Those wondering how actively President-Elect Donald Trump wants to pursue the rolling back of LGBTQ rights and equality received an early disturbing signal on Wednesday afternoon.
The New York Times reported that one of Trump’s first priorities, with America and the world still in shock at his presidential victory, was to select a conservative nominee for the Supreme Court vacancy, as he had promised while campaigning.
As The Daily Beast’s Jay Michaelson has written, the Supreme Court will become Trump’s prime vehicle to advance a socially conservative agenda, including a possible renewed effort to scupper marriage equality.
The grief, anger, and fear of many LGBTQ people on social media after Trump’s presidential election victory was immediate, sharp, and keenly felt. Many people writing about their fears invoked other groups that Trump has targeted: Muslims, immigrants, and women.
There were tweets to call friends and loved ones to check in on them; vows to fight whatever attacks on LGBTQ rights will happen under a Trump administration; promises to support one another; and overarching it all, shock and nervousness.
As Michaelson wrote a few weeks ago, an administration led by Trump includes now-Vice President-Elect Mike Pence, “one of the most anti-gay governors in the nation,” most notorious for his steadfast support for Indiana’s Religious Freedom Restoration Act (RFRA) and his backing of “conversion therapy” for LGBTQ people.
To have an administration with an avowedly anti-equality agenda, acting with the backing of a Republican-controlled House and Senate, may mean a very dark era for LGBTQ equality.
Jay Brown, a spokesman for the Human Rights Campaign (HRC), told The Daily Beast: “Everybody is a little stunned right now. We know there are several threats coming at us, and we spent many months warning voters about the anti-LGBTQ platform of Donald Trump and Mike Pence. Now we’re confronted by that.”
Brown said HRC and the wider LGBTQ movements had faced setbacks and fought long and hard battles before, and would do so again “with determination.”
Visitors to the HRC website Wednesday were most concerned about the threat to marriage equality, Brown said; Trump said he would “strongly consider” overturning the law, having shaped the Supreme Court in the way he wanted.
The legal process to do so would be complicated, Brown said.
A case would have to be heard at SCOTUS challenging the landmark Obergefell v. Hodges decision of 2015, which saw same-sex marriage made legal nationwide.
Another possibility, as sketched by Lucas Grindley in the Advocate: “The Republican-controlled Congress will pass a law that under the Obergefell or (Edie) Windsor rulings would’ve been considered unconstitutional. If anyone dares challenge that law, it will be taken up with the Supreme Court, which can then decide to overturn its previous marriage equality ruling.”
The HRC was concerned, Brown said, about the cases heading the Supreme Court’s way focused on transgender issues.
At the end of last month, SCOTUS announced it would decide whether transgender boy Gavin Grimm could use the boys’ bathroom in a Virginia high school.
Trump and Pence had also intimated that they would move to make it more difficult for LGBTQ people to serve openly in the military, said Brown.
There was also the composition of a potential Trump Cabinet: Newt Gingrich, Rudy Giuliani, and Chris Christie all have anti-LGBTQ records, Brown said. “We’ll be looking to see if there are directives and guidances issued against our community,” he said.
That would include the Department of Education’s guidance, published in May, to support and protect trans students.
Brown was also concerned about the instances and bills centered around refusing services to LGBTQ people because of the provider’s religious conscience or belief.
The intended dismantling of Obamacare would also have a significant impact on LGBTQ people’s access to health care.
Of the lack of policy specifics from Trump, Rachel B. Tiven, CEO of Lambda Legal, noted that it was “hard to critique something that has no plan. There is no domestic agenda. There is no detail of any kind about anything.”
Tiven said her organization—the nation’s oldest and largest legal organization working for the civil rights of LGBTQ people, and those with HIV/AIDS—had spent its history educating schools, parents, and teachers, how wrong bullying was, “only to wake up this morning to find that our fellow Americans had elected a bully for president.
“It is particularly bitter. His election stands as a total repudiation of what the LGBTQ rights movement has been fighting for: pride in yourself and others, pride in who you are, being different. This feels like an attack.”
Like Brown, Tiven was concerned by Trump’s intention to appoint homophobes to influential public office; and also, like Brown, she was hopeful that marriage equality could not be easily torpedoed.
“The United States has been through vigorous debate and public hostility towards social change for its entire existence. We have been so blessed and moved by the embrace of LGBTQ people and the response to the marriage equality movement. The Constitution and court system are very durable. Roe v. Wade has been under attack for decades and decades and, though indented, has not been overturned. [Another of Trump’s campaign promises was to do that.] We have weathered worse than Trump.”
The author and veteran activist Michelangelo Signorile, Sirius XM host and editor-at-large of Huffington Post’s Queer Voices section, told The Daily Beast: “We should be very worried about LGBT rights. Trump kept it under the radar during the campaign. His foghorn was immigration, and his dog-whistle to Christian conservative groups was LGBT rights.
“He promised things quietly to them around religious liberty laws. What he said publicly shouldn’t be seen as a reflection of how homophobic his actions might be. He convinced these people to vote for him in massive numbers. Now he has to give them things.”
Signorile, author most recently of the book It’s Not Over, said he wasn’t sure that a newly appointed conservative justice on the Supreme Court could overturn marriage equality, but he was concerned that Trump could pass laws to make “gay marriage into second-class marriage.”
Trump has already pledged to sign into law the First Amendment Defense Act (FADA), which would give employers, businesses, and landlords the right to discriminate against LGBTQ people in accordance with their religious beliefs.
Trump’s election also meant, predicted Signorile, that the Equality Act was “dead in the water.” The act, introduced in 2015 to the House of Representatives and the Senate, “establishes explicit, permanent protections against discrimination based on an individual’s sexual orientation or gender identity in matters of employment, housing, access to public places, federal funding, credit, education and jury service,” says the HRC. “In addition, it would prohibit discrimination on the basis of sex in federal funding and access to public places.”
Trump’s views on LGBTQ matters, as on so much else, are not clear, said Signorile.
As The Daily Beast’s Olivia Nuzzi reported earlier this year, Trump has spoken before of his links to the LGBTQ community; in 2000 he told The Advocate that growing up in New York City meant growing up in a city “that breeds tolerance.”
In the same interview, he proposed doing what the core of the Equality Act of 2015 proposes. “I like the idea of amending the 1964 Civil Rights Act to include a ban of discrimination based on sexual orientation. It would be simple. It would be straightforward.”
Much was made of Trump’s pro-LGBTQ statements on the campaign trail, but for Signorile the Republican’s response to the Orlando LGBTQ club massacre sought to pit LGBTQ people against Muslims.
“He’s pro-choice, then he wasn’t, and that was probably for the sake of the election too,” said Signorile. “He didn’t want to go publicly anti-gay. Look at Ronald Reagan. He came from Hollywood, Rock Hudson was his and Nancy’s best friend. They knew gay people. Then as president he left everything by the wayside, and let so many people die [of AIDS].
“Whatever Trump feels personally about LGBTQ people, he has made his bed with Christian conservatives. His campaign was full of confusion and mixed messages. Maybe he has gay friends. Maybe he really doesn’t care what bathroom a transgender person uses. But for his election he needed the religious right, and he has made a pact with these people.”
Signorile said he had seen Trump and Pence court this constituency at the Values Voter Summit, noting that on Tuesday Trump received more evangelical votes than George W. Bush.
“If he ultimately throws them overboard, we can be hopeful, but if he wants re-election he will need to give them a few things,” Signorile said. “At the RNC, Trump said he would protect us from a ‘hateful foreign ideology.’ What about the hateful domestic ideology that he now seems so happy to help put in place?”
For those LGBTQ people concerned or worried, Tiven recommended people visiting Lambda Legal and other organizations’ websites, and getting in touch and reporting any instances of discrimination they are aware of.
LGBTQ people needed to be aware of their rights, and to fight for their preservation if necessary, she added.
Tiven took some heart that the 2016 presidential election had not mirrored that of 2004. “Back then, we were a punching bag. We were the object of vilification by Republicans, who sought to use us in a number of anti-gay ballots. This time we’re not that punching bag, but we have helped change the culture in a way that half of Americans seem uncomfortable with. They do not like the diverse and beautiful America we helped to create. But we are not the primary object of their discomfort: Muslims, immigrants, and people of color were. LGBT people were not singled out for the viciousness we are accustomed to. At the same time, we have helped generate the more inclusive and loving America that I absolutely believe will triumph in the end.” (As evidence, Tiven pointed to the overwhelming majority of millennials who voted for Clinton.)
In a statement, Chad Griffin, HRC president, said: “To every LGBTQ person across this nation feeling stunned and disheartened, and questioning if they have a place in our country today, I say this: You do. Don’t ever let anybody tell you otherwise. Be bold, be strong, and continue to stand up for the principles that have always made America great.”