These Are the New Battlegrounds for LGBT Rights Under Trump

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As Inauguration Day nears, and as our new, orange-tinted reality sets in, it behooves all Americans who believe in fairness and equality to take stock of what we’re up against — because that’s how we’ll be able to resist it.

On the campaign trail, Trump hurled insults at groups which, combined, represent a vast majority of Americans. He insulted women, Muslims, Mexicans and Latinos, African-Americans, people of color, members of the press, people with disabilities, and career politicians whom he denounced as “crooked.”

That means it’s not at all hyperbolic to issue a warning call to each of those groups who will, in all likelihood, have their freedom targeted by the incoming administration.

But even though the President-elect was relatively quiet on LGBT issues during the campaign trail (aside from a couple mangled acronyms he managed to spit out and a lukewarm response to marriage equality), his cabinet appointments make clear that we cannot afford to “wait and see” just how Trump’s team dismantles LGBT rights. Instead, we must use the resources at hand to anticipate the onslaught we are about to step into — giving us the best chance of emerging with dignity, sanity, and faith in this American experiment.

Prepare to Oppose the First Amendment (Defense Act)

First and foremost, the so-called First Amendment Defense Act (FADA) is all but certain to become law. Although the precise language has yet to be seen in this year’s Congress, the text of the bill introduced in the 114th Congress sought to prohibit the federal government from taking “any discriminatory action” against a person (defined to include for-profit and nonprofit corporations) who “acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” The bill offered no similar protections for other views about marriage or sexual relations.

FADA is arguably the clearest and most present danger for LGBT Americans, particularly because it exemplifies the ways in which the bedrock principle of “religious freedom” has been weaponized to block the advance of LGBT equality. When FADA was first introduced by Idaho Rep. Raul Labrador introduced in July 2015, it garnered 172 co-sponsors in the House. All of them were Republicans. The bill stalled in the Democrat-controlled Senate, and Labrador even attempted to amend the bill to make it less blatant in its privileging of Judeo-Christian morality. (That prompted the anti-LGBT Liberty Counsel to drop its support of the bill, presumably because it was no longer antigay enough.)

But in December, two high-ranking, right-wing senators signaled their intent to revive FADA in 2017. A spokesman for Sen. Mike Lee, a key sponsor of the companion legislation in the Senate, told BuzzFeed News that Lee expects to reintroduce the bill under President Trump, specifically pointing to the incoming administration’s expected sympathy to anti-LGBT “religious freedom” arguments. Texas Sen. Ted Cruz, another co-sponsor and former presidential opponent of Trump, likewise told BuzzFeed that “any effort to protect religious liberty has brighter prospects with a new Congress and new administration.”

So, barring some truly unexpected outbreak of empathy in the newly empowered Republican Party, it’s safe to assume the sweeping legislation will become law early on in Trump’s presidency. The president-elect has signaled his support for the bill, promising Catholics in a September statement that he will sign the bill into law. Once FADA becomes law (and perhaps before), it’s reasonable to assume similar “turn away the gays” bills will be introduced in state legislatures, likely under the guise of “religious freedom.”

Take Care of Our Health Care

Like most of Trump’s cabinet nominees and advisers, the potential Secretary of Health and Human Services, Rep. Tom Price, has a long history of opposing LGBT-inclusive policies. Price, specifically, is a staunch opponent of the Affordable Care Act, and is expected to be a key figure in the yet-to-be-announced plan to “repeal and replace” Obamacare. And Price is no friend to the gays. According to LGBT media watchdog GLAAD’s “Trump Accountability Project,” the Georgia Republican scored a zero (out of 100) on the Human Rights Campaign’s Congressional Equality Scorecard, voted against repealing “Don’t Ask, Don’t Tell,” and in favor of amending the Constitution to ban marriage equality. More relevant to this discussion and Price’s potential tenure as the nation’s chief healthcare official, though, is the fact that he has defended false equivalencies between pedophilia and homosexuality as nothing more than harmless “Christian beliefs regarding proper sexual ethics.”

Crucially, Price also denounced the Obama administration’s landmark support for transgender students as an “absurd” and “clear invasion of privacy.” If Price can’t acknowledge that a transgender girl should be able to use the ladies’ room like all her girlfriends, how could he possibly understand the life-saving impact of the Affordable Care Act’s trans-inclusive provisions? For the first time under the ACA, transgender Americans could not be denied gender-affirming health care simply because they were transgender. Insurance companies in most states were barred from treating transgender patients any differently than cisgender (non-trans) patients, and HHS formalized a rule that allowed transgender people to file discrimination lawsuits if they were turned away or mistreated by a healthcare provider.

But what about the millions of Americans who aren’t transgender? Well, any of those citizens who have a uterus or plan to make their own decisions about when or if they want children need to pay attention, as the National LGBTQ Task Force’s executive director Rea Carey explained when Price’s nomination was announced. “Let’s be quite clear: if confirmed, Price’s decisions will impact the health and social services of millions of people — especially the most vulnerable populations who rely upon access to quality, affordable, culturally competent care. If confirmed, Tom Price would steer HHS in a dangerous direction that’s motivated by profit and the desire to control our bodies.”

Get Ready to Fight the Department of Justice

In his excellent piece for the Winter 2017 issue of The American Prospect, former Justice Department attorney and current University of Michigan law professor Samuel R. Bagenstos raised a terrifying possibility: President Trump’s Department of Justice may use the muscle that agency developed under Obama to suppress voting rights, privatize education, and strip away existing civil rights protections. That last provision is particularly important for LGBT Americans, who enjoyed an unprecedented growth in legal equality under President Obama. If Trump’s nominee for Attorney General, Alabama Sen. Jeff Sessions, is confirmed, the fate of American civil rights law is effectively sealed, given that Sessions was considered too racist to be a federal judge in the ‘80s. Naturally, Sessions has also consistently opposed LGBT rights, and could even use his sway as Attorney General to try to convince the Supreme Court to reconsider marriage equality.

Bagenstos zeroes in on my personal favorite tactic employed by the Obama administration — particularly outgoing Attorney General Loretta Lynch — in defense of LGBT equality under the law. Through the Department of Justice, Department of Education, and Equal Employment Opportunity Commission, the Obama administration methodically expanded the interpretation of existing civil rights protections to include more Americans. Each time the Administration asserted its conclusion that Title IX, Title VII, and the Fair Housing Act’s prohibitions on sex-based discrimination in education, employment, and housing (respectively) also therefore protects transgender people, it established a legal precedent that could be built upon. By the end of this year, Obama’s Departments of Justice and EEOC had both filed lawsuits on behalf of transgender people who were targeted by state and local policies that restricted their ability to learn, work, and thrive.

But that generous, inclusive interpretation of civil rights law is unlikely to continue in a Trump administration. In fact, Bagenstos warns, where LGBT people have found an ally in the DOJ for the past eight years, we may now find a powerful foe. Bagenstos aptly points to G.G. v. Glouchester County School Board, the case out of Virginia where a transgender boy sued his school for the right to use the boy’s bathroom, after the school barred him from using the appropriate facilities on campus. A district court sided with the school, but the Fourth Circuit Court of Appeals overturned that ruling, agreeing with the administration’s interpretation that Title IX protected the student’s right to have his gender identity respected. That case is currently pending before the Supreme Court, and could be heard by a full panel of justices — including a Trump appointee.

But the battle is just beginning, Bagenstos writes:

Even beyond that case, there is good reason to worry that the new administration will more generally abandon the Obama administration’s pro-LGBT-rights interpretations of the civil-rights laws—whether before or after the Court decides G.G. Even worse, there is a substantial prospect that the Civil Rights Division will take an affirmatively anti-LGBT-rights position and intervene to make religious-freedom or free-speech arguments on behalf of the defendants in LGBT discrimination cases brought under state laws.

Which brings us to the final and overarching point of how to agitate for equality in Trump’s America:

Get to Your Statehouses

Even before Trump’s unlikely electoral victory, each new legislative session brought a cornucopia of anti-LGBT bills introduced in state legislatures around the country. Oklahoma introduced a whopping 27 anti-LGBT bills at the beginning of the 2015-2016 session. By March, activists on the ground had defeated all of those bills, as had organizers in several other states where bills attempted to codify into state law a faith-based “right to discriminate,” and, in Kansas and Texas, grant a $2,000 reward for cisgender students who “caught” a transgender student sharing the bathroom with them. That was the state of affairs even with a professed friend to LGBT folks in the White House.

But that kind of municipal involvement is going to be our best bet to resist Trump’s agenda. While it may seem counter-intuitive to focus a national resistance on regional or state offices, the truth is that local elections matter, and local politicians are often easier to access than high-ranking administration officials. So yes, participate in the Women’s March on Washington if you feel called to, and phone-bank the hell out of every preposterous nominee Trump and the Republicans riding his coattails offer. But also participate in Lobby Days organized by your favorite local advocacy group, and make it a priority to meet your elected officials. If you feel comfortable doing so, introduce them to your family, and force them to look into the faces of the real people their decisions will impact. And when lawmakers try to pull a fast one, take a page from the good people of North Carolina and shout and yell and disrupt and sit-in until uniformed officers drag you away. And then go back again the next day.

If there’s one thing that progressives have (hopefully) learned from conservative activists and lawmakers over the past six years, it’s how to successfully gum up the works of the state and national legislature. It takes dedication, persistence, and a stubborn refusal to ever back down. It seems only fair that those of us feeling targeted by Trump and the GOP in general return the favor they offered to President Obama, and aim to make Trump a one-term president.

Congressional Republicans essentially wrote the playbook on how to be the most obstructionist, least productive legislative body in American history, so I say we borrow that book and use the tactics right-wingers perfected to defend the messy, complicated, frustrating glory of this country.