The president alone can’t have a huge impact on domestic policy issues. Traditionally, they just can’t get much done without Congress. That normally extends to LGBTQ issues.
There’s a big exception for LGBTQ people in 2016.
Over the past year, we have seen a lot of focus on the bathroom issue — specifically, whether transgender people should be allowed to use the bathroom that corresponds with their gender identity. To some people, this issue is befuddling. Much of the reaction I’ve heard personally has amounted to: “They’re bathrooms. Who cares?”
To be clear, the bathroom debate alone is very important to trans rights — bathrooms are a frequent source of stigma, shame, and discrimination for trans people. And the bathroom issue is also part of a broader effort: the battle for LGBTQ civil rights laws that protect people from discrimination based on sexual orientation and gender identity in schools, the workplace, housing, and public accommodations.
As it stands, most states and the federal government don’t explicitly protect LGBTQ people in these settings. But advocates have argued there’s a potential workaround.
Federal civil rights laws ban discrimination based on sex in various settings — schools, the workplace, and housing. And since discrimination against transgender people is fundamentally rooted in social expectations attached to people based on the gender they were assigned at birth, anti-trans discrimination is, in effect, discrimination based on sex.
Using this rationale, the Obama administration has interpreted federal civil rights laws to protect transgender people from discrimination in schools, housing, and the workplace. That’s why it concluded that schools that receive federal funding must let trans students use the bathroom for their gender identity — a move that gave legal protections to thousands of trans kids across the country. (More than a dozen states, all conservative, are currently suing the Obama administration over its guidance.)
This type of reasoning could apply to gay, lesbian, and bisexual people as well. After all, discrimination against LGB folks is based on the expectation that people of a certain sex should love people of a different sex. That’s also sex discrimination.
So far, the Obama administration has embraced these kinds of protections for gender identity, protecting thousands of trans people in the process. The next administration will decide whether to continue or even build on the Obama administration’s policies.
The next president could grant legal protections to millions more LGBTQ people
Clinton has said she would, like the Obama administration, continue to interpret federal civil rights laws to protect trans people. Clinton could also end up going even further than President Barack Obama on this issue and include sexual orientation as well as gender identity. That would grant legal protections to millions of additional LGBTQ students in schools that get federal funding.
Trump, on the other hand, has said he doesn’t support the Obama administration’s interpretation of federal civil rights laws. So instead of adding sexual orientation to civil rights protections, a Trump administration would likely take away protections that now exist for gender identity.
What’s more, the Supreme Court is currently hearing a case on this exact issue. And since the Court currently has a vacancy, whomever is appointed to the Court could be the swing vote that decides this issue for good. Whether the appointment is made by President Trump or President Clinton could decide whether LGBTQ rights progress goes backward or forward. (Not to mention all the other potential Supreme Court decisions that could be made in regard to LGBTQ people in the next four or eight years.)
And while schools are the current high-profile battleground in this debate, they’re not the only place where a Clinton or Trump administration could have an impact. The next administration could decide whether federal employers and contractors are still banned from discriminating against LGBTQ people, as the Obama administration declared through executive orders. It could decide whether Obamacare’s anti-discrimination protections include LGBTQ people. It could decide whether the Fair Housing Act protects LGBTQ people in public housing. And so on.
So it’s not just bathrooms. We are talking about potential protections for millions of LGBTQ people in many aspects of their lives, all at the hands of the next president and his or her administration.
Clinton would protect LGBTQ people, perhaps in a bigger way than Obama did. Trump wouldn’t. It’s a distinction of surprising importance in 2016.