Commentary

What to expect from the Trump administration on LGBTQ 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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