LGBTQ Rights in Post-Trump America

By Guest Contributor Josh Langdon

After eight years of historic progress and support from the Obama Administration in almost all aspects of the law, from removing barriers to marriage equality and military service, to protecting LGBTQ persons at work and in school, we confront a new President, chosen after one of the most bitter and divisive elections in modern history. Does President Trump’s ascension to the White House mean this progress will be reversed or stalled – even if America’s hearts and minds already are evolving in favor of LGBTQ equality? Hard to say, given the mixed messages first from Candidate and now President Trump.  What’s clear is that much work remains ahead.

Mainstream LGBTQ rights organizations all widely oppose the Trump Administration, as they should. He appointed Jeff Sessions as United States Attorney General–a huge slap in the face to the LGBTQ community, given his staunch opposition to any and all pro-LGBTQ causes. Trump’s pick for Vice President, Mike Pence, had a record on LGBTQ issues as Indiana’s governor that was equally alarming.  In addition, Trump’s newly confirmed United States Supreme Court Justice Neil Gorsuch has a strict constructionist judicial ideology, which does not bode well for the pending and future court cases affecting the LGBTQ community.

Trump’s own stance on LGBTQ rights is a bit of a conundrum. During the campaign, the Washington Post once declared that Trump is “teaching the GOP a different way to embrace gay rights,” because he had refrained from attacking one group – gay Americans. While Trump’s views on marriage equality have swayed back and forth, he admitted that the law is now settled after the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges. On the campaign trail, Trump publicly opposed North Carolina’s anti-LGBTQ “bathroom bill,” but later back-peddled. Trump made history at the 2016 Republican National Convention by explicitly pledging to protect LGBTQ people during his speech accepting the nomination. Responding to the loud applause greeting this declaration, Trump remarked how happy he was as a Republican to hear the crowd’s positive reaction. Just hours before that speech, entrepreneur Peter Theil also made history as the first openly gay speaker to affirm his sexual orientation on stage and his pride at being both gay and Republican.

But President Trump’s position on LGBTQ rights is as ambiguous as that of Candidate Trump. He surprised both conservatives and liberals by keeping an Obama-era executive order protecting LGBTQ federal workers from discrimination, but then withdrew Obama Administration guidelines stating that Title IX protects transgender students’ bathroom rights. The latter decision caused a public disagreement between Trump, Sessions and Secretary of Education Betsy DeVos. Initially, Secretary DeVos hesitated signing off because of the resulting harm to transgender students, but ultimately she fell in line.  Legally speaking, the Fourth Circuit Court of Appeals relied on Obama Administration guidelines to decide in G.G. v. Gloucester County School Board that Title IX means a

transgender high schooler has a right to use the bathroom corresponding with his gender identity rather than his biological sex.  The Supreme Court was set to review this case, but remanded the case to the Fourth Circuit after the Trump Administration rescinded the guidelines. The case is now pending.

So, what does this all mean for the LGBTQ rights movement? We are not sure.

While President Trump is hardly an advocate of the LGBTQ community, and in fact, many view him as a staunch opponent, his ascent to the White House does represent a noticeable shift in the ideology of Americans as well as Republicans. What we do know is that for LGBTQ rights, the proverbial sky has not fallen — yet. Therefore, it is imperative that we keep having difficult conversations with our family, friends, neighbors, etc. We need to treat each other with dignity and respect in this divisive political climate, and we need to realize that progress takes time. As Martin Luther King, Jr. said, “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”

For a more in-depth analysis of this topic, please join the Cincinnati Bar Association LGBT Interests Committee at its annual LGBT Interests Symposium, Awards Ceremony and Pride Month Social on June 23, 2017 at Frost Brown Todd. For more information and registration, please visit the Cincinnati Bar Association’s website.

Josh Langdon is an attorney at Wood & Lamping LLP. He has extensive experience in representing lesbian, gay, bisexual and transgender (LGBT) clients throughout Ohio and Kentucky in a variety of areas. Josh is now actively involved with the Cincinnati Bar Association, serving as the Chair for the LGBT Interests Committee, and of the Ohio State Bar Association Family Law subcommittee formed with the sole task of revising the Ohio statutory code in light of Obergefell v. Hodges.