Although President Trump campaigned in 2016 on being a friend to LGBT people, his first year in office was marked by an erosion of LGBT rights after significant gains in recent years.
The infuriation within the LGBT community over Trump’s hostility to LGBT rights spanned the entirety of 2017 and stood in stark contrast to progress during the Obama years. The attacks helped fuel the “resist” movement against him, making the “Year of Trump” the Washington Blade’s No. 1 story for 2017.
A ban on transgender people in the military, withdrawal of Title IX guidance assuring transgender students access to the bathroom consistent with their gender identity, arguments in litigation LGBT people aren’t protected under existing civil rights law and intervention on behalf of an anti-gay baker before the U.S. Supreme Court are a few high-profile ways the administration undermined LGBT rights in Trump’s first year at the White House.
Rea Carey, executive director of the National LGBTQ Task Force said the first year of the Trump administration has been “horrendous, horrific and hellish when it comes to this administration’s actions toward LGBTQ people and our families.”
“He has turned back the clock on decades of progress, or is attempting to turn back the clock on decades of progress that we have made not only in our community, but also for people in this country who are women, who are black, who are immigrants, who are Muslim, who are poor — and he has been a disaster for democracy,” Carey said.
The first major rollback from the Trump administration on LGBT rights was the revocation in February of Obama-era guidance that assured transgender kids have access to school restrooms consistent with their gender identity. Bucking the views of numerous courts, the Trump administration asserted the prohibition of sex discrimination under Title IX of the Education Amendments of 1972 doesn’t apply to transgender discrimination.
As a result of the decision, the U.S. Supreme Court nixed consideration of transgender student Gavin Grimm’s lawsuit against his Virginia high school, which barred him from the boys’ room. Grimm graduated without relief, although his lawsuit remains pending in lower federal courts.
The Education Department issued a new memo asserting discrimination and harassment against transgender students in school may amount to sex discrimination under federal law, but the issue of bathrooms isn’t necessarily covered Title IX.
A few months later in July, Trump announced via Twitter transgender people won’t be able to serve in the U.S. military “in any capacity.” That tweet and subsequent guidance to the U.S. military reversed the Obama-era change scrapping medical regulations against their service and enabling them to serve in the armed forces.
As a result of four separate lawsuits and court orders against the ban, the Pentagon was barred from enforcing Trump’s policy, which meant the administration was blocked from kicking out troops for being transgender or denying payment for gender reassignment surgery. The U.S. armed forces were also required to admit qualified transgender enlistees starting Jan. 1 consistent with a target date set by Defense Secretary James Mattis in a June 30 letter prior to Trump’s tweet.
The Trump administration went after the other components of the LGBT community after the U.S. Seventh Circuit Court of Appeals ruled Title VII of the Civil Rights Act of 1964, which bars sex discrimination in the workplace, also prohibits employment discrimination on the basis of sexual orientation.
When the issue came before the U.S. Second Circuit Court of Appeals, the Justice Department voluntarily filed a friend-of-the-court brief and sent a high-ranking attorney to argue existing civil rights law doesn’t protect gay people from discrimination. That move put the Justice Department at odds with another U.S. agency, the U.S. Equal Employment Opportunity Commission, which has determined Title VII protects gay people.
Transgender people came next. U.S. Attorney General Jeff Sessions in October issued a memo declaring anti-trans discrimination also doesn’t amount to sex discrimination under existing law, reversing a memo from U.S. Attorney General Eric Holder asserting transgender people are covered.
That wasn’t the only the time Sessions issued a memo endangering LGBT rights. In the aftermath of Trump’s “religious freedom” executive order, Sessions issued a memo asserting broad protections from individuals and businesses under the Religious Freedom Restoration Act. Without limiting principle in the document against discrimination, a Social Security worker could refuse to process applications for same-sex spousal benefits, or an employer could refuse to grant family and medical leave to LGBT families.
The Justice Department also took the side of “religious freedom” over LGBT rights at the U.S. Supreme Court when justices considered the Masterpiece Cakeshop case. A Colorado baker seeking a First Amendment right to refuse to make wedding cakes for same-sex couples brought the case.
The Trump administration sent to argue on behalf of the baker U.S. Solicitor General Noel Francisco, who indicated during oral augments a shopkeeper should be able to put up a sign saying no wedding cakes for same-sex couples — a belief the White House said Trump shares.
The Supreme Court would likely not have even taken up the Masterpiece Cakeshop case if U.S. Associate Justice Neil Gorsuch wasn’t confirmed to the bench. Appointed by Trump in January, Gorsuch was opposed by major LGBT rights groups. Since his confirmation, the Supreme Court took up the Masterpiece Cakeshop case and he has issued dissents arguing the fight for marriage equality isn’t over after the 2015 Obergefell decision.
Trump also ignored the LGBT community in more symbolic ways, such as neglecting to issue a proclamation recognizing June as Pride month. The Trump administration has been found to have eliminated questions in federal surveys allowing respondents to identify as LGBT and reportedly barred the Centers for Disease Control from the using the word “transgender” among other science-related words from budget documents.
Additionally, the administration’s budget request would have restricted funding for civil rights enforcement and cuts HIV/AIDS programs and research by billions of dollars.
Carey said these items — especially the “religious freedom” guidance, which she said is “extraordinarily damaging, and will have long-term impacts for the country” — are among the big-ticket items, but “there are dozens and dozens of things that have happened that aren’t in the news.”
“I’ve been working in Washington, D.C., since 1989, and I have worked with Democratic and Republican administrations, I worked through Bush 1 and Bush 2,” Carey said. “And this is nothing like those administrations. We always have policy differences, but I think the kind of haphazard and harmful nature of so-called governing by this administration is certainly something that our community hasn’t seen.”
The actions against LGBT people, Carey said, are consistent with the Trump administration’s efforts targeting other communities, such as the travel ban on Muslim countries, the elimination of deferred deportation for DREAMers and the elimination of the contraception requirement in health care.
Defenders of Trump on LGBT issues will point to a statement issued earlier in the year in which the White House said Trump is “respectful and supportive of LGBTQ rights” and would keep in place a 2014 executive order signed by President Obama barring federal contractors from engaging in anti-LGBT workplace discrimination.
Trump also made at least openly four LGBT appointments, although they’re few and far between compared to the hundreds former President Obama appointed to the administration at all levels of government and the judiciary.
The highest-profile openly gay Trump appointee is Richard Grenell, a Fox News commentator and foreign policy expert who was nominated as U.S. ambassador to Germany. Democrats are blocking his confirmation over comments he made about the appearance of women on Twitter.
Other openly gay appointments are James Abbott, who was confirmed to the Federal Labor Relations Authority; David Glawe, under secretary for intelligence and analysis at the Department of Homeland Security; and Claudia Slacik, who was nominated, but not yet confirmed, to the board of the U.S. Export-Import Bank. Trump also re-nominated lesbian Democrat Chai Feldblum to the U.S. Equal Employment Opportunity Commission, which by law requires appointments of both parties.
Gregory Angelo, president of Log Cabin Republicans, noted his organization withheld its endorsement from Trump as a candidate in 2016, but also pledged to call “a ball a ball, and a strike a strike” if he became president.
“This administration has done things that are worthy of praise like maintaining the LGBT non-discrimination executive order, like acknowledging the human rights abuses of gay men in particular in the refugee executive order that was put out earlier this year and the appointment of openly gay individuals, several of whom are members of Log Cabin, to prominent posts in his administration,” Angelo said.
But Angelo said his organization opposed the Trump administration’s elimination of transgender student guidance and the transgender military ban.
Treatment of LGBT issues is arguably different in certain U.S. agencies, most notably the State Department. Secretary of State Rex Tillerson retained the position of U.S. special envoy for international LGBT rights, and although Randy Berry left the role, the State Department is expected to fill it. Tillerson also has issued statements recognizing June as Pride month and the Transgender Day of Remembrance.
Although President Trump and the White House have said nothing about reports of anti-gay persecution and concentration camps in the Russian republic of Chechnya, U.S. ambassador to the United Nations Nikki Haley said she was “disturbed” by the reports and Tillerson privately raised the issue in a letter to the Russian Foreign Minister Sergey Lavrov.
The U.S. mission to the United Nations also joined with France and Brazil to block efforts from Egypt and Russia to remove from an Olympics resolution a reference to Principle 6 of the Olympics Charter, which bars discrimination on the basis of sexual orientation.
Jessica Stern, executive director of OutRight Action, cited these examples as indications LGBT rights “are increasingly integrated into U.S. foreign policy in spite of the president.”
“We have succeeded by working with allies within this government, allies from other governments, using long-standing policies, and motivating unlikely suspects to recognize that LGBTI people globally deserve our respect,” Stern said. “All of this happens because our movement is strong, loud and insistent.”
However, Stern said the Trump administration’s approach to foreign policy as a whole has by far not been without failures or inconsistent with his domestic LGBT policy.
“Trump’s foreign policy has been about isolationism, militarism, Muslim-bashing, border construction, the control of women’s bodies, and an overall rejection of human rights,” Stern said. “In that sense, his foreign and domestic policies have been remarkably aligned.”
What’s next? The administration will likely continue to fight transgender military service in the courts even if accession begins on Jan. 1 as well as LGBT protections under existing civil rights law. Depending on the outcome of the Masterpiece Cakeshop case at the Supreme Court, the administration will likely embrace a decision in favor of the anti-gay baker, or reject a ruling in favor of the same-sex couple who unsuccessfully sought a wedding cake from him.
Carey said she expects the Trump administration to “still take actions that will be harmful to our community” — such as U.S. agencies implementing the religious freedom guidance against LGBT people — but any such actions against LGBT people will “absolutely” be met with opposition from the community.
“I think it will only increase,” Carey said. “As I talk with leaders in other movements and other communities, there is a hunger to continue to stand together to engage the many people who perhaps before this year have not been as politically active and are ready to stand together whether it’s in the streets, or in the halls of Congress or in their school boards in their towns to stand together to make sure that the most vulnerable people in this country are not going to be attacked again and again and again.”
The White House didn’t respond to the Washington Blade’s request for comment on whether the Trump administration believes it has upheld a commitment to be “respectful and supportive of LGBTQ rights” in its first year.