The election of Donald Trump as president of the United States is a disaster for LGBT people throughout the nation. There can be no doubt that the Trump administration, together with a Republican-dominated Congress, will roll back hard-fought victories and stall the push for ever greater equality. Bleak as the situation may be, however, it is not hopeless -- and it is not at all inevitable that Trump and his allies will irreversibly alter the ascendancy of LGBT rights.
Trump will take office at a moment when LGBT people enjoy historically high tolerance and support from the American public. His presidency will not change that, at least not immediately. The supermajority of Americans will still support marriage equality; trans people will continue to gain greater visibility, and thus acceptance; and despite distractions about "religious liberty" and discrimination, most people will still believe that nobody should be fired because they're LGBT. "Don't ask, don't tell" will not be revived. The Supreme Court, even one stacked by Trump, will feel immense institutional pressure to respect the precedent of marriage equality. We will elect more openly LGBT people to statehouses across the country.
But challenges remain -- and there are suddenly so many more than almost anyone expected. If Hillary Clinton were assuming office after Obama, the path forward would be clear and manageable. It will now be tortuous and grueling. Yet there is a path nonetheless, and the LGBT movement has triumphed over more seemingly hopeless situations than this one. Here are six suggestions as to how the movement can protect and even expand its rights over the next four years.
1. Remember: Trump may not be a virulent homophobe, but he is a threat.
When LGBT people express anxiety about Trump's presidency, Republicans often counter that Trump himself does not appear to be outwardly homophobic or transphobic. In a very narrow sense, they are correct: Trump clearly has no active desire to demean or disadvantage LGBT people under the law in the way that George W. Bush did. But Trump is both impressionable and opportunistic -- a toxic combination in a head of state -- and he plans to delegate much of his power to advisers, allies, and cronies.
Trump's impressionability is especially dangerous in light of the nefarious sycophants whom he plans to keep in the White House. Reince Priebus, a typically anti-LGBT Republican apparatchik, will serve as chief of staff. More alarmingly, Steve Bannon will be Trump's "chief strategist and senior counselor," a Karl Rove-like position of immense influence. Bannon previously ran Breitbart, a vile hate site that ran articles with headlines like "Kids Raised By Same-Sex Couples Twice as Likely to Be Depressed, Fat Adults" and "World Health Organization Report: Trannies 49 Xs Higher HIV Rate." The latter story featured a photo of then-15-year-old transgender activist Jazz Jennings.
Even if Trump holds no personal animosity toward LGBT people, he will believe Bannon when the Breitbart mastermind insists that he needs to vilify the vulnerable to solidify support. In order to shore up evangelical votes, Trump has already declared that the Supreme Court's marriage-equality decision should be overturned, that states should be allowed to deny transgender people access to public bathrooms, and that President Obama's executive orders protecting LGBT people should be rescinded. As president, he will surely continue to throw LGBT people under the bus when Bannon -- who has stated his desire to "turn on the hate" -- thinks it's convenient.
2. Keep the focus on Pence.
Dangerous as Trump may be, his vice president is significantly more threatening to LGBT people's safety and well-being. Unlike Trump, Pence (pictured) is a true believer, a culture warrior who vigorously opposes marriage equality (a "deterioration of marriage and family") and open military service for gays ("social experimentation"). As governor of Indiana, he signed a law designed to let businesses refuse service to same-sex couples and then lied on national TV about its purpose. As a congressional candidate in 2000, Pence supported redirecting federal funds for AIDS treatment away from "organizations that celebrate and encourage the types of behaviors that facilitate the spreading of the HIV virus" -- and toward ex-gay conversion "therapy" programs. Naturally, Pence objects to LGBT employment nondiscrimination measures, calling them a "war on freedom and religion in the workplace."
It is too early to surmise the extent to which Pence's unrepentant, unrelenting homophobia will influence the Trump administration. But his bigotry dovetails neatly with Bannon's strategy of sadistic vilification under the guise of morality and nationalism. After eight years of hearing Obama praise and champion our equal dignity, LGBT Americans must brace for four years of dehumanizing rhetoric and nasty legislation. Trump's brand of ethno-nationalist pseudo-populism, as refined by Bannon and Pence, includes a hefty dose of moralism -- the type that labels LGBT people immoral degenerates. With Pence's help, the Trump administration will likely see a reversal of LGBT tolerance as a key component of making America great again.
3. Watch out for cabinet cronies and "religious liberty."
If Pence masterminds the new administration's assault on LGBT rights, Trump's cabinet secretaries will be the ones to carry out the attack. By nominating far-right hard-liners to head powerful federal agencies, Trump can easily void many gains Obama has secured for LGBT people through agency rule-making. Obama's appointees have interpreted bans on "sex discrimination" in existing civil rights law to include sexual orientation and gender identity; as a result, they have granted LGBT people new protections in housing, credit, education, and employment. Trump's appointees will quietly reverse these interpretations, stripping LGBTs of vital federal protections.
These reversals should be met with public protests. Americans are accustomed to debating the merit of new rights for LGBT people; the revocation of existing rights is more troubling, and it has proved to be politically unpopular. When North Carolina Gov. Pat McCrory (pictured) signed HB2, repealing LGBT nondiscrimination ordinances in several cities, his actions spurred a nationwide outcry and a crippling boycott that ultimately cost him re-election. The Trump administration's inevitable rollback of rules protecting transgender schoolchildren and gay employees should provoke a similar backlash -- if the country pays attention.
LGBT advocates should also prepare for a drawn-out brawl over bills designed to legalize discrimination in the guise of "religious liberty." Pence's "Religious Freedom Restoration Act" allowed "religious belief" to supercede nondiscrimination ordinances in certain circumstances; congressional Republicans appear poised to offer Trump an even more extreme variation on this genre. Their "First Amendment Defense Act" would broadly legalize any anti-LGBT discrimination ostensibly required by one's "religious belief or moral conviction." Under FADA, federal grantees, like drug treatment programs and homeless shelters, could turn away gay people; businesses could refuse to let gay employees care for a sick spouse; and the government would be barred from revoking a university's tax exemption for firing LGBT employees. Even low-level government workers could refuse to process same-sex couples' tax returns, visa applications, or Social Security checks.
FADA is, predictably, popular among Republicans. Conservative hard-liners still perturbed about marriage equality view it as a legislative priority. Democrats can likely stop it in the Senate with a filibuster or a few crossover votes. But Republicans won't risk bucking the commands of their leadership unless they feel the heat of a boiling, coast-to-coast outrage. Liberals should devote an abundance of resources to thwarting FADA; defeating the bill might temper Republicans' interest in future anti-LGBT measures.
4. Focus on state politics and the community.
There are two ways to cement LGBT workplace protection laws in every state. One is for Congress to pass the Equality Act, which would formally extend federal civil rights laws to LGBT people. The second is for the Equal Employment Opportunity Commission to decide that these laws already extend to LGBT people, in the form of "sex discrimination" bans -- and for the Supreme Court to affirm that interpretation. Neither path is currently plausible: Republicans will not pass the Equality Act; Trump's appointments to the EEOC will be anti-LGBT; and the Supreme Court will remain at least one vote away from a broad interpretation of sex discrimination.
Instead of wasting energy on the federal level, then, LGBT advocates should find room for improvement in the states. North Carolina once again provides a good example. When McCrory overreached, progressive groups launched a brilliant campaign to replace him with a progressive, Attorney General Roy Cooper. McCrory's anti-LGBT crusade was an albatross around his neck; Cooper's pro-LGBT bona fides lifted him to the governor's mansion, where he can work to undo McCrory's damage.
Democrats, whose authority at the state level has been collapsing since 2010, should follow that model during the Trump years. In 2017, Democrats must strive to hold the Virginia governorship and replace New Jersey's Chris Christie with a liberal. In 2018, Democrats have a real opportunity to elect progressive governors in Florida, Maine, Michigan, New Mexico, Maryland, Massachusetts, New Hampshire, Vermont, and Wisconsin. These governors can work to expand LGBT protections -- and veto gerrymanders that would permanently entrench an anti-LGBT Republican majority in the statehouse.
Meanwhile, every supporter of LGBT rights should get involved with their communities to protect the most vulnerable among us. Young queer people will soon face a barrage of hate, which starts at the top and trickles down into the classroom and home. LGBT youth homelessness will remain a persistent problem. Same-sex couples seeking to adopt may face new barriers put up by resistant states and sanctioned by Trump-stacked courts. National advocacy groups remain important, but LGBT-focused charities and legal aid funds need our support now more than ever.
5. Change the legal strategy.
For years, LGBT legal advocates have been on the offense. After knocking down same-sex-marriage bans, advocates began pursuing new arguments to guide the law toward greater equality. Specifically, they argued that anti-trans laws constitute sex discrimination in violation of the Equal Protection Clause, and that state laws like North Carolina's, which repeal local LGBT nondiscrimination ordinances, are motivated by unconstitutional animus.
I would not be so presumptuous as to advise trans advocates that they should stop defending their rights in court. But I fear that the current strategy may lead to disaster. With Trump sure to replace the late Justice Antonin Scalia with a rock-ribbed conservative, we will once again rely on Justice Anthony Kennedy (pictured) to come through on every LGBT-rights case. But Kennedy is not especially progressive on sex-discrimination issues and will be hesitant to grant broad equal-protection rights to trans people. A blockbuster trans case that ends in defeat will enshrine into law a terrible precedent that may not be overturned for decades.
Roberta Kaplan, the attorney who toppled the federal Defense of Marriage Act as well as Mississippi's same-sex-adoption ban, thinks activists should shift their focus to blatantly hateful and extreme laws that explicitly license religious-based discrimination. Last summer, Kaplan persuaded a judge to block Mississippi's HB 1523, which would have legalized anti-LGBT discrimination in housing, employment, education, adoption, medical treatment, public accommodations, and marriage licensing. Kaplan focused on the Equal Protection Clause's synergy with the Establishment Clause, which prevents the state from favoring one religion over another. A federal judge cited her theory in halting the law, ruling that it "establishes an official preference for certain religious beliefs...at the expense of other citizens" -- namely, LGBT people. Kaplan thinks Kennedy will agree with that decision.
"A lot of lawyers argue these as equal-protection cases," Kaplan told me. "But they're going to have to become well-versed in the Establishment Clause, too--if they want to win."
6. Don't lose hope, and don't back down.
The past eight years have marked a new era of openness in the United States. As I spoke to LGBT friends following the election, the concern I heard most often is that this sexual glasnost will be replaced with repression and fear. I understand this anxiety, but I doubt LGBT Americans will suddenly feel more compelled to remain in or re-enter the closet, muffle their self-expression, or cede their right to equal dignity. Marriage equality marked a point of no return, and we are still just beginning to experience the benefits that will flow from that decision. We will not retreat; we will not become invisible; we will not stop demanding the full array of rights that are owed to us under the law.
I asked Evan Wolfson (pictured), the architect of marriage equality in America, how he thought the LGBT community could best protect its rights in the era of Trump.
"We must continue to bring the marriage conversation, with all the visibility and empathy it fosters for gay and trans people and our loved ones, to more parts of the country--and world," he told me. Marriage equality didn't solve everything, but its "aspirational power," he said, can be used to mitigate homophobia and encourage more-humane LGBT laws.
Wolfson doesn't see the 2016 election as a sign that LGBT advocates pushed too far, too fast. He sees it as an incongruity, a temporary setback. We will, he believes, resume our march toward progressivism in 2020 -- so long as we resist the temptation to lose hope.
"We must muster hope, clarity, and tenacity to build on what we have won," Wolfson said, "marshal the allies and assets that these anomalous results did not magically erase, and get America back on track."
