In the home stretch of this miserable election, most of the key questions American voters will decide on Nov. 8 have crystallized. Any marginally informed voter is by now well aware that a vote for Donald Trump is a vote for racism, Islamophobia, xenophobia, and sexism—and that a vote for Hillary Clinton is an objection to those perverse ideologies. What is less obvious, though no less true, is that a Trump presidency would mark an absolute catastrophe for LGBTQ equality. A Trump administration would be in an excellent position to reverse a bevy of hard-won federal victories by the LGBTQ movement and to empower an anti-LGBTQ backlash in the states.
This looming disaster is almost entirely absent from our discussion of the election; no LGBTQ-related questions were asked at the presidential and vice-presidential debates. That is largely because Trump himself rarely mentions the LGBTQ community, except as a pretext to justify his proposed Muslim ban. Trump is not especially homophobic or transphobic—but he is a Republican, and his appointees to courts and executive agencies would undoubtedly push to roll back LGBTQ rights. This threat may seem relatively minor in comparison to the many other perils that Trump poses, but it deserves far more attention than the media has devoted to it at this late date.
Start with the Supreme Court, which Trump has used as bait to attract the votes of on-the-fence social conservatives. His campaign has already provided 21 potential nominees to fill the empty seat (and, presumably, seats that might open up in the future). They are all doctrinaire conservatives and fairly reliable votes against LGBTQ equality. Once Trump fills the empty seat, he will need only one more vote to overturn Obergefell v. Hodges; Justice Ruth Bader Ginsburg may be irreplaceable, but she is not, alas, immortal. The court will face new LGBTQ-related cases in the coming years and issue blockbuster decisions about the rights of transgender students and gay employees. With a majority of Trump justices on the bench, these cases would likely come out against LGBTQ plaintiffs, setting precedents that will last for decades.
But the court is really just the tip of iceberg, because many of America’s most critical gains in LGBTQ equality have been accomplished through executive actions and agency rule-making. (One exception is the Affordable Care Act, one of the most important pieces of gay rights legislation ever passed, which both Trump and the GOP would like to repeal as soon as possible.) Executive actions and agency rule-tweaking might sound boring. But they’re also vital to understand just how dramatically President Barack Obama’s use of executive power has altered the landscape of LGBTQ rights.
Consider the Equal Employment Opportunity Commission, which helps to define and enforce federal nondiscrimination law. Obama’s appointees to the EEOC have expanded the definition of “sex discrimination” under Title VII of the Civil Rights Act to encompass sexual orientation and gender identity. According to the EEOC, then, anti-LGBTQ workplace discrimination is already illegal in all 50 states.
This theory is currently being tested in the courts, and the next president’s Supreme Court appointment may decide its fate. But until then, the EEOC retains the power to advocate for wronged LGBTQ employees and privately settled nondiscrimination suits by gay and trans employees. But the agency’s ruling that Title VII forbids sexual orientation discrimination was decided in a 3-2 vote. One Trump appointment will tip the balance and strip gay employees of their right to sue homophobic employers under federal law.
Obama’s appointees to the Department of Education reached an identical conclusion with regard to Title IX, which outlaws “sex discrimination” in schools that receive federal funds. The DOE concluded that this rule also forbids anti-LGBTQ discrimination and required federally funded schools to let trans students use the bathroom that aligns with their gender identity. Once again, this theory will soon be tested at the Supreme Court. But even if the Supreme Court agrees that the DOE’s rule is reasonable, the next president could easily revoke it by appointing conservatives to the department. On Day 1, these appointees would face immense pressure to reverse the DOE’s controversial guidance providing bathroom access to transgender students. And trans kids in conservative states will again face rampant discrimination and persecution at school.
Other agencies have followed the EEOC and DOE’s lead. During Obama’s tenure, the Department of Housing and Urban Development forbade LGBTQ discrimination in government-financed housing. The Consumer Financial Protection Bureau banned LGBTQ discrimination in credit. The Department of Health and Human Services prohibited anti-trans discrimination in health care, a rule now being challenged in court. This list goes on—and doesn’t even include the actions that Obama has taken using his inherent executive authority, like outlawing LGBTQ discrimination among federal contractors. Trump’s appointees would effectively be guaranteed to reverse all these agencies’ steps toward equality, while Trump himself has pledged to reverse Obama’s executive orders on his first day in office. And Trump’s Department of Justice would be unlikely, to put it mildly, to defend LGBTQ rights against state-sponsored bigotry, as Obama’s DOJ has. Instead, a Trump Justice Department could be counted on to side with states that are eager to rescind LGBTQ citizens’ basic rights, lending its imprimatur to the cause of inequality.
To be clear, Trump has not explicitly announced that he wishes to retract or reverse all these regulations. But his party has—consistently, vigorously, and angrily countering each gain in equality with protests and lawsuits. A Trump administration would allow the GOP to strike back, nullifying the majority of Obama’s pro-LGBTQ rules and regulations. Trump may not care much about marriage equality and nondiscrimination and bathroom access, but the Republican Party does. And if it regains a hold on the executive branch, there is essentially no limit to the havoc it can wreak on LGBTQ rights.