Regardless of whether you voted Trump or Clinton, the election is over and its results unlikely to be reversed either by a recount or faithless electors in the Electoral College vote on 19 December. Now moving forward, what can we expect from the Trump administration? LGBT issues might not be an overt part of President-elect Trump’s 100 day plan (excepting Trump’s plan to “cancel every unconstitutional executive action, memorandum and order issued by President Obama”, which could include Executive Order 13672, which Obama signed in July 2014 and prohibits discrimination in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity), but they are likely to factor into the administration’s policies in myriad other ways. But to start with, one certainty: gay marriage will remain.
In truth, gay marriage was never really at risk; it would have taken another Supreme Court ruling to overturn Obergefell v. Hodges, an event that is unlikely to occur for two reasons: first, to overturn it would be like overturning Loving v. Virginia, the case that decriminalized interracial marriages in 1967 (amazingly, local judges in Alabama continued to enforce the state’s anti-miscegenation statutes until the Nixon administration sued in 1970, and Alabama only removed anti-miscegenation language from its constitution in 2000 by a 60% vote). The Supreme Court has yet to overturn a major shift in civil rights legislation, although Roe v. Wade might some day disprove that statistic. Second, it would be numerically impossible to overturn gay marriage even if it was relitigated until at least one more liberal justice has retired or passed away. It is nevertheless heartening to know that at least at the presidential level (although not necessarily at the cabinet level) gay marriage is viewed as “already settled” and “done,” per Trump’s interview with “60 Minutes” on November 13th.
Apart from gay marriage, however, the Trump administration’s policies are likely to be significantly more inhospitable to the nation’s LGBT population than the Obama administration, if the cabinet appointees named so far are any indication. These include:
Jeff Sessions as Attorney General
Sessions, who may face a difficult confirmation hearing due to racist remarks brought to light during a failed federal judgeship confirmation in 1986, has been rated by the Human Rights Campaign (HRC) as one of the most conservative and anti-LGBT members of Congress and has held a zero rating on the HRC’s Congressional Scorecard in the last two Congressional sessions. A Senator for twenty years, he voted in support of a constitutional ban on same-sex marriage in 2006 and against the Employment Non-Discrimination Act of 2013 (ENDA), a bill that would have protected LGBT people nationally from workplace discrimination. He also opposed the repeal of the military’s “Don’t Ask, Don’t Tell” policy and voted twice against including sexual orientation and gender identity in hate crime legislation.
A year after the U.S. Supreme Court struck down part of the Defense of Marriage Act, Sessions co-sponsored the State Marriage Defense Act of 2014, which sought to prohibit (1) the term “marriage” from including any relationship that a state, territory, or possession does not recognize as a marriage; and (2) the term “spouse” from including an individual who is a party to a relationship that is not recognized as a marriage by that state, territory, or possession. The bill would have allowed the state definition of marriage to supersede the federal definition—meaning gay marriage would not have to be recognized by states that didn’t want to, even if it was federally recognized. Sessions is currently co-sponsoring the First Amendment Defense Act, which reads as its first line: “Prohibits the federal government from taking discriminatory action against a person on the basis that such person believes or acts in accordance with a religious belief or moral conviction that: (1) marriage is or should be recognized as the union of one man and one woman, or (2) sexual relations are properly reserved to such a marriage.” (Ironically, the act condones discrimination to “avoid” discrimination.)
Session’s immediate impact on LGBT issues as Attorney General would include taking over the Justice Department’s lawsuit against North Carolina’s House Bill 2 (HB2), which bars transgender people from using public bathrooms that match their gender identity.
Betsy DeVos as Secretary of Education
DeVos has, at best, a mixed record on LGBT issues. In 2004, she and her husband donated $200,000 in a successful bid to add an anti-gay marriage amendment to the Michigan ballot. He husband also contributed $100,000 in 2008 to pass Amendment 2 in Florida, which banned same-sex marriage there. DeVos and her husband have given hundreds of thousands of dollars to Focus on the Family, as well. Anti-LGBT sentiments predominate in DeVos’ immediate family: her father, Edgar Prince, was a co-founder of the anti-LGBT Family Research Council, and her mother, Elsa Prince Broekhuizen, contributed $75,000 to pass the anti-gay marriage amendment in Michigan as well as the movement to pass Proposition 8, which revoked marriage equality in California. Broekhuizen has also served on the boards of the Family Research Council and Focus on the Family.
DeVos’ in-laws are equally anti-LGBT: in 2009, the Douglas and Maria DeVos Foundation, funded by DeVos’ brother-in-law Doug, donated $500,000 to the National Organization for Marriage as it fought marriage equality in several states. The Huffington Post called Doug DeVos the “NBA’s Homophobe Owner” after tracing almost $2 million in donations from the DeVos family to organizations opposed to gay marriage and same-sex marriage ban campaigns between 2004 and 2009.
The Richard and Helen DeVos Foundation, headed by DeVos’ father-in-law Richard, reported a $540,000 donation in 2006 to Focus on the Family, and Richard DeVos gave $100,000 to Florida4Marriage, which succeeded in adding a constitutional amendment banning same-sex marriage in the state to the ballot.
Then again, this year the DeVos family, who own the Orland Magic, donated $400,000 to the OneOrlando effort to help the victims of the Orlando Pulse shooting. In addition, as a former chair of the Michigan Republican Party, Betsy DeVos in 2014 condemned fellow Michigan Republican Dave Agema for his anti-Muslim and anti-gay comments and encouraged him to “do the right thing” by resigning his position on the Republican National Committee. When Agema didn’t respond, DeVos called Republican National Committee Chair Reince Priebus, now Trump’s Chief of Staff, asking him to either find a way to drop Agema or marginalize him to make it clear the party does not support his views.
As Secretary of Education, DeVos could have a huge impact on LGBT teenagers. For example, DeVos could reverse the Obama administration’s use of Title IX of the Education Amendment of 1972 to protect transgender students. That broad reading of the provision directed schools to allow transgender students to use the restroom and locker room consistent with their gender identity, a tactic Trump promised during his presidential campaign to stop. The Education Department’s Office of Civil Rights could also be discouraged from investigating and resolving discrimination complaints from LGBT students and stop the former administration’s call to schools to protect LGBT students from bullying and allow LGBT student groups on campus.
Tom Price as Secretary of Health and Human Services
Price, a Representative from Georgia for the last 12 years, has earned a score of zero for each term he has been in Congress on the HRC scorecard except during the 110th and 111th Congresses, when he earned scores of ten for voting against a motion to recommit that would have killed hate crimes protection legislation. In 2007, he voted against ENDA and co-sponsored a constitutional amendment that: defined marriage as legal union of a man and a woman, prohibited any federal or state court from determining whether the U.S. Constitution or any state constitution requires “marriage” to be conferred on any other relationship but one man and one woman, and allowing states not to recognize gay marriages or gay civil unions performed in other states.
Price is currently co-sponsoring, with Sessions, the First Amendment Defense Act. He called the U.S. Supreme Court’s ruling for gay marriage in Obergefell v. Hodges “a sad day for marriage” and in 2013 called homosexuality “activity that has been seen as outside the norm.” In response to the Obama administration’s guidelines allowing transgender students to use the bathrooms that correspond with their gender identity, he posted on Facebook: “It is absurd that we need a ‘federal restroom policy’ for our nation’s schools…a clear invasion of privacy. Schools should not have to fear retaliation for failure to comply.”
Price is a fierce opponent of the Affordable Care Act (ACA), aka Obamacare; he has introduced legislation to repeal and replace Obamacare multiple times. Obamacare protects LGBT people in healthcare settings, and transgender advocates in particular have expressed concern that the Trump administration will use a narrow interpretation of ACA Section 1557, which prohibits discrimination on the basis of gender in health care. The Obama administration has interpreted that language to also apply to transgender people, including for transition-related care and gender reassignment surgery, as well as gender non-conforming people, but Price could issue guidelines that the section only applies to biological gender.
As Health and Human Services Secretary, Price would run the government’s largest social programs, including Medicare and Medicaid, and have authority over the Food and Drug Administration, the Centers for Disease Control and Prevention (CDC), the National Institutes of Health and other major health agencies. The CDC funds HIV efforts through grants to state health departments and is a leader in research on HIV and other sexually transmitted diseases that impact LGBT people. On the positive side, while a Georgia State Senator in the early 2000s, Price worked with Georgia Equality to secure increases in state funding and support for Georgia’s AIDS Drug Assistance Program, suggesting he is may continue to allocate AIDS funding in his new position.
Nikki Haley as Ambassador to the United Nations
Like DeVos, South Carolina Governor Haley has a somewhat mixed record on LGBT rights. In 2014 she vowed to defend South Carolina’s ban on same-sex marriage in the face of a lawsuit by two women married in Washington, D.C., agreeing that marriage should be between a man and a woman, and in 2012 famously only agreed to endorse Republican Presidential candidate Mitt Romney after confirming that he, too, opposed same-sex marriage. However, in recent years she has moderated her approach, dismissing calls for anti-trans bathroom laws in South Carolina and calling on the Republican Party to “respect modern families.”
Although Haley will not impact domestic policy, she could stop advocating for pro-LGBT policies in the UN. Under the Obama administration, the US pushed foreign partners to adopt pro-LGBT legislation. For example, in December 2011, President Obama issued a presidential memorandum directing federal agencies operating overseas to promote and protect the human rights of LGBT persons by: combatting the criminalization of LGBT status by foreign nations, protecting LGBT refugees, offering foreign assistance to protect human rights and non-discrimination, and engaging international organizations to fight discrimination. Although it will fall mostly to the US State Department to drive (or not) most of these policies, the US also has traditionally pushed a pro-LGBT agenda at the UN.
Dr. Ben Carson as possible Secretary of Housing and Urban Development (HUD)
Although neurosurgeon Dr. Carson has been offered the HUD portfolio, he has yet to accept, making any discussion of his potential policies speculative. Nevertheless, Dr. Carson’s highly conservative views towards LGBT issues is in line with the other Trump cabinet members. In 2014, Dr. Carson told attendees of a National Organization for Marriage gala that same-sex marriage was a neo-Marxist plot to create a New World Order by toppling America through destroying the institution of “family” (he also later attributed Rome’s fall to the destruction of the nuclear, heterosexual family unit). In his 2015 book “A More Perfect Union,” Dr. Carson wrote, “[M]ost people are heterosexual, and changing the definition of marriage to suit those outside that definition is unnecessarily complicated.” Dr. Carson has also repeatedly been forced to apologize for public comments such as equating gay people to pedophiles and claiming that homosexuality in prisons “prove” being gay is a choice.
Changes to HUD’s LGBT stance could allow more discrimination against LGBT individuals in housing. HUD is among the most important federal agencies tasked with ensuring compliance with the Fair Housing Act. Although the Fair Housing Act does not specifically list sexual orientation and gender identity as protected classes, nevertheless discrimination against an LGBT person may be covered if HUD pursues enforcement of the act based on non-conformity with gender stereotypes. HUD’s Equal Access Rule, which Carson could try to repeal, requires that housing providers that receive HUD funding or have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, provide equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity, or marital status. Similarly, HUD-funded homeless shelters presently cannot turn away individuals on the basis of sexual orientation and gender identity. Since 2013, HUD and the True Colors Fund have partnered to end homelessness among LGBT youth in Houston and Cincinnati, an initiative it is hard to imagine Dr. Carson continuing.
Many readers, particularly those who are excited about the new ideas and energy the Trump administration will bring, may argue that it’s too early to judge the new administration, and there is some merit to that claim. However, it is also realistic to assume that the incoming cabinet members are likely to pursue similar policies to those that they’ve pursued for the last decade. Over the past eight years the Obama administration abolished “Don’t Ask, Don’t Tell” in the military, lifted the ban on HIV-positive individuals entering the US, condemned conversion therapy, directed schools to stop bullying on the basis of sexual orientation and gender identity, appointed the first openly transgendered person into the administration, engaged with foreign states to encourage more pro-LGBT policies, and, of course, helped enable the legalization of same-sex marriage. These types of initiatives not only almost certainly wouldn’t have happened under a Trump administration, but it is now worth questioning how many will now be rolled back. So is it too early to panic about how LGBT rights will fare under the new administration? Perhaps. But perhaps not, in which case it’s up to our community to document any attempted retrenchment in LGBT rights and fight to keep what we have.