//  8/27/17  //  In-Depth Analysis

Note: This post contains an update from Leah, as noted.

“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,” Donald Trump pledged as he accepted the Republican nomination for the presidency in Cleveland last year.  He didn’t say anything about protecting LGBTQ citizens from hateful domestic ideologies.  And he hasn’t.

After Trump displayed a rainbow flag graffitied with “LGBT for Trump” on stage at a campaign event, Daily Caller commentator and Trump loyalist Chris Barron tweeted that Trump was “the most pro-LGBT Pres candidate ever nominated by either party.”  Putting aside its obvious mendacity, the statement raises an important issue: what exactly does it mean to be “pro-LGBT”?  And does Trump qualify as “pro-LGBT” under any sensible meaning of that term? 

There has been a tendency to misdescribe LGBTQ discrimination—and indeed, all forms of discrimination—too narrowly, in terms of headline wedge issues like the ability of same-sex couples to marry while ignoring the myriad manifestations of discrimination.  As we wrote with respect to Charlottesville, there is a tendency to minimize the extent of existing discrimination by defining discrimination downwards, and saying that however bad things are now, they’re not as bad as they were, or could be.

The various Trump administration anti-LGBT policies to date are a useful case study in the range of tools that remain available to perpetuate discrimination.  Given that President Trump has now directed the military to reinstitute a ban on transgender individuals serving in the military, let’s take stock of the anti-LGBT policies to date and what they reveal about the nature of LGBT discrimination.

First a look back at how the “pro-LGBT” Trump narrative was born.  Trump’s stance on same-sex marriage was always wishy-washy.  In early 2016 he said, “[Same-sex marriage] has been ruled upon. It has been [at the Supreme Court].  If I’m elected I would be very strong in putting certain judges on the bench that maybe could change thing, but they have a long way to go.  I disagree with the court in that it should have been a states’ rights issue.” 

So he didn’t say “marriage is between a man and a woman,” and he said that a reversal at the Court would “have a long way to go.”  He also didn’t promise to appoint judges who would overturn Obergefell v. Hodges, the case establishing a constitutional right to marriage equality, like he promised to appoint judges who would overturn Roe v. Wade, the case recognizing a constitutional right to end a pregnancy. 

But Trump also suggested that Obergefell was wrong in the first instance and he also left open the possibility of putting anti-LGBT judges on the federal courts.  Despite these and other questionable statements about gay rights, the perception that Trump was—deep down—somehow moderate or even progressive on gay rights seemed to persist.  The perception was so widespread that primary challenger Ted Cruz even seized on it in attack ads against Trump. 

Trump’s most direct “pro-LGBT” statements on the campaign trail were always more about his anti-Muslim agenda.  In the wake of the June 2016 Orlando shooting, in which a 29-year-old man who pledged allegiance to ISIS killed 49 people at a gay nightclub, Trump attempted to pit LGBT people against Muslims.  The June 2016 Orlando shooting was the deadliest mass shooting and hate crime in U.S. history; after it, Trump tweeted, “Appreciate the congrats for being right on radical Islamic terrorism.”

Still, after Orlando, Politico reported that pro–gay rights Republicans saw in Donald Trump a potential turning point in the party’s anti-gay stances.  Gregory Angelo, the president of the Republican LGBT organization the Log Cabin Republicans, said he’d “never seen a nominee so directly engage with and seek the support from LGBT voters.”

So what happened? Well, nothing that wasn’t completely predictable given his total lack of commitment to gay rights, except as fodder in his anti-Muslim campaign.

1.Trump Appointed Judges To Serve On Federal Courts Who Have Exhibited Homophobia.

 Trump has nominated persons to serve on the federal courts who exhibited patent homophobia.  One of those nominees, John Bush, referred to gay people as “faggots” in a speech,[**] and recently criticized the U.S. State Department for changing official government forms to recognize that there are gay and lesbian parents.  Bush has since been confirmed to the U.S. Court of Appeals for the Sixth Circuit. Trump also nominated Damien Schiff to serve as a federal judge.  Schiff criticized an anti-bullying curriculum as “teaching gayness.”  In an op-ed, Mary Bonauto, the advocate who argued and won Obergefell v. Hodges, wrote “we all expect better in judicial nominations.”

Then there’s Justice Gorsuch.  Justice Gorsuch’s dissent in Pavan v. Smith, the case about same-sex couples’ ability to adopt children on equal terms as opposite sex-couples, did not come out and say that states could treat same-sex couples differently than opposite-sex couples for purposes of adoption.  But it also went out of its way to avoid saying that states must treat gay and lesbian parents the same as straight parents, and also gave some reasons for why they need not.

 2.Trump’s DOJ Is Arguing That Civil Rights Laws Do Not Prohibit An Employer From Firing An Employee Because The Employee Is LGBT.

Trump’s DOJ elected to file a brief in a case to argue that civil rights laws do not protect LGBT individuals from being fired from their jobs because of their sexual orientation.  The DOJ is not a party to the case; it did not have to file a brief.  It chose to weigh in anyways.  The Equal Employment Opportunity Commission, an independent agency, is arguing that civil rights laws prohibit employers from firing LGBT individuals because of their sexual orientation.

3. The Trump Administration Has Withdrawn Civil Rights Protections For LGBT Individuals.

The Trump administration withdrew the administrative guidance letter that stated that civil rights laws required schools that received federal funding to allow transgender students to use bathrooms that correspond with the students’ gender identities.  The administration is considering whether to withdraw rules that protect transgender prisoners from discrimination.

Trump also signed an executive order that revokes one of President Obama’s executive orders that banned federal contractors from discriminating against employees on the basis of sexual orientation.

4. Trump Refused To Acknowledge Pride, The Month Dedicated To Recognizing LGBT Individuals.

Trump did not find the time to acknowledge Pride, even once, during the entire month of June.  This may seem relatively insignificant but consider that it is an extremely easy signaling device to an administration that wanted to project even the slightest support for gay rights.

5. Trump Is Dismantling Civil Rights Divisions Within Agencies That Could Protect LGBT Individuals From Discrimination.

As the Washington Post reported, the Trump administration is dismantling civil rights divisions within agencies by cutting their budgets, staffing, and power.  These include divisions in the Department of Labor, the Environmental Protection Agency, and the Department of Education.

6. Trump Is Removing LGBT Identification Questions From Federal Programs.

As we previously wrote, the administration has retracted a proposal to add LGBT identification to the U.S. census.  As we explained, that retraction disempowered LGBT individuals in a variety of ways, in addition to occluding basic facts and information.  The administration also attempted to retract an LGBT identification question from HHS surveys, but eventually relented after considerable pushback.

7. Trump Is Appointing Anti-LGBT Individuals To Serve In His Administration.

Trump appointed anti-LGBT activistRoger Severino to lead the civil rights division at HHS.  Severino criticized the Obama administration’s efforts to protect LGBT individuals from discrimination on the ground that “[t]he radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology.”  Trump appointed Tom Price to lead HHS; Price voted against the law that penalized hate crimes against LGBT individuals, which he thought was a "thought crime" and "immoral."  Price opposed repealing Don’t Ask Don’t Tell.  Trump appointed Bethany Kozma to the office of Gender Equality and Women's Empowerment in the US Agency for International Development.  Kozma advocated for a national campaign against allowing transgender students to use the restroom corresponding to their gender identity.

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Given these choices, one would be hard pressed to identify Trump as being “pro LGBT.”  He has taken affirmative steps to ensure that LGBT individuals can be fired from the workplace because they are LGBT; withdrawn various protections that LGBT individuals had against discrimination; and erased LGBT individuals and LGBT identification from the various platforms that the presidency possesses.  His administration has not taken steps to make the lives of LGBT individuals better.  Instead, he has enabled personnel and policies that will make their lives worse—and in an astoundingly many spheres of life, from education to health care, public service to the ability to advocate on their own behalfs in the future.  (All while Ivanka was skiing in Colorado or canoeing in Vermont, we presume.)

The Trump administration has forced us to confront the harsh reality that in 2017, LGBT individuals remain targets for officials who want to win support by engaging in culture wars (as opposed to actually helping their constituents), and for officials  who want to win support from one group by finding other groups to scapegoat (again, as opposed to actually helping their constituents).

In a Balkinization post that became infamous for other reasons, Mark Tushnet claimed that the side of LGBT equality had “won” the culture wars.  The Trump administration’s policies, coupled with the rash of state laws that purport to authorize discrimination against LGBT individuals in the name of religion, raise some questions about whether Tushnet was right.  To be sure, these might be the last gasps of a party that clings to power by seeking to limit the number of eligible voters.  But the war does not look so won as of August 2017, and it’s likely to get worse over the next 3.5 years.

In the constitutional arguments over marriage equality, the Obergefell dissenters frequently suggested that the issue in Obergefell was a question of “who decides”—whether courts or state legislatures should decide whether a state must provide for marriage equality.  And the dissenters would frequently imply that leaving the question of marriage equality to state legislatures would not be so bad because marriage equality was both inevitable and gaining traction quickly.  Thus, the argument went, it was only a matter of time before all states elected on their own to enact policies recognizing marriage equality.  At oral argument in Obergefell, for example, the Chief Justice said:

You're quite right that the consequences of waiting are not neutral. On the other hand, one of the things that's truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society. I don't know what the latest opinion polls show. The situation in Maine, I think, is ­­is characteristic. In 2009, I guess it was by referendum or whatever, they banned gay marriage. In 2012, they enacted it as law. I mean, that sort of quick change has been a characteristic of this debate.

The Sixth Circuit opinion that upheld state laws denying same-sex couples the right to marriage opened with this (excerpted) observation:

From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen …. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. … What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples.

And it closed with:

In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Justice Scalia made a similar argument before, but more forcefully, over twenty years ago in Romer v. Evans.  In that case he penned an opinion that would have upheld a Colorado state constitutional amendment that prohibited localities from enacting laws that protect LGBT individuals against discrimination.

Justice Scalia wrote:

The constitutional amendment before us here is not the manifestation of a “ ‘bare ... desire to harm’ ” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

Now reflect on these arguments with the benefit of the last 8 months. Does the entire United States seem like it’s ready to embrace the arguments for LGBT equality such that LGBT marriage equality seems like it would be inevitable and just around the corner, absent Obergefell?  Are LGBT individuals so “politically powerful” that they are not at serious risk of discrimination in the political process?  We think not.  It’s a shame, of course, that it took Trump turning back the clock on LGBT rights to make that point clear.

Trump’s curtailing of LGBT rights is particularly cruel given his trolling of the LGBT community during the campaign, and the various pundits and commentators who entertained either the notion that Trump was “pro LGBT,” or that his administration “wouldn’t be that bad for LGBT rights.”  During 2016 Pride, Trump managed to find occasion to say something relevant to the occasion:

Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.

It was apparent then, and it’s apparent now—Trump was never “pro LGBT.”  He’s just happy to use LGBT people and trade on their lives for any political expedience.

[**]

9/2/2017 Note From Leah (since Helen can’t blog in her current position): A reader noted that Bush was quoting another person (Hunter S. Thompson) who made this remark. The excerpt from Bush’s speech is:

He [Thompson] wrote The Kentucky Derby is Decadent and Depraved, but his target was the city, not the horse race. “I know this Derby crowd,” a guy named Jimbo from Houston confided to Hunter over a glass of double Old Fitz at the airport. “I come here every year, and let me tell you one thing I’ve learned—this is no town to be giving people the impression you’re some kind of faggot.”

In the next paragraph, Thompson tells another person: “Just keep in mind for the next few days that we’re in Louisville, Kentucky…. This is a weird place.”

The end of Bush’s speech picks up on the suggestion that Louisville “is a weird place.” It closes with:

If made of strong enough material, cities and the edifices and literature that define them can endure long after their visitors are gone. The fitting tribute to Hunter S. Thompson … is those bumper stickers on late-model cars that urge us to “Keep Louisville Weird.”

After quoting Thompson’s description of Louisville (“no town to be giving people the impression you’re some kind of faggot”), Bush then surmises that “Louisville is a good place to raise children. A good place to grow up.”

The speech praises Thompson at several points, concluding that Thompson’s misstep may have been leaving behind Louisville at all:

Derby winners usually are like Hunter S. Thompson: talented and lucky enough to hit it big in that first big race, but lacking what it takes to keep winning, they’re soon turned out to pasture. Hunter S. Thompson wasn’t the first to meet his downfall after he left Louisville.

It is hard not to read Bush’s invocation of Thompson’s description of Louisville, including the reference to its being “no town to be giving people the impression you’re some kind of faggot,” as an endorsement. But you’re welcome to try not to.

 


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