At the Republican National Convention, Donald Trump promised to "protect our LGBTQ citizens" from harm. Of course, just several words down the line, he said those harms were being perpetrated by "a hateful foreign ideology." Here’s Trump:
Only weeks ago, in Orlando, Florida, 49 wonderful Americans were savagely murdered by an Islamic terrorist. This time, the terrorist targeted LGBTQ community. No good. And we're going to stop it. As your president, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology. Believe me!
Many reporters hailed that utterance as one of the most pro-LGBTQ statements to ever emerge from a GOP nominee. But anyone with a brain knew that standing right behind him in the Oval Office would be one of the nation’s chief purveyors of violence and oppression toward queer Americans, Mike Pence.
So now we get see just how pro-LGBTQ Trump really is. How much he will “protect us.” Or did he just wield us as a billy club against Muslim Americans?
Trump's ascendance to the Oval Office has breathed new life back into hate groups across the country, the National Organization for Marriage being one of them. Suddenly NOM is born again—newly reenergized and ready to take the hand of the Trump-Pence administration in turning back the clocks on equality and, specifically, same-sex marriage. Can you imagine waking up every day buzzing with the possibility of taking back rights and protections that have been granted to other human beings?
Unfortunately, it's totally probable that Trump-Pence will inflict great harms on LGBTQ Americans despite Trump's pledge to the contrary. Trump may simply have meant that he doesn't think people should have the right to shoot us, but everything else is fair game. So here are some grim plausibilities, roughly in order of easiest to hardest.
Most immediate and possible are protections President Obama granted through executive order, including LGBT nondiscrimination protections for federal contractors (2014) and guidance assuring transgender students access to bathrooms consistent with their gender (2016).
Also, on the chopping block, nondiscrimination protections for transgender employees of the federal government (2014) and, for that matter, protections for lesbian and gay government employees (though it seems perhaps less likely since those prohibitions have been on the books since 1998).
Other pro-LGBT rules put in place at the Departments of Housing and Urban Development and Health and Human Services and really a host of other governmental agencies are on the line. One thing I learned from covering the federal government is that it’s a vast and powerful organism and there’s plenty of smaller ways to do real harms to people depending on who’s running those agencies. It took two terms for President Obama and his appointees to slowly but surely undo most of the harms put in place under George W. Bush.
Critically, Trump will impact the future makeup of the Equal Employment Opportunity Commission, which has taken the view in the last several years that discrimination against both transgender and gay workers violates Title VII "sex" discrimination protections. Federal courts have regularly begun reaching the same conclusion on transgender bias in the workplace but the legal effort to protect workers on the basis of sexual orientation is at an even more nascent stage in terms of case law.
On the biggie—marriage equality—undoing this would be a longer process, but not impossible. Importantly, Trump promised to appoint very conservative judges to the Supreme Court, starting with the replacement for Antonin Scalia. But here's two possible avenues:
A case would have to be heard at SCOTUS challenging the landmark Obergefell v. Hodges decision of 2015, which saw same-sex marriage made legal nationwide.
Another possibility, as sketched by Lucas Grindley in the Advocate: “The Republican-controlled Congress will pass a law that under the Obergefell or (Edie) Windsor rulings would’ve been considered unconstitutional. If anyone dares challenge that law, it will be taken up with the Supreme Court, which can then decide to overturn its previous marriage equality ruling.”
To be honest, legislative routes to targeting LGBTQ people concern me more in immediate terms, while the judicial appointments in both lower courts and the high court have longer term implications. But for now, I wouldn't be surprised if Mike Pence and his cronies in Congress will make a renewed push for some type of "license to discriminate" bill that allows religious folks special privileges to discriminate against LGBT Americans and women. Importantly, neither of those two groups have explicit federal protections in public accommodations.
As for the military, it's complicated. I'll go out on a limb and say that I don't see a push to legislatively reinstate "don't ask, don't tell." There's very little public support for that policy based on decades of polling. Such a vote would immediately endanger all Republicans in even remotely moderate areas. So maybe it gets through the House but I don't think there's a path through the Senate.
That said, it's possible that mischief could arise on the policy level at the Department of Defense absent a major legislative battle. It would probably be more stealth but could also do great harms to LGBT service members. Remember, the Pentagon has only recently turned back its prohibition on transgender service. To some extent, I'm guessing that changes in policy will be more or less likely depending on how ingrained those policies are in the culture of the military. Openly gay service was fully implemented in the fall of 2011 and may be far enough along. But transgender service it still a work in progress.
No matter how one looks at the big picture, it’s bleak. Mike Pence is sure to recommend a raft of rabidly anti-LGBTQ appointees, and they will immediately get to the work of undoing the many strides for equality made during the Obama administration. This will almost surely be happening beneath the surface even as the only things that make headlines are larger legislative and legal battles.