Staff Attorney at the Law Office of Jillian T. Weiss whose practice focuses on trans employment and insurance discrimination.
Ezra, what can you tell us about the Trump–Pence track record on LGBTQ+ rights and what we can expect from this administration?
Honestly, the biggest problem right now is there's a great degree of uncertainty. Mike Pence has a very strong and lengthy record of being abhorrently anti-LGBT. Famously, as the governor of Indiana, he pushed for a religious freedom audit, which would essentially embolden private businesses to openly discriminate against LGBT people, though that was fought and battled back down by immense pressure from the federal government, as well as the community and corporate allies. The greatest fear is that now, with this shift in power, we will no longer have the kinds of strong coalitions that we needed in the past to push back on those policies.
Over the last year there has been a strong push throughout the country to limit the rights of transgender people—likely, as backlash to marriage equality. Targeting the most vulnerable members of the LGBT community for exclusion from schools, from the workplace, from federal government, from state buildings—if you're in North Carolina—or in other places. We’re likely to see more emboldened efforts to continue to attack transgender people and other folks.
We’re also likely to see a vacuum in power and progress in the LGBT community. For the last eight years, we have had the benefit of having the Obama administration have our back in the courts, in Congress, to the extent that they could, and through robust executive power. One of the biggest things that Mike Pence and Donald Trump have been on the record saying that they will do within their first hundred days is to roll back a series of executive orders. Though those orders cover a range of subjects, the vast majority of them were executive orders that allowed federal workers, federal contractors—those cover a great deal of workers in the United States—as well as others, to live openly in the workplace, to have redress within the federal grievance system if they experience discrimination. Likely, that is all to go away.
We are also likely to see a repeal, or at least significant modification, of the Affordable Care Act, a key mechanism through which many poor people in the LGBT community were able to access health insurance for the first time, and the vast majority of transgender Americans were able to use as a tool to fight back against discrimination when their private as well as public health insurers denied access to life-saving transition healthcare.
We’re also afraid there will be a degree of court packing. Obviously, all constituent communities will be affected by that, but more so than other communities, LGBT Americans are at the mercy of the federal courts. Many state courts are hostile towards us and to our rights. For the last eight years, we have proceeded, and I have proceeded as a litigator for many of my clients, through the federal litigation, federal courts, knowing that we were safe in those spaces. That is no longer an assumption that we can operate under.
We are going to have to change our litigation strategies, we are going to have to change the ways we fight back against this politics of hate that will now be emboldened by the power of the federal government. Lastly, we’re deeply, deeply afraid of the extent to which Trump’s politics of hatred has seemingly grabbed up every vulnerable minority group in the United States. He has hit across so many lines of deeply entrenched hatred towards vulnerable groups that it is hard, at times, to track who exactly he hates on any given day.
To the extent that he is inconsistent in his hatred, and inconsistent in his politics, people seem not to see the grander project at play: that it is not just an assault on women, it is not just an assault on Blacks, it is not just an assault on gays and transgender people, immigrants, or Muslims. It is an assault, constantly, on all of us.
What are the possible pushbacks that we can imagine in order to defend against the anti-LGBTQ+ administration?
I think we’ll very much need a two-prong approach. We’ll most definitely need to take meaningful steps to protect the gains we were able to make under the Obama administration. For all intents and purposes, marriage equality is likely very safe. It was, for a long time, the defining goal in our movement. We need to move beyond that now. We need to look at who is most vulnerable in our communities. It’s LGBT workers across the country, especially in red states without state-level and local protections. Making sure that there’s not any discrimination in the workplace, and meaningful redress.
It’s LGBT people, throughout the country—especially in states that would formally fall under [Section 5] preclearance, under the Voter Rights Act—who are unable to exercise their ability at the polls, to push back against Trumpism, if we do not fill that gap. We also need to think thoughtfully and meaningfully about building stronger coalitions across movements, as we are all, as we can all see from the pictures, from what we've seen so far, under attack now.
For a long time the LGBT community under the Obama administration was operating under the assumption that, when we went to court and when we went to Congress, we would have support from the government. We are no longer going to have that support. We need to make sure that when impact cases are filed, we have immigrants' rights advocates, prison abolitionist advocates, people all throughout the progressive communities supporting each other in our litigation.
We also need to make sure that we do not forget the moment that we are living in now. I know, right now, we’re talking a lot about how we get ourselves to the next election cycle, but I think we have all learned a very, very hard lesson that this isn't about just trying to fight the current evil, the current zeitgeist. This is about trying to anticipate it ahead of time and make sure that we do not allow this to happen again.