What Are the Implications of the 2016 Election for LGBTQI People in the US?
BY ERICA CHENOWETH, PHD. AND MAUREEN HOLLAND, ESQ.
- The ability of a Trump administration to roll back policies that affect recent laws related to LGBTQI people depends on how the policies were made.
- Many of the Obama administration's policies were made through executive orders and agency guidance and funding, and are thus vulnerable to quicker reversal.
- However, many of the laws that protect LGBTQI people exist at the state and local levels, meaning that even if federal government protections disappear, laws in states will hold up unless successfully challenged locally.
- Also, many companies have LGBTQI protections for employees, providing some limited work protections.
The Obama administration passed a number of executive actions related to LGBTQI people, including an Executive Order sexual orientation or gender identity discrimination by federal contractors, HUD's 2012 equal access to housing. It is unclear how the Trump administration will approach LGBTQI issues. While he made several references to "protecting" LGBTQI people during his speech the Republican National Convention, he was mainly referring to "protecting" them against ISIS – a reference to the recent Orlando Pulse nightclub attacks. Moreover, the 2016 Republican platform has been largely unsupportive of the LGBTQI community, "condemn[ing]" both the Windsor (federal benefits) and Obergefell (state benefits) to married same-sex couples, and the vice-president elect and several of his reported advisors also promote policies that would restrict or reverse recent advances for LBGTQI rights. The platform includes a commitment to (1) appoint Supreme Court justices that commit to overturning Obergefell vs. Hodges (the decision that made same-sex marriage equality the law of the land); (2) support parents in allowing conversion "therapy" for gay youth; (3) pass laws protecting religious freedom, including the right to discriminate against LBGTQI people in business, housing, and health care coverage; and (4) prevent transgender individuals from using the restroom that corresponds to their gender identity
In this brief, we focus primarily on same-sex partnerships and families; see Deborah Avant and Kathe Perez's explainer related to transgender people in this series (some of the text from their brief also appears in ours, as it applies to all LGBTQI people).
Below we list some key changes in each category. We then offer some advice on action LGBTQI people might take now. We end with a list of resources, including other analyses of how a Trump presidency might affect the LGBTQI community and some global, national, and Colorado organizations that might be useful.
1. EXECUTIVE ORDERS, ACTION, AND GUIDANCE:
If Trump's administration decides to change the status quo with regard to these policies, this category is the easiest to change (by ending or amending the Executive Order or appointing officials who will implement different guidance or by reducing funding).
- Executive Orders (EO 11478 – 1969 anti-discrimination) (EO 13087 - 1998 sexual orientation) (EO 13672- 2014 gender identity) protect most LGBTQI federal employees against discrimination from the federal government.
- Executive Orders (EO 11246- 1965 sub-contractor) (EO 13672- 2014 sexual orientation, gender identity) protect most LGBTQI employees against discrimination from federal contractors that work for the federal government.
Executive Practice / Guidance:
- In 2014, the Department of Education announced that it would interpret Title IX's bans on sex discrimination in any educational institution or program that receives federal funds as applying to LGBT discrimination. Although schools can request a waiver to this statute based on religious freedom, the Department of Education also released a list of the institutions that received exemptions. Previously, these institutions had received exemptions in secrecy.
- The Department of Housing and Urban Development clarified that its long-standing Equal Access Rule bans LGBT discrimination in government-financed housing.
- The Consumer Finance Protection Bureau announced that it interpreted the Equal Credit Opportunity Act as prohibiting discrimination on the basis of sexual orientation. This effectively outlawed discrimination against LGBTQI people seeking bank loans, mortgages, brokerage services, and other credit.
- In June 2015, Defense Secretary Ash Carter issued a Directive banning discrimination on the basis of sexual orientation in the military. In June 2016, he issued a Directive Type Memorandum allowing transgender service members to serve openly.
Legislation requires congressional action and is more difficult.
- Affordable Health Care Act (Obamacare): The Affordable Care Act (section 1557) ties health care to civil rights and makes it illegal to discriminate, including against LGBTQI people. Reversing or replacing Obamacare would require congressional action. The particular language of the anti-discrimination rule was created within Health and Human Services by rule and is at 45 CFR Part 92, however. This rule and could be altered without approval from Congress, but would have to go through a formal rule change procedure.
- Federal hate crime laws: During his first term, Obama signed a law that expands federal hate crime law to include gender identity and sexual orientation. A reversal of this law would require an act of Congress.
- Military service: Obama also signed a law ending the military's "don't ask, don't tell" policy. A reversal of this law would require an act of Congress.
- Domestic violence protections: Obama signed a 2013 law to extend the Violence Against Women Act's protections to LGBT people. A reversal of this law would require an act of Congress.
3. COMMISSION AND COURT RULINGS:
Rulings by commissions and courts require new rulings, which often also require new people making them.
- EEOC: In 2015, the Equal Employment Opportunity Commission issued a memo directing all local offices to accept charges of discrimination against employers under Title VII's ban on workplace "sex discrimination" that included discrimination based on sexual orientation and gender identity.
- Courts: In 2015, the Supreme Court ruled 5-4 to make same-sex marriage equality the law of the land in Obergefell vs. Hodges. A reversal of this ruling would require the Supreme Court to reconsider the case and overturn its original ruling. In this case, recognition of marriage equality would return to the states; notably, marriage equality is already recognized in many 37 states and the District of Columbia.
4. STATE LAW
Many issues regarding same-sex families (including adoption rights) are governed by states. Lamda Legal can help individuals find the relevant laws in their states. Though some states make this easier than others, these policies should not be immediately affected by the change at the national level.
Advice for LGBTQI People
Though no one knows for sure what the new administration will do, LGBTQI people should consider the following advice from Lamda Legal:
- Obtain paperwork assigning your medical power of attorney, health care proxy, and living will. Lambda Legal writes: "Whether the new administration acts in this area or not, it remains important to have legally enforceable written documents like a health care proxy or medical power of attorney and a living will stating your wishes about medical care and decision-making and about who may visit you. No change in federal policy could undermine these documents."
- Enroll in health insurance now. Under the ACA, you cannot be denied coverage because of a pre-existing condition (like HIV). However, it is unclear what will happen if the ACA is repealed, which appears likely. Those who have enrolled in health insurance should be able to maintain coverage even if the law is repealed.
- Report hate crimes. If you feel comfortable reporting crimes to the authorities, please do so. Regardless of whether you report to the authorities, you can report hate crimes anonymously through the Southern Poverty Law Center's ReportHate platform.
The Human Rights Campaign website has a good overview of potential changes for the entire LGBTQI community. They also have highlighted potential appointments particularly unfriendly to the LGBTQI community.
Buzzfeed also has an analysis of what the Trump presidency could mean for LGBTQI lives.
Lamba Legal has an informational help-line, along with their post-election frequently asked questions and answers.
- The Task Force
- Human Rights Campaign
- Lambda Legal
- Southern Poverty Law Center
- Transgender Law Center
- National Center for Lesbian Rights
- Gender Identity Center
- ACLU of Colorado
- GLB Center
- Out Boulder
- Denver Gay and Lesbian Chamber of Commerce
Attorneys / Advocates (known to us):