How LGBTQ Legal Rights And Protections Have Shifted Under Trump : Shots - Health News The Obama and Trump administrations have used their power to shape legal interpretations of "sex discrimination" in very different ways. Here's a rundown on what's changed for LGBTQ rights in the U.S.

'Whiplash' Of LGBTQ Protections And Rights, From Obama To Trump

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The White House has a particular kind of power over whether gay and transgender people are protected from discrimination. It has the power to decide whether LGBTQ people are covered by laws that prohibit sex discrimination, and it can issue rules and policies that reflect its legal interpretation. The Obama and Trump administrations have used this power to drastically different results - results that you can see in many recent policy reversals, from transgender troops in the military to discrimination in health care and more. As NPR's Selena Simmons-Duffin reports, LGBTQ advocates say it feels like civil rights whiplash.

SELENA SIMMONS-DUFFIN, BYLINE: At the heart of this story is a disagreement over the meaning of the word sex and whether discrimination against gay and transgender people for being gay or transgender is sex discrimination. The Obama administration determined that, yes, when you fire a man for being married to a man, for instance, that's sex discrimination. You wouldn't have fired a woman for being married to a man. The Trump administration says being gay and transgender are categories of identity. Those words are just not in the law as it's now written, and so people are not legally protected on the basis of those identities. Let's take a look at one way this disagreement played out, starting in the spring of 2016. It was all over cable news. This is CNN.


JOHN BERMAN: The Obama administration is sending a clear message to all public schools across the nation. Let transgender students use the bathroom of their choice or else.

SIMMONS-DUFFIN: The context here was trans bathroom hysteria, to quote a New York Times editorial. North Carolina had just passed HB2, which required people to use the bathrooms of the sex on their birth certificate. There was backlash. PayPal canceled plans to bring 400 jobs to the state, Bruce Springsteen canceled a concert, the NBA pulled its All-Star Game, and protests.

UNIDENTIFIED GROUP: HB2 has got to go. Hey, hey. Hey, hey. Ho, ho. Ho, ho. HB2 has got to go.

SIMMONS-DUFFIN: At the same time, transgender teenager Gavin Grimm was in the spotlight. He had sued his Virginia county school board over its policies. His case was headed for the Supreme Court, so when the Obama administration stepped in with its guidance...

SASHA BUCHERT: It was a relief.

SIMMONS-DUFFIN: That's Sasha Buchert. She's a transgender attorney who works on these issues for Lambda Legal. She says she felt relief first of all for transgender students.

BUCHERT: It would help them go to gym class without worrying about going to the bathroom, you know? That's - how can they focus on their academics if that's an issue that they're experiencing?

SIMMONS-DUFFIN: Buchert says she also felt relief for the schools.

BUCHERT: I don't think that all schools have this, you know, deep-seated animus towards transgender people. I think they're just confused, and they don't know what their liabilities are or what they're required to do under the law. The guidance clarified what their duties and responsibilities are, and they were wanting that.

SIMMONS-DUFFIN: So then in November 2016, President Trump was elected. He had spent some time during the campaign signaling he intended to defend, quote, "LGBTQ citizens." He posed with a rainbow flag. But in February 2017, just a few weeks after inauguration...


UNIDENTIFIED REPORTER #1: Going to the Trump administration's move to roll back protections for transgender students...

SIMMONS-DUFFIN: In the months that followed, cable news covered more reversals.


UNIDENTIFIED REPORTER #2: Most transgender troops would no longer be able to serve in the military.

UNIDENTIFIED REPORTER #3: Justices reversed protections for transgender workers under the Civil Rights Act.

SIMMONS-DUFFIN: Whiplash is how Anthony Michael Kreis describes all of this. He's a professor at the Chicago Kent College of Law.

ANTHONY MICHAEL KREIS: The Obama administration was working to advance LGBTQ rights within the scope of what the law permitted.

SIMMONS-DUFFIN: This was a systematic effort in the Obama White House. Agencies across the federal government issued regulations and policies that said you cannot legally discriminate against people on the basis of sexual orientation or gender identity. The Department of Housing and Urban Development issued a rule requiring homeless shelters to house transgender people according to their gender identities. The Department of Health and Human Services issued a rule prohibiting discrimination in health care settings. An executive order required that federal contractors not discriminate against their employees. And there was more. Now, Kreis says...

KREIS: The Trump administration is tit for tat going back and trying to reverse-engineer every single one of those advances.

SIMMONS-DUFFIN: In a statement to NPR, the Trump White House characterizes these changes as reining in the overreach of the Obama administration, arguing it was legislating from the executive branch. Spokesman Judd Deere wrote, quote, "President Trump has never considered LGBT Americans second-class citizens and has opposed discrimination of any kind against them." He said the accusations that Trump's proposals are threatening to gay and transgender people is, quote, "disgusting and false" and promoted by the, quote, "radical left." Kreis says there's a tension between what the administration is doing and the fact that American society has grown to be quite accepting of LGBTQ people in recent decades.

KREIS: What makes the Trump administration's about-face so hard for so many people to swallow is that those lessons from the social movement, the LGBTQ rights movement, haven't changed, and most Americans' views on this have not changed. But the Trump administration is dead set on reversing course no matter what the cost.

SIMMONS-DUFFIN: Now the Supreme Court is taking this question head-on. It's already heard oral arguments in three cases on discrimination against gay and transgender people in employment. Decisions are expected this spring. Whatever the court decides will determine what sex discrimination means for LGBTQ people under current law, Congress could also step in. The House already passed the Equality Act, which would end the ambiguity. It would basically go through many federal laws, and where it says sex discrimination, it would insert in parentheses, including sexual orientation and gender identity. That would be much more durable than regulations or policies from the White House, which are relatively easy to issue and easy to undo, but it's not expected to get a vote in the Senate. In the meantime, Sasha Buchert from Lambda Legal wants to counteract the message she says is being sent by these rollbacks.

BUCHERT: The weight of these attacks is very, very heavy. Whenever a discriminatory move is made by this administration or any state agency, you know, we see spikes in the numbers of calls that are made to the Trans Lifeline. It's, you know, hard to not feel it, you know, in your core. You know, this is an attack. This is an attack on our community. This is a way to erase us. This is a way to put us back in the closet - is the ultimate objective.

SIMMONS-DUFFIN: The way to counteract that message, she says, is for transgender people like her to just be vocal about who they are.

BUCHERT: You know, we're just real people. We're real people. This is how we were made. This is who we are. You know, we like ice cream. You know, we like doggies (laughter), you know? We're just people.

SIMMONS-DUFFIN: She says it's important to fight for LGBTQ rights in the court of public opinion, not just in the courts, Congress and the White House.

Selena Simmons-Duffin, NPR News.


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