Despite White House assurances that President Trump will keep in place Obama’s order against anti-LGBT workplace discrimination and that he “continues to be respectful and supportive of LGBTQ rights,” advocacy leaders insist those words aren’t good enough and still anticipate executive action that would harm LGBT people.
James Esseks, director of the LGBT project at the American Civil Liberties Union, was among those saying the pledge isn’t good enough, citing the anti-LGBT nominees Trump chose for his Cabinet and his other actions against minority groups.
“Actions speak louder than words,” Esseks said. “President Trump has surrounded himself with a vice president and cabinet members who have repeatedly sought to sanction discrimination against LGBT people in the name of religion, and nothing in the White House’s statement makes clear that these efforts are behind us. LGBT immigrants, refugees, Muslims, and women have already come under attack by this administration. If Donald Trump is serious about being an ally to the LGBT community, it starts with abandoning an agenda driven by fear and prejudice.”
Following a Washington Post report that the Trump administration was considering rolling back an executive order former President Obama signed in 2014 barring anti-LGBT workplace discrimination among federal contractors, the White House issued a statement saying Trump “continues to be respectful and supportive of LGBTQ rights” and the order “will remain intact at the direction of President Donald J. Trump.”
But Trump found no love from LGBT advocacy groups, who continue to raise fears about possible discriminatory efforts at a later time.
Rea Carey, executive director of the National LGBTQ Task Force Action Fund, said Trump has already demonstrated he’s no friend to LGBT people with his executive orders on immigration, which include a green light to build a wall on the U.S.-Mexico border, a prohibition on refugees and a ban on immigration from seven Muslim-majority countries considered high risk for terrorism.
“The truth is he has been playing deeply harmful games with LGBTQ people’s lives throughout his campaign and every single day of his days-old presidency,” Carey said. “The problem for him is we are everywhere — so when he signs executive orders designed to demonize and dehumanize anyone — Muslims, women, refugees, people of color, immigrants — he is attacking us all. President Trump does not get bonus points for discriminating a little. Discrimination is discrimination. Racism is racism. Islamophobia is Islamophobia.”
Mara Keisling, executive director of the National Center for Transgender Equality, said LGBT people aren’t out of the woods yet and for even considering a reversal of the executive order, as reported by the Washington Post, Trump deserves condemnation.
“The fact that proactively discriminating against transgender and other LGBT people was even being discussed in the White House is shameful, as is the fact that there are other options still on the table to target LGBT Americans,” Keisling said. “This limited retreat certainly does not make President Trump an ally to transgender Americans. He is certainly not an ally to transgender refugees, transgender Muslims, or transgender people who depend on the Affordable Care Act or Planned Parenthood.”
Kate Kendell, executive director of the National Center for Lesbian Rights, also said in a statement she remains concerned despite the White House pledge to protect the Obama-era executive order.
“Today’s statement says only that President Trump does not intend to take the extreme step of abolishing existing anti-discrimination protections for federal employees and contractors, some of which have been in place for nearly 20 years,” Kendell said. “That is not a step forward. We remain concerned by reports that the president intends to issue an order creating new religious exemptions that will permit discrimination against LGBT people and others.”
Kendell said the statement on preserving the executive order may be an attempt by the White House to distract LGBT people from Trump’s upcoming pick for the U.S. Supreme Court, which she called “the most important issue for our community.”
“The Senate must reject any nominee who will turn back the clock on our nation’s commitment to the equality and freedom of LGBT people, including the fundamental right to marry and to be treated equally to other married couples,” Kendell said.
Trump could keep his pledge to maintain Obama’s order and enable discrimination with a new “religious freedom” executive order providing a carve-out for religious-affiliated federal contractors. But the phrase in the White House statement saying the workplace executive order “will remain intact” suggests Trump would not only keep it in place, but also not take other action that would inhibit the directive.
In terms of evidence that further anti-LGBT executive actions might unfold, LGBT advocates cite unattributed rumors in Washington and point to media reports suggesting a “religious freedom” order against LGBT rights is under consideration. Bloomberg News reported over the weekend possible executive actions under Trump include allowing contractors to discriminate in hiring, allowing taxpayer-funded workers to refuse to serve LGBT people or enabling discrimination where contractors could refuse service to LGBTQ people.
On Monday, Washington Post columnist Josh Rogin issued a series of tweets saying a senior administration official has affirmed the existence of a draft executive order that could affect federal employee benefits and protections as well as adoption agencies that receive federal funding. The potential order, Rogin tweeted, could allow federal employees to refuse to serve LGBT people out of a belief marriage is one man, one woman and gender is immutable at birth.
Dale Carpenter, a conservative law professor at the SMU Dedman School of Law who’s written about LGBT rights, said everyone should “take a deep breath” and actually read the statement the White House produced.
“All sorts of terrible things are possible, but so far, at least on this one issue, this is the one bright spot in the Trump administration — as far as I can tell,” Carpenter said. “And obviously, we have to remain vigilant, but I really would not give in at this point to a whole lot of unsubstantiated rumors. My God! Did any of these people actually read what he said yesterday? It’s remarkable. If George W. [Bush] had said that, there would be a gay Pride parade in front of the White House.”
If Trump were to follow up on the statement with an executive order taking away spousal benefits from federal employees, Carpenter said, it would defy the U.S. Supreme Court’s rulings against the Defense of Marriage Act and in favor of same-sex marriage and be struck down in court.
“I think the idea the federal government would try to take away marital benefits from same-sex couples is pretty far-fetched and it would be clearly unconstitutional under the Windsor and also, I think, under the Obergefell decision, which applied to the states, but the principles apply equally to the federal government,” Carpenter said.
Carpenter said Trump could sign an executive order enabling contractors and adoption agencies to deny services to LGBT people, but that wouldn’t change the “existing obligation” at the federal level for these entities to serve LGBT people.
“If he signed an executive order, that would just put it in place a little more strongly, but it wouldn’t effectively change anything that’s going on right now,” Carpenter said.
Bigger issues, Carpenter said, are Trump’s Supreme Court pick and whether his Justice Department will retain the position that transgender discrimination amounts to sex discrimination under current law — both of which are important now that the court has taken up a case on whether schools must allow transgender people to use the restroom consistent with their gender identity.
Despite Trump’s pledge to keep the order, he may also compromise the measure if he makes good on his campaign pledge to sign into law the First Amendment Defense Act, which would enable anti-LGBT discrimination in the name of religious freedom. Even the compromise version of the legislation proposed by Sen. Mike Lee (R-Utah), which exempts for-profit contractors, would undermine the 2014 executive order because religious-affiliated non-profit federal contractors would be allowed to discriminate.
The Washington Blade has placed a request with the White House to clarify whether any “religious freedom” order that would undermine LGBT rights is on the way. Prior to the White House statement on Monday, White House Press Secretary Sean Spicer said he wouldn’t “get ahead” of Trump on executive orders when asked if he was considering a “religious freedom” order.
Joseph Murray II, the gay administrator for the Facebook page LGBTrump, criticized LGBT advocacy groups for raising the alarm about a future LGBT order, calling those efforts a “desperate” ploy for relevance.
“LGBT liberals are desperate because the stranglehold they have on the LGBT community is weakening,” Murray said. “A large number of LGBT Americans are waking up to realize that in a post-marriage equality world all LGBT liberals have to offer is their flapping gums. With his immigration order President Trump showed he is protecting the LGBT community and because of that LGBT liberals tried to scare the LGBT community with their fake news. Just like their efforts during the 2016 election, they fell short.”