Commentary

What to expect from the Trump administration on LGBTQ rights

What to expect from the Trump administration on LGBTQ rights
Donald Trump might not have campaigned on homophobia and transphobia, but his nomination and statements on policy have shown that the Trump Administration will be opposed to LGBT rights.

When trying to figure out what will happen in the next four years on LGBT issues, Trump’s statements are of little importance. LGBT rights have been mostly advanced through the courts and federal agencies, and Congress is needed to enact big-ticket items like anti-discrimination legislation. Republicans now control all of these levers of power, and Trump will govern like a standard Republican on these issues.

So here is what to expect in the next few years on LGBT issues.

Congress

The House and Senate are controlled by the GOP, but the Senate only has 52 Republicans. Unless Republicans are willing to get rid of the filibuster – the tool that they used so much when Barack Obama was president – they will not be able to pass legislation to restrict LGBT rights without unanimity from Republican senators and the help of eight Democratic senators.

So don’t expect much movement either way in Congress. Don’t Ask Don’t Tell won’t come back; it was repealed seven years ago with support from eight Republican senators. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act will not be repealed because it, too, passed with support from Republican Senators.

What is at risk are the LGBT protections in the Violence Against Women Act. The law was passed in 2013 after months of opposition from Republicans to many of the provisions in the bill, including part that bans discrimination against LGBT people in services provided by the Department of Justice. Republicans could repeal that part of the law, and it’s unlikely Trump would veto such a bill.

Don’t expect LGBT anti-discrimination legislation to advance. There is no federal statute prohibiting discrimination in employment, housing, or public accommodations. The 2016 GOP platform opposes anti-discrimination legislation, and Republicans have made no attempts to pass such a law even though they have controlled the House since 2011 and the Senate since 2015, while GOP lawmakers have continued to speak out against LGBT rights.

Executive orders

Barack Obama issued an executive order in 2010 requiring hospitals that receive federal funds to allow certain rights to same-sex couples, including visitation and medical decision-making rights. Bill Clinton issued two executive orders that banned discrimination on the basis of sexual orientation in federal employment (the military excepted) and Obama issued an executive order banning such discrimination on the basis of gender identity.

Donald Trump has repeatedly said that he would overturn Obama’s executive orders when in office, but did not speak specifically about executive orders related to LGBT rights. While anti-discrimination executive orders survived the Bush Administration, Trump campaigned on overturning health care advances made during the Obama Administration.

Trump’s contradictory statements means that it’s hard to know exactly what he will do here, but he will be under pressure from the GOP to restrict LGBT rights.

Federal Agencies

The Department of Housing and Urban Development (HUD) banned discrimination against LGBT people in federally-assisted housing programs, including home loans backed by the government. Trump’s pick for HUD Secretary – Ben Carson – would not commit in confirmation hearings to maintaining that protection and has a history of anti-gay comments. It will take time, though, for this rule to be changed, and Carson did not seem aware of the rule banning LGBT discrimination. It could possibly survive the Trump Administration.

In 2011, the Equal Employment Opportunity Commission (EEOC) ruled that “sex-stereotyping” of LGB people was banned by the Civil Rights Act of 1964, and in 2012 the EEOC ruled that discrimination against transgender people was banned as sex discrimination. Trump will be able to appoint a new Chair and General Counsel to the EEOC, so expect these rulings to be overturned. The Republican Congress and Trump have also made numerous promises to reduce the budgets of federal agencies, so even if the rules aren’t overturned the EEOC will be less able to enforce them.

The Matthew Shepard Act allowed the Justice Department to intervene in cases where local and state-level authorities might not be taking a hate crime seriously. Attorney General-nominee Jeff Sessions was opposed to the Act as a senator specifically because he thought the federal government should not intervene in local cases. Don’t expect much hate crimes prosecution at the federal level.

The Obama Administration also issued a declaration against discrimination against transgender students, signed by the Departments of Justice and Education. Trump’s Education Secretary nominee, Betsy DeVos, has given millions of dollars to Focus on the Family, a rightwing group opposed to LGBT rights. The declaration received criticism from Republicans. It will be overturned.

Courts

Trump’s nominees have almost uniformly opposed LGBT rights, and his possible picks for the bench are no exception. He has been speaking with William Pryor to fill the currently empty Supreme Court seat. Pryor wrote a brief supporting sodomy laws in 2003 where he said the Constitution does not protect LGBT people and compared homosexuality to “polygamy, incest, pedophilia, prostitution, and adultery.” Timothy Tymkovich, another possibility, was denounced by Senator Patrick Leahy in 2003 for a law review article he wrote that the senator said was “replete with heavy antihomosexual rhetoric.” Nominees discussed by the Trump transition team have been described as “reliably conservative” in media reports.

LGBT rights over the last two decades have largely advanced through the courts. Sodomy laws were ended in a 2003 Supreme Court decision, but it is unlikely that the Supreme Court will have the votes to overturn that ruling.

Same-sex marriage was legalized by the Supreme Court and the federal recognition of same-sex marriages also happened because of a court ruling. If a liberal judge leaves the Court, there will be a majority for overturning same-sex marriage.

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