroom consistent with their gender identity. At the same time, Trump insisted “you have to protect everybody” and said transgender people are a small part of the population.
One legislative change is also on the table for Trump to change: “Don’t Ask, Don’t Tell” repeal. When Congress repealed the gay military ban in 2010, lawmakers left nothing in its place directing the U.S. military not to discriminate against or eject troops based on sexual orientation. Trump could institute a change that would administratively restore “Don’t Ask, Don’t Tell.”
Matthew Thorn, executive director of the LGBT military group OutServe-SLDN, nonetheless said he doesn’t think Trump would be able to reverse openly gay military service.
“I think the service chiefs would strongly object to any administrative action from Trump on a reinstatement of a DADT,” Thorn said. “We are approaching five years since the repeal this September. I would find it highly unlikely that the Pentagon would reverse and reimplement a ban and conversations our organization has had are in line with that.”
The real danger, Thorn said, is Trump rolling back administrative changes, such as those benefiting LGBT veterans or status of forces agreements allowing service members to bring a same-sex spouse with them or overseas, or halting movement on lifting the ban on openly transgender service.
“If a Trump presidency could exist he would be met with strong objection and hearty voices from our organization and I strongly believe amongst individuals inside the Pentagon and Veterans Affairs department on any changes or reversal of advancements made for the LGBT military community,” Thorn said.
Trump has made one commitment to advance LGBT rights, but it was made 16 years ago and in this election cycle he hasn’t said whether he would follow through with it. In a 2000 interview with The Advocate, Trump said he’d support amending the Civil Rights Act of 1964 to include sexual orientation, which is similar to the Equality Act pending before Congress (although he’s made no mention if he supports transgender inclusion, which the legislation also encompasses).
For months, the Trump campaign hasn’t responded to the Washington Blade’s request for comment on whether the candidate still supports adding sexual orientation to federal civil rights law, or if his position has since changed.
Charles Moran, a gay Republican activist seeking to represent Trump as a California delegate to the Republican National Convention, doubted Trump would seek to roll back LGBT rights because he “has not waded into the messy world of social politics” over the course of his campaign.
“I don’t think he’s going to be keen to jump in and start reversing President Obama’s executive orders,” Moran said. “While President Obama expanded the use of executive orders for LGBT protections, there were a number he simply continued from President Bush’s days. So hypothetically could a President Trump reverse some of President Obama’s executive orders concerning LGBT protections or rights? Of course. Is this likely to happen given his public policy positions and private business decisions leading up to this point? Absolutely not.”
Moran didn’t respond to a follow-up email to identify an LGBT protection that Obama continued from former President George W. Bush, who has a reputation for being anti-gay. When Obama signed his 2014 executive order against anti-LGBT workplace discrimination, he left in place a Bush-era religious exemption permitting religious organizations that are federal contractors to favor co-religionists in hiring practices.
Pointing to contributions Trump made to HIV/AIDS organizations, as reported by The New York Times, and the candidate’s support for gay rights in 2000, Moran said Trump is “the most LGBT-friendly candidate the Republican Party ran in 2015/2016.”
“While he does not have an electoral or legislative record to point to, he does have a business and philanthropic track record to read, and those indications look good for the LGBT community,” Moran said.
At the end of the day, a commitment from Trump on LGBT rights may not mean much. As Slate’s Jordan Weissman wrote earlier this month, Trump tends not to have policy positions, but “policy moods” that change as easily as the direction of the wind.
Take, for example, Trump’s position on North Carolina’s recently enacted House Bill 2. Trump initially expressed opposition to the anti-LGBT law, which bars cities from enacting pro-LGBT non-discrimination ordinances and prohibits transgender people from using the public restroom in school and government buildings consistent with their gender identity. But on the same day in a later interview, Trump backtracked on those views, saying “local communities and states should make the decision” on whether transgender people should be able to use restrooms consistent with their gender identity.
A number of safeguards are in place that would prevent Trump from making too many changes against LGBT rights, as least rapidly. The Administrative Procedure Act — a law enacted by Congress in 1946 governing the way in which administrative agencies may propose and establish rules — prohibits a quick change in regulation if a hostile administration takes over. Instituting new final regulations repealing these policies would be a multi-year process and require a justification for overturning them other than for political reasons.
Other changes are firmly in place as a result of law or changes by the courts. Although Trump has said he’d seek to appoint justices who’d overturn marriage equality, that effort would be a long shot and he unilaterally couldn’t change the right for same-sex couples to marry because the U.S. Supreme Court determined that’s a right afforded under the U.S. Constitution.
Trump may rescind the Obama administration order prohibiting schools from discriminating against transgender students, but that’s based on case law developed over two decades determining anti-trans bias amounts to gender discrimination under federal law. Courts and the U.S. Equal Employment Opportunity Commission have now begun to make the same determination for sexual-orientation discrimination.
But despite the independence of the judiciary, it wouldn’t be immune to a Trump presidency seeking to reverse advances on LGBT rights.
Jon Davidson, legal director of Lambda Legal, declined to comment on any particular presidential candidate, but said the election is happening “in a critical period” of legal understanding of anti-LGBT discrimination and the next person who occupies the White House could influence that.
“Having federal judges who will rule fairly on these issues is essential,” Davidson said. “Whoever is president will influence the future composition of the EEOC, the Department of Justice’s leadership, and the makeup of the federal judiciary. In particular, given the Senate’s refusal to consider the nomination of Judge Garland to the Supreme Court, a future president may well choose who will fill the late Justice Scalia’s seat. While we can hope that, regardless of who is elected, those the future president appoints will continue to recognize that sexual-orientation discrimination is a form of sex discrimination barred by current federal statutes, that remains to be seen.”
Obama’s LGBT executive actions Trump could undo
∙ Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
∙ Final rule in May 2016 that protected LGBT people from discrimination in healthcare and insurance under the Affordable Care Act.
∙ Prison Rape Elimination Act implementation regulations in May 2012 to directly protect LGBT people.
∙ Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity Rule in February 2012, protecting LGBT people in all HUD-funded programs.
∙ Comprehensive guidance in May 2016 on their interpretation of Title IX, clarifying that public schools receiving federal funding must treat transgender students in accordance with their gender identity.
∙ Guidance in July 2013 that all immigration visa petitions filed on behalf of a same-sex spouse would be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.
∙ The Global Equality Fund, launched in 2011, which supports programs that advance the human rights LGBT persons around the world.
∙ Public endorsement of the Equality Act in November 2015, supporting comprehensive federal nondiscrimination protections for LGBT people.
Source: Center for American Progress