Donald Trump was the first Republican presidential nominee to mention the LGBTQ during the Republican National Convention. It was a very small acknowledgement about protecting LGBTQ persons from terrorism by radical Islamists. This small mention left many wondering and uncertain about how President Donald Trump would treat the rights of members of the lesbian, gay, bisexual, transgender, and queer community. Two other hints was when Caitlyn Jenner was told by the President she was welcome to use the bathroom of her choice in Trump Towers. He also stated the issue of same-sex marriage is "settled."
The gesture by Trump from these statements could be viewed as more inclusive to the LGBTQ community. His choices of Vice President Michael Pence and Attorney General Jeff Sessions were viewed as troubling, because both Pence and Sessions have opposed LGBTQ rights. So, what direction will the Trump administration take?
Recently the Department of Justice withdrew its request that a Texas district court lift its stay in a case dealing with access to bathrooms for transgender students. In other words, by Trump withdrawing his support backing is removed for these transgender students. It turns out the Trump DOJ, under Attorney General Jeff Sessions, is not a friend to the LGBTQ community.
This move may be a harbinger. Across the country, there are a number of lawsuits arguing that federal law should prohibit discrimination on the basis of sexual orientation or gender identity. During the Obama administration, most of these lawsuits had the backing of the DOJ, Department of Education, and Equal Employment Opportunity Commission. Part of the arguments in these cases is that the courts should give deference to these agencies' interpretations of the relevant federal civil rights statutes.
Across the country, there are a number of lawsuits arguing that federal law should prohibit discrimination on the basis of sexual orientation or gender identity.
Is marriage equality at risk? Trump, in his pre-inauguration "60 minutes" interview, stated that marriage equality was "settled' under the Supreme Court's decision. But he has also promised to appoint justices who will overrule the over 40-year precedent of Roe v. Wade. Of course, justices opposed to Roe are likely to be opposed to the far more recent establishment of marriage equality.
The same objections that judges and justices opposed to Roe have made apply equality to marriage equality: They argue that the court has manufactured new "rights" that do not exist in the Constitution. Additionally, there can be considerable overlap among those opposed to abortion and same-sex relationships, particularly on moral and religious grounds. If a case gets to the Supreme Court with Trump-appointed justices, the court could reject marriage equality. Any judicial challenge could end up at the Supreme Court.
At present, the broader threat to marriage equality is not as pressing. The five justices who voted for marriage equality are still present, so, in the near term, marriage equality is safe. But, if one of those five justices retires or dies, it is not difficult to fathom Trump appointing a justice who would be happy to overrule.
It seems clear that LGBTQ rights will not be defended at the federal level. Those in favor of LGBTQ equality will need to defend themselves against efforts in states to ban the use of restrooms and to embrace so-called religious-liberty bills. The fight is now our own. We won't be able to look to this administration for help.
