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There’s really no other way to put it: President Donald Trump and Vice President Mike Pence are bad news for LGBTQ people.
The optimistic take is that a Trump administration, even with a Republican-controlled Congress, will essentially leave LGBTQ issues alone. It won’t try to overturn the gains of the Obama administration, from the repeal of “don’t ask, don’t tell” to the executive orders protecting LGBTQ people from discrimination. But it also won’t do anything to progress LGBTQ rights in any significant way, instead focusing on other issues.
Another possibility, though, is that the Trump administration and Republicans in Congress will try to push back against the recent gains. They would have the power to do that: They could undo the small gains signed into law and executive action by the Obama administration. They could appoint a Supreme Court that could try — although it’s unlikely — to overturn marriage equality. And they could try to poke holes in state laws that protect LGBTQ people from discrimination in the workplace, housing, public accommodations, and schools.
This suggests that the best prospects for LGBTQ people are probably nothing, with a real risk of a few terrible things coming through in the next few years. And while the chances of any of this happening are unclear, the odds are not on the side of LGBTQ rights.
Federal LGBTQ nondiscrimination protections are probably doomed
As it stands, most states and the federal government don’t explicitly protect LGBTQ people in the workplace, housing, public accommodations, or schools.
President Barack Obama had worked to remedy this without Congress. He signed executive orders prohibiting federal employers and contractors from discriminating against LGBTQ people. His administration included trans people in Obamacare’s anti-discrimination protections. He interpreted federal civil rights laws — which prohibit sex discrimination in the workplace, housing, and schools — to also shield transgender people, on the idea that anti-trans discrimination is fundamentally sex discrimination since it’s rooted in social expectations attached to people based on the gender they were assigned at birth. (The last move was the basis for the Obama administration asking schools that receive federal funding to let trans people use the bathroom that aligns with their gender identity.)
The Trump administration could undo all of this. And in fact, Trump has suggested he will undo at least some of this — previously telling the Washington Post that this issue should be left to the states, so he would at least rescind the Obama administration’s guidance on trans people in schools.
If Trump undid all these executive orders and actions, he would effectively eliminate nondiscrimination protections for millions of LGBTQ people employed by the federal government and contractors, as well as thousands of trans students in public schools.
Worse, Trump also could work with a Republican-controlled Congress to poke holes in other civil rights gains. Would he bring back don’t ask, don’t tell? Would he support laws that may create loopholes in existing nondiscrimination laws and executive orders, like the religious freedom measures that states have advanced over the past several years?
Trump has been fairly squishy on these issues, going back and forth on, for example, whether trans people should be allowed to use the bathroom that corresponds with their gender identity. But his vice president, Mike Pence, has a long history of anti-LGBTQ views, from his rejection of nondiscrimination protections for LGBTQ people to his suggestion that preventing same-sex marriage is “God’s idea.” So it’s entirely possible that Pence takes charge of these issues within a Trump administration, or persuades Trump to take a more anti-LGBTQ stance.
The Supreme Court presents a nightmare scenario for marriage equality
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But the nightmare scenario for LGBTQ people is in the Supreme Court.
There is a very real possibility in the next four years that Trump, who opposes same-sex marriage, will appoint as many as four justices, replacing the conservative and recently deceased Antonin Scalia, liberals Ruth Bader Ginsburg and Stephen Breyer, and right-leaning centrist Anthony Kennedy.
When the Supreme Court legalized same-sex marriage nationwide, it did so with three of the people on this list: Ginsburg, Breyer, and Kennedy. That means three of the five justices who backed marriage equality could be replaced by Trump and a Republican-held Senate. So if the issue somehow rises to the Supreme Court again, the newly minted conservative justices could overturn marriage equality.
To be clear, this is extremely unlikely. Precedent is a very, very powerful force in the Supreme Court — especially when, as the polls overwhelmingly show, the majority of Americans support same-sex marriage rights. Justices are unlikely to just overturn this previous ruling on a whim.
It’s also unclear how, exactly, this issue would end back up on the Supreme Court. It previously rose to the Supreme Court because civil rights advocates sued states over their same-sex marriage bans. But there are no longer any same-sex marriage bans in effect to sue over.
Still, it’s a possibility, however slim. That’s a nightmare for LGBTQ people.
There is one small hope for LGBTQ rights
Of course, there’s also the possibility that a partially Trump-appointed Supreme Court will rule against LGBTQ rights in all sorts of other cases.
One of the big issues that LGBTQ advocates previously expected to end up at the Court was nondiscrimination laws. There’s a legal debate underway about whether federal civil rights laws already protect LGBTQ people. Proponents argue that LGBTQ people are protected by federal law in the workplace, housing, and schools, because federal laws ban sex discrimination in those settings and anti-LGBTQ discrimination is fundamentally based on social stereotypes of how people of a certain sex assigned at birth should identify or whom they should love. Opponents argue this is stretching what bans on sex discrimination were originally intended to cover.
A Supreme Court dominated by conservatives — especially one without Kennedy, who has consistently played the role of a pro-LGBTQ swing vote — would likely decide that federal civil rights laws don’t protect LGBTQ people. And that would effectively doom chances of federal civil rights protections for LGBTQ people happening in the next four or eight years — since a Trump administration seems poised to stand in the way of any such effort at the legislative level.
But there’s also a small hope: The Supreme Court is currently hearing one of the many bathroom cases that have popped up over the past year. The argument in this case is over whether trans students in schools that receive federal funding should be allowed to use the bathroom that aligns with their gender identity, since prohibiting them from using the right bathroom is anti-trans discrimination. This could come down to whether federal civil rights laws really do protect trans people — and therefore ban schools from discriminating against trans kids.
There is still a possibility that the Supreme Court will hear and decide this case in the next several months. And if that’s the case, the traditionally pro–LGBTQ rights wing of the Court is still in place: Kennedy, Breyer, Ginsburg, Elena Kagan, and Sonia Sotomayor. This is a majority of the Court — so even if Trump somehow squeezed in a replacement for Scalia before the case was heard and decided, LGBTQ rights could still win 5-4. That could seal the inclusion of at least trans rights in federal civil rights protections.
Is it likely? No one knows. But in the horror for LGBTQ people that came out of Election Day, it’s a much-needed glimmer of hope.
