What now?

Posted on 18 Nov 2016 at 6:30am

LGBT advocates ponder the possibilities for reversing rights under President Trump

trump-pence

President-elect Donald Trump and Vice President-elect Mike Pence could spell trouble for the gains that the LGBT community has made under the Obama administration these last eight years. (Evan Vucci/Associated Press)

 

Lisa Keen  |  Keen News Service
lisakeen@mac.com

President-elect Donald Trump said in a post-election interview that marriage equality is “settled” and “it’s law,” and expressed no interest in pursuing an agenda to reverse the U.S. Supreme Court’s 2015 decision that struck down state bans on marriage licenses for same-sex couples.

That was welcome news to some LGBT people, as were the rumors that Trump is considering naming an openly gay man to a cabinet-level position.

But neither Trump’s statements nor the Cabinet appointment rumors was enough to assuage the deep concern of most LGBT legal activists that the incoming administration is poised to inflict enormous damage to civil rights gains from the past eight years for LGBT people.

Trump’s comment on marriage equality came in an interview broadcast Sunday, Nov. 13, on CBS’s 60 Minutes with newswoman Leslie Stahl. This was Trump’s first interview since winning enough states on Nov. 8 against Democrat Hillary Clinton to lay claim to 290 electoral votes. (Clinton won the popular vote by an unprecendented 1.5 million-plus votes. But, under the Constitution, the candidate with 270 electoral votes wins.)

Stahl told Trump that LGBTQ people are “expressing fear” of his impending presidency. Trump interrupted to say he was surprised to hear that, noting that he “mentioned” LGBT people during his speech at the Republican National Convention.

“Everybody said that was so great,” he added. “I have been, you know, I’ve been a supporter.”

At the GOP convention in July, Trump vowed to do “everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful, foreign ideology.” He was referring to the massacre at the Orlando LGBT nightclub Pulse by an American citizen whose parents emigrated from Afghanistan.

But Trump sent other messages during his campaign that suggested his administration would not be a beneficial one for the LGBT community.

He said he would appoint a Supreme Court nominee in the mold of Antonin Scalia, who had the most anti-gay voting record of any justice in history. He said the treatment of transgender people in regards to public restrooms should be “left to the states.” He said he would sign the anti-LGBT First Amendment Defense Act, and he vowed to “cancel every unconstitutional executive action, memorandum and order” issued by President Obama.

Charles Moran, an openly gay businessman in Los Angeles who was a Trump delegate to the Republican National Convention, said Trump’s remarks about marriage equality being settled law are “consistent with his comments during the campaign.”

“We knew it would be a non-issue with him, and he won’t be distracted from his core mission of securing our borders, strengthening our economy and fixing Obamacare,” said Moran. “He is a modern Republican, and I’m happy to see he’s fulfilling on his commitment to put this devisive issue behind us. It’s good for the gays, good for the Republican Party, and good for America.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said, “There is no reason to believe that Trump intends to go after marriage equality, and it would be very difficult for him to do that.”

Minter continued, “I am much more concerned about his threat to undo protections for LGBT federal employees and students, deport large numbers of immigrants, privatize Medicare, turn Medicaid into block grants, and remove any checks on the misuse of police violence.”

Stahl did not press President-elect Trump on any LGBT matter other than marriage in her interview, but Minter and other LGBT legal activists are “expressing fear” about a truckload of issues, not just marriage equality.

“The Trump administration has the ability to affect an awful lot more than the fundamental right to marry,” said Camilla Taylor, an attorney and spokesperson for Lambda Legal.

She noted the Trump administration could wreak havoc over important gains for LGBT people under the Obama administration, including the Obama administration’s lawsuit against the LGBT-hostile North Carolina law HB2, the interpretation of Title IX to protect gender identity, and the administration’s willingness to stand up for LGBT equality in cases before the U.S. Supreme Court.

“This is a terrifying time to be an LGBT activist,” said Taylor.

And while Trump may say that marriage equality is a matter of settled law, Taylor said activists must anticipate the possibility that anti-LGBT forces will attempt to mount new challenges against marriage as they have against Roe v. Wade and a woman’s right to seek an abortion.

“It’s very unlikely we’ll see the Supreme Court’s Obergefell decision overruled,” said Taylor, in reference to the high court’s ruling in 2015 that state bans on marriage licenses for same-sex couples were unconstitutional.  “But,” she said, “there are a number of ways in which a hostile administration could try to chip away at those rights. We’re extremely concerned.”

Like Taylor, Gary Buseck of GLBTQ Legal Advocates & Defenders, doesn’t think the Supreme Court is poised to overturn marriage equality. But he, too, sees the prospects for anti-LGBT activists to employ Roe v. Wade-type strategies to undermine it.

“Even without a Trump presidency, we have those who oppose marriage equality and have been working and will continue to work to reverse our gains,” Buseck said. “I am sure they continue to look for vehicles to set the question up for Supreme Court review in the future.”

That increases worry around who Trump will appoint to the Supreme Court seat vacated in February when Scalia suddenly died. LGBT legal activists are concerned that a Scalia-like appointee, confirmed with relative ease by a Republican-dominated Senate, could be on the bench when many upcoming battles arrive.

The court has already accepted a case over Title IX protections for transgender students and it is likely to take up one of several cases over whether religious beliefs can be used as an excuse to deny services to LGBT people in restaurants, hotels and other public accommodations.

Executive orders
Even beyond the court, LGBT legal activists are concerned that Trump may reverse executive orders signed by President Obama that ensured protections for LGBT people in important areas, including federal employment, health care and basic recognition of their relationships in hospitals.

In 2014, President Obama signed an executive order (E.O. 13762) prohibiting contractors who do business with the federal government from discriminating based on sexual orientation and gender identity. The same order also added gender identity to existing an existing order (E.O. 13087, signed by President Clinton) that prohibited discrimination against federal employees based on sexual orientation.

President Obama signed a “memorandum” in 2010, directing the Department of Health and Human Services to ensure that all hospitals receiving Medicaid and Medicare enable LGBT patients to designate their partners and families for visitation privileges.

He also signed a “memorandum” in 2009 directing federal agencies to extend “as many benefits as possible under the law” to gay federal employees with same-sex partners.

And every June during his administration, President Obama has signed a “Pride Month” proclamation.

Anti-LGBT activists have been calling on Trump to reverse a Departments of Justice and Education memorandum interpreting Title IX as prohibiting discrimination based on gender identity. They also want him to reverse a determination by Health and Human Services that requires insurance providers to cover gender transition medical expenses.

Meanwhile, Bloomberg news reported Nov. 11 that openly gay PayPal founder Peter Thiel, another Trump delegate to the convention, is joining the Trump transition team.

And Associated Press reported Monday morning, Nov. 14, that Trump is considering appointing Richard Grenell as the U.S. ambassador to the United Nations. The position has been considered part of the president’s cabinet in most administrations (but not those of the two Presidents Bush) and is currently held by Samantha Power.

Grenell, who is a political commentator for Fox News and was a Trump delegate to the GOP convention in July, was an openly gay advisor to 2012 Republican presidential candidate Mitt Romney. Grenell resigned that position after only two weeks, reportedly after “a full-court press by anti-gay conservatives” to get rid of him.

© 2016 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition November 18, 2016.

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