The Purge Of Transgender People From American Life Has Begun
If ever the FRC was to have a chance to drive transgender people out of public life, this is it.
Two years ago, the Family Research Council (FRC), an Evangelical Christian anti-LGBT hate group according to the Southern Poverty Law Center (SPLC), published a road map laying
out a plan to morally legislate the transgender community in the US out
of existence. I wrote about the danger posed by this plan in January of
2016 in an article titled “And Then They Came for Transgender People,” deliberately echoing the words of Martin Niemöller.
Today, the FRC has unprecedented access to the White House according to its President, Tony Perkins. Evangelical leaders associated and aligned with the FRC routinely pray in the Oval Office over President Trump, who keeps them as his closest allies. Five members of Trump’s evangelical executive advisory board, including the founder of the FRC James Dobson, signed the Nashville Statement.
The Nashville statement dictated that transgender people should not be
tolerated in society, and that anyone who tolerates them is not a
Christian.
If ever the FRC was to have a chance to enact their plan for transgender people, this is it.
President Trump poses with Evangelical leaders, including representatives of the Family Research Council
The
evidence shows they are taking advantage of this relationship, and it
has resulted in an unprecedented regression of transgender rights. Heidi
Beirich, the intelligence project director of the SPLC
described the situation: “If anybody is winning big-ly from Trump’s
policies, its these folks, right? It’s the anti-LGBT hate groups and
their various allies among conservatives.”
Thus,
let’s take a look at the steps the White House has taken so far to
enact the Family Research Council’s five-point plan to attack a small,
vulnerable, minority with already limited legal protections.
1. States and the federal government should not allow legal gender marker changes.
This
is the area where the least has been done. The most important places
for transgender people to change their gender markers at the federal
level are on their passports (issued by the Department of State) and with the Social Security Administration.
President
Trump has yet to nominate a permanent commissioner to the Social
Security Administration, and the acting commissioner is a career civil
servant. Should the administration nominate someone aligned with the
FRC, the current lenient policy could be endangered.
The
State Department is headed by Rex Tillerson who, as CEO of
Exxon-Mobile, steadfastly refused to implement corporate LGBT
protections until it was mandated by an Obama Administration executive order. At the time, Exxon had the lowest corporate equality score in the history of the index. However, Tillerson’s State Department has reportedly struggled with dysfunction, unfilled positions, and low morale. State has often been sidelined by a White House seemingly intent on conducting foreign policy on its own.
Thus,
in an organization struggling to achieve many of its primary functions,
minutiae such as policy governing changing gender markers on birth
certificates seems to be a low priority. This could change, however, if
Tillerson resigns (as has been rumored), and is replaced by someone more ideologically aligned with the FRC.
2.
Transgender people should not have any legal protections against
discrimination, nor should anyone be forced to respect their identity.
One of the first acts of the Trump Administration was the Departments of Justice and Education revoking Obama era protections for transgender students. The DOJ also dropped its lawsuit against North Carolina,
despite the state passing a law there preventing all protections for
LGBT people. The Trump / Session Department of Justice has additionally
argued in court that sexual orientation is not protected by Title VII. This affects most transgender people, since they are usually seen as LGB either before or after transition.
In February the Trump administration leaked a draft executive order
which would have granted sweeping religious exemptions to Obama
Administration executive orders protecting LGBT federal employees and
contractors. Substantial pushback ensued, and a much weaker version was
issued several months later. There has been a continued push by the FRC to issue an executive order like the leaked first draft.
In the end, though, the protections for LGBT federal contractors have been effectively gutted. On March 27th Trump signed an executive order
that nullified an Obama administration initiative to ensure that
federal contractors complied with labor and civil rights laws forbidding
discrimination based on sexual orientation and gender identity.
Trump
has installed people with long histories of anti-LGBT statements in
many top appointed positions in the Federal government. This includes Sam Clovis at the USDA, Jeff Sessions at DOJ, Ben Carson at Housing and Urban Development, Sam Brownback to the UN, John K. Bush, Damien Schiff, and Amy Coney Barret to the judiciary, Mike Pompeo at the CIA, Betsy DeVos at Education, Jim Bridenstine at NASA, and Tom Price , Roger Severino, Charmaine Yoest, Teresa Manning (who was a legal counsel at FRC), Valerie Huber, and Katy Talento at Health and Human Services (HHS).
Additionally,
Trump’s appointee to the Supreme Court, Justice Neil Gorsuch, appears
to be innately hostile to the idea of inherent human rights for LGBT
people unless specifically enumerated by law.
In an unpublished opinion he concurred with the argument that letting transgender people use bathrooms consistent with their gender identity is a threat to public safety. He was also one of the judges in the 10th Circuit in Hobby Lobby v. Sebelius, where he decided that companies should have the religious right to discriminate against classes of employees. At the Supreme Court, he has already argued that states have the right to discriminate against LGBT people, because they are not specifically protected by federal law.
Thus, a court with one more Trump appointee like Gorsuch is unlikely to halt whatever the federal government decides to do to transgender people.
In an unpublished opinion he concurred with the argument that letting transgender people use bathrooms consistent with their gender identity is a threat to public safety. He was also one of the judges in the 10th Circuit in Hobby Lobby v. Sebelius, where he decided that companies should have the religious right to discriminate against classes of employees. At the Supreme Court, he has already argued that states have the right to discriminate against LGBT people, because they are not specifically protected by federal law.
Thus, a court with one more Trump appointee like Gorsuch is unlikely to halt whatever the federal government decides to do to transgender people.
3. Transgender people should not be legally allowed to use facilities in accordance with their gender identity.
The
agency with the most power to do this at the Federal level is the
Office of Personnel Management (OPM), which regulates working conditions
of federal workers, and to a lesser extent contractors. Currently, the
OPM has a policy protecting transgender federal employees and contractors.
The Trump administration nominated George Nesterczuk to the top
position at OPM, but he withdrew his name from consideration on August
2nd 2017.
The
withdrawal of support from transgender students by Education and
Justice is the most direct attack to date on access to public
facilities. However, if the Trump administration were to appoint someone
affiliated with the FRC like Kay Cole James
(who headed OPM under President George W. Bush), to run OPM, it would
be a clear signal of intent to impose a more hostile policy.
4. Medical coverage related to transition should not be provided by the government, or any other entity.
The
Trump administration has done a great deal to ensure transgender people
cannot access health care. They have appointed people who oppose all
transition related care for religious reasons (Tom Price, Roger Severino, Charmaine Yoest, Teresa Manning, Valerie Huber, and Katy Talento) to top positions at Health and Human Services. They have reversed the Department’s position on Section 1557 of the Affordable Care Act,
which was previously interpreted to prevent discrimination in health
care against transgender patients (i.e. their organization now takes the
position that there is nothing illegal about discriminating against
transgender patients).
This
has potentially devastating consequences including: a religious right
to refuse care to patients, a right to verbally abuse them through
misgendering, and subjecting them to conversion therapy. One in six
hospitals in the US are now Catholic owned, and in some states 40% of
hospital beds are in Catholic hospitals.
Additionally, the Trump administration has ordered that new medical care for transgender service-members will cease. In 2015, OPM ordered that Federal Employee Health Benefit (FEHB) plans
would no longer be allowed to exclude transition related health care
for transgender federal employees. This could change quickly if the
administration installs an anti-LGBT director at OPM.
5. Transgender people should not be allowed to serve in the military.
This
is by far the most publicized attack by the administration on the
transgender community. On July 26th 2017 President Trump tweeted that
“transgenders” would no longer be allowed to serve the military “in any capacity”. A month later the White House issued a formal order
to the Pentagon to end medical treatment, force out existing
transgender service members, and forbid transgender people from joining
the military. The DoD was not consulted, and Secretary of Defense Mattis had defended the policy allowing transgender people to serve. White House officials went on the record stating that this policy decision was purely political to score point with mid-Western voters.
The OPM is responsible for issuing most security clearances.
If they were to refuse clearances to transgender federal employees and
federal contractors, it would effectively complete a purge of the
federal service of transgender people.
Conclusion:
Where
possible, the Trump administration is doing almost everything they can
to implement the Family Research Council’s strategy. Where they are not,
it appears to be because they have not put people in place to implement
it yet.
Deciphering
how far this goes will depend greatly on who the next Director at OPM
is. OPM controls policy for recognizing gender changes, access to
facilities, FEHB plans, and security clearances. Watch this nomination
process carefully; it is likely to signal how far this administration is
willing to go to appease a group bent on cultural genocide.
Also, watch for Kennedy’s retirement. There’s a high probability that his replacement
will be ideologically indistinguishable from Gorsuch regarding
transgender people, given ultra-conservative organizations are doing the
vetting for the Administration. Thus, it’s unlikely that the courts
will do anything to intervene after Kennedy retires. As a result, the
Trump Administration, and the FRC, may wait until Kennedy has been
replaced to implement the worst of their agenda (such as revoking
passports and security clearances) against the transgender community.
Finally,
keep an eye on Rex Tillerson. If leaves, and is replaced by a
FRC-approved ideologue, passports are in danger. This is a red-line
from a historical perspective. If the US State Department revokes the
passports of people who have changed their gender markers and demands
that they be surrendered, it’s a sign that the government doesn’t want
transgender people to escape what happens next.
