LGBT rights advocates made slow gains beginning in the 1980s with passage of some local or state laws to prohibit discrimination based on sexual orientation. Progress has come more quickly over the past two decades with, among other milestones, the two closely divided Supreme Court decisions invalidating state anti-sodomy laws and two years ago establishing marriage equality for gay or lesbian couples.
Back in 2000, when the White House was no more than a gleam in Donald Trump's eye, the future president envisioned in his political manifesto "The America That We Deserve" an America that would be free of “racism, discrimination against women, or discrimination against people based on sexual orientation.” As presidential candidate in 2016, Trump sent mixed signals: he favored LGBT rights in occasional statements, but aligned himself with anti-LGBT groups by endorsing "traditional marriage" and opposing transgender bathroom rights.
With Trump in the White House, no one expected him to put much if any effort behind expanding LGBT rights. Still, LGBT advocates hoped, somewhat plausibly, that he would not try to turn the tide against the recent gains.
Instead, Trump has marked his first year in office with a number of unforced initiatives to reverse course on LGBT rights. Worse, Trump' record-setting number of appointments to the federal bench includes many nominees — most prominently, Supreme Court Justice Neil Gorsuch — with records of opposing LGBT rights or embracing legal ideologies hostile to or skeptical of LGBT equality.
To begin, two of Trump's Cabinet members, Education Secretary Betsy DeVos and Attorney General Jeff Sessions, joined in rescinding the Obama administration guidance that public schools allow transgender pupils to use bathrooms and locker room facilities based on their gender identity. The move forced the justices to shelve a case set for argument in March that could have established nationwide law on the issue.
In a later about-face, the Justice Department shifted the government's position in the closely watched case testing a Colorado baker's right to refuse to make a wedding cake for a gay couple. The government's amicus brief filed in September stopped short of endorsing an open-ended religious freedom exemption from anti-LGBT discrimination laws, but embraced the baker's tenuous First Amendment claim to avoid being forced into symbolically embracing a marriage contrary to his faith-based views.
With the Court precariously divided on LGBT rights, the government's position could help the four anti-marriage equality conservatives, including Chief Justice John G. Roberts Jr., to pull the free-speech loving Justice Anthony M. Kennedy into a five-vote majority. A narrow ruling for the baker might be written off as only a minor setback, but the eventual impact would depend on its interpretation in lower courts by judges,
Many judges, in state and federal courts, are relics of the old anti-LGBT views. Others, including most of Trump's judges, are doctrinaire adherents of narrow views that allow little if any room for protecting LGBT rights.
Gorsuch is a prime example of Trump's anti-LGBT judges, as noted in an end-of-year compilation by Lambda Legal. As a federal appeals court judge on the Tenth Circuit, he joined in rejecting a constitutional claim by a transgender inmate in Oklahoma to be allowed to dress in feminine clothing as she requested. More broadly, Gorsuch joined in an Affordable Care Act case in embracing the kind of religious exemption that anti-LGBT groups seek from LGBT rights measures. And, in his writing, Gorsuch has sharply criticized the kind of civil rights impact litigation that helped establish marriage equality as the law of the land.
Gorsuch won Senate confirmation by a narrow 54-45 vote: one of the closest margins ever for a justice. Other Trump judges were confirmed on even closer party-line votes, with Republicans in lock-step support and Democrats sometimes in unanimous opposition. Lambda Legal joined with other civil rights groups in highlighting anti-LGBT votes from some Trump nominees who had served on state courts. As examples, Don Willett, confirmed for the Fifth Circuit, had voted on the Texas Supreme Court against equal employee benefits for same-sex couples. Joan Larsen, confirmed for the Sixth Circuit, had voted on the Michigan Supreme Court against second-parent adoption rights for same-sex couples.
Among others, Kentucky lawyer John Bush was criticized for "homophobic" language in blog posts written before his successful nomination to the Sixth Circuit. Nebraskan Steven Grasz won confirmation to the Eighth Circuit despite criticism for his close ties to the anti-LGBT Nebraska Family Alliance and his unqualified rating from the American Bar Association. Colorado's Alison Eid and Pennsylvania's Stephanos Bibas, confirmed for the Tenth and Third Circuit respectively, were cited for general views akin to Gorsuch's rights-confining originalism and skepticism of civil rights litigation.
LGBT groups can claim victories in the recent withdrawals of three Trump nominees, including Jeff Mateer, the assistant Texas attorney general who notoriously described transgender individuals as "part of Satan's plan." Mateer's intemperate views proved too much even for the Senate's compliant Judiciary Committee chairman, Iowa's Charles Grassley, to swallow.
Trump has sought out young nominees, some even in their 30s, in hopes of leaving a decades-long legacy on the federal bench. With lifetime appointments, Trump's judges can help slow or possibly even reverse the hard-won legal gains for LGBT Americans.
Those gains give substance to the goal carved in marble above the entrance to the Supreme Court: "Equal Justice Under Law." If ever achieved, that would make America great — not again, but greater than ever before. Sadly, Trump's record on issues ranging from LGBT rights to economic policy suggests no role for equal rights in his backward march toward a not-at-all great America.
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