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By Tim Holbrook
Editor’s note: Tim Holbrook is a professor of law at Emory University School of Law. He is a member of the boards of directors of the Transgender Legal Defense and Education Fund and the Stonewall Bar Association of Georgia. The views expressed are his and his alone.
(CNN) — There has been some uncertainty as to how President Donald Trump would treat the rights of members of the lesbian, gay, bisexual, transgender, and queer community. For example, during the Republican National Convention, President Trump became the first Republican presidential nominee to mention the LGBTQ community. Of course, he did so in a very narrow context — protecting LGBTQ persons from terrorism by radical Islamists.
The President noted that Caitlyn Jenner was welcome to use the bathroom of her choice in Trump Towers. He also stated the issue of same-sex marriage is “settled.”
These statements could be viewed as a gesture by Trump to be more inclusive to the LGBTQ community. In contrast, 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 would the Trump administration take?
The Trump administration showed its hand on Friday, when 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. The Obama administration had issued guidance that schools should permit transgender students to use bathrooms that correspond with their gender identity. The Texas court blocked implementation of this approach.
Under the Obama administration, DOJ had asked the appellate court to reject the stay. The Trump DOJ has withdrawn support, removing its backing for these transgender students.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.
For example, the Supreme Court is scheduled to hear arguments in Gloucester County School Board v. G.G. on March 28. The lower court determined that a trans boy should be able to use the boys’ restroom in his public high school. One of the issues the Supreme Court is addressing is whether courts should afford such deference to these types of agency pronouncements.
If the Trump administration changes its position in the case, it may remove that issue from the case and, seemingly, could tip the case against the transgender student. DOJ’s action in the Texas case strongly suggests it will no longer support the trans student.
Similarly, a case out of Indiana is pending before a federal court of appeals, addressing whether federal anti-discrimination laws protect gays, lesbians and bisexuals against discrimination based on their sexual orientation. The EEOC has supported this position. Again, if the Trump administration alters its position on this issue, it could result in a loss to the LGBTQ plaintiff and a defeat for LGBTQ nondiscrimination protections.
The Texas withdrawal of the challenge to the stay is an ominous omen. It suggests the Trump administration will pivot away from protecting the civil rights of LGBTQ persons. The withdrawal of support may tip these cases against the LGBTQ litigants.
While losses in these cases would be detrimental, there is even more at risk, such as marriage equality. Trump, in his pre-inauguration “60 Minutes” interview, stated that marriage equality was “settled” under the Supreme Court’s decision in Obergefell v. Hodges. 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 equally 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.
Such challenges to marriage equality will not be difficult to manufacture by the states. Tennessee has already introduced legislation again to ban same-sex marriage. Any judicial challenge could end up at the Supreme Court.
At present, the broader threat to marriage equality is not as pressing. Even if Judge Neil Gorsuch is confirmed to the court, his presence will not change the court’s political composition. The five justices who voted for marriage equality are still present, so, in the near term, marriage equality is safe. And it would be unlikely for the court to undo any existing same-sex marriages. 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 Obergefell.
The action by the DOJ in Texas on its face seems minor. In fact, it is quite revealing. 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.