At the Republican National Convention this week, Republicans are making the case for giving President Donald Trump four more years in the White House. While Trump himself doesn’t often comment publicly on queer or transgender issues, Vice President Mike Pence has a long record of anti-LGBTQ lawmaking and rhetoric, and LGBTQ advocates have already called the Republican Party platform — a holdover from 2016, as the GOP did not write one for 2020 — one of the most anti-LGBTQ in the party’s history.
Trans people have been a target of the Trump administration from the get-go. Almost immediately after Trump took office in 2017, the administration rolled back an Obama-era memo directing schools to protect trans students from discrimination. That July, Trump announced his decision to ban trans people from serving in the military. In May 2018, the administration went after trans prisoners, too, deciding that, in most cases, trans people should be housed according to their assigned sex at birth. Just weeks ago, the Department of Housing and Urban Development proposed a rule that would allow homeless shelters that receive federal funding to house trans people according to their birth-assigned sex.
Queer people have also been under attack. Though marriage equality is the law of the land, the White House has taken steps to limit or undo gay rights in several key policy areas such as lobbying to give religious adoption agencies the right to refuse same-sex couples. Most critical, perhaps, was the administration’s attack on the Affordable Care Act’s LGBTQ nondiscrimination protections in a rule released on June 12. Though it has been put on hold due to a federal court stay, the rule would allow doctors and insurance companies to refuse care to LGBTQ people.
Meanwhile, Trump nominated two conservative Supreme Court justices during his presidency, but in a surprising turn of events, a recent major LGBTQ victory threw the administration for a loop: The Supreme Court decided in June that LGBTQ people are protected on the basis of sex under Title VII of the 1964 Civil Rights Act. The decision in Bostock v. Clayton County means that queer and trans people cannot be fired for being LGBTQ, and the ruling could end up as precedent for expanding rights into other issue areas such as education and health care.
Still, this likely won’t stop conservatives from trying to whittle away and build in carveouts to the legal protections LGBTQ people currently have. It would be similar to the approach taken by religious conservatives with regard to Roe v. Wade — passing anti-abortion legislation at the state level in the hope that related cases work their way back to the Supreme Court.
According to activists, conservatives will likely try to attack across three different fronts in their efforts to chip away at LGBTQ rights: by continuing to reshape the courts, by attacking health care access, and by continuing to limit immigration and asylum by LGBTQ people fleeing violence in other countries.
The courts are key to queer and trans rights
If elected president, former Vice President Joe Biden has promised to immediately reverse the military ban and reissue an Obama-era guideline allowing trans students to use the correct bathroom. This would effectively end litigation in the military ban cases and change the complexion of the bathroom cases.
However, a second Trump term would mean more anti-LGBTQ federal judges appointed, possibly a Supreme Court justice or two, and an escalation in the legal arguments against trans rights, legal advocates say.
The bulk of Trump’s anti-LGBTQ actions have come through administrative rules, most of which have been challenged in federal court. Because of this, Trump’s control over federal policy has been solidified by appointing conservative judges. As of July, 194 of the 792 active federal judges were appointed by Trump — that’s a quarter of the federal judiciary — according to Pew Research data. Many of them were either previously anti-LGBTQ activists or who openly express anti-LGBTQ sentiments.
Several have already had an impact on pending legal battles. Earlier this year, Fifth Circuit judge Kyle Duncan infamously ruled that it is necessary for a court to misgender a trans plaintiff whose case he was overseeing, a decision not in line with precedence in other federal courts.
And right now, there are several ongoing legal cases snaking their way through the federal court system that could end badly for LGBTQ people if put in front of a Trump-appointed judge. These include several lawsuits against the transgender military ban, student suits seeking access to school bathrooms according to their gender identity, and California v. Texas, which is set to decide whether religious entities can legally deny adoption services to gay parents. It will be heard by the court on November 4, just a day after Election Day.
These cases could eventually land in front of the Supreme Court, which is its own issue. While overturning Bostock or even Obergefell, the decision that granted LGBTQ couples marriage equality in 2016, is a tall order unless Trump can appoint two more justices to the high court, even one more appointee could set the court up to gut both decisions.
“Certainly, at least one more Supreme Court appointment would inflict devastating damage on the transgender community that would last for decades to come,” Shannon Minter, an attorney at the National Center for Lesbian Rights, told Vox. “It would be something close to closing the courtroom doors on our foreseeable future.”
One way for conservatives to somewhat relitigate and chip away at these landmark decisions is through a change in legal strategy. Throughout its first term, the Trump administration argued in court that trans people are not and should not be protected under current sex discrimination laws. This was the basis for several administrative rules rolling back the rights of trans people in health care, in homeless shelters, and in education. However, Bostock turned that argument on its head.
According to Chase Strangio, an attorney at the American Civil Liberties Union, the administration has now begun to argue more explicitly that federal sex discrimination law protects cis people from sharing spaces with trans people. It’s a similar tack to the fringe argument that anti-LGBTQ legal groups have long tried — that cis people have a constitutional right not to share locker rooms, bathrooms, and other gendered spaces with trans people.
For example, in a statement to the court in a case challenging Connecticut’s school sports transgender inclusion policy earlier this year, the administration argued that trans people are not protected under Title IX, which protects people on the basis of sex in education. In a more recent post-Bostock filing in a nearly identical case challenging Idaho’s ban on trans girls participating in girl’s school sports, the administration took a different angle, arguing that Title IX entitles cisgender people protection from sharing spaces and activities with trans people. That policy shift, Strangio told Vox, would be a scary portent for a second Trump term.
Because everything is interconnected, the key to making Trump’s strategy work, say Minter and Strangio, would be more Trump appointees to the already Trump-stacked federal judiciary. The lower court judges would have significant power to shape LGBTQ cases as they move through the federal court system.
“My greatest fear is for a judicial action that locates [anti-trans] rights in the Constitution that we couldn’t undo with a new president in the future,” said Strangio. “You get some horrible, constitutional ruling that then authorizes discrimination in a host of contexts because trans people are so abhorrent that you have a constitutional right not to share space with them.”
Health care is likely the next big fight for LGBTQ people
Even before the pandemic, health care was going to loom large over this election cycle. Republicans in Congress have repeatedly tried to repeal the Affordable Care Act during Trump’s term. The administration even submitted a brief to the Supreme Court recently arguing that the law should be completely thrown out.
The ACA was a landmark piece of health care legislation for Americans — particularly so for LGBTQ people. Under an HHS rule established by the Obama administration in 2016, the bill banned health care discrimination against LGBTQ people, but just as key for queer communities were protections for coverage of preexisting conditions. Before the law was passed, anyone diagnosed with gender dysphoria or HIV/AIDS could legally be excluded from health insurance coverage, and transition care could be legally excluded from any insurance plans.
“I can’t think of a more important issue for transgender people than access to health care, because if we’re not able to access transition-related care, it’s just impossible to have a meaningful, authentic life,” said Minter.
Should the administration succeed at the Supreme Court in California v. Texas, slated to be heard this fall, people could again be subject to wholesale exclusion from insurance coverage. But even if the law is preserved in some form, the administration has already worked to limit LGBTQ access to health care.
In mid-June, just days before the Bostock decision came down, the administration finalized a rule clarifying that LGBTQ people are not entitled to sex-based protections under the ACA, effectively rolling back the Obama-era rule saying the opposite. The rule, as written, would allow insurance companies to once again have blanket exclusions on coverage of transition-related procedures and they could once again deny coverage of health care that doesn’t comport to a person’s legal gender, meaning a trans man could be denied coverage for gynecological care.
The rule would also have had a significant impact on lesbian, gay, and bisexual cisgender people in the US by allowing doctors, health care providers, and insurance companies to deny care or coverage to cis queer people.
“We know LGBTQ people face discrimination in health care,” David Stacy, who leads the federal policy team at the Human Rights Campaign, told Vox. “It can be overt discrimination, but it can also be more subtle discrimination.”
Last Monday, however, a federal judge issued a stay on the rule’s implementation while the case is litigated, saying that the rule likely violates Bostock and that HHS failed to reconsider this after the Supreme Court’s decision.
But despite the stay, there are still potential avenues a second-term Trump administration could take to attack trans health care access in particular. Minter suggested that, depending on the makeup of Congress, the administration could take steps to ban transition-related care from Medicaid coverage, try to reinstate a Medicare exclusion that existed prior to 2016, or even try to institute a Food and Drug Administration ban on puberty blockers for trans adolescents. The administration could also use executive action to end transition care offered through Veteran’s Affairs.
“They’ll try to cut off access to health care for trans people any way they can,” said Minter. “They can do a lot of damage on the health care front. It would be, in my opinion, probably the single most devastating impact on the trans community.”
Immigration rights are a life-and-death issue for LGBTQ people
LGBTQ issues like health care and the military ban frequently take center stage when discussing the administration’s record, but perhaps nothing is as life and death for queer and trans people as immigration and asylum policies.
In late 2018, 31-year-old trans woman Camila Díaz Córdova fled her native El Salvador, fearing for her life. She reportedly made her way to the US with a migrant caravan and attempted to apply for asylum, only to be denied and deported back to her home country. In late January 2019, she was murdered by three police officers.
It’s a problem that will only worsen in a Trump second term. “The rules of asylum are completely changing,” Bamby Salcedo, founder of the Trans Latina Coalition, told Vox. “Through that process, a lot of people are being excluded. This is something that will definitely impact trans women.”
Over the last three-and-a-half years, the Trump administration has made it increasingly difficult for those fleeing gender-based violence to obtain asylum in the United States. In November 2018, Trump tightened immigration rules which restricted asylum to anyone who first passed through Mexico to arrive at the US southern border. And this June, the Department of Homeland Security proposed a new rule which would allow immigration officials to dismiss asylum seekers’ applications as “frivolous” without a hearing.
As explained by Vox’s Nicole Narea, the proposed rule is part of a larger election-year push against immigration in general. Using the pandemic as an excuse, Trump has closed the border with Mexico, started quickly deporting asylum seekers who show up at the southern border, and issued a temporary ban on issuing new green cards.
All of these restrictions come at a real cost for trans people, especially trans women, in Central America. There is an epidemic of violence against trans women of color throughout the Americas, but it is acutely felt in Central America. According to a report by Trans Murder Monitoring, at least 258 trans or gender-diverse people were murdered in Latin America between October 2018 and September 2019.
“The new asylum regulations that Trump has already proposed, if they were finalized, it will be devastating for LGBT asylum seekers. And they’ll effectively just shut the door to asylum,” said Minter.
The public comment period ended on July 15 and the rule could be finalized before Election Day. However, should Democrats retake the Senate and White House, they’ll be able to override any administration rules issued within 60 legislative days of the new Congress taking office via the Congressional Review Act.
Salcedo said that the possibility that Biden could win the presidency gives her hope — not just for the immigration and asylum system, but that other trans-related policies could improve in short order. “I am hopeful that, you know, the new administration will revert all of those policies that have attempted to come into effect,” she said. “I’m hopeful that there’s tangible and institutional changes that are going to happen. And I firmly believe that that could become a reality.”
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