Trump has put LGBTQ rights in peril. Can Joe Biden save them?
The Daily Beast
December 24, 2020
The Trump administration continued to attack the LGBTQ community, particularly trans people, in 2020 in law and in the courts. Joe Biden has a lot of work to do to ensure equality.
It was a familiar swing-set of an LGBTQ year: high highs, low lows, and the ever-present animus of the Trump administration, a bigotry which Trump and his gaslighting lackeys, like Richard Grenell, insisted was not bigotry.
On one side of history was Pete Buttigieg, the first out LGBTQ candidate to garner delegates in his impressive bid to become the Democrats’ presidential nominee. Now Biden’s pick to be transportation secretary, Buttigieg has made history again, as the first out gay man to be nominated to a Cabinet role. One bum note: Chasten Buttigieg will not be First Gentleman. Yet.
Then there was Trump’s campaign for LGBTQ votes, led improbably by a wild-eyed Tiffany Trump (who accorded us the new acronym of LGBQIA, erasing trans people). The campaign, after four years of relentless attacks on the LGBTQ community (particularly trans people), sought to convince America of the opposite.
Trump’s packing of the courts—including the Supreme Court, and including lower courts—with right-wing judges has increased alarm that anti-equality decisions could be reached on a range of issues.
Joe Biden’s presidential victory has raised hopes; he is an avowed supporter of LGBTQ equality. The unknown: how much will he attempt, and be successful, in doing to redress the damage done by Trump legislatively, and by his choice of judges?
Biden has already committed to overturning—by executive order, most likely—the Trump administration’s ban on trans people serving in the military. In May, a trans naval officer has secured the first ever waiver to carry on doing her job; other similar cases are ongoing, and will simply disappear if Biden gets rid of the ban.
Biden told Dallas Voice in February that he intends to do this “on day one” of his administration. A spokesperson for the Biden transition team told The Daily Beast that he had pledged to repeal the ban at the outset of the administration.
Biden’s campaign website makes clear Biden’s intention to reverse the transgender military ban, which is “discriminatory and detrimental to our national security. Every American who is qualified to serve in our military should be able to do so—regardless of sexual orientation or gender identity and without having to hide who they are. Biden will direct the U.S. Department of Defense to allow transgender service members to serve openly, receive needed medical treatment, and be free from discrimination.”
Biden has much more LGBTQ legislative and political damage to undo, even from the last 12 months. The year began, as advocacy group GLAAD noted, with a Trump administration directive to strengthen access to federal dollars for religious-based organizations; the most recurrent weapon against LGBTQ equality in government and in the courts is “religious freedom,” with the overriding thesis that treating LGBTQ equally and fairly is a contravention for those who wish to refuse them services or basic equality.
It is also supporting the Philadelphia-based organization, Catholic Social Services (CSS), which wants to prohibit same-sex couples from becoming foster parents. In Fulton v. City of Philadelphia, currently before the Supreme Court—now with a 6-3 conservative majority—the justices are considering whether the city may bar CSS from screening potential foster parents given that it refuses to work with same-sex couples.
The administration’s use of Title IX of the Education Amendments Act of 1972 against trans athletes has been another recurrent theme of the year. In April, the Department of Justice filed a “statement of interest” in the U.S. District Court for the District of Connecticut, claiming that Title IX should be taken as excluding transgender female athletes and applying only to cisgender females.
In May, the administration threatened to withhold funding from states that allowed athletes to compete under the gender with which they identify.
The following month it supported an Idaho law, which bars trans female athletes from competing in school sports as girls and woman. That law is now the subject of a lawsuit, Hecox v. Little. This week, an amicus brief in support of the trans athletes was signed by female athletes including Billie Jean King and Megan Rapinoe.
The administration has also announced rules allowing single-sex homeless shelters to run away trans people, and in June announced a rule to strip transgender health-care protections from Section 1557 of the Affordable Care Act.
Oddly, it has had nothing to say about the at-least 41 transgender or gender non-conforming people fatally shot or killed by other violent means, the majority of whom were Black and Latinx transgender women—as recorded by the Human Rights Campaign (HRC). In contrast, Joe Biden has recognized this violence, and vowed to ensure his administration will do all it can to safeguard and value trans lives.
J.K. Rowling’s various pronouncements against trans people became the most noticeable—but hardly the only—component of a relentless campaign in the British media against trans people, the effects of which were powerfully described by Katherine O’Donnell in a recent Daily Beast article.
Alongside the Trump administration’s substantial acts of anti-LGBTQ aggression, there were purely pathetic ones, as when the Department of Defense issued guidance prohibiting the display of Confederate flags outside military institutions and also included a ban on LGBTQ Pride flags.
In March, former Illinois congressman Aaron Schock came out, surprising no-one. He intended this coming out to be a clean slate. Given the damage he did to LGBTQ people while in office, his pleading words rang very hollow. Later in the year, the Trump-supporting conservative leader Jerry Falwell Jr., so happy—like his father—to moralize about LGBTQ people, was alleged to have enjoyed watching his wife have sex with another man.
The bigotry of the Trump administration, while relentless, has also been successfully challenged. In June, the Supreme Court ruled that Title VII of 1964 Civil Rights Act did include LGBTQ people, making it illegal to fire someone because of their sexual orientation or gender identity. (Naturally, the Trump administration immediately has challenged the ruling.)
In October, the U.S. State Department backed down in two legal fights over granting citizenship to the children of same-sex couples born abroad after The Daily Beast first reported on the issue last year (Politics Reporter Scott Bixby won a GLAAD award for his work). The State Department withdrew its appeal in the case concerning Roee and Adiel Kiviti’s daughter, Kessem. (The couple won their case in June, but the Trump administration had appealed the ruling.)
Separately, the State Department also opted not to appeal in the case of Derek Mize and Jonathan Gregg, a same-sex American couple that filed a discrimination suit last year after their daughter, who was born abroad with a surrogate, was denied citizenship.
The election brought a series of impressive LGBTQ firsts. Over 220 LGBTQ candidates were victorious in their races. Sarah McBride became the first out trans state senator, having won Delaware’s 1st State Senate district. Ritchie Torres (NY-15) and Mondaire Jones (NY-17) became the first two out LGBTQ Black members of the U.S. Congress, having won their New York races. Torres, representing the South Bronx, is the first out LGBTQ Afro-Latinx member of Congress.
Adrian Tam’s election victory in Hawaii means he is the only out LGBTQ person in Hawaii’s House of Representatives. He beat Nick Ochs, leader of a chapter of far-right group the Proud Boys.
There were significant deaths this year—of the pioneering journalist Monica Roberts; of Aimee Stephens, who was one of those LGBTQ people fighting—ultimately successfully—at the Supreme Court in the Title VII case; of the activist Lorena Borjas; and of famed playwrights Larry Kramer, Terrence McNally, and Mart Crowley.
There were also those who continue to make history and inspire, like trans TV star Shakina Nayfack, the campaigner Kayla Gore, MCC founder Troy Perry, Black queer playwrights changing theater, Alphonso David, HRC’s first Black president, and the powerful and moving story—50 years on—of those people who set up and marched in America’s first Pride marches.
Gerald Bostock, whose name titles the historic Supreme Court Title VII ruling, told The Daily Beast how “elated” he was when he heard the news just after it was announced.
But this victory, and the 50th anniversary of the first Prides, did not signal that all battles were won. Far from it. Marriage equality itself came under attack from two of the Supreme Court’s most conservative justices on the first day of its new term in October (now with a 6-3 conservative majority). Justices Thomas and Alito claimed the ruling “enables courts and governments to brand religious adherents who believe marriage equality is between one man and one woman as bigots.”
Trump’s court packing allowed a pro-conversion therapy ruling to recently issue fourth from the 11th Circuit. On Nov. 20, the 11th Circuit Court of Appeals struck down bans on juvenile gay conversion therapy in South Florida.
The majority votes in the 2-1 decision came from two Trump-appointed judges who argued that the therapists practicing this mode of therapy—resoundingly condemned by every professional body in the field—were having their freedom of speech violated by being banned from practicing. The damage done by conversion therapy was graphically evoked by four people who spoke to The Daily Beast about their experiences of it; the 11th Circuit ruling is now being challenged.
The Trump administration, in its unpredictable, tumultuous death throes, isn’t done discriminating against LGBTQ people, recently announcing it will allow federal contractors to discriminate against LGBTQ workers via religious exemption. That will come into effect on January 8th, just before the Trump circus officially ends—an example that when it comes to sheer anti-LGBTQ spite, this administration has been unmatchable.