These Are The LGBT Rights Trump Could Start Reversing On Day One
Donald Trump’s campaign vowed to scrub Obama’s executive actions, and his transition is led by anti-LGBT figures. This is what’s on the table for LGBT people.
LGBT people have been freaking out about Donald Trump. Many are hurrying to plan weddings before Inauguration Day, afraid the president-elect will overturn marriage equality immediately.
Trump can’t actually do that in January (or by himself, ever). He did say he would appoint Supreme Court justices who would overturn marriage rights, but there’s no guarantee a legal challenge would reach the high court or that justices would reverse a previous ruling. In any case, that scenario is far off, and mostly out of Trump’s hands.
So what could Trump actually do to LGBT people, starting day one?
Trump, without help from another branch of government, could erase or start to reverse several of Obama’s orders, guidance, and regulations that protect LGBT people at work, at school, in health care, and inside their homes. In courtrooms, a Trump Justice Department could reverse the government’s legal positions. While the government now argues LGBT discrimination is illegal in certain settings under civil rights laws, federal lawyers could argue that current law actually allows discrimination.
The Trump campaign has expressed a desire to scorch Obama’s legacy — particularly his executive fiats.
This is particularly notable given that the Trump campaign has expressed a desire to scorch Obama’s legacy — particularly his executive fiats.
Just last month, Trump announced he would “cancel every unconstitutional executive action, memorandum, and order issued by President Obama.”
A particularly cutthroat scenario was laid out by Stephen Moore, an official Trump campaign adviser and senior fellow at the Heritage Foundation, in a September interview in the New Yorker. He envisioned a project for Trump’s first day in the Oval Office, saying, “Trump spends several hours signing papers — and erases the Obama Presidency.”
Erasing the Obama presidency, when it comes to LGBT rights, could begin with scotching executive orders that protect federal employees and contractors. Then it could go further, with Trump starting a rule-making process to reverse regulations that protect LGBT patients, renters, and homeless people. Not only erasing Obama’s guidance to protect students and workers, Trump could replace those policies with new directives that say transgender workers and students are explicitly not protected. He could reverse LGBT rights in the military — reinstating bans on transgender or gay service members.
While Trump gestured toward LGBT inclusivity in a few comments, his campaign never announced any pro-LGBT policy platform. Moreover, key personnel for his transition are longstanding champions for anti-LGBT politics. Vice President-elect Mike Pence, who is leading the transition, already suggested he and Trump plan to withdraw guidance that protects transgender students. Pence supports conversion therapy for LGBT youth, religious recusals, and blocking nondiscrimination measures.
Meanwhile, Ken Blackwell, who is leading the transition on domestic policy, is a longtime anti-LGBT politician since his time in Ohio government. Blackwell is currently a senior fellow of the Family Research Council, which the Southern Poverty Law Center designated as an anti-LGBT hate group. He is joined by Ben Carson, a vice-chair for Trump’s transition, who has opposed LGBT nondiscrimination protections as an “assault on American rights” and once compared same-sex marriage to bestiality.
These are some of the actions Trump — and his team — could take as president without the checks of balances of courts or Congress.
1. Trump could repeal executive orders that protect LGBT federal workers and contractors.
Obama signed an executive order in July 2014 that protects two types of LGBT workers: those employed by the federal government and those who work for federal contractors.
The first portion expanded on an order by President Bill Clinton that banned discrimination against civilian federal workers for being gay, lesbian, or bisexual; Obama’s 2014 order added transgender workers. The second portion expanded on an order by President Lyndon Johnson that banned federal contractors from discriminating on several bases; Obama’s order added protections based on sexual orientation or gender identity.
The rules affect countless people: The Office of Personnel Management reports the government employs about 2.6 million federal workers; the Congressional Budget Office says it’s unclear just how many contractors the government employs.
Trump could rescind both orders — Obama’s and Clinton’s — on day one, acknowledged ACLU legislative representative Ian Thompson, who told BuzzFeed News, “Just because you can in some areas doesn’t mean that you should.”
“The Trump administration should be very wary of doing things that are overtly anti-LGBT, because they will be met with a vociferous backlash, including from the business community and many Republicans.”
A Trump spokesperson did not immediately respond to a request to comment from BuzzFeed News about whether Trump would reverse Obama’s orders, rescind guidance, change rules in the military rules, or reverse LGBT regulations.
2. Trump could withdraw guidance that protects transgender students.
The Obama administration sent guidance to education providers that get federal money — including public schools and universities, plus institutions that receive grants — that said transgender students should be accommodated like other students with the same gender identity. This includes a letter from 2014 that covers how they handle allegations of sexual violence. In May, the administration sent guidance on providing transgender students equal access to restrooms, locker rooms, student housing, and athletics.
As a real-world example, it says schools must let transgender girls use the girls’ restroom or risk losing funding.
This guidance is currently suspended pending a challenge by Texas and several other states, but the Justice Department plans to appeal that part of ruling so it can keep enforcing the guidance in much of the country.
Under Trump, the government could halt that appeal and drop the guidance altogether. Vice President-elect Pence has already said he and Trump plan to scotch it.
“Donald Trump and I simply believe that all of these issues are best resolved at the state level,” he said in an October radio show with Focus on the Family’s James Dobson. “Washington has no business intruding on the operation of our local schools.
3. Instead, Trump could issue school guidance that says the opposite.
To back up a bit, the the current thinking behind the rules for transgender students goes like this: Title IX of the Education Amendments of 1972 bans discrimination on the basis of sex. The Justice Department, Education Department, and some courts have found that law also covers gender identity — meaning students cannot be discriminated against because they are transgender.
The 4th Circuit Court of Appeals recently found the government has the right to make that interpretation of the law.
A new Trump administration, however, could make the opposite interpretation. Trump and his new attorney general could instruct agencies to issue new guidance that says Title IX does not apply to gender identity. They could argue it applies solely to birth sex.
In real-world terms: New guidance could say transgender boys should use the girls’ room.
4. Trump could reinstate a ban on transgender military service (and a ban on gay people in the military).
Obama signed a bill into law in 2011 repealing a ban on gay service members, and in June 2015, Defense Secretary Ash Carter followed up with a directive banning discrimination on the basis of sexual orientation in the military. In June, Carter allowed transgender service members to serve openly.
But under Trump, the military could do a U-turn.
“They could put in an outright ban on LGBT service in the military,” said Sue Fulton, a former Army captain and president of SPARTA, a leading organization of LGBT military service members.
Fulton said that such an act would be surprising because it would cause “such a disruption to the force to kick out people who are doing well in their current jobs.”
Gordon Trowbridge, a spokesperson for the Department of Defense, told BuzzFeed News the implementation of transgender service rules “is going smoothly,” adding that separate branches are “in the process of publishing guidelines for changing a service member's gender marker.” A policy for accessions — joining the military — won’t be published until next year, he added. “Overall, this is moving forward with no significant impediments.”
But he declined to say whether the next administration could impede those plans. “We’re not going to talk about what happens after Jan. 20,” he said. “What happens after Jan. 20 is better put to the incoming administration.”
As noted, the Trump transition did not respond to a request for comment on this or other possible moves relating to LGBT rights.
5. Trump could withdraw guidance protecting transgender workers and stop supporting them in court.
The same way the Obama administration argues that existing civil rights laws protect transgender students, it makes the case that Title VII of the Civil Rights Act of 1964 protects transgender workers — including in private employment.
The Obama administration issued a guide in June 2015 saying employers should let their transgender employees use facilities that match their gender.
This syncs with the government’s legal position since 2014, when the Justice Department announced that it believed “sex discrimination” included transgender discrimination — and that it would take that argument to court.
The next administration could quickly drop this guidance and legal stance, while the president could also root out its underpinnings. Over the past four years, the Equal Employment Opportunity Commission — which enforces federal civil rights laws in the workplace — made pioneering decisions that sex discrimination laws cover all LGBT discrimination. By appointing new members to this agency when the members’ terms expire, the Trump administration could assemble new agency leadership that unravels this legal interpretation at its foundation.
6. Trump could start repealing health care regulations.
Trump has been clear he wants the Affordable Care Act — aka Obamacare, which created rule 1557 — to be “amended, or repealed and replaced.” The rule bans LGBT discrimination by a health care provider, insurer, or agency involved in the program. Among other features, the rule says the providers must provide transition-related care to transgender people.
It required a rule-making process to create that regulation; reversing it would, too. The Trump administration could start this immediately and complete it without approval from Congress.
7. Trump could also reverse a rule protecting LGBT people in federal housing.
The Department of Housing and Urban Development, which provides housing and runs programs to support it, issued a regulation in 2012 that bans LGBT discrimination in its programs. The agency followed up with another regulation in 2016 that applies those LGBT protections in HUD-backed shelters. The Trump administration could similarly reverse these regulations through the rule-making process.
8. Trump could expand religious exemptions for entities receiving federal money.
In December 2002, George W. Bush issued an executive order providing that federal agencies could not withhold funds from social service organizations simply because they are religious. However, Sen. Edward Kennedy said the rule was about more than making sure the charities got money — telling the New York Times at the time, ''Under the new rule, organizations can accept public funds and then refuse to employ persons because they are Jewish, Catholic, unmarried, gay or lesbian.”
LGBT advocates worry that if Trump indeed starts signing a pile of paperwork on day one, one document could be an executive order expanding on Bush’s order. Such an order could allow the federal government to fund entities — from schools and health care providers to companies with federal contracts — that deny services or jobs to LGBT people because they have a religious objection. When Pence was the governor of Indiana, he was a leading champion of a religious freedom law that many critics said was designed to allow these same sorts of recusals.
9. Trump could undo other regulations, guidance, and plans.
The Obama administration has taken at least a dozen other regulatory and directive actions for LGBT people: dialing back a ban on gay men donating blood, appointing an LGBT liaison at the White House, making it easier for transgender people to change sex markers on their passports, collecting data on anti-LGBT hate crimes, sending a letter to schools encouraging them to allow allowing gay–straight alliances, and more.
The Human Rights Campaign, the country’s largest LGBT group, worries about how Trump could leverage executive power on LGBT people and other groups.
“We are deeply concerned about these executive orders and statements he’s made about deporting millions of people,” said Jay Brown, a spokesperson for the group. “This administration gives us great reason to band together and fight as a unified coalition with our progressive allies.”
The process of accession refers to joining the military. A previous version of this post said it referred to increasing rank.