Originally published by The 19th
LGBTQ+ advocates are gearing up for a possible second Trump administration by planning future litigation, deepening relationships in Congress and mobilizing voters.
If former president Donald Trump is re-elected, advocacy groups expect him to enact anti-LGBTQ+ policies that are more far-reaching and extreme than those he put in place during his first term — based on his campaign promises and policies suggested by the Heritage Foundation, a conservative think tank that has shaped the GOP’s agenda for decades.
Trump is focused specifically on rolling back transgender rights, as he detailed in a campaign video last year. His proposals would terminate Medicare and Medicaid funding for hospitals that provide gender-affirming care to trans youth, attempt to charge teachers with sex discrimination for affirming students’ gender identities and order federal agencies to “cease all programs that promote the concept of sex and gender transition at any age.” Trump also pledged to ask Congress to halt the use of federal funds to promote or pay for gender-affirming care, without distinguishing between care for adults or minors.
Some of these policies mimic state anti-LGBTQ+ laws, which frequently run into enforcement issues as state agencies tasked with monitoring school bathrooms and classroomsare unable to find consistent ways to carry out restrictive laws. Several of Trump’s proposed anti-trans policies would also require congressional approval. However, as a new report from the American Civil Liberties Union details, even if Trump gains the presidency without Republicans taking power in Congress, he would be able to take action against LGBTQ+ rights on his own — and has said that he plans to.
“We’ve seen over the last several years a militant effort in red states by the government to discriminate against trans folks, in particular, and the broader LGBTQ community, and even to go so far as to try to deny trans people's existence,” said Mike Zamore, national director of policy and governmental affairs at the ACLU. “The danger in the Trump administration is seeing the federal government using its massive reach and resources to do something similar on a national scale.”
The federal government could use its civil rights enforcement capabilities to argue that institutions trying to protect LGBTQ+ rights are violating the rights of people with certain religious beliefs, Zamore said, or it could threaten to withhold funding from universities that receive federal money if they do not discriminate against transgender students.
In the Heritage Foundation’s Project 2025, a purported roadmap of executive actions that a future Republican president could take on various issues — including abortion access — several of the policy suggestions align with Trump’s promises to roll back LGBTQ+ rights. Project 2025 advocates for the deletion of the terms “sexual orientation and gender identity” from all federal rules and for prohibiting teachers from affirming trans students.
One of the more extreme proposals in Project 2025 equates the act of being transgender, or “transgender ideology,” to pornography, and declares that it should be outlawed. The conservative think tank recommends that educators and public librarians who spread the concept of being transgender should be registered as sex offenders, and that telecommunications and technology firms that facilitate the spread of ideas about transgender people should be shuttered.
The ACLU says that a second Trump administration would not be able to implement such a policy without Congress — and that if such a policy did go into effect, using criminal laws to outlaw the concept of being transgender would violate the First Amendment.
Overall, the ACLU expects the federal government under a second Trump presidency to rescind federal regulations that prohibit discrimination on the basis of sexual orientation and gender identity, and to weaponize federal law against transgender people in ways that would also harm cisgender and gender-nonconforming people, by attempting to enforce strict definitions of gender expression.
“This election has huge ramifications for the future of trans rights across the country,” said Josie Caballero, director of voting and elections at Advocates for Trans Equality. “The future is going to be incredibly difficult if we allow for a second Trump presidency. That will have ramifications that will affect the trans community for decades,” she said.
Caballero, a Texas-born granddaughter of Mexican immigrants who is also a military veteran and a queer trans woman, joined other advocates in Congress this week to lobby lawmakers in support of trans rights. If Trump is elected to another term, she believes that deepening relationships in Congress will help. But her focus ahead of the 2024 presidential election is getting as many trans people registered to vote, and ready to vote, as possible.
Building a substantial trans voting bloc is crucial to demonstrate to lawmakers that trans people are a formidable political force, she said; and it provides a concrete way to show how many trans people are getting involved in the political process.
“If you vote against trans issues, well you’re going to lose a massive amount of votes and have those votes go against you,” she said.
Caius Willingham, senior policy advocate at Advocates for Trans Equality, led the organizing for the group’s lobbying on Capitol Hill. Building strong relationships with lawmakers in Congress is key to a unified strategy to fight back against anti-trans attacks expected during a potential Trump 2025 administration, he said.When Congress is functioning properly, it is meant to check presidential overreach — and much of Project 2025 focuses on consolidating presidential power, he said. Project 2025 includes authors from Trump’s former administration and campaign.
“Their aim is to consolidate as much power in the White House as possible, and so it's very key to make sure that Congress remains a vital check. So that's why this is a huge priority for Advocates for Trans Equality,” he said. There are strong allies for trans rights in Congress, he said — like Rep. Pramila Jayapal of Washington, author of a congressional bill that aims to recognize federal protections for transgender Americans.
Caballero met on Wednesday with staff from Massachusetts Democrats in Congress, including Reps. Ayanna Pressley and Katherine Clark and Sens. Ed Markey and Elizabeth Warren. Other staff at Advocates for Trans Equality, as well as the constituents that they brought to meet lawmakers, also met with Republicans in Congress.
“We actually ended up with more than 90 meetings scheduled, and these meetings really ranged the political spectrum. We did not turn down a meeting with a single office,” Willingham said. “We met with Ted Cruz's office. We scheduled something with Mitch McConnell’s office, that one fell through. But we were here and we were happy to meet with anybody who would make the time to listen to us.”
Whether congressional Republicans have been responsive to those meetings remains to be seen. Within the past few years, anti-trans rhetoric and attempted policymaking have only continued to grow on Capitol Hill.But the rising number of federal anti-trans bills introduced by Republicans in Congress have been unable to pass, due to a Democratic-controlled Senate. In November, that could change.
If “a pro-equality opposition” controls either or both chambers of Congress in a second Trump administration, pro-LGBTQ+ members of Congress could still use the appropriations process to hinder Trump’s ability to enact anti-trans laws, the ACLU writes in its report. The appropriations process refers to how the House and Senate fund the federal government, which is often derailed by “riders” — provisions that dictate policy not directly related to the federal budget.
Since many of the anti-LGBTQ+ policies proposed by Trump’s campaign or Project 2025 would violate the Constitution and federal law, the ACLU says that litigation would be a significant part of its response to a second Trump term. As the last few years have seen a dramatic increase of anti-LGBTQ+ rhetoric and laws, the civil rights group has mounted dozens of consequential lawsuits against those policies — and at least a dozen on health care bans within the last year. During Trump’s first term, the ACLU took on the former president’s order to ban trans people from the militaryamid hundreds of other lawsuits against the former administration.
Although the ACLU is confident in its ability to fight anti-LGBTQ+ policies in court, and several judges appointed by Trump have actually granted wins for LGBTQ+ advocates, the organization says that the political atmosphere has stillchanged since Trump’s first term.
“Getting courts to understand the experience of transgender people and the impact of discriminatory policies on their lives was difficult even before Trump reshaped the judiciary. It is that much harder now,” the report reads. It was co-authored by Ian Thompson, senior legislative advocate at the ACLU, as well as James Esseks, attorney and project director for the ACLU’s LGBTQ+ HIV Project, and Leslie Cooper, deputy director of the ACLU LGBT & HIV Project.
“What we know is that the courts are not as friendly as they once were,” said Zamore, who contributed to the report. “I don't think any of us can assume that a position that was successful in the first Trump administration would necessarily prevail this go around, but we will obviously be doing everything we can.”
The ACLU is also urging states to act now to prepare for a possible second Trump presidential term. Local elected officials should start planning how to protect their transgender constituents, and states should create funding streams for gender-affirming care to protect access for those who would lose health care without federally funded programs. The organization cites policies created to protect abortion access as examples, like California’s reproductive health equity program and Maryland’s abortion clinical training program.
The ACLU is working with its state affiliates to organize ideas and potentially necessary resources, Zamore said. Under a hostile administration, states with LGBTQ-friendly governments will need to fill in the gaps for access to gender-affirming care while also standing up for their residents, he said.
Trans Americans and parents of trans youth can also prepare by updating their identity documents, said Gillian Branstetter, communications strategist at the ACLU’s women’s rights project and LGBTQ & HIV Project, who also contributed to the report. Approving name changes, updating birth certificates, and filing for a new passport are all steps that should be taken now, she said.
The ACLU’s report aims to communicate a way out if some of these policies are implemented, she said, and to organize LGBTQ+ groups around a common focus.
“We’re not out of options. We are not without power here,” she said.
