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Donald Trump

During his U.S. presidential campaignDonald Trump did not emphasize LGBT issues. His answers to questions on the subject were ambiguous.

At the beginning of his campaign, Trump continued to oppose same-sex marriage and said he was in favor of "traditional marriages". In January 2016, when asked about the landmark Supreme Court ruling in Obergefell v. Hodges which had legalized same-sex marriage nationwide, Trump said he would "strongly consider" appointing Supreme Court justices who would overturn Obergefell. However, in November 2016, a few days after the presidential election had taken place, Trump suggested that he did not plan to nominate justices who would overturn the Obergefell ruling. He considered the Obergefell ruling as "settled", and said he was "fine" with the legalization of same-sex marriage (though some expressed skepticism that he had really changed his position). On October 13, 2017, Trump became the first sitting president to address the Values Voter Summit, an annual conference sponsored by the Family Research Council.

A month after a mass shooting at a gay nightclub, while speaking to the 2016 Republican National Convention, Trump promised to "protect our LGBT citizens from the violence and oppression of a hateful foreign ideology", but did not describe specifically what he would do to support LGBT people's safety. Many observed that this comment primarily served to demonize Islam rather than to support LGBT rights.

Jerri Ann Henry, executive director of the Log Cabin Republicans, said in a television interview on December 7, 2018 that, while she perceived Trump as having been "vocally supportive" of LGBT people compared to other Republican presidents and presidential candidates, nevertheless "there's a lot of ups and downs in the last two years with some of the administration's actions."

Presidency

Cuts to HIV/AIDS policy and funding have a wide-ranging effect. In 2017, Trump dissolved the Office of National AIDS Policy (ONAP, founded in 1993) and the Presidential Advisory Council on HIV/AIDS (PACHA, founded in 1995). His 2019 budget proposal did not include any funding for two existing programs run under the Ryan White HIV/AIDS Program.

The Trump administration has attacked transgender rights on multiple fronts.

  • Students' bathroom access: On February 10, 2017, the Department of Justice dropped a defense of transgender students' access to bathrooms. Obama-era guidance had allowed students to use bathrooms corresponding to their gender identity. The right had been challenged by a Texas District Court, and the Department of Justice had previously asked the court to lift its stay, but the Department of Justice (under the new Attorney General Jeff Sessions) withdrew its request. On February 22, 2017, Trump reversed a directive from the Obama administration that allowed transgender students who attend public schools to use bathrooms that correspond with their gender identity. Education Secretary Betsy DeVos, questioned before the House Education and Labor Committee on April 10, 2019 about the previous rollback, acknowledged that she had been aware of the effects of the stress of discrimination on transgender youth; these effects include depression, anxiety, lower attendance and grades, and attempted suicide. In May 2019, the Supreme Court declined to hear a challenge to a Pennsylvania school regarding its bathroom policy, suggesting that schools may continue to set their own policies to accommodate transgender students.
  • Military ban: Trump succeeded in implementing restrictions on transgender military personnel, an idea he first announced via Twitter. On July 26, 2017, Trump tweeted that transgender individuals would not be accepted or allowed to serve "in any capacity" in the U.S. military, citing medical costs and disruption related to transgender service members. This announcement took Pentagon officials by surprise. There are about 6,000 transgender military personnel on active duty, according to a 2014 study, and the Trump administration provided no evidence that they pose a problem. Many key military leaders advocated for continuing to support transgender servicemembers. They include "the chiefs of the Army, Navy and Air Force; the commandant of the Marine Corps; and the incoming commandant of the Coast Guard," as well as retired leaders like Vice Admiral Donald C. Arthur, Major General Gale Pollock, and Rear Admiral Alan M. Steinman (who served as the Surgeon General or equivalent of the Navy, Army, and Coast Guard respectively and who coauthored a Palm Center report in April 2018). On August 25, 2017, Trump directed the Pentagon to stop admitting any new transgender individuals into the military and to stop providing medical treatments for sex reassignment, intended to take effect on March 23, 2018. On August 29, 2017, Secretary of Defense James Mattis put a freeze on expelling transgender service members who are currently in the military, pending a study by experts within the Departments of Defense and Homeland Security. Federal courts temporarily delayed the implementation of the Trump administration's proposed ban by issuing four injunctions. On November 23, 2018, the day after Thanksgiving, the Trump administration formally requested the U.S. Supreme Court to issue an emergency ruling on whether transgender personnel may continue to serve, and on January 22, 2019, without hearing arguments or explaining its own decision, the Court allowed the Trump administration to move ahead with the ban. On March 12, 2019, the Department of Defense released a memorandum with specifics of the ban, essentially allowing existing personnel to continue to serve if they had already come out as transgender prior to the memorandum, but disqualifying anyone who was newly discovered to have a transgender body, identity, or history.
  • Employment: On October 4, 2017, the Attorney General published a memo considering "discrimination against transgender individuals" in employment and concluding that Title VII of the Civil Rights Act of 1964 "does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy." On August 16, 2019, the Justice Department filed a brief with the U.S. Supreme Court arguing that "Title VII does not prohibit discrimination against transgender persons based on their transgender status," "gender identity," or "disconnect" between biological sex and gender identity. The brief related to a pending case, Harris Funeral Homes v. EEOC.
  • Prisoners' rights: In May 2018, the Trump administration ordered the Bureau of Prisons to house transgender prisoners according to their "biological sex." Treating prisoners as members of the gender with which they identify "would be appropriate only in rare cases." This reverses guidance created by the Obama administration in 2012, and it conflicts with the Prison Rape Elimination Act of 2003. In 2018, the Cibola County Correctional Center in New Mexico operated a unit for transgender women; the women were housed together regardless of the reason for their detention. The building served as a federal prison, county jail, Immigration and Customs Enforcement detention, and housing for asylum-seekers. Reporters were granted access for the first time in June 2019; there were 27 inmates at that time.
  • Defining gender as sex: On October 21, 2018, the New York Times revealed a Department of Health and Human Services memo that planned to establish a definition of gender based on sex assignment at birth across federal agencies, notably the departments of EducationJustice, and Labor, which, along with Health and Human Services, are responsible for enforcing Title IX nondiscrimination statutes. The Justice Department would have to approve any new definition that Health and Human Services might suggest. The memo argued in favor of a definition of gender "on a biological basis that is clear, grounded in science, objective and administrable" and the government's prerogative to genetically test individuals to determine their sex. Over the following days, thousands of protesters gathered in Washington, D.C.San DiegoPortland, MaineMinneapolisLos AngelesMilwaukeeBoston; and other cities across the country, and on November 2, nearly 100 lawmakers signed a letter to HHS Secretary Alex Azar asking him not to implement this change. On July 8, 2019, the State Department created the Commission on Unalienable Rights to initiate philosophical discussions of human rights that are grounded in the Catholic concept of "natural law" rather than modern identities based on gender and sexuality. Most of the twelve members of the commission have a history of anti-LGBT comments.
  • Healthcare: Since 2016, the Department of Health and Human Services (HHS) has explicitly interpreted the word "sex" in the nondiscrimination provisions of the Affordable Care Act (Section 1557) to recognize and include transgender people, although a federal court injunction on Dec. 31, 2016 prevented HHS from enforcing its nondiscrimination rule. Under the Trump administration, HHS lawyers began working on permanently reversing the rule, and on May 24, 2019, the proposed reversal was formally announced. On October 15, 2019, federal judge Reed O’Connor vacated the Affordable Care Act nondiscrimination rule that transgender people are entitled to the same services to which everyone else is entitled. He said this nondiscrimination rule violated the Religious Freedom Restoration Act. His ruling means that federally-funded healthcare insurers and providers may deny treatment or coverage based on sex, gender identity or termination of pregnancy, even if the services are medically necessary. On November 1, 2019, HHS announced that, effective immediately, recipients of taxpayer-funded grants from HHS are permitted to discriminate on the basis of sexual orientation and gender identity, as it will no longer enforce the 2016 rule known as 81 F.R. 89393. This change affects "HIV and STI prevention programs, opioid programs, youth homelessness services, health professional training, substance use recovery programs, and many other life-saving services," according to the National Center for Transgender Equality.
  • Homelessness: On May 22, 2019, HUD proposed a new rule to weaken the 2012 Equal Access Rule, an existing federal nondiscrimination protection that requires equal access to housing regardless of sexual orientation or gender identity. (The previous day, Housing and Urban Development (HUD) Secretary Ben Carson had told Congress that he had no plans to change this protection.) Under the proposed change, shelters receiving federal funding would be given leeway in "determining sex for admission to any facility" based on factors including the transgender person's "official government documents," the shelter operators' "religious beliefs," and any invented "practical concerns" or concerns about "privacy" or "safety." This could allow shelters to place transgender women in men's housing or to deny transgender people admission altogether. Within the proposed rule, HUD said that the treatment of transgender people would be considered valid as long as the shelter applied its own rules consistently and that this would not conflict with HUD's existing nondiscrimination policy. HUD has been moving in the direction of weakening this rule since 2017 when it withdrew proposals to require emergency shelters to post information about LGBT rights and updated its website to remove guidance for serving transgender people.

 

Early on, the Trump administration interrupted the government's efforts to begin counting LGBT-identified people. In March 2017, the U.S. Census Bureau released its proposed questions for the 2020 census (the census is conducted once every ten years) and the American Community Survey (conducted annually). For the first time ever, the proposed questions covered topics about sexual orientation and gender identity. However, the questions were immediately retracted. The Census Bureau claimed that the topic had been included "inadvertently" (in fact, it was included because nearly 80 members of Congress had asked for it the previous year). The Census Bureau added: "This topic is not being proposed to Congress for the 2020 Census or American Community Survey. The report has been corrected." Ultimately, questions about same-sex relationships were added back into the census, but this limited approach doesn't offer a way to attribute lesbian, gay, or bisexual identity to those who are not currently in any relationship or who are in a different-sex relationship, nor can it attribute transgender identity to anyone. The same month, the Trump administration released a draft of the annual National Survey of Older Americans Act Participants (NSOAAP), administered by Department of Health and Human Services (HHS). Questions about sexual orientation and gender identity added in 2014 were removed from the 2017 draft. In April 2019, HHS indicated their intention to stop asking foster youth, parents and guardians to self-report sexual orientation to the Adoption and Foster Care Analysis and Reporting System.

The Trump administration has also opposed efforts to protect LGBT people from employment discrimination. On March 27, 2017, Trump reversed a directive from the Obama administration (Executive Order 13673, "Fair Pay and Safe Workplaces") that had required companies with large federal contracts to prove their compliance with LGBT protections and other labor laws. On July 26, 2017, the Trump administration intervened in a private employment lawsuit, Zarda v. Altitude Express, Inc. The Department of Justice, taking the opposite side of the Equal Employment Opportunity Commission, urged a federal appeals court to rule that the Civil Rights Act of 1964 does not prohibit job discrimination based on sexual orientation. (The court ruled, however, that it does.) The U.S. Supreme Court agreed to hear the case, and the Justice Department is expected to file a brief in late August 2019. On November 30, 2018, Trump signed the United States-Mexico-Canada trade agreement which contained a footnote exempting the United States from complying with the agreement's call for an end to "sex-based discrimination".

A major way the Trump administration enables discrimination is by providing exemptions to antidiscrimination law on the basis of "conscience" or "religious freedom." On December 5, 2017, when asked by a White House reporter if President Trump agreed that it would be okay for bakers to put up signs in their business windows saying "We don't bake cakes for gay weddings," as his solicitor general had argued before the Supreme Court, White House Press Secretary Sarah Sanders said that the president believes in religious liberty and "that would include that." On January 18, 2018, the Department of Health and Human Services (HHS) announced the creation of the Conscience and Religious Freedom Division within its Office for Civil Rights (OCR). Its purpose is to enforce federal laws that related to "conscience and religious freedom"; that is, to enable individuals and businesses to exempt themselves from obeying nondiscrimination laws. On January 23, 2019, the U.S. Department of Health and Human Services (HHS) said that Miracle Hill Ministries, a foster care agency in Greenville, S.C., could be exempted from an Obama-era nondiscrimination regulation. Miracle Hill will continue to receive federal funds and is allowed to refuse services to prospective foster parents who are non-Christian or LGBT, although it must refer the rejected applicants to another agency. HHS cited the Religious Freedom Restoration Act (RFRA) as a basis for allowing federally funded Christian groups to discriminate against non-Christians. In August 2019, the U.S. Department of Labor, also referencing the RFRA, proposed a new rule to exempt "religious organizations" from obeying nondiscrimination law in their employment practices if they invoke "sincerely held religious tenets and beliefs" as their reason to discriminate.

On October 3, 2017, the Trump administration voted against a UN resolution to condemn the death penalty (which condemned the use of that penalty for homosexuality in particular), thus making the United States one of only 13 countries to vote against the resolution (including Saudi Arabia where the death penalty for gay sex is practiced). However, this was in accordance with longstanding policy, as the Obama administration had also voted against it. Jessica Stern, executive director of the LGBT rights group OutRight, said the group criticized the Trump administration's "many rights violations, its many abuses of power from LGBTI violations to xenophobia, but this particular instance is not an example of a contraction of support on LGBTI rights... It would be a mistake to interpret its opposition to a death penalty resolution to a change in policy."

On February 19, 2019, the administration took a more pro-LGBT approach by announcing a new campaign to decriminalize homosexuality worldwide, to be led by Richard Grenell, the openly gay U.S. Ambassador to Germany. On that day, Grenell hosted a meeting in Berlin with 11 activists from different European countries; it appears that no U.S. individuals or groups were invited. The next day, a reporter asked the president about the initiative, and he seemed unaware of it. In the official White House transcript of that interview, Trump asked the reporter to repeat the question, and finally responded, "I don't know, uh, which report you're talking about. We have many reports." Grenell told NBC News on February 20 that the intent was to use U.S. economic aid as a bargaining chip to persuade other countries to change their laws, and to partner with European countries in this endeavor. "This is not a new policy; it's a new push," he said. On May 31, 2019, Trump tweeted that Americans should "stand in solidarity with the many LGBT people who live in dozens of countries worldwide that punish, imprison, or even execute" people for their sexual orientation. He referenced his administration's "global campaign to decriminalize homosexuality." It was the first time since taking office that he used the word "LGBT," or "Pride" in an LGBT context, in a tweet. Nonetheless, that same week, the Trump administration was instructing U.S. embassies not to fly the Pride flag.

 

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