The firing of U.S. Attorney General Jeff Sessions — who used the Justice Department to undermine LGBT rights — has led to the interim appointment of another official with an anti-LGBT record that makes a change in direction for the department unlikely.
On Wednesday, one day after the 2018 congressional mid-term elections, Sessions announced in a letter to President Trump he made public that he’d resign as attorney general, making clear that action was “at your request.”
“I have been honored to serve as attorney general and have worked to implement the law enforcement agenda based on the rule of law that formed a central part of your campaign for the presidency,” Sessions wrote.
For some time, Trump has publicly expressed frustration with Sessions, who recused himself from the Russia probe after he failed to disclose in his Senate confirmation hearing meetings he had with Russian official in his former capacity as a U.S. senator.
Sessions served as attorney general for just shy of two years, but built a substantial anti-LGBT record that includes excluding LGBT people from enforcement of civil rights laws against sex discrimination and “religious freedom” guidance that enables anti-LGBT discrimination.
Just two days after Sessions came into the job as attorney general, the Justice Department withdrew its appeal of a court order barring enforcement of Obama-era guidance requiring schools to allow transgender kids to use the restroom consistent with their gender identity. Weeks afterward, Sessions along with Education Secretary Betsy DeVos revoked the guidance altogether.
Under Sessions, the Justice Department similarly withdrew a lawsuit against North Carolina’s House Bill 2 when it was replaced with a compromise law signed by North Carolina Gov. Roy Cooper and let stand a court order against protections for transgender patients under Obamacare.
Also under Sessions, the Justice Department sent U.S. Solicitor General Noel Francisco to argue before the U.S. Supreme Court on behalf of Jack Phillips, a Colorado baker and owner of Masterpiece Cakeshop who refused to make a custom wedding cake for a same-sex couple over religious objections.
All in all, the policies that unfolded at the Justice Department under Sessions stand in direct contrast to his assertion during his confirmation hearing that he has heard “the demands for justice and fairness made by our LGBT community” and would “ensure that the statutes protecting their civil rights and their safety are fully enforced.”
It should be noted as attorney general Sessions pledged to “aggressively and appropriately” enforce the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act — a measure he voted against as a U.S. senator — to investigate and prosecutor the murders of transgender people. Last year, Sessions sent federal prosecutors to Iowa to assist in the case of the murder Kedarie Johnson, a trans woman of color.
Sessions’ anti-LGBT record was consistent with a larger record on civil rights criticized by advocacy groups that includes reversal of voting rights protections and police reform.
Despite objections to those policies, Sessions’ resignation sparked concerns among those who felt it would jeopardize the independence of the Mueller investigation or lead to its termination altogether.
Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement Sessions wasn’t a friend to transgender people, but also expressed concern about the resignation.
“Jeff Sessions was a terrible attorney general who lawlessly refused to enforce federal civil rights laws, attacking almost all marginalized people,” Keisling said. “However, his dismissal by President Trump to exert unjust control over the Department of Justice over his own likely wrongdoing should make every American worry about the president’s increased lawlessness.”
But Trump’s interim replacement for Sessions, former Department of Justice Chief of Staff Matthew Whitaker, has an anti-LGBT record suggesting nothing will change while he is at the helm of the department.
As a Republican U.S. Senate candidate in Iowa, Whitaker told the conservative blog Caffeinated Thoughts in 2014 he thinks it’s “primarily a state issue,” but he opposes marriage rights for gay couples.
“I believe marriage is between one man and one woman,” Whitaker said. “Throughout history it’s traditionally been up to the churches and to God to define that. I don’t have an omnibus solution. Certainly it’s affecting all sorts of parts of our country. Here in the state of Iowa we can’t even get our elected officials to do anything about it and that’s really frustrating.”
Whitaker added same-sex marriage is “affecting our military,” where he said chaplains are “under a lot of pressure to go against their religious beliefs.”
“But what can I do as one freshman senator in the U.S. Senate?” Whitaker said. “Give me the bills and I’ll vote for them, but [President Obama] has done significant damage all over the country. There will be an unbelievable, long-term negative impact he’s leaving.”
According to the Des Moines Register, Whitaker told a conservative audience at a forum hosted by the anti-LGBT group Family Leader he’d only support judges who adhere to a biblical view of the world.
“If they have a secular world view, then I’m going to be very concerned about how they judge,” Whitaker is quoted as saying.
As noted by the New Civil Rights Movement, when an Iowa newspaper terminated its editor in 2014 over an anti-gay post on a personal blog referring to the LGBT movement as the “LGBTQXYZ crowd” and the “Gaystapo,” Whitaker came to the former employee’s defense, asserting he had been unlawfully fired for “religious beliefs similar to millions of Americans.”
“An employer violates Title VII when it fires an actual employee by taking his religious beliefs about the most sacred element of his beliefs into account in an employment decision, when it treats the employee worse than even the disgruntled former employee with a long, acknowledged history of complaints and incidents, and when it announces it has done so to the world,” Whitaker wrote.
As a federal prosecutor, Whitaker also investigated and charged gay Iowa State Sen. Matt McCoy (D-Iowa) with the crime of extortion. A jury took less than two hours to acquit McCoy after a nine-day trial. As an opinion column in Des Moines Register reposted this week demonstrates, speculation persists about whether Whitaker pursued the charges against McCoy because he’s gay and advocates for LGBT rights.
Jon Davidson, chief counsel for Freedom for All Americans, said he’s “disturbed” by the choice of Whitaker to lead the Justice Department.
“Whitaker’s record certainly doesn’t reflect the overwhelming support for LGBTQ nondiscrimination that we’re seeing across the country, such as the 2-to-1 victory for preserving transgender rights in Massachusetts and the election of 9 openly LGBT individuals to Congress and an openly gay man to be governor of Colorado,” Davidson said. “We need an attorney general — even an interim one — who supports treating all Americans fairly and equally.”
The Department of Justice didn’t respond to the Washington Blade’s request to comment on concern from LGBT rights groups about concerns over Whitaker and whether he’d uphold LGBT rights at the Justice Department.
With Sessions out of the picture, Mueller will now report to Whitaker as opposed to Deputy Attorney General Rod Rosenstein, giving Trump’s new head of the Justice Department — who never won Senate confirmation — significant oversight over the investigation into potential criminal activity from Trump in the 2016 presidential campaign.
Expressing concerns over Whitaker because of his authority in Mueller’s oversight and anti-LGBT views was David Stacy, director of governmental affairs for the Human Rights Campaign.
“The appointment of Matthew Whitaker as acting attorney general signals that the anti-LGBTQ policies of Donald Trump, Mike Pence and Jeff Sessions will continue unchecked and unabated,” Stacy said. “Whitaker has made clear he is a committed ally to extreme right-wing activists who oppose marriage equality, would block military service of qualified LGBTQ people, and would define sex in an attempt to erase all legal protections for LGBTQ Americans. With his history as a hardcore political operative and his views on the Mueller investigation and executive power, installing him as acting attorney general threatens the rule of law and moves our country one step closer to a constitutional crisis.”
It remains to be seen whom Trump will nominate as attorney general and when he’ll make that announcement. Names in circulation include former New Jersey Gov. Chris Christie — who was seen at the White House on Thursday — as well as Sen. Lindsey Graham (R-S.C.) and Florida Attorney General Pam Bondi.
Masen Davis, CEO of Freedom for All Americans, urged Trump in a statement to appoint an attorney general who’d reverse the anti-LGBT policies of his administration and support LGBT rights.
“We urge the president to appoint an attorney general who recognizes the overwhelming support for LGBTQ rights across the nation, and that supports the law and court precedents as they stand,” Davis said. “A supermajority of Americans support giving LGBTQ people full and equal protections under the law, and it’s time the Trump administration recognize that.”