In 2013, President Barack Obama became the first president to include gay rights in an inaugural speech. His vision, he said, was a country in which “our gay brothers and sisters are treated like anyone else under the law.” During his tenure, Obama championed marriage equality, regulated against LGBTQ-based employment discrimination, investigated and addressed incidences of bias in federal housing, erected significant protections for gay and transgender students, and in general attempted to remove a range of barriers to full equality.
Early in his campaign, President Donald Trump was described by some as “the most gay friendly Republican” to serve as president. In the past, he had supported marriage equality and had even publicly opposed North Carolina’s so-called “bathroom bill.” He also recently announced that the federal government will maintain an executive order signed by President Obama that prohibits discrimination against LGBTQ federal workers. But, his authority over LGBTQ rights extends far beyond executive orders and it remains to be seen whether lesbian, gay and transgender individuals are included in his idea of “a great America.”
President Trump now supports North Carolina’s law and has promised to sign legislation that permits individuals and organizations to refuse service to gays or lesbians. He has appointed an Attorney General, Jeff Sessions, who publicly supported this policy in his recent nomination hearings. And President Trump asked Robert Jeffress—a pastor whose recent book Countdown to the Apocalypse blames the country’s downfall on the “redefinition of marriage” and describes homosexuality as “perverse”—to deliver his inaugural sermon. Under Trump, the gay community faces a very uncertain future.
The most visible milestone in gay rights history—marriage equality—occurred on Obama’s watch, when the Supreme Court’s ruling in Obergefell v. Hodges upheld the fundamental right to marry for all individuals.
But years before this historic decision, Obama and his administration laid the groundwork by arguing for the demise of federal legislation defining “marriage” as between one man and one woman. In 2011, Attorney General Eric Holder — acting at Obama’s direction — issued a brief concluding that the federal Defense of Marriage Act (DOMA) failed to pass constitutional muster. This brief eventually served as the government’s position in DOMA litigation and influenced the Supreme Court’s thinking when it ultimately overturned DOMA in 2013, in U.S. v. Windsor. This ruling then cleared the path for litigation on state-level bans.
Obama also understood that marriage equality would mean very little without measures that safeguard gay and lesbian families and made these protections a priority.
For example, he instituted several regulatory reforms to fill the void in federal statutory and constitutional protections in the arenas of housing and employment. He barred discrimination based on sexual orientation and gender identity in all federal employment. Moreover, his Equal Employment Opportunity Commission (EEOC)—the federal agency responsible for monitoring and litigating employment discrimination claims—voted to include sexual orientation and gender identity discrimination in any provisions that more broadly precluded sex-based employment bias. This change meant that, rather than starting from scratch, litigators supporting LGBTQ workers alleging bias could now support their arguments with concrete and long-accepted federal precedent prohibiting sex-based employment discrimination.
President Obama also authorized the first nationwide study of sexual orientation discrimination in the rental housing market to demonstrate both the scope and degree of housing bias that LGBTQ individuals and families face. The study tested whether a prospective renter’s sexual orientation mattered to landlords. Researchers found that landlords were less likely to respond to inquiries from same-sex couples than to those from heterosexual couples. Obama urged more testing to uncover additional markers of housing bias and barred housing providers receiving federal funding from discriminating on the basis of sexual orientation or gender identity.
Obama also committed significant resources to fighting discrimination in public education. Through a series of memos co-authored by the Departments of Justice and Education advising educational institutions of their federal obligations, the Obama Administration asserted that discrimination, harassment and exclusion based on sexual orientation and gender identity would not be tolerated. Obama issued these “Dear Colleagues” letters (DCL) in response to a rise in anti-gay bullying and increased state and local conflicts regarding gay and transgender students. Of particular prominence were DCLs outlining a school’s obligation to accommodate requests from transgender students to use facilities that matched their identified rather than biological gender—including bathrooms, locker rooms and housing arrangements. Under Obama, gay and transgender students could lean heavily on federal support as they fought state, school board and community opposition.
Gay, lesbian and transgender individuals and families stand to lose significant ground under Trump.
The decision upholding the right to marriage for gay and lesbian couples is not in any immediate danger of being overturned, so long as the five justices who voted to overturn state bans on same-sex marriage remain on the Court. Any justice that the Senate confirms to replace Antonin Scalia will not change the 5-4 split in favor of marriage equality. If one of the five justices in the majority vacates his or her seat during Trump’s presidency, there would be room to reverse the decision, but the Court would need to be presented with a new case involving a new set of facts (for example a new state law barring marriage equality, a state regulation limiting access to marriage licenses). These avenues, although by no means impossible to traverse, are more difficult.
Where opponents could make significant gains, however, is in limiting access to marriage services or benefits. For example, if Trump’s Congress successfully repeals the Affordable Care Act, which prohibits LGBTQ discrimination, insurance companies could discriminate against individuals on the basis of their sexual orientation—placing gay or lesbian spouses at risk of losing coverage.
Trump has also stated that, if brought to his desk, he will sign the First Amendment Defense Act (FADA)—federal legislation that would bar all federal officials from punishing an individual or entity that acts on their “religious or moral belief” that marriage “is or should be recognized as the union of one man and one woman.” A federal district court overturned a similar law passed in Mississippi. It is now on appeal. If the law is upheld (and if Congress delivers similar legislation), vital records clerks, bakeries, hotels, restaurants—or any service provider—may have legal coverage to refuse to work with gay or lesbian couples—despite the ruling in Obergefell.
Despite his promises to uphold the federal workplace executive orders, Trump has significant power to alter opportunities in housing and employment. Trump’s HUD could remove resources examining LGBTQ-based housing discrimination, and void Obama-era alterations to the EEOC’s interpretation of federal employment protections. This change in EEOC interpretation would significantly limit the potential for courts to address workplace bias against gay or transgender workers who work outside of the federal government.
If the EEOC changes course, some federal judges may decide to continue following existing precedent that protects gay and transgender workers. However, this precedent is far from stable. For example, a three-judge panel of the Seventh Circuit Court of Appeals denied a lesbian professor’s claim of discrimination when her community college decided not to renew her contract. The court found that federal laws do not cover sexual orientation discrimination. On appeal, gay rights advocates received a full panel 7th Circuit hearing and are awaiting the decision.
Trump will also likely dismantle the Justice Department’s guidelines regarding the treatment of gay and transgender students. Currently, eight states bar any mention of gay and transgender issues in public schools and the question of transgender accommodations has become particularly contentious at the state and local level. While students on college campuses across the country have protested the treatment of transgender students—demanding that they have equal access to bathrooms, locker rooms and housing—conservative states have responded by imposing explicit limitations on the capacity of schools to assist transgender students.
North Carolina’s infamous HB2 legislation requires individuals to use public bathrooms that correspond with their biological sex. Three other states—Arkansas, Tennessee and Mississippi—have laws prohibiting all local officials from passing non-discrimination measures that include gender identity. Similar “bathroom bills” are now pending in eleven states. While Obama’s directives provided LGBTQ students with federal heft when combatting these school-based deprivations, vulnerable students could now have far less ammunition.
A final threat to the hard-won protections afforded under the Obama Administration is the growing number of Religious Freedom and Restoration Acts (RFRAs) being enacted across the country. Both the federal government and 21 states (including several that protect LGBTQ workers) have enacted RFRAs, which exempt organizations with “closely held religious beliefs” from implementing laws or policies that may violate these beliefs. Court cases regarding their application to gay rights are relatively new. However, a recent Sixth Circuit decision supported a funeral home’s RFRA right to fire a trans-female employee because she chose to adhere to the home’s female, rather than male, dress code. This decision opens the doors for increased litigation.
For gay, lesbian and transgender Americans, the dawn of the Trump administration brings with it enormous uncertainty, if not the potential for a major step backward in the march toward equality.
Under Obama, gay, lesbian and transgender Americans were emboldened by hope and by a broad rhetoric of inclusion–across religion, race, gender, and sexuality–that was matched with a demonstrated commitment to equality in the policies he passed. Under Trump, hope has turned to fear—by a rhetoric that broadly constrains equality and invites intolerance towards many of the country’s most disenfranchised communities. Trump’s promise to uphold Obama’s federal workplace policy should not be ignored, but neither should it be viewed as a sufficient measure for maintaining the extensive progress made over the past four years or for safeguarding against the very real threats to the lives of LGBTQ Americans.