Prior to the election, APSA’s Diversity and Inclusion Programs Office issued a call for scholarly reflections, original research notes, and classroom exercises that shed light upon diversity, political behavior, public opinion and the 2016 Campaign and Election. What resulted is an eight part series, 2016 Election Reflections, covering a range of election related topics and research methods.
LGBTQ Rights and the 2016 Election
What group(s) of the electorate does your research focus on and what policy issue(s) proved to be salient to them in the 2016 Election?
The civil rights of LGBTQ people expanded significantly during the Obama administration.This time period may best be known for the expansion of marriage equality to same-sex couples nationwide and the repeal of Don’t Ask, Don’t Tell, which first allowed lesbian, gay, and bisexual people to serve openly in the military and subsequently was expanded to include transgender people. But in a host of ways, large and small, the Obama administration worked to more fully include LGBTQ people in the American polity. For example, Health and Human Services ended the travel ban on HIV-positive immigrants in 2009; in 2010 it revised its funding criteria to require that funded sex education programs be inclusive of LGBTQ youth. Social Security stopped issuing “gender no match” letters to employers in 2011; in 2013 it simplified the procedure for changing gender markers in Social Security records. In 2014, President Obama signed an executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity, while in 2015 the State Department appointed its first “Special Envoy for the Human Rights of LGBTI Persons.” Earlier this year, the Departments of Education and Justice directed schools to ensure that transgender students are not discriminated against, with gender identity afforded the same Title IX protection as sex. And the list goes on.
The election of Donald Trump together with a Republican House and Senate puts many of these gains at risk. Many of the policy gains made during the Obama administration can easily be undone by the incoming Trump administration. President-Elect Trump has already vowed to rescind all of President Obama’s executive orders, an action which would, among other things, remove a significant set of employment protections from federal employees and the employees of federal contractors. Other changes instituted unilaterally by the Obama administration can also be easily reversed.
And while President-elect Trump made positive statements about LGBTQ people at the Republican National Convention and there were a few pro-LGBTQ speakers, the Republican party platform reflects a continued opposition to marriage equality, to including sexual orientation and gender identity in anti-discrimination laws, and support for anti-LGBTQ laws like North Carolina’s HB2. Moreover, President-elect Trump has surrounded himself with advisors—and a vice-president—with records of opposing LGBTQ rights.
Recent advances in the civil rights of transgender people are most at risk. Earlier this year, for instance, the Departments of Education and Justice directed schools to ensure that transgender students are not discriminated against, with the protected class sex expansively interpreted to include gender identity under Title IX. Gloucester County School Board v. G.G., a case that speaks directly to this policy, was recently granted certiorari by the Supreme Court. At the time the Court accepted certiorari, it had eight members. By the time it hears the case, it will possibly have nine members, with President-elect Trump’s nominee filling the vacancy. These nominees to the federal judiciary will almost certainly shift the ideological balance of the judiciary to the right. Moreover, the reconstituted Justice Department is likely to make executive-level decisions regarding Gloucester County—and other transgender rights cases—that are far less sympathetic to the claims of transgender plaintiffs. Given the possibility of anywhere between one and four Supreme Court vacancies before 2020, a Trump presidency may dramatically reshape how the Court views LGBTQ rights claims.
But if some gains are at risk, others seem more secure. The 2016 election season can be seen as a watershed for LGBTQ politics. This is not because of what happened but rather because of what did not occur. This is the first election in recent memory in which same-sex marriage was not a major issue for the presidential nominees of either party. With a few exceptions, the Obergefell decision requiring marriage equality across the nation has been accepted without fuss. LGBTQ rights were not a major issue during the national campaign, in sharp contrast to the 2004, 2008 and 2012 elections. The issue of marriage equality seems relatively settled, although we expect to see continued efforts to employ First Amendment claims to carve out religious exemptions to laws requiring the equal treatment of LGBTQ citizens (such as the proposed First Amendment Defense Act).
In short, the Trump administration, should it choose to do so, will have the opportunity to undo many of the legal gains made by LGBTQ people during the past eight years and to generate its own legacy of opposition to LGBTQ rights, especially in the context of transgender rights. However, as signaled by the election defeat of North Carolina Governor Pat McCrory and the Republican attorney general candidate Buck Newton, both very strong proponents of HB2, there are increasing electoral risks for attacking LGBTQ rights. The impact of HB2 in those two statewide races was very clear given the performance of other Republican candidates- President-elect Trump won North Carolina and Sen. Richard Burr was re-elected. Yet, there is certainly little reason to think that proactive gains for LGBTQ people are in the immediate future. There is scant likelihood that Congress will pass a law protecting LGBTQ people from discrimination in employment, housing, and public accommodations. Additionally, given that Republicans control most states lacking LGBTQ protections, there are few opportunities for gains there in the near future as well. Yet there are also grounds for believing that LGBTQ people will be able to hold on to at least some of the gains they have made under the Obama administration.
The LGBT Status Committee of the American Political Science Association welcomes inquiries and requests for additional information on resources pertaining to research on LGBTQ rights, politics and policy. Please visit the website or email us at firstname.lastname@example.org.
The views expressed in this series are those of the authors and contributors alone and do not represent the views of the APSA. To learn more, visit 2016 Election Reflections.