December 2018 Church & State - December 2018

Reversal Of Fortune: LGBTQ Rights In America Were On The Upswing – And Then Donald Trump Got Elected President

  Rob Boston

While seeking the Republican nomination for president in 2016, Donald Trump told members of the LGBTQ community that he would be their champion.

Trump vowed to be a “real friend” to gay, lesbian and transgender Americans. He later tweeted, “Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.”

Trump even unfurled a rainbow flag – albeit upside down – at a campaign event in Greeley, Colo., just days before the election. Scrawled on the flag in black marker was the phrase “LGBTs for TRUMP.”

Two years into the Trump presidency, it’s clear that these claims weren’t just hyperbolic, they were aggressively false. Trump, at the behest of his Religious Right backers, is proving himself to be one of the worst presidents in modern memory when it comes to LGBTQ policies. His administration has repeatedly rolled back LGBTQ rights, often under the claim that it is advancing “religious freedom.”

Advocates for the LGBTQ community are understandably furious.

Trump Protest At Pride Parade

Photo: Participants of the 2017 New York City Pride Parade protest President Trump’s policies. Credit: Getty Images

“Donald Trump was a con man when he ran for office, and he is a con man today,” said Sarah McBride, national press secretary of the Hu­man Rights Campaign. “The LGBTQ community could see through Donald Trump’s empty promises, which is why we voted against him with a record margin. Since day one of this administration, Donald Trump and Mike Pence have sought to roll back the clock on our progress and sought to license discrimination against LGBTQ people, particularly transgender people.”

Most recently, The New York Times reported that the Trump administration has prepared a draft policy that would narrowly define gender as a biological condition, based on genitalia at birth, that cannot change. If implemented, this policy, The Times noted, would be “the most drastic move yet in a government­wide effort to roll back recognition and protections of transgender people under federal civil rights law.”

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the draft memo reads. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”     

Members of the transgender community responded quickly, pointing out that a change like that would have the effect of denying their very existence, thus jeopardizing their ability to take part in a range of government programs.

“This proposal is an attempt to put heartless restraints on the lives of 2 million people, effectively abandoning our right to equal access to health care, to housing, to education or to fair treatment under the law,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a statement. “This administration is willing to disregard the established medical and legal view of our rights and ourselves to solidify an archaic, dogmatic and frightening view of the world. This transparent political attack will not succeed administratively, legally or morally.”

Rachel Laser, president and CEO of Americans United, also criticized the proposal.

“Yet again, the Trump-Pence administration is catering to a narrow segment of evangelical Christians and granting special status to their beliefs in federal policy,” Laser asserted. “That is unacceptable. We stand with the transgender community and will continue to advocate to keep religion and government separate.

“This administration,” she added, “continues its attempts to divide us and implement policies that promote hate and discrimination. We will not allow religious beliefs to be used to erase the recognition of and protections for transgender people.”

Yet again, the Trump-Pence administration is catering to a narrow segment of evangelical Christians and granting special status to their beliefs in federal policy. That is unacceptable. We stand with the transgender community and will continue to advocate to keep religion and government separate.

~ AU President and CEO Rachel Laser

In an open letter, the leaders of several prominent businesses – including Amazon, Apple, Google, Microsoft, Twitter, Uber, Facebook, Bank of America, Coke and Pepsi – blasted the proposal.

“Transgender people are our be­loved family members and friends, and our valued team members,” the letter read. “What harms transgender people harms our companies.”

For his part, Trump responded with a string of verbiage. Asked about the matter by a reporter in late October, Trump replied, “We’re looking at it. We have a lot of different concepts right now. They have a lot of different things happening with respect to transgender right now – you know that as well as I do – and we’re looking at it very seriously. I’m protecting everybody. You know what I’m doing? I want to protect everybody. I’m protecting our country.”

The draft memo was far from the Trump administration’s first attack on transgender Americans. In July 2017, Trump abruptly announced via Twitter that transgender men and women would no longer be allowed to serve in the military. The shift, which Trump undertook without consulting leaders of the armed services, was later struck down by a federal court. But the matter could easily end up before the U.S. Supreme Court, which Trump has been remaking in a far-right image.

In February 2017, Trump rescinded policy guidance issued during the presidency of Barack Obama that offered protection to transgender students in public schools. Trump’s administration claimed that the gui­d­ance was too broad and said the issue should be left to the states.

The administration has also sought to undermine LGBTQ rights in other ways.

In October, BuzzFeed News reported that the U.S. Department of Labor was preparing to rewrite regulations to give federal contractors a right under “religious freedom” to fire (or refuse to hire) LGBTQ people – even though the positions would be taxpayer-funded.

The Trump administration has also attacked LGBTQ rights in court. Conservative evangelical business owners are arguing that they should have a right under “religious freedom” to deny services to members of the LGBTQ community. A case testing this idea reached the Supreme Court last term, involving a baker in Colorado who said his religious beliefs should give him the right to deny services to LGBTQ people. Un­der Trump, the U.S. Justice Department sided with the baker.

The high court dodged the issue, but it’s widely expected that a similar case will reach the high court docket again, perhaps even in time for the current term. (See “Cake Case Collapses,” July-August 2018 Church & State.)

In addition, the Justice Department has argued in court that federal civil rights laws don’t protect Americans from discrimination based on sexual orientation or gender identity.

In late October, department attorneys filed a brief before the Supreme Court in a case from Michigan arguing that employers should be able to fire transgender workers without violating federal law.

The case concerns Aimee Steph­ens, a transgender woman who was fired from her job at a Detroit-area funeral home after she refused to dress as a man. The owners of Harris Funeral Homes cited their religious beliefs in letting Stephens go.

During the Obama administration, the Equal Employment Opportunity Commission sued on Stephens’ behalf and won before the 6th U.S. Circuit Court of Appeals. But now the Justice Department is taking the opposite stance, arguing that firing a worker because he or she is transgender does not amount to unlawful sex discrimination.

Changes like this have come about because of the men and women Trump has appointed to federal office. Many of his political appointments are clearly designed to please the Religious Right, and several of them either have histories of anti-LGBTQ activism or promote policies that would harm members of that community. Some formerly worked for Religious Right groups.

The nation got an early taste of what was to come when Trump named Mike Pence, then the governor of Indiana, as his running mate. Pence, a Religious Right favorite, is known for his anti-LGBTQ views. During his governorship, he signed a controversial “religious freedom” law that allowed businesses to discriminate against LGBTQ residents. Despite the uproar the Indiana law sparked, Trump has signaled his support for such measures, often euphemistically called “First Amendment Defense Acts,” and has said he would sign a national version if Congress were to pass one.

Mike Pence at the Values Voter Summit

Photo: Vice President Mike Pence speaking at the 2018 Values Voter Summit. Credit: Liz Hayes/Church & State

HRC’s McBride sees Pence as the not-so-invisible hand behind many of Trump’s anti-LGBTQ policies.

“Mike Pence helped pick the cabinet and administration as the head of the transition team,” McBride told Church & State. “Mike Pence has his fingerprints all over these policies, and if there is one thing that has defined Mike Pence’s career, it is his obvious animus and bigotry toward LGBTQ people.”

Pence is far from the only Religious Right favorite in the Trump administration. Former Attorney General Jeff Sessions, a U.S. senator from Alabama prior to becoming the nation’s top law-enforcement official, was known for his ultra-conservative views on social issues. During his time in the Senate, Sessions was hardly a friend of LGBTQ Americans.

In July, Sessions announced the creation of a “Religious Liberty Task Force” within the department. Critics said the move was really designed to undermine LGBTQ rights.

Sessions in August addressed Alliance Defending Freedom (ADF), a large Religious Right legal group that works to roll back LGBTQ rights. During his remarks, Sessions criticized the Southern Poverty Law Center for designating ADF a “hate group” due to its anti-LGBTQ stance.

“I wanted to come back here tonight partially because I wanted to say this: You are not a hate group,” Sessions told the group. “When I spoke to ADF last year, I learned that the Southern Poverty Law Center had classified ADF as a ‘hate group.’ Many in the media simply parroted that as a fact. They have used this designation as a weapon, and they have wielded it against conservative organizations that refuse to accept their orthodoxy and choose instead to speak for their conscience and their beliefs. They use it to bully and intimidate groups that fight for religious freedom, these constitutional rights of the American people.”

Trump fired Sessions last month and named a loyalist, Matthew Whit­aker, acting attorney general. Whita­ker’s views on the relationship between religion and government are very problematic. While running for a U.S. Senate seat in Iowa in 2014, Whitaker told one blogger, “I have a Christian worldview. Our rights come from our Creator and they are guaranteed by the Constitution.”

Whitaker also said during a forum that judges shouldn’t have a secular outlook.

“If they have a secular worldview, then I’m going to be very concerned about how they judge,” Whitaker said, reported the Des Moines Register.

He added, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? … And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular world view, where this is all we have here on Earth, then I’m going to be very concerned about that judge.”

In addition, Ben Carson, who once opined that marriage equality would lead to the collapse of American society, is secretary of the Department of Housing and Urban Development.

Other Trump appointees, while they may not be guilty of personally spewing anti-LGBTQ venom, have pursued policies that undercut gay rights. Secretary of Education Betsy DeVos, for example, has sought to divert potential billions in tax dollars from public schools, which by law must serve all students, including LGBTQ ones, to private religious schools.

Most sectarian schools are run by the Roman Catholic Church or fundamentalist Protestant denominations. They’re hardly gay-friendly. These institutions have the legal right to fire teachers and staff who are gay, and they don’t have to admit LGBTQ students. In addition, many of the fundamentalist schools teach overtly anti-LGBTQ views.

Trump’s two Supreme Court appointees, Neil Gorsuch and Brett Kavanaugh, are far to the right and unlikely to issue rulings expanding LGBTQ rights. If anything, they may soon join an ultra-conservative bloc in rolling them back.

In addition, Trump has appointed men and women to lower federal courts who take positions favored by the Religious Right. Amy Coney Barrett, whom Trump appointed to the 7th U.S. Circuit Court of Appeals and was reportedly on his short list for the Supreme Court seat he gave to Kavanaugh, was called a “superstar among the religious right” by Politico.

Trump has also nominated Allison Jones Rushing, a 36-year-old lawyer with no experience as a judge, to the 4th U.S. Circuit Court of Appeals. Rushing, a former intern at ADF, in 2005 co-authored a law review article that mocked people who are offended by government displays of   religious symbols, calling them “delicate plaintiffs with eggshell sensi­tivities,” “weak” and “pretty wispy stuff.”

In 2013, Rushing blasted the high court’s ruling in U.S. v. Windsor, which struck down the Defense of Marriage Act, federal legislation that barred the federal government from recognizing the civil marriages of same-sex couples. She criticized the majority for writing the opinion “in a unique way that calls it bigotry to believe that homosexuality does not comport with Judeo-Christian morality.”

Trump’s claims that he would stand up for LGBTQ rights never made much sense. During the campaign, at the same time he was occasionally making tepid overtures to the gay community, Trump was putting much more effort into winning over the Religious Right with promises that he would be their culture warrior.

On the stump, Trump tossed red meat to the right-wing evangelical base of the GOP. He fed their persecution narrative by promoting the idea that there is widespread hostility to religion in America. He bemoaned the so-called “war on Christmas” and even vowed that once he took office, more people would say “Merry Christmas.” He also pledged to do away with the Johnson Amendment, a federal law that protects the integrity of houses of worship by curbing their direct involvement in partisan electoral campaigns.

The Religious Right and the LGBTQ rights community are often diametrically opposed politically, and Trump soon made it clear on which side he stood. It paid off: On election day, 81 percent of white evangelical Christians backed Trump, despite his lack of personal piety and his frequently coarse behavior. He wasted no time placating his new friends in the Religious Right.

Under Trump, even the LGBTQ rights’ movement most impressive recent success – a Supreme Court ruling upholding marriage equality – may end up on the chopping block. Trump’s political rise came mainly after the Supreme Court upheld marriage equality in 2015’s Obergefell v. Hodges ruling, and he has made it clear that he doesn’t favor that decision. While at one point Trump said he accepted the ruling, he later said that he’d like to see it overturned.

During a January 2016 appearance on “Fox News Sunday,” Trump was asked by Chris Wallace if he would appoint Supreme Court justices who would overturn the Obergefell decision. He replied, “I would strongly consider that, yes.”

In other venues, Trump, who has been married three times and has boasted about his sexual prowess with women, has described his views on marriage as “traditional.”

Perhaps most alarmingly, Trump chooses to take counsel from noted anti-LGBTQ figures. During his two years in office, Trump has surrounded himself with men and women who are known for their hostility to gay/trans rights, among them Jerry Falwell Jr., Ralph Reed, Tony Perkins, Gary Bauer, Franklin Graham, Robert Jeffress, Jim Garlow and others.

Donald Trump 2017 Values Voter Summit

Photo: President Donald Trump at the 2017 Values Voter Summit. Credit: Liz Hayes/Church & State

Garlow, although not a well-known national figure, holds especially ugly views on LGBTQ people. The LGBTQ rights group GLAAD has reported that Garlow, senior pastor of Skyline Church in La Mesa, Calif., once asserted, “The bottom line is this[:] If I were Satan, I would want to destroy on the earth the image of God. This is why marriage is such a hotbed issue. It’s more than just the issue of homosexuality. It’s much more than that. It’s much more cosmic. It’s big. It’s enormous. They want to destroy the very image of God upon the planet. This is a demonic happening in our midst.”

Many of these figures serve on Trump’s Evangelical Advisory Board, whose members, according to several media accounts, likely persuaded Trump to institute the ban on transgender troops in the military. (Americans United believes the board is operating in violation of federal law by not being open about its deliberations. For more on this, see “All The President’s Men And Women,” in the October 2018 Church & State.)

Does Trump personally believe any of the things his cronies on the Religious Right espouse about LGBTQ people? It’s debatable, but in the end, it doesn’t really matter. Trump uses the issue to fire up the GOP’s hard-right base, and he has put men and women in important positions who clearly do agree with the Religious Right – and they are making policy changes to the detriment of the LGBTQ community.

Under Trump, the transgender community is taking the hardest hit, and one trans-rights advocate has decided she’s had enough. Former Olympic gold-medal winner and reality TV figure Caitlyn Jenner supported Trump in 2016 but now says she made a mistake.

“The reality is that the trans community is being relentlessly attacked by this president,” Jenner wrote in an opinion column published in The Washington Post Oct. 26. “The leader of our nation has shown no regard for an already marginalized and struggling community. He has ignored our humanity. He has insulted our dignity. He has made trans people into political pawns as he whips up animus against us in an attempt to energize the most right-wing segment of his party, claiming his anti-transgender policies are meant to ‘protect the country.’ This is politics at its worst. It is unacceptable, it is upsetting, and it has deeply, personally hurt me.”

McBride agrees that Trump’s LGBTQ policies have been appalling – but she believes they’ll backfire.

“Taken together, these attacks are nothing more than a thinly veiled attempt to push transgender people out of public life and back into the shadows,” she said. “But our community won’t be erased. And every time anti-equality politicians come for us, we end up having a conversation with this country that opens hearts, changes minds and, in the end, sows the seeds of the destruction of the politics of hate that these elected officials seek to implement. Every time they come for us, we end up growing stronger.”         

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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