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- 1 How You Can Resist
- 2 Laws Proposed by Congress
- 3 Transgender Rights
- 4 Marriage Equality
- 5 The Fight against HIV
- 6 Other Discrimination Issues
- 7 Vulnerabilities in their strategy
How You Can Resist
- Call your Senator by dialing tel:844-6-RESIST and tell them to:
- Find out when your Senators and US Representative are holding town halls and other Upcoming Events/Opportunities. Show up and tell them to support LGBTQ+ equality and to support the Affordable Care Act.
- Click here to find an organization looking for volunteers.
Laws Proposed by Congress
Legislation that Supports Equity and Justice
- S. 411 would end profiling by law enforcement and for other purposes, including on the basis of sexual orientation or gender identity.
- HR 1447 would prohibit discrimination in housing on the basis of sex or sexual orientation.
See also the State and Local Pages for state-by-state legislative tracking.
There are few laws protecting transgender individuals from discrimination at the Federal level. However, recent court decisions have made more and more clear that Federal laws against discrimination based on “sex” such as the Title VII of the 1964 Civil Rights Act - prohibiting discrimination on the basis of sex, among other criteria, by an employer with 15 or more employees – do protect transgender individuals to some extent. In the absence of clear Federal legislation, this remains subject to the opinion of the judges and can be reversed. This is why States have begun to pass laws protecting transgender individuals in some particular places such as schools. Many other rights of transgender individuals are decided at State level, such as the ability to change their name and gender marker on their identity paper or have their healthcare included in State Medicaid. See the State and Local Pages to see where your State stands on these issues.
The replacement of the Affordable Care Act by the American Health Care Act (AHCA) as proposed by the Administration could have dire repercussions on the transgender community. Section 1557 of the ACA prohibits health-care providers and insurers from discriminating on the basis of gender, and the Obama administration has issued a rule based on this section barring discrimination against gender nonconforming and transgender people, including for transition-related care and gender reassignment surgery. If the ACA is repealed, then the rules that interpret the law (including this protection) would no longer be in effect. Furthermore, given that the new Secretary for Health and Human Services, Tom Price, has objected to other protections for transgender people, he is unlikely to try to reinstate a similar protection through other means. In addition, Planned Parenthood is one of the largest providers of health care for trans people, and blocking Medicaid patients from accessing its health centers (as stated in the AHCA) would dramatically impact trans people’s access to health care.
Trump and his security advisors have described the move to authorize transgender soldiers to serve openly and to ban discharge based solely on their gender identity as ill-advised "social engineering" imposed on the armed forces. Trump's pick for Secretary of Defense, Gen. James Mattis, has also voiced skepticism and criticized civilian leaders for pushing a "progressive agenda" that could weaken the Army. It is also worth noting that as a congressman, Pence voted against the repeal of the ban on openly gay troops—as did Jeff Sessions.  It would be easy to rescind or revise the Pentagon policy on transgender individuals, as Mattis would only need to notify Congress 30 days in advance and no legislation would be required, but the move would impact an estimated 1,320 to 6,630 soldiers (numbers from the RAND report commissioned by the Pentagon in August 2008) and leave them without protection.
The Trump Administration has withdrawn an Obama-era guideline on non-discrimination policies for transgender students. This guidance interpreted Title IX of the Educational Amendments of 1972 to mean that schools "must not treat a transgender student differently from the way it treats other students of the same gender identity." Withdrawing this guidance means that students can now be required, under the authority of state or local school boards, to use restrooms and changing facilities that correspond with their biological gender rather than their gender identity. It also limits students' eligibility to play on sports teams that correspond with their gender identity. It does still allow school boards to implement their own protections, and permits individuals or advocacy groups to appeal to Federal courts if a transgender student's rights have been violated., 
The Supreme Court recently considered Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be able to use the boys’ bathroom at his Virginia high school against the school board, which enacted a policy requiring students to use the bathroom that corresponds with the sex that they were assigned at birth. On March 6 2017 the Supreme Court decided to send the case back to the Fourth Circuit Court of Appeals after the Administration rescinded the Obama-era guidance advising schools to allow transgender students to use the bathroom matching their gender identity, on which the ruling to be examined by the Supreme Court relied heavily. Both sides had previously contented that even without the guidance, the Court could and should decide whether the board’s policy violates Title IX, the Federal civil rights law that bars discrimination in education. The Fourth Circuit Court will now examine the case again to decide whether Title IX applies to transgender students.
The 2015 Obergefell v. Hodges Supreme Court decision established that same-sex couples have a right to marry. However, no Federal law has been passed in this sense so the Supreme Court, if its balance changed, could still reverse the decision. Moreover, some are trying to limit or challenge this right at State level. See the State and Local Pages to see where your State stands on these issues.
Trump has nominated Judge Gorsuch to the Supreme Court, who is poised to align with the conservatives on the bench and oppose Obergefell v. Hodges. If Trump was in a position to nominate other conservative justices to the Supreme Court, he could change the composition of the court such that it overturns the decision; since this was a narrow 5-4 decision, appointing one more conservative justice could result in rulings that revoke marriage equality.
The Texas Supreme Court has agreed to review a decision granting equal benefits to same-sex married couples, with at least one judge on record endorsing the idea that marriage is a right but spousal benefits are not. The decision could lead to the case being examined by the US Supreme Court, and depending on its balance at the time the Obergefell v. Hodges decision could be at least partially called into question.
The Fight against HIV
HIV/AIDS affects everyone, but according to the Center for Disease Control gay and bisexual men are more severely affected than any other groups in the US, and reports show that transgender individuals, and women in particular, are more at risk than others as well. Discrimination and stigma can make it more difficult for LGBTQ+ individuals to access diagnosis and treatment. Any law affecting HIV prevention and care therefore disproportionately affects the LGBTQ+ community, and current action at the Federal and State level could endanger access to treatment.
Medicaid and American Health Care Ac
The Medicaid expansion through the ACA had a crucial impact on the fight against HIV: a report from the Kaiser Foundation states that Medicaid is now the single largest source of coverage for people with HIV in the US, covering more than 40% of people with HIV in care and accounting for 30% of all Federal spending on HIV care. The American Health Care Act (AHCA) recently put forward calls for an elimination of the Medicaid expansion therefore stripping many HIV patients of coverage. Any interruption in care means that the epidemic could surge: when HIV-positive people are treated and their viral load is suppressed, the risk of transmission is almost zero, but if treatment is interrupted and the viral load goes up, it becomes transmissible again. The AHCA also removes the Medicaid requirements that the states provide 10 essential health benefits, including prescription drugs, which means it is unclear what state would provide HIV patients. Access to preventative services such as testing or PrEP (a drug reducing the risk of contracting HIV, generally used by HIV negative people at risk of being contaminated) would also be impacted for low-income people currently on Medicaid. The National Alliance of State and Territorial AIDS Directors’ executive director Murray Penner has issued a statement condemning the plan, as “the proposed legislation would make it much harder, if not impossible, for people living with HIV and other chronic conditions to get the coverage needed to meet their care and treatment needs.”
The proposed budget put forward by the Trump administration calls for continued funding to the Ryan White HIV/AIDS providers, a program that provides health care to people living with HIV who cannot get health insurance (the third-largest source of federal money for domestic HIV care after Medicare and Medicaid) and the Administration has mentioned fighting against HIV as a domestic and international priority, maintaining funding to global organizations like PEPFAR and the Global Fund to fight AIDS, Tuberculosis and Malaria(see the Foreign Policy page for more information on global health and HIV). However, the elimination of the Medicaid expansion would mean a loss of coverage even with a maintained contribution to the Ryan White program, and prevention services would not benefit from it as the Ryan White program only covers people who are HIV positive.
Some states have also passed HIV/AIDS criminalization laws making it illegal for an HIV-positive person to “knowingly expose” another person to HIV—in some states, this means that it is illegal not to disclose HIV-positive status to a sex partner, but many laws criminalize behaviors that are unlikely to lead to transmission. Because the laws focus on disclosure, not actual transmission, they serve no real purpose. All states have other, non-HIV-specific laws that can be used to prosecute transmission of HIV, so these laws just needlessly single out and stigmatize HIV-positive people and reinforce the image of them as “dangerous.” It also allows the saliva or blood of an HIV-positive person to be classified in court as a “deadly weapon.” HIV criminalization laws also disproportionately target people of color, mainly African Americans, and gay men.
See the State and Local Pages to see if your State is affected by these laws.
Other Discrimination Issues
As long as discrimination against LGBTQ+ individuals is not clearly prohibited in Federal law, LGBTQ+ people remain vulnerable to laws and Court decisions infringing on their rights.
Trump's vice president and cabinet appointees including Steven Bannon, Jeff Sessions, Tom Price and Betsy De Vos have systematically advocated for or implemented policies that discriminate against the LGBTQ+ community. Trump himself has advocated for policy decisions that would have direct repercussions on the LGBTQ+ community. Trump has, for instance, vowed to "cancel every unconstitutional executive action, memorandum, and order issued by President Obama" on his first day in office, which would nullify protections for LGBT workers such as the Executive Order 13672 signed by Obama in 2014, which states that Federal contractors cannot be fired on the basis of their gender identity or sexual orientation (only 19 states currently have such protection).
First Amendment Defense Act
The First Amendment Defense Act (FADA), introduced in Congress in 2015, has been mentioned again by Trump who said during the campaign that he would sign it into law if it came to his desk. FADA would prohibit any kind of action against any corporation, organization or person if they acted according to the belief that marriage is or should be recognized as the union of one man and one woman or that sexual relations should be reserved to such a marriage. This Act is broad enough to legalize discrimination against LGBTQ+ individuals in a wide range of situations, from access to medical care to spouse benefits, and prevents the Federal government from fighting such discrimination in any way. It means, for instance, that an adoption agency receiving government funds would be able to refuse to place kids with LGBTQ+ parents and still be entitled to taxpayer funding.  Jeff Sessions was among the sponsors of FADA. As Governor, Mike Pence signed a Religious Freedom Amendment allowing people to discriminate against LGBTQ+ individuals. Recently a similar amendment was attached to the National Defense Authorization Act in December 2016 for Federal contractors, but it was removed under threat of veto by President Obama. Under President Trump, such an amendment or law might succeed in being turned into law.
- Similar laws, albeit with different ranges, have been introduced at State level as religious freedom laws. See also the State and Local Pages to see how your State stands on these issues.
American Health Care Act (AHCA)
In addition to the impact on HIV prevention and treatment, the AHCA would impact the LGBTQ+ community at large. LGBTQ+ individuals are statistically less likely to have insurance; older LGBTQ+ adults face more health disparities and are more likely to be poor than older Americans. The weakening of Medicaid and rising cost of insurance under the AHCA would leave many LGBTQ+ individuals without coverage and increase disparities.
- 3/16/2017: 19 LGBTQ+ groups have sent a letter to the Senate Judiciary Committee stating that nominee for the Supreme Court Judge Gorsuch is an adversary of equality and should be thoroughly questioned on his stances regarding LGBTQ+ rights.
Vulnerabilities in their strategy
- Supreme Court confirmations require 60 votes in the Senate to overcome a Democratic filibuster. Just as Republican Senators refused to confirm Merrick Garland as a Supreme Court justice, Democrats could potentially block Trump from nominating any justice to the court who does not support Obergefell v. Hodges or other major decisions on social issues, like Roe v. Wade.
- To pass, FADA would require 60 votes in the Senate to overcome a Democratic filibuster, which means that Democrats can block such legislation from passing if they are unified in their opposition.
- A study has shown that allowing trans kids to transition is very beneficial for their mental health - trans kids allowed to transition showed no difference to their peers or siblings in terms of development and self-reported depressive symptoms or anxiety.
- Another study has found that when states adopt marriage equality suicide rates among teenagers and young adults decline significantly, in particular among LGBTQ+ youth..