By SUSAN SILBER & MIRIAM SIEVERS
Since President Obama took office in 2008, LGBT rights have expanded. Now that there will be a new administration, many attorneys around the country are receiving questions from their clients as to what changes may come, and what, if anything, they should be doing as a result.
Much is related to how the legal protections were enacted. Court findings based on constitutional doctrine provide the highest reliability. Statutes passed by Congress can be repealed or amended by Congress. Administrative practice or interpretation can be modified relatively easily by a new administration if little weight is placed on continuity. Executive Orders are also in this category and officials in the Trump administration have their sight on repealing certain Obama Executive Orders in the first days in office.
Perhaps the foremost question that is asked is whether couples that are married will have their marriages “undone,” or if couples planning on marrying should do so before Jan. 20. It is important to point out that it is extremely unlikely that the Supreme Court will undo marriage equality, and even less likely that those couples who are already married will have their marriages terminated. This is in large part due to the doctrine of stare decisis, which, simply put, means that courts do not re-litigate issues that have been decided. Although cases do occasionally get overturned, it is a rare occurrence, and one that has not historically happened within a few short years. This doctrine is the basis of courts upholding their own precedent, and why Americans can rely on judicial decisions. It is the consensus of LGBT lawyers that marriage after Obergefell is almost certainly safe, and couples that are not yet married should not presently be concerned about these rights being eliminated.
Couples that have already obtained second-parent or stepparent adoptions for their children should be confident their rights to their children are safe. It is still advisable that anyone who can obtain such adoptions or parentage orders in their current states should do so, because it continues to be the best way to secure equal parentage rights that are backed by court order, no matter where in the country or the world someone travels or moves.
There are, however, areas of expanded rights that may well be in jeopardy under a new administration because they are not established by court precedent but by executive order, legislative action or administrative guidance. Although much remains unknown, there are some actions that people can take to secure some of the protections that currently exist.
First, transgender members of the community are currently able to obtain passports with the correct gender marker, and without proving what, if any, surgeries they have had. They can also change their gender marker with the Social Security Administration, again without the burden of proving the particularities of their medical treatment. These policies could change under a new administration, making it harder for trans individuals to obtain identity documents that are consistent and accurately reflect who they are. It is wise to secure a passport and change gender markers in SSA before the new administration takes office; fundraising efforts through social media are underway to assist those who may not be able to afford the costs of obtaining or updating a passport. Whitman Walker and FreeState Justice provide local legal assistance for name and gender change matters to those who meet their financial eligibility criteria.
Many in our community are also immigrants, people of color, practitioners of many faiths including Islam and Judaism, and children, and it is important to remember that they will be impacted by changes in immigration policy, changes in employment protections, changes in education policy and changes in all aspects of our current health care laws.
Other civil rights protections, including non-discrimination in employment, education and public accommodations, have been expanded by the current administration’s interpretation of federal law to include gender identity and sexual orientation protections under the doctrine that prohibits sex discrimination. This trend could be undercut or reversed if the leadership of the Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission (EEOC) decide to pull back these interpretations.
There has also been a national movement to expand “religious freedom” legislation that would defend discriminatory actions on the basis of religious liberty. These laws, at the state and federal level, could not only protect bakeries refusing to provide a wedding cake, but also doctors who do not wish to treat LGBT people, and may reach any public accommodation or place of employment. This will be where much legislative effort by LGBT and allied organizations will likely be conducted, and individuals should be conscious of the scope of many potential changes.
A repeal or replacement of the Affordable Care Act could jeopardize access to healthcare for millions of Americans, and could undo the current ban on LGBT discrimination protected under Section 1557, including the provision of transition-related care to transgender people. So, too, could we see changes in the military, where the rights of transgender people to serve in the military are still being implemented. It is less likely that the rights of gay and lesbian service members to serve equally and openly will be disrupted, due to their now-established service. Nonetheless, LGBT organizations are watching for developments.
Finally, the Obama administration established non-discrimination policies by Executive Order for both federal employees and for federal contractors, both of which could be undone by subsequent Executive Order or legislation.
Although this is not a comprehensive list, it is clear that while marriage equality and state court-based adjudications for establishing parentage will not change based on a new presidency, other protections could change dramatically. Moreover, changes in the law generally follow changes on the ground. We all should be vigilant to all forms of change in the civil rights climate and not be bystanders to bigotry, bullying and marginalization.
Susan Silber and Miriam Sievers are attorneys at Silber, Perlman, Sigman & Tilev, P.A. in Takoma Park, Md.