LGBT rights & progressive politics in the age of Trump
Kingsborough Community College
29 March 17
I’m honored by the invitation to speak to you today at this ‘Dinner & Dialogue’ event. I’d like to begin by thanking Lauren Ferguson for helping to arrange my visit here, my second time at Kingsborough Community College. And in keeping with the theme of ‘dinner & dialogue,’ I’d like to allow more than enough time for questions and comments, as I find the interaction with an audience is often as interesting to audience members as any formal presentation. So in keeping with the spirit of the evening, I’ll try to limit myself to speaking to leave lots of time for Q&A.
What I’d like to do is to think analytically and strategically about where we are right now both in terms of lesbian, gay, bisexual and transgender (LGBT) issues and the broader pursuit of progressive political change in the age of Trump.
It’s hard to believe it’s less than ten weeks since Donald Trump took office; it feels more like ten years~! So far, it’s been like a rolling stinky cheese of disaster; but I also see hopeful signs, especially in the broad resistance movement that has arisen since his election. Let me start with the new administration’s actions on LGBT issues and work outwards from there.
For well over a decade, the fight for marriage equality consumed the time and energy and resources of the LGBT movement, culminating in the Windsor and Obergefell rulings striking down the Defense of Marriage Act (DOMA) in part and then in whole, the latter decision in 2015 recognizing same-sex marriage nationally. The more perceptive leaders in the religious right realize that they’ve lost that fight and I think the chances of the Supreme Court reversing itself on marriage are slim to none. And so the forces of ignorance and bigotry have since June 2015 been consumed with another issue, transgender rights, focusing their energies on creating a ‘bathroom panic,’ asserting without a shred of evidence that transgendered women pose some sort of existential threat to our society simply by using the public restroom associated with the gender with which they identify. There may be some who actually believe that, but I think that most of those pushing this bathroom panic are doing so cynically, knowing that it’s nothing but fear-mongering.
Lt. Gov. Dan Patrick of Texas has gone so far as to say that the bathroom issue “is the biggest issue facing families and schools in America since prayer was taken out of public schools” (Caitlin Emma, “Obama transgender edict incites the right,” Politico, 5.13.16). “As a voter turnout tool for conservatives, this could be the new gay marriage,” writes Kevin Drum (Kevin Drum, “Transgender Bathrooms Might be the New Gay Marriage for Conservatives” (Mother Jones, 5.13.16). And isn’t that the point? Following the US Supreme Court rulings striking down the Defense of Marriage Act (DOMA) in part and then in whole, the only obvious ‘family values’ wedge issue to latch onto is transgender inclusion, given the increasing acceptance of non-transgendered lesbian, gay and bisexual (LGB) people in American society.
North Carolina’s enactment of House Bill 2 is a case in point: HB2 not only required transgendered people to use public restrooms consistent with their legal sex designation (the ‘gender marker’ on their birth certificates), the legislation eliminated non-discrimination statutes at the local level across the state, making it impossible to pursue legal redress for discrimination through local law not only on the basis of gender identity and sexual orientation, but race, ethnicity, religion and disability as well. And so the ‘bathroom panic’ has been a façade behind which right-wing Republicans and the religious right have been pushing a rollback across the country of civil rights and human rights for women and people of color as well as LGBT people and people living with disabilities.
Not surprisingly, perhaps, the first thing that Donald Trump did after coming into office on Jan. 20 was to sign a flurry of executive orders on immigration as well as transgender rights. But significantly, courts blocked the first and the second executive orders on immigration, which the administration insisted were not an attempt to impose a ‘Muslim ban,’ even thought that’s exactly what Trump called the proposed action during the campaign. And the really hopeful sign was that the executive orders sparked a nationwide resistance, with protestors rushing out to JFK and other airports across the country to support and defend immigrants and refugees caught up in Trump’s dragnet.
Trump’s executive order rescinding Barack Obama’s guidelines on transgender inclusion in public schools also got national attention, if not quite to the extent of the travel ban(s); but what got less attention was the details of the executive order and the Obama guidelines he rescinded. And here it is important to note the political context in which the guidelines were issued in the twilight of the Obama presidency, with an outgoing president anxious to create some sort of historic legacy. The real opportunity to do so came in Obama’s first term, when he had a Democratic Senate and House of Representatives to work with until he handed both houses of Congress to the Republicans in the mid-term elections in 2010. What LGBT activists cheering Obama’s recent executive actions either have forgotten or conveniently failed to mention is the fact that he refused even to lift a finger to push the Employment Non-Discrimination Act (ENDA) through Congress, instead apparently taking the advice of the Human Rights Campaign (HRC) in focusing on repealing the ‘Don’t Ask, Don’t Tell’ policy of discrimination signed into law by Bill Clinton, who also signed DOMA into law. Still better than ENDA, Obama could have pushed through an amendment to the 1974 Civil Rights Act or similar legislation that would have prohibited discrimination based on gender identity and expression in employment, housing, public accommodations, health care, education and credit. For whatever reason, Obama refused to consider any non-discrimination legislation once he signed the DADT repeal bill into law, which only ended discrimination based on sexual orientation, not gender identity or expression.
With less than eight months left in office, and as the lamest of lame ducks and facing a hostile Congress controlled by Republicans, Obama’s options were limited to executive action, since no LGBT rights legislation would have had any chance of passage last year. LGBT advocacy organizations praised the president for what they characterized or at least wanted to believe were bold and courageous actions (National Center for Transgender Equality, “Department of Education affirms critical protections for trans students,” 5.13.16), but the time for bold action was in 2009 and 2010 when LGBT rights legislation had a decent chance of passage in Congress (Sam Levin, “Obama orders public schools to allow transgender students access to restrooms,” Guardian, 5.12.16). Here are a few important points to keep in mind when thinking about this whole brouhaha:
o The new guidelines (Ann Whalen and David Esquith, “Examples of Policies and Emerging Practices for Supporting Transgender Students“) were introduced with a cover letter from Catherine E. Lhamon of the US Department of Education and Vanita Gupta of the US Department of Justice (“Dear Colleague Letter on Transgender Students,” 5.13.16). The Obama guidelines focused on compliance with Title IX of the Education Amendments of 1972 and reference similar guidelines adopted by states and localities, including those adopted by the State of New York Department of Education (NYSED) guidelines for implementation of the Dignity for All Students Act of 2011; these salient points must be made:
o While they might be helpful in advising schools on transgender inclusion, the guidelines had no binding legal force; the only way to enforce these guidelines would have been by withholding or threatening to withhold federal funds to school districts, localities and/or states to refuse or fail to abide by them.
0 The letter was clearly an interpretation of the provisions of Title IX and did not have the force of statute law.
0 There is no significant federal case law on the interpretation of ‘sex’ in Title IX to include gender identity and expression in the expansive manner in which the March 13 letter speaks; the risk of being overturned in court is not insignificant, given that courts general hew closely to legislative intent and it would be difficult to argue that there was transgender-specific legislative intent in the drafting of Title IX.
o Women’s safety is an important issue but has nothing to do directly with gendered restroom usage; it’s probably the case that most sexual predators are conventionally gendered (‘cisgendered’) heterosexual men; opponents of transgender rights are simply using the legitimate issue of women’s safety to undermine the safety of transgendered women & men.
o Opponents of transgender rights use the specter of sexual predators in women’s restrooms and changing rooms, but there is not a single case I know of of a conventionally gendered (‘cisgendered’) heterosexual man crossdressing to gain entrance to women’s spaces. And a sexual predator can simply walk into a women’s restroom or changing room if he wants to.
o There are already laws in every state and locality in the United States prohibiting assault and sexual assault; no transgender-inclusive statute, regulation, rule or guideline would do anything to undermine such laws.
o HB2 is based on restricting public restrooms to assigned birth sex and gender, but there is actually no way to determine conclusively what that might be in every case; the reference to birth certificates is particularly curious, because many states and localities now allow transgendered people to change the legal sex designation on their birth certificates. HB2 and similar laws are unenforceable, as they would require police and/or specially designated and authorized security guards posted at every public restroom door in the state, which would be completely unaffordable even if most states were not currently suffering significant budget deficits. Nor could policy or security guards actually demand production of a birth certificate, given Americans do not regularly carry their birth certificates with them wherever they go. Obviously, a genital check would be invasive and non-transgendered people would certainly object to being subjected to it.
o The reality is that transgendered people who ‘pass’ in the gender they identify with will rarely have problems with public restrooms while those who do not ‘pass’ will have problems even if they are post-operative and have changed the legal sex designation on their birth certificate and other government-issued identity documents.
o Public restrooms should not be an issue at all, since the only legal question of any significance here is what is referred to as ‘unavoidable nudity in sex-segregated facilities,’ which can involve public gyms, pools, showers and locker rooms but simply does not involve restrooms.
o Public restrooms are actually not regulated by statute law in most states and localities; North Carolina’s HB2, far from being ‘traditional,’ is in fact a radical break in this regard.
o The ‘bathroom panic’ here is entirely irrational because it is focused almost entirely on women’s restrooms, which have stalls but not urinals; ordinarily, there is no public nudity at all.
o Gyms, pools and other facilities with locker rooms and showers more often these days have private individual showers. Where there are open showers and changing areas, reasonable accommodation can be made; where there’s a will, there’s a way, as the saying goes. Just as the Americans with Disabilities Act (ADA) requires public facilities to provide reasonable accommodation for people with disabilities (including in wheelchairs), so all public restrooms, gyms, pools and other such facilities can provide reasonable accommodation for transgendered people, and such accommodation does not require them to be viewed as having a disability based on their gender identity.
o There are more and more single-user restrooms and ‘family’ restrooms in the US, especially in airports, which are leading the way in this regard.
Significantly, Trump’s recission of Obama’s guidelines for transgender inclusion in public schools has not yet been followed up by any other initiatives, even while the new president has appointed leading figures from the religious right hostile to the LGBT community, such as Jeff Sessions as attorney general and Tom Price as secretary of health and human services.One such case in point is the executive order that Obama issued in his last year eliminating discrimination in the military based on gender identity; in his very first year in office, Obama had signed a bill into law that rescinded the ‘Don’t Ask, Don’t Tell’ bill that Bill Clinton had signed into law; but since DADT was focused on sexual orientation and did not include gender identity and expression, rescinding DADT did nothing to eliminate discrimination against transgendered people in the military.
But whatever the new administration does will have an impact on LGBT people, perhaps nowhere more significantly than in health care. And here, the whole debacle over the Affordable Care Act (ACA) ‘repeal and replace’ bill is a case in point. While it’s true that Health & Human Services (HHS) issued guidelines and regulations interpreting the ACA as including LGBT people and prohibiting discrimination based on gender identity, it is of signal importance that neither Obama nor the Democrats who controlled both houses of Congress in the first two years of Obama’s first term ever even considered including a provision in the bill that would have prohibited discrimination in the provision of health care based on sexual orientation or gender identity; had they done so, LGBT people would now have protection from discrimination in health care that could not be eliminated by an executive order issued by Donald Trump or a directive or regulation issued by Tom Price, a notorious homophobe. But the débacle that ensued when the right-wing Freedom Caucus torpedoed the ‘repeal and replace’ bill (called ‘TrumpCare’ by some and ‘RyanCare’ by others) also shows that the new administration faces far more serious impediments in some policy arenas from Republicans in Congress than from Democrats.
There is now talk of a Democratic filibuster of Neil Gorsuch, Trump’s nominee to the Supreme Court, who has a dismal record on LGBT issues. But even if Gorsuch were confirmed, he would only replace Antonin Scalia and therefore not shift the balance of power on the court; it is only when Anthony Kennedy, Stephen Breyer or Ruth Bader Ginsburg leaves the court that the real battle royal will commence. But even if Trump were successful in getting two right-wing justices confirmed, I seriously doubt that the Supreme Court will overturn Windsor or Obergefell; and it is worth pointing out that a Republican justice wrote the majority opinions in both cases, a Reagan appointee in fact.
But from the panicked posts I’ve seen on Facebook since Nov. 8, some LGBT people seemed to be wondering if they would immediately be stripped of all rights once Trump took office. The simple fact is, Congress has never enacted a single LGBT rights law other than repealing DADT, and other than the Supreme Court’s recognition of same-sex marriage rights and the DADT repeal law’s recognition of the right of LGB people to serve in the military, we have no statutory rights at the federal level; what we do have is a patchwork quilt of federal case law, some good, some bad, some mixed. When Obama took office in Jan. 2009, he pursued no LGBT rights legislation, even though Democrats had majorities in both houses of Congress; the candidate who promised to be a fierce advocate for LGBT rights was anything but; aside from a handful of executive orders and guidelines with extremely limited impact, the Obama administration did almost nothing for the LGBT community, and what little Obama did for us, he had to be pushed into doing reluctantly; in fact, Obama resolutely defended DOMA until nearly the end of his first term, reasserting explicitly homophobic attacks on the LGBT community in defending the Bush administration’s position on marriage.
Given that there is little chance for progress on LGBT issues at the federal level with Trump in the White House and right-wing Republicans in control of Congress, it is more important than ever to try to push a legislative and policy agenda at the state and local level. Nineteen states and the District of Columbia have enacted laws explicitly prohibiting discrimination based both on sexual orientation and gender identity, while three more states have enacted sexual orientation-only non-discrimination laws.
The bad news is that New York (along with Wisconsin and New Hampshire) is one of those states that have yet to enact statutes to protect transgendered people from discrimination. The Gender Expression Non-Discrimination Act (GENDA) remains stalled in the Republican-controlled state Senate, but lest anyone think that the new TransPAC strategy to get GENDA passed by electing a Democratic majority in the Senate, I would simply point out that Democrats actually won a majority in the Senate in 2008, but when the Democrats controlled that body for six months from January to June 2009, they failed to bring GENDA to the floor for a vote, despite having the votes to pass the bill; I would also point out that Democrats have a majority in the Senate today, but the breakaway Democrats of the Independent Democratic Conference (IDC) continue to keep Republicans in control of the Senate, with the tacit support of Gov. Andrew Cuomo. While the governor’s executive order in October 2015 added ‘gender identity and gender expression’ to the State Division of Human Rights list of protected categories (“ESPA goes out with a whimper without having passed GENDA“), like Obama’s guidelines on transgender inclusion in public schools, Cuomo’s directives on transgender discrimination could potentially be reversed by a successor; and his executive order and guidelines have undermined the already slim chances for passage of GENDA in the Senate. The good news is that here in New York City, the transgender rights law enacted by the City Council in 2002 cannot be rescinded by any president or governor and we are continuing to make progress in its implementation, which is an ongoing process.
Whatever we have already achieved at the state and local level, we must continue to pursue policy change at the federal level, and it is important to point out that the impact of any president or administration on the LGBT community actually goes well beyond the arena narrowly conceived of as ‘LGBT rights.’ In this regard, it has to be noted that globally, Obama’s impact on the LGBT community around the world has been a net negative; whatever small and largely symbolic measures Obama took in favor of LGBT rights, on the whole, the policies of his administration undermined LGBT people, women and people of color in countries in Latin America, Africa, Asia and the Middle East. Obama actually deported more undocumented immigrants than any US president in history, earning his designation ‘Deporter-in-Chief’ from La Raza; many of these deportees may have been LGBT and the majority were women and children, many of them knowingly sent to violent deaths in Central America. Note that Hillary Clinton enthusiastically supported these deportations. Obama also killed more innocent civilians with drone strikes – all enthusiastically supported by Hillary Clinton – than all previous presidents combined, virtually all of them people of color and many of them women and children.
As president and secretary of state, Obama and Hillary Clinton supported the 2009 coup d’état that overthrew the democratically elected President Manuel Zelaya of Honduras that brought a brutal military dictatorship to power and supported the junta despite its persecution of feminists, artists, LGBT people, indigenous people, environmental activists and political dissidents; Hillary persuaded Obama to resume US aid to Honduras despite the fact that it was a violation of US and international law. In March 2016, Berta Cáceres was assassinated almost certainly on the orders of the junta (“Remembering Berta Cáceres, Assassinated Honduras Indigenous & Environmental Leader,” Democracy Now, 5.4.16). A leading environmental and indigenous rights activist, Cáceres held Hillary personally responsible for the violence and repression under the junta (“Before Her Assassination, Berta Cáceres Singled Out Hillary Clinton for Backing Honduran Coup,” Democracy Now, 5.11.16).
Obama and Hillary also supported the coup d’état that has plunged Egypt into an abyss of corruption, brutal repression and despair (Yahia Hamed, ”Egypt’s coup has plunged the country into catastrophe,” Guardian, 3.16.14), with LGBT people being rounded up, imprisoned and tortured by the regime that the Obama administration enthusiastically supported. As in Honduras, Obama resumed US aid to Egypt in direct contravention of US law, which prohibits continuing aid to a military junta brought to power in a coup. And the Obama administration authorized the brutal crackdown on the popular uprising in 2011 by the despotic Bahraini regime which even arrested, imprisoned, tortured and murdered doctors and nurses who tended to wounded pro-democracy activists who participated in the uprising. Obama also encouraged Saudi Arabia’s war crimes in Yemen in a war that continues to this day with the support of the Trump administration, with Saudi fighter jets dropping bombs on hospitals, schools and apartment buildings (“As Saudis Continue Deadly Bombing of Yemen, Is Obama Trading Munitions for Riyadh’s Loyalty?,” Democracy Now, 4.21.16); how many of these Yemenis are LGBT? That we don’t know, but we do know that the majority of the victims of Saudi war crimes in Yemen are women and children and all are people of color.
Perhaps most disturbing was Obama’s support for Israel’s illegal occupation of the West Bank, East Jerusalem and the Gaza Strip, which a report by the United Nations Economic and Social Commission for Western Asia (UNESCWA) has declared an apartheid regime. And in 2014, the Israeli military deliberately targeted civilians in the Gaza Strip , killing over 2,500 Palestinians, a majority of them women and over 500 of them children; under international law, Israel’s actions in 2014 constitute genocide, and Obama and Hillary publicly supported and defended the genocide; in fact, Obama rewarded Netanyahu for it by increasing US military aid to Israel, handing Netanyahu a $38 billion check on his way out of office. Note here that there are many LGBT people living under the illegal Israeli occupation of the West Bank, East Jerusalem and the Gaza Strip, and that LGBT/queer Palestinian organizations all support Palestinian civil society’s call for boycott, divestment and sanctions (BDS) against Apartheid Israel. Note also that Donald Trump’s new administration has been as enthusiastic in supporting Israeli apartheid as Obama’s was, with perhaps fewer constrains in its discursive practices. David Friedman, the new US ambassador to Israel, has referred to Jewish Americans who oppose the illegal occupation as ‘kapos’ and has openly scorned the two-state solution that has been official US policy for decades.
As truly horrendous as the new administration has proven to be, Donald Trump has made one very commendable decision, which is to withdraw the US from the Trans-Pacific Partnership (TPP), the worst trade deal in history; for all that some still harbor illusions about Obama being a progressive, he worked assiduously with Republicans in Congress to push this anti-labor trade deal that would have a devastating impact on workers as well as the environment. What is not entirely clear is whether Trump will abjure the destructive neoliberal economic policy that every president from Carter through Obama has pushed. Unfortunately, if the Obama administration was an abject failure, in foreign policy even more so than in domestic policy, the Trump administration may prove to be worse. But the very bright silver lining in the dark cloud of Trumpery is the resistance movement that the election of Herr Drumpf has sparked. If Hillary Clinton’s election would have put the country into a slumber of passive acceptance of neoliberal economic policy, neocon foreign policy and creeping Israeli annexation of the West Bank as well as incremental genocide in Gaza, Trump’s election has at the very least woken quite a lot of people up to the dangers of the new administration.
What is needed now is a broadly conceived, LGBT-inclusive and strategically and tactically savvy movement for progressive policy change; and as the Mahatma Gandhi said, we must be the change we want to see in the world; as the Rev. Martin Luther King, Jr. said, the arc of history is long but it bends towards justice. Thank you.
Pauline Park, Ph.D., is chair of the New York Association for Gender Rights Advocacy (NYAGRA); she led the campaign for the transgender rights law enacted by the New York City Council in 2002; she also participated in the working group convened by the New York City Commission on Human Rights that drafted guidelines for implementation of the statute. Park was a member of the steering committee that led the campaign for enactment of the Dignity for All Students Act (DASA) and negotiated inclusion of gender identity and expression in that legislation, the first transgender-inclusive legislation enacted by the New York state legislation when it was signed into law in 2011.