With the election of Donald Trump came a lot of worry and outrage that certain civil rights would be repealed, abolished or destroyed. This week, we begin the “Ask a Trump question” column, where legal experts address the many concerns that arose during the two-year presidential campaign cycle.
How will the Trump administration impact LGBT rights?
After the election, questions were raised about whether progress for the LGBT community could be lost under a Donald Trump administration. The concerns emanated from three sources: President-elect Trump’s statements as a candidate regarding marriage equality; Vice President-elect Mike Pence’s active opposition to LGBT rights as both a congressman and Indiana governor; and the Republican Party platform, which has been called one of the most overtly anti-LGBT platforms in history.
So what, if anything is at risk?
Neither the president nor Congress can take away a right that the Supreme Court has declared as “fundamental” under our Constitution. While Trump will not have the right to eliminate marriage equality — and after the election he has stated that he considered it “settled law” — he will have the power to appoint Supreme Court Justices who could overrule the decision. That said, it would take a very long time for a case presenting the question to even reach the court, making it less likely that the court would upset an established precedent.
Don’t Ask, Don’t Tell
When Congress repealed the so-called “Don’t Ask, Don’t Tell” law in 2010, it did not replace it with a law prohibiting discrimination in the military. Instead, it allowed the Department of Defense (DoD) to issue regulations allowing for open service. In theory, the DoD could alter those regulations to once again prohibit such service. It is unlikely that it will do so, however. The military seems to have adjusted to the change, and reversing the decision would be disruptive and difficult to implement.
What is more likely, but not certain, is that the DoD will reverse course on its recent decision to end the ban against transgender people from serving openly in the military. Under this new policy, service members cannot be discharged if they identify as transgender, and they are eligible for all medical treatments deemed necessary. The Republican Party platform explicitly denounced this decision. Because the policy was just announced in June 2016 and, according to the DoD, will take at least a year to implement, the DoD could repeal the regulation with less disruption.
Trump promised to repeal many of Obama’s executive orders. Obama banned discrimination based on sexual orientation and gender identity for federal contractors and the federal civilian workforce. Under President Obama’s leadership, the Department of Health and Human Services created a rule prohibiting discrimination in insurance under the Affordable Care Act. The Department of Education and the Department of Justice informed schools receiving Title IX funding that they could not discriminate based on gender identity. In theory, Trump could rescind these orders. But even if he didn’t explicitly rescind them, he could simply ignore them; an executive order has meaning only if an executive is willing to enforce it.
First Amendment Defense Act
Trump has also indicated that he would sign the First Amendment Defense Act (FADA), a bill designed to prohibit the federal government from taking any “discriminatory action against a person, wholly or partially on the basis that such person believes or 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 defines “person” to include both nonprofit and for-profit organizations, and “discriminatory action” is defined to include not just the revocation of tax-exempt status but also the denial or termination of federal contracts. The American Civil Liberties Union has argued that the bill is written so broadly that it would allow an IRS employee to refuse to process the tax return of a same-sex couple for religious reasons.
In the end, a Trump administration could reverse many of the nascent rights recognized at the federal level for LGBT individuals and couples. Whether this will be a priority, however, remains an unknown. Given who he is currently placing in his cabinet, however, it is safe to say that a Trump administration will not champion the rights of the LGBT community.
If you have a question, email it to firstname.lastname@example.org, subject line: Ask a Trump question, and watch for it to be answered in an upcoming issue.
The Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s experience in higher education includes both academic and administrative positions. In addition to teaching, she has written and spoken extensively on LGBT rights.
An accredited nonprofit institution established in 1969, COL is regionally accredited by the Western Association of Schools and Colleges Senior College and University Commission (WSCUC) and the Juris Doctor (J.D.) program is accredited by the Committee of Bar Examiners (CBE) of the State Bar of California. For more information, visit www.collegesoflaw.edu.