It was a master class in spin. Internal documents leaked to the press earlier this week indicated that the Trump administration is considering rolling back former president Barack Obama’s 2014 executive order barring discrimination on the basis of sexual orientation and gender identity for all federal contractors. Sources within the White House claimed that Trump would announce an order nullifying those protections at this week’s National Prayer Breakfast, scheduled for Thursday.
When asked about rumors that Trump would take aim at LGBT nondiscrimination, press secretary Sean Spicer was mum on the subject. “I’m not getting ahead of the executive orders that we may or may not issue,” he said during a Monday press conference.
But in an email to NBC News, Spicer’s deputy press secretary, Stephanie Gresham, appeared to deny reports that Trump would specifically target the LGBT community next. In his first week as president, the POTUS signed orders halting immigration from seven predominantly Muslim countries, vowed to direct federal funding to build a wall between the U.S. and Mexico, and pledged his intent to repeal the Affordable Care Act, which would also have a devastating impact on LGBT people, particularly transgender women and HIV-positive individuals.
To the relief of many, Gresham said that LGBT people were not on the White House’s proverbial hit list. “As Sean said in the briefing today — we don’t want to get ahead of the [executive orders and actions] that are coming, but [countermanding new LGBT rights] isn’t the plan at this time,” she wrote.
In a press release, the White House underscored what was described as Trump’s history as an advocate for the LGBT rights. “The president is proud to have been the first ever GOP nominee to mention the LGBT community in his nomination acceptance speech, pledging then to protect the community from violence and oppression,” the White House press office asserted. “The executive order signed in 2014, which protects employees from anti-LGBT workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”
That statement would appear to be a much-needed nugget of good news during a week that’s been extremely devastating for millions of Americans who are worried about their safety and citizenship under the new administration. The problem is that it simply isn’t true: LGBT people have every reason to be terrified of Trump’s presidential pen.
The Trump administration may choose to save face with the LGBT community by refusing to gut protections for federal workers passed under the Obama administration. As Slate’s Ian Thompson reported, Obama’s 2014 executive order protects 1 in 5 Americans from being fired on the basis of their sexual orientation or gender identity, and those federal guidelines are supported by a steadily increasing majority of Americans. The Human Rights Campaign found in 2015 that two-thirds of U.S. citizens believe that it should be illegal to terminate workers based on who they are or whom they love.
The executive order of 2014 amounted to merely a step forward from previous administrations. Former president Bill Clinton extended protection to federal workers against discrimination based on sexual orientation and Barack Obama added protection against bias on the basis of gender identity. Although the 2014 order was initially opposed vociferously by those of religious right — who fought for a faith-based exemption — there has been little sustained backlash since it was put into place. Trump may simply elect not to die on a hill that's not even there.
That will not, however, stop the current president from using his executive position to chip away at other protections for the LGBT community. Numerous stratagems were rumored to be under consideration this week. LGBTQ Nation reported that a Trump order could affect adoption rights for same-sex couples and social service agencies that offer support and care to the LGBT community. Further speculation suggested that the current administration would not restaff the Office of National AIDS Policy and might eliminate the White House’s official liaison for the LGBT community, a position created by the Obama administration.
Another policy that will likely be under attack is the federal guidelines issued by the justice and education departments that mandate equal access for transgender students in bathrooms and locker rooms in schools, from kindergarten through grade 12. Vice President Mike Pence, who passed a law while governor of Indiana making it legal for businesses to deny service to the LGBT community, has claimed that the incoming administration plans to repeal those regulations.
The real reason that the White House statement is so suspect is that Trump simply doesn’t need an executive order to take aim at federal protections for LGBT employees. The president has already stated his support for the First Amendment Defense Act, a bill that will be reintroduced in Congress this year. Legislation previously co-sponsored by U.S. Rep. Raul Labrador, R-Idaho and Sen. Mike Lee, R-Utah, would give private employers and individuals the right to deny services, housing and even health care to LGBT people based on personal opposition to marriage between same-sex couples. On his campaign website, Trump pledged to pass this act. Jennifer Pizer of Lambda Legal further pointed out that the POTUS could sign an executive order along these lines while claiming that the policy isn’t intended to harm LGBT people.
“They may present something as a religious freedom order while denying that it’s about anti-LGBT discrimination,” said Pizer, who serves as the national LGBT legal group’s law and policy director. “That is certainly the position that Mike Pence tried to maintain when he was the governor of Indiana, which he did not do effectively. That stance would be a way for the White House to profess that they would be seeking to expand religious liberty for everyone.”
After Pence, as Indiana's governor, signed the Religious Freedom Restoration Act into law in 2015, he appeared on ABC’s “This Week,” a political news show hosted by George Stephanopoulos. The host grilled Pence on whether the legislation, which led to a $60 million boycott of the state, would be used to target the LGBT community for discrimination. Pence refused to answer the question numerous times. Instead he argued that the media had lied about the act’s intent with “shameless rhetoric about my state and this law.”
“The issue here is: Is tolerance a two-way street or not?” Pence asked. “There’s a lot of talk about tolerance in this country having to do with people on the left. Here Indiana steps forward to protect the constitutional rights and privileges of freedom of religion for people of faith in our state, and this avalanche of intolerance that’s been poured on our state is outrageous.”
Ilona Turner, legal director for the Transgender Law Center, claimed that any executive order along the lines of the Indiana bill, which is a virtual clone of the First Amendment Defense Act, would likely violate “both the First Amendment and the Equal Protection Clause.” Ratified in 1868 as part of the Fourteenth Amendment of the U.S. Constitution, the Equal Protection Clause guarantees “the equal protection of the laws” for all Americans. (Most famously, that clause led to the desegregation of public schools brought about in Brown v. Board of Education and could apply here.)
“We will be looking for options to challenge" the order, Turner said.
But in the meantime, any federal attack on the rights of LGBT workers — whether accomplished by executive order or legislative action — stands to have a dire impact on queer and transgender people. Recent estimates from Gallup estimate that 10 million Americans identify as LGBT. Despite surveys showing that a majority of Americans believe it’s already against the law to fire someone because of their sexual orientation or gender identity, that practice remains legal in 28 states, including North Carolina, Mississippi and Texas.
Although Trump billed himself as a “friend to the gays” during the 2016 election, he ran on a staunchly anti-LGBT platform — threatening to discard marriage rights for same-sex couples if elected. Unfortunately, too many people didn’t believe that he was serious about that pledge, and it’s members of the LGBT community who will pay the price.
“We’re now seeing the transition from reality TV to reality,” Pizer said. “Things that many people dismissed as attention-getting, outrageous comments for purposes of dominating the news cycle have been now turned into policy in a way that many voters were not expecting. Mike Pence and [White House senior strategist] Steve Bannon are driving a considerable amount of the agenda, and that has to be alarming for the LGBT community. An enormous number of people stand to be terribly harmed if this isn’t stopped.”