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Sanders And Clinton Light On Details For Challenging Anti-LGBT State Laws

They both vow to take action as president — but how, exactly?

Posted on April 11, 2016, at 4:59 p.m. ET

AP / Mic Smith

On Friday, Bernie Sanders vowed to challenge two recently approved state laws that target LGBT people for discrimination.

"As president of the United States, I would do everything I can do to overturn those outrageous decisions by Mississippi and North Carolina," Sanders told ABC's "The View,” without elaborating on how, exactly, he might do that.

BuzzFeed News asked what specific actions he may take to nullify the laws, but his campaign did not reply.

Asked the same question, Hillary Clinton’s campaign gave a slightly less vague answer.

“Whether through legal action in the courts, pursuing federal legislation, or using the bully pulpit to address actions in the states, Hillary Clinton will vigorously challenge anti-LGBT laws,” spokesperson Xochitl Hinojosa said in an email.

“She has repeatedly spoken out against these discriminatory anti-LGBT laws and affirmed her commitment to fight for full equality for LGBT people,” Hinojosa added.

The menu for a presidential response is limited — but it does exist.

However, the type of legal action Clinton may pursue — and if she would use executive authority, too — remains unknown. Sanders’s pledge is even lighter on details.

Both candidates have jockeyed for the LGBT vote, a significant source of fundraising support and substantial bloc in large states with upcoming Democratic primaries, such as New York and California.

Sanders has stressed he was ahead of the curve supporting marriage equality, pointing to his vote against the Defense of Marriage Act in 1996. Clinton, meanwhile, has advocated for same-sex couples right to marry and touted her record as secretary of state, and her campaign issued a policy paper detailing her White House vision for federal LGBT rights.

Yet, the question for many LGBT voters won’t be which year the candidates first supported marriage equality — the Supreme Court resolved the legal matter last June. Many LGBT voters are wondering how a president might react to the headline-grabbing, multistate backlash to the marriage ruling happening now.

This year, legislatures have introduced an unprecedented number of bills to protect people of faith opposed to same-sex couples who get married, to limit access to marriage-related services, and to ban transgender people from restrooms that match their gender.

Dan Rafter, a spokesman for Freedom for All Americans, a nonpartisan LGBT advocacy group, told BuzzFeed News on Monday, “I think it’s a good thing candidates are talking about this, but people deserve to know what the exact path is to repeal these laws.”

The menu for a presidential response is limited — but it does exist.

Among the options: The federal government could support litigation filed by private parties, file its own lawsuits that allege states are violating civil rights laws, begin probes into state practices, and withhold federal funding.

"People deserve to know what the exact path is to repeal these laws.”

The Obama administration has cleared the way for using existing civil rights laws to argue transgender discrimination is illegal, even though Congress has not passed a law explicitly banning discrimination on the basis of gender identity. Likewise, the federal agency that enforces civil rights laws in the workplace has asserted discrimination on the basis of sexual orientation is also prohibited.

In courts, for example, the Department of Justice has filed statements of interest and an amicus brief to support a transgender boy’s right under Title IX to use school restrooms that match his gender identity. The Equal Employment Opportunity Commission, an independent agency that includes Obama appointees, has filed briefs to oppose discrimination in the workplace under Title VII on the basis of gender identity and sexual orientation. The Justice Department sued a state university for discriminating against a transgender professor.

Obama has also suggested he can close the purse.

The Education Department said in a statement to BuzzFeed News that it is “reviewing North Carolina’s new law to determine any potential impact on the state’s federal education funding.” The state is slated for $4.5 billion in federal education funds next year.

Chase Strangio, a staff attorney for the ACLU and one of the lawyers in a suit challenging the North Carolina law, told BuzzFeed News that LGBT people are "eager to see leadership that offers more than just platitudes, since the reality is that transgender people are literally dying because of discrimination and violence. Action and accountability require more than just the use of the bully pulpit."

"The community needs to see follow through and tangible steps taken by the federal government," he continued. "And that is what I would be looking for from the candidates."

The North Carolina law repealed local LGBT protections and banned transgender people from restrooms that match their gender in government buildings — thereby clashing with the administration's interpretation of Title IX, which bans sex discrimination in public schools. The Mississippi law protects people and businesses that discriminate against LGBT people on religious grounds.

The current administration — or the next one — could pursue and build on the same strategies in order challenge state laws.

“I think LGBT Americans and the country as a whole deserve to know where political candidates and elected officials stand on this and what their specific path for effecting change would be,” said Rafter, who added that the Obama administration should be “expeditious” in deciding to withhold money from North Carolina.

“Withholding federal funds shows that it is not just rhetoric, but there is the potential for real repercussions,” he said.

Clinton, for her part, has said she shares Obama’s interpretation of federal civil rights laws — that they protect transgender people — and has gone further by saying they also protect gays, lesbians, and bisexuals. But she has not said if, or how, that would shape litigation to challenge state laws.

And it is unclear what Sanders may do.

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