THE TRUMP ERA: AN IMPENDING EROSION OF TRANSGENDER CIVIL

RIGHTS GAINS & THE UNRAVELING OF SAME-SEX MARRIAGE

By: Shaian Mohammadi

Legal Article

Spring 2017

California Western School of Law

 TABLE OF CONTENTS

I. Introduction…………………………………………………………………………...3

II. Background…………………………………………………………………………..3

III. The Impending Erosion of Transgender Civil Rights Gains………………………..8

IV. Cracks in Same-Sex Marriage………………………………………………………14

V. Conclusion……………………………………………………………………………21

2
 I. INTRODUCTION

America is the beacon of hope around the world for issues of inclusivity, equality,

and liberty. Americans have made many strides as a nation in civil rights. However, some

historians and analysts argue that there is still much more work to do in the realm of LGBT

rights. In particular, transgender rights in America have not fully developed to full equality

in civil rights on the federal level. The Trump presidential era begins with historical control

of legislatures by Republicans. The recent achievements in transgender civil rights and

same-sex marital rights can potentially unravel due to Obama-era executive directives

providing protection for transgender students rescinded, U.S. Supreme Court and

Congressional gains for Republicans skeptical of LGBT rights, and the potential for

constitutional amendments disavowing marriage equality and reversal of anti-discrimination

laws. Part II will explain the background and history of transgender civil rights and same-

sex marital rights. Part III will criticize how transgender civil rights are under attack by

various parts of the government. Part IV will lament the potential unraveling of same-sex

marital rights.

II. BACKGROUND

LGBT (Lesbian, Gay, Bisexual, Transgender) civil rights have come about over

generations. This section will discuss a brief history of transgender (gender identity) civil

rights. This section will also further discuss the history of same-sex marital rights in the

legal and political systems.

3
a. A Brief History of Transgender (Gender Identity) Civil Rights

Transgender civil rights were first codified in 1975 when the City of Minneapolis

passed a law prohibiting discrimination against transgender people1. In the 1970s and 1980s,

homosexuality and “gender identity disorder” (the given name for transgender, included in

DSM revisions to much unpopularity at the time2). In 1993, Minnesota became the first state

to extend human-rights laws to include discrimination of transgender people3. In 2001 and

2003, Rhode Island and California joined the lists of early states to extend their anti-

discrimination law for further protection of the LGBT community4. In 2012, the EEOC ruled

that Title VII of the 1964 Civil Rights Act extends anti-discrimination protections to

transgender people5.

In recent years, Republicans began to take control of an unprecedented number of

state legislatures and made historical gains in Congress, and are now only a handful of states

away from ratifying any amendments to the U.S. Constitution6 that they see fit7, including

reversing gains on LGBT rights. Republican candidates in recent election years ran on

1
Emma Margolin, How Minneapolis Became First U.S. City to Pass Trans Protections,
NBC News (June 3, 2016, 10:28 AM), http://www.nbcnews.com/feature/nbc-out/how-
minneapolis-became-first-u-s-city-pass-trans-protections-n585291
2
Zack Ford, APA Revises Manual: Being Transgender Is No Longer A Mental Disorder,
ThinkProgress (Dec. 3, 2012), https://thinkprogress.org/apa-revises-manual-being-
transgender-is-no-longer-a-mental-disorder-8b0321f775d2
3
Human Rights Protections in Minnesota, Outfront Minnesota (last visited Apr. 30, 2017,
5:00 PM), https://www.outfront.org/library/humanrights
4
Paisley Currah, Institute News, Transgender Law & Policy Institute (updated Mar. 27,
2007), http://www.transgenderlaw.org/news.htm
5
Dana Beyer & Jillian T. Weiss, New Title VII and EEOC Rulings Protect Transgender
Employees, Transgender Law Center (Jan. 24, 2014), http://transgenderlawcenter.org/wp-
content/uploads/2014/01/TitleVII-Report-Final012414.pdf
6
U.S. Const.
7
Tribune News Service, Republican success opens door to amending U.S. Constitution,
Chicago Tribune (Dec. 5, 2016, 11:34 AM),
http://www.chicagotribune.com/news/nationworld/ct-republican-constitution-amendment-
20161205-story.html

4
rhetorical promises to roll back transgender rights, and should be taken as policy items to be

enacted if in office. As part of a general assault on LGBT civil rights, there have been calls

to rescind Obama-era executive actions and agency protections, to reverse U.S. military

support for transgender health care, and wither the recent LGBT victory at the U.S. Supreme

Court in the case of Obergefell v. Hodges8 (overturning same-sex marriage bans in all fifty

states9).

In 2016, the City of Charlotte, NC, passed an ordinance allowing transgender people

to use whichever public restroom they identify with10. This led to a national debate on the

issue, with the North Carolina legislature reacting by passing a law nullifying that ordinance

and prevented other municipalities within the state from passing similar ordinances as

Charlotte’s11. The law, known as HB212, forced transgender people to go to the bathroom

that is transcribed on their birth documents13. What followed were heated boycotts from

various state legislatures and organizations, such as preventing travel to the state. In

response to the national debate on the issue, then-President Barack Obama issued an

executive order to require public schools receiving federal funds to allow bathrooms to be

8
Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015), reversing 772 F. 3d 388 (6th Cir.
2014).
9
HRC Staff, Republican Rhetoric on LGBT Issues Since the Last Debate, Human Rights
Campaign (Oct. 28, 2015, last visited 5:00 PM), http://www.hrc.org/blog/republican-
rhetoric-on-lgbt-issues-since-the-last-debate
10
Amber Phillips, The tumultuous history of North Carolina’s bathroom bill, which is on its
way to repeal, The Washington Post (Mar. 30, 2017, last visited 5:00 PM),
https://www.washingtonpost.com/news/the-fix/wp/2016/12/19/the-tumultuous-recent-
history-of-north-carolinas-bathroom-bill-which-could-be-repealed/
11
N.C. H.B. § 2 (2016).
12
Id.
13
Amber Phillips, The tumultuous history of North Carolina’s bathroom bill, which is on its
way to repeal, The Washington Post (Mar. 30, 2017, last visited 5:00 PM),
https://www.washingtonpost.com/news/the-fix/wp/2016/12/19/the-tumultuous-recent-
history-of-north-carolinas-bathroom-bill-which-could-be-repealed/

5
used based upon gender identity and not sex at birth. The executive order was stayed in

federal court shortly thereafter14 . As noted later, the controversy became moot when the

Trump administration rescinded the order.

Generally, there is still much resistance to overcome. The country has made gains in

the areas of same-sex marriage and further federal rights, but there is still prejudice against

the transgender community15. Transgender rights and gender identity is still not as accepted

as same-sex marriage, due in part to the small percentage the transgender community makes

up in comparison to the total population. Many simply do not understand how gender

identity can play into LGBT issues and discrimination.

b. A Brief History of Same-Sex Marital Rights in the Legal and Political Systems

To many historians, the Stonewall Riots in New York City began the LGBT civil

rights movement at the end of the 1960s16 and carried on into the 1970s. During and after

the Stonewall movement, members of the LGBT community in New York City faced many

hurdles and obstacles to be treated equally in regard to class and employment issues. This

began a national conversation that took place in many cities and states.

14
Bradford Richardson & Dave Boyer, Federal court blocks Obama’s transgender
bathroom order, The Washington Times (Aug. 22, 2016, last visited 5:00 PM),
http://www.washingtontimes.com/news/2016/aug/22/texas-judge-block-obama-transgender-
bathroom-order/
15
Danielle Paquette, 8 critical facts about the state of transgender America, The
Washington Post (Jan. 22, 2015, last visited 6:00 PM),
https://www.washingtonpost.com/news/wonk/wp/2015/01/22/the-state-of-transgender-
america-massive-discrimination-little-data/
16
Stonewall Riots: The Beginning of the LGBT Movement, The Leadership Conference (Jun.
22, 2009, last visited 5:00 PM), http://www.civilrights.org/archives/2009/06/449-
stonewall.html

6
 In the 1980s and 1990s, legislatures and voters in some states enacted same-sex

marriage bans; various state supreme courts upheld the bans17. One of these upheld bans

came from the State of Hawaii, where in 1999 their state Supreme Court ruled that the

passage of a state constitutional amendment prohibiting same-sex marriage was

constitutional and rendered the plaintiffs’ case moot as such18. Then-President Bill Clinton

was pressured by a Republican-held Congress to sign the Defense of Marriage Act

(DOMA), prohibiting federal benefits to same-sex married couples due to a split in states

allowing it or disallowing it. In the 2000s, then-Mayor Gavin Newsom of San Francisco

allowed the City Clerk to issue marriage licenses to same-sex couples, which started a

national debate19.

The tides began to turn, as more LGBT community groups took actions, and some

states (such as Massachusetts and Vermont) started the legal journey to allow same-sex

marriage20 . Eventually, the legal system caught up and the U.S. Supreme Court granted

certiorari in the historic cases of Hollingsworth v. Perry 21 (challenging California’s

Proposition 8 law), and United States v. Windsor22, (challenging DOMA). Even though the

Hollingsworth case punted on the actual issue of same-sex marriage equality due to standing

17
Richard Wolf, Timeline: Same-sex marriage through the years, USA Today (Jun. 24,
2015, updated 12:53 PM), https://www.usatoday.com/story/news/politics/2015/06/24/same-
sex-marriage-timeline/29173703/
18
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1999).
19
Jonathan Darman, SF Mayor Gavin Newsom Risks Career On Gay Marriage, Newsweek
(Jan. 16, 2009, 7:00 PM), http://www.newsweek.com/sf-mayor-gavin-newsom-risks-career-
gay-marriage-78439
20
Richard Socarides, Why Bill Clinton Signed The Defense of Marriage Act, The New
Yorker (Mar. 8, 2013, last visited 5:00 PM), http://www.newyorker.com/news/news-
desk/why-bill-clinton-signed-the-defense-of-marriage-act
21
Hollingsworth v. Perry, 133 S.Ct. 2652 (U.S. 2013).
22
United States v. Windsor, 133 S.Ct. 2675 (U.S. 2013).

7
issues – two years later in Obergefell, the Supreme Court held that same-sex marriage bans

across the United States were unconstitutional.

III. THE IMPENDING EROSION OF TRANSGENDER CIVIL RIGHTS GAINS

Transgender civil rights gains are in danger of being eroded during the Trump era.

This section will discuss the wrongful reversal by President Trump of former President

Obama’s executive order providing further protections. This section will further discuss

Congressional actions on the issue, as well as recent U.S. Supreme Court actions.

a. The Obama Executive Order Wrongly Reversed by Trump

In 2016, then-President Obama was correct in issuing an executive directive through

the U.S. Department of Education to force public schools around the nation that receive

taxpayer funds to allow their students to use bathrooms corresponding to their gender

identities and not to their gender at birth. The executive directive followed heated debate

around HB223, and was viewed by various pro-LGBT organizations as a necessary step by

the Obama administration.

First, it was the correct move by the Obama administration to issue the directive in

order to provide full federal government support for cohesive purposes as well as extra

protections in order to reduce discrimination and harassment of some of the most vulnerable

– transgender children. In order for public school systems under the federal structure to

remain cohesive and united, they must receive direction and administrative support from the

executive branch and not leave it to states themselves as to avoid discrepancies and splits.

Second, due to the statistics showing the vulnerability of our transgender youth, the

Obama administration correctly issued the directive. In 2015-16, studies released by LGBT

23
N.C. H.B. § 2 (2016).

8
think tanks showed that over half of the out transgender students (K-12) surveyed claimed

that they were sexually harassed in some way, with a quarter claiming physical harassment

and 60% claiming that they were forced to use a bathroom that didn’t align with their gender

identities24.

Historically, matters of discrimination and of high importance have been left to the

federal government and not state governments in order to avoid further splits, such as the

eventual marriage equality stemming from the Court and voting rights issues. Allowing

issues to remain in the status quo has seldom worked out cohesively, and historically led to

situations like civil war; the status quo usually means returning it to the states, which could

allow for further splits on major issues. Historically, when issues were left to the states to

decide, the issues of slavery expansion and abolition, women’s suffrage, and marriage

equality were divisive, split, and unresolved in the public discourse for years. It wasn’t until

federal mandates and federal court opinions in order to ensure equality amongst some of the

aforementioned groups.

Before becoming president, Donald Trump campaigned heavily on undoing the

Obama legacy. Furthermore, President Trump has consistently stated that the executive

directive then-President Obama signed was incorrect because matters of LGBT issues

should be left to the states to decide. Thus, President Trump in early 2017 fulfilled a
25
campaign promise by rescinding former President Obama’s executive directive .

Unfortunately, this could now open the Pandora’s box to discrimination against vulnerable

transgender children in the public schooling system.

24
The 2015 U.S. Transgender Survey, National Center for Transgender Equality (last visited
Apr. 30, 2017, 5:00 PM), http://www.ustranssurvey.org/report
25
Daniel Trotta, Trump revokes Obama guidelines on transgender bathrooms, Reuters (Feb.
23, 2017, 10:24 AM), http://www.reuters.com/article/us-usa-trump-lgbt-idUSKBN161243

9
 The Fourth Circuit Court of Appeals viewed the public-school directive as properly

within the authority of the Obama administration under both the Administrative Procedures

Act26 and the Title IX Education Amendments to the Civil Rights Act27, which prevents

discrimination based upon gender in educational institutions, in order to further protect

vulnerable transgender children. Although the Obama executive directive was stayed

nationally by a federal court in the State of Texas when thirteen states sued the Obama

administration over the order – it was stayed primarily due to the Obama administration’s

error in not providing the notice and comment necessary for rule changes28. However, the

Texas federal judge and many conservative groups were skeptical over the interpretation of

the rules by the administration 29 . This was not due to overreach or misinterpretation of

regulations; any presidential administration has the authority to interpret reasonably and the

authority to defer to. Just depending on the Equal Protection Clause to protect endangered

groups is not enough due to its debated history amongst many legal thinkers and

judges/justices, and administrative rules are necessary. As discussed below, the future

textualist/originalist direction that the Supreme Court is heading toward could strip back

many protections under Equal Protection Clause doctrines.

Meanwhile, economic boycotts of North Carolina are uncertain. The bathroom

debate about N.C. H.B. 2 became so heated that various Democratic-held state legislatures

enacted economic sanctions and boycotts of North Carolina. Hundreds of organizations

joined the boycott, such as the National Basketball Association, which moved their all-star

26
5 U.S.C. § 500 (1946).
27
20 U.S.C. § 1681 (1972).
28
Josh Gerstein, Judge reaffirms nationwide ban on Obama transgender school bathroom
policy, Politico (Oct. 19, 2016, 7:51 AM), http://www.politico.com/story/2016/10/obama-
transgender-school-bathrooms-texas-judge-ruling-229973
29
Id.

10
games out of North Carolina. After months of the economic boycotts, the legislature’s new

session repealed N.C. H.B. 2 and the Governor later signed the repeal bill into law30. Some

claimed victory, showing that economic pressure could alleviate discrimination issues left

within the status quo, but in reality it just quieted the issue in the meantime until a sweeping

ruling is enforced no matter the potential for unpopularity. History shows that leaving issues

left unattended to or within the status quo usually winds up in divisiveness and legal splits.

If economic sanctions and pressures were the primary ingredient in preventing

discrimination, there would be no need for anti-discrimination laws to be on the books.

b. Congressional Actions

Republicans in control of Congress fought hard to push back against then-President

Obama’s protections for transgender people and overall the LGBT community. Generally,

Republican leaders in Congress included language in the National Defense Authorization

Act (NDAA) to strip protections in place for LGBT military service members, such as anti-

discrimination rules, health care and gender reassignment surgery, and sexual orientation

equality31. Having it placed within the NDAA would make it a difficult veto decision for

any president due to the military funding ramifications on the line.

Republicans in Congress also worked to nullify then-President Obama’s executive

order preventing federal contractors from discriminating against transgender people based

30
Daniella Silva, HB2 Repeal: North Carolina Overturns Controversial ‘Bathroom Bill’,
NBC News (Apr. 2, 2017, 3:52 PM), http://www.nbcnews.com/news/us-news/hb2-repeal-
north-carolina-legislature-votes-overturn-controversial-bathroom-bill-n740546
31
Jennifer Bendery, House Republicans Are Truly, Madly, Deeply Obsessed With Queer
People, The Huffington Post (Jul. 6, 2016, updated 4:02 AM),
http://www.huffingtonpost.com/entry/house-republicans-lgbt-
bills_us_577bf899e4b041646410d8c7

11
on their gender identity32. Republicans, by including various amendments to bills, threatened

lawsuits against the Obama administration for perceived overreaches. The administration at

the time believed that such an executive order was necessary in order to extend the Civil

Rights Act to include discrimination against federal contractors, which had previously been

in a policy donut hole due to not having provided discrimination protections for contracting

workers under the federal government. However, this too has led to a circuit split, with

federal courts from Chicago to Atlanta varying on whether such anti-discrimination

directives extend to sexual discrimination through Civil Rights Act language. As discussed

in the next section, the Supreme Court has not definitively ruled on such anti-discrimination

issues extending from federal administrative rules in the sexual orientation harassment

realm.

c. The Supreme Court Punts on Transgender Civil Rights; The Fourth Circuit Challenge

The U.S. Supreme Court missed its chance to create a definitive ruling on, when the

justices vacated the lower court's decision in the case of Gavin Grimm, a Virginia student

who is seeking to use the school bathroom that aligns with his gender identity, and not his

gender at birth which he is forced to do by law in his county. The Gloucester County School

Board (the jurisdiction that Grimm attends school in) previously decided to force students

like Grimm to use a separate restroom that no other students are required to use, instead of

the bathroom that aligns with his gender identity. The Court voted to punt on the issue on

mootness grounds, and remand the court case to the lower courts. Grimm’s court case will

now go back down to the Fourth Circuit Court of Appeals and will likely remove the

possibility that the Supreme Court will re-hear the case any time soon. The Fourth Circuit

32
Id.

12
must now reinterpret agency rules in light of the recent reversal of the Obama administration

executive directive, which removed protections for transgender students that were put in

place33. It would also remove the interpretation of Title IX’s anti-discrimination attributes

for the LGBT community. The reversal has led to confusion by various federal agencies on

how to interpret and enforce such rules. The Fourth Circuit will now have to answer whether

legislative federal law–not just the Executive Branch–interpretations of it treat

discrimination on the basis of gender identity as sexual discrimination34.

d. A Dangerous Time

This is a dangerous time for transgender students in public schools. The Obama-era

reinterpretation of Title IX of the Education Amendments to the Civil Rights Act provided

the much-needed protection to transgender students wishing to use their bathroom that

corresponds with their gender identity – protection that was not substantive and strong

enough based solely upon current laws, statistics, and previous interpretation of the federal

rules. Now that the Obama executive directive was rescinded by President Trump, Attorney

General Jeff Sessions will have much say over how the new guidelines should be

interpreted. Attorney General Sessions’ previous policy positions have him aligned with the

anti-LGBT factions of his party, just like his colleague Vice President Mike Pence as

discussed below. Attorney General Sessions from day one of his term has worked to rescind

LGBT protections that statistics have shown are much needed interpretations of the rules.

As mentioned above, Republicans in Congress worked to nullify then-President

Obama’s executive order to prevent federal contractors from discriminating against

33
Ariane de Vogue, Steve Vladeck & Theodore Schleifer, Supreme Court sends transgender
case back to lower court, CNN Politics (Mar. 6, 2017, updated 11:57 PM),
http://www.cnn.com/2017/03/06/politics/gavin-grimm-transgender-case-supreme-court/
34
Id.

13
transgender people based on their identities. This has led to a circuit split, with federal courts

from Chicago to Atlanta varying on whether such anti-discrimination directives extend to

sexual discrimination, and will most likely lead to another remand or dodging of the issue

until the Trump administration’s federal agencies have fully reinterpreted the federal rules.

IV. CRACKS IN SAME-SEX MARRIAGE

With historic Republican gains in Congress and state legislatures, as well as openings

on the U.S. Supreme Court – same-sex marriage has the potential of turning into a new

discriminated class. This section will discuss the ability to pass constitutional amendments

that strip same-sex marital rights. This section will further discuss same-sex marital rhetoric

during previous campaign seasons.

a. Constitutional Amendment Risks

Right-leaning leaders and jurists who follow originalism are now in the position of

achieving their constitutional amendment goals due to the recent historical gains of

Republicans throughout state legislatures and congressional seats35. If successful, they may

accomplish an amendment to abolish same-sex marriage and codify marriage as valid only

between a man and woman.

b. The Risk of Reversal of Obergefell

When fourteen same-sex couples and two widows 36 from four states that define

marriage as only between a man and a woman 37 brought suits in United States District

35
Tribune News Service, Republican success opens door to amending U.S. Constitution,
Chicago Tribune (Dec. 5, 2016, 11:34 AM),
http://www.chicagotribune.com/news/nationworld/ct-republican-constitution-amendment-
20161205-story.html
36
The Court consolidated various cases for judicial efficiency. Obergefell, at 2593.
37
Id.

14
Courts’ in their home states38, the Supreme Court held for the plaintiffs and claimed the said

state laws as unconstitutional under the Fourteenth Amendment39 due to not allowing them

to legally wed because of whom they love 40 . The Supreme Court held, “The nature of

injustice is that we may not always see it in our own times. The generations that wrote and

ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the

extent of freedom in all of its dimensions, and so they entrusted to future generations a

charter protecting the right of all persons to enjoy liberty as we learn its meaning. . . .41”

States were ordered to issue marriage licenses to same-sex couples wishing to wed.42

This has led many conservative political and legal officials to proclaim that the

Supreme Court, in creating a national “policy” for same-sex marriage, made a mistake and

should not have extended the Fourteenth Amendment right to privacy and right to marriage

to cover same-sex marriage. It is argued that the issue instead should have been deferred to

the states. Some conservative leaders and judges that have spoken out against Obergefell

could end up re-litigating the issue in the highest court in the land, especially with help from

the current legislative branch being completely governed by the Republican Party. The

conditions are also ripe for a reversal of Roe43, as Republicans have threatened to do for

years.

President Trump could potentially have three or four appointments to the Supreme

Court due largely in part of retirement traditions, as rumors of retirements circulate around

38
Id.
39
U.S. Const. amend. XIV, § 1.
40
See Obergefell.
41
Id. at 2598.
42
Id.
43
Roe v. Wade, 410 U.S. 113 (1973).

15
the legal press44 at the beginning of a new administration. President Trump received his first

appointment to the Supreme Court through Associate Justice Neil Gorsuch, filling the late-

Associate Justice Antonin Scalia’s seat. Those in Associate Justice Anthony Kennedy’s

inner circle, with whom Justice Neil Gorsuch clerked for before coming a judge, have

signaled the possibility of retirement in President Trump’s first term due to his satisfaction

in the nomination of Justice Gorsuch45. Moreover, Associate Justices Clarence Thomas46

and Ruth Ginsburg are to retire soon, especially since Justice Ginsburg is the oldest member

of the Court.

As he follows the practice of his nomination of Justice Gorsuch, President Trump

will nominate judges from a list compiled by the Federalist Society, a right-wing judicial

society, and other conservative and right-of-center stakeholders. As discussed previously,

some conservative political and legal leaders have previously spoken of the Supreme

Court’s overreach and perceived incorrect extension of the Equal Protection Clause to

protect same-sex marital rights in Obergefell. These are mostly textualist judges, and would

not explicitly read LGBT groups as protected under the words of the Equal Protection

Clause. These compiled judges are more in line of deferring to states rights and religious

rights, meaning they would be more likely to defer the same-sex marriage issue to once

again be legislated and litigated on the state level. President Trump’s shortlist for Supreme

44
David Lat, Anatomy Of A Rumor: On Justice Kennedy’s ‘Retirement’ Next Year, Above
The Law (Nov. 11, 2016, 12:31 PM), http://abovethelaw.com/2016/11/anatomy-of-a-rumor-
on-justice-kennedys-retirement-next-year/
45
Id.
46
Staci Zaretsky, SCOTUS Retirement Watch: Clarence Thomas To Hang Up His Robe?,
Above The Law (Jun. 20, 2016, 1:36 PM), http://abovethelaw.com/2016/06/scotus-
retirement-watch-clarence-thomas-to-hang-up-his-robe/

16
Court vacancies have questionable jurisprudential history regarding not extending full legal

rights to members of the LGBT community47.

Justice Gorsuch himself has denied constitutional rights to transgender prisoners in

the past48. Having Justice Gorsuch on the Court as an anti-LGBT vote could wither away

protections of crucial elements of LGBT marital rights if challenges to varying parts of such

an issue arrive to the Court or are reheard.

c. Kentucky Clerk

Until Obergefell reversed state laws prohibiting same-sex marriage unconstitutional,

Kentucky state law prohibited same-sex marriage as having valid licenses 49 . Post-

Obergefell, the Kentucky Governor issued a directive to begin recognizing same-sex

marriages for valid licenses50. However, several County Clerks in defiance to the Obergefell

ruling denied same-sex couples marriage licenses on the grounds that issuing them violated

their own deep religious convictions51. Most notably, County Clerk Kim Davis refused to

issue marriage licenses to same-sex couples in her county and state52.

47
Ian Millhiser, Meet the 3 white men on Trump’s reported shortlist for the Supreme Court,
ThinkProgress (Jan. 23, 2017, last visited 5:00 PM), https://thinkprogress.org/meet-the-3-
white-men-on-trumps-reported-shortlist-for-the-supreme-court-fb7829d513da
48
Mark Joseph Stern, Neil Gorsuch’s Disturbing Record on LGBTQ Rights, Slate (Feb. 1,
2017, 2:13 PM),
http://www.slate.com/blogs/outward/2017/02/01/neil_gorsuch_s_disturbing_record_on_lgbt
q_rights.html
49
Miller v. Davis, 2015 U.S. Dist. LEXIS 105822 at 26.
50
Id.
51
Andrew Wolfson, Gay marriage ruling defied by some KY clerks, Courier-Journal (Jun.
29, 2015, last visited 5:00 PM), http://www.courier-
journal.com/story/news/local/2015/06/29/gay-marriage-ruling-defied-ky-clerks/29481639/
52
Id.

17
 Using 42 U.S.C. § 198353 as a vehicle to enforce a substantive right through equal

protection under the law54 – the suit was filed against Clerk Davis alleging a deprivation of

the same-sex couples’ civil rights and liberty55 when they were denied marriage licenses.

Although Clerk Davis’ counsel argued against the enforcement on procedural grounds56, as

well as freedom of speech and freedom of religion (the latter further codified in the

Kentucky Constitution) 57 , the United States District Court for the Eastern District of

Kentucky ordered Clerk Davis to issue marriage licenses to same-sex couples58 . County

Clerk Kim Davis continued to refuse to issue marriage licenses to same-sex couples in her

county after the United States District Court’s ruling, and was held in contempt of court and

later arrested and jailed 59 . She was freed when the court had reassurance that marriage

licenses would be issued to same-sex couples60, and would continue to be issued by Deputy

County Clerks in the meantime61.

Kentucky voters elected a new Governor62, with the freedom of religion conversation

still prevalent from the election63. One of the policy items the Governor campaigned on and

53
42 U.S.C. § 1983 (1996).
54
See Albright v. Oliver, 510 U.S. 266 (1994).
55
Id.
56
Brief of Respondent-Third-Party Plaintiff, 2015 U.S. Dist. LEXIS 105822 (E.D. Ky. Aug.
12, 2015) (No. 15-44-DLB).
57
Id.
58
See Miller.
59
Jon Schuppe, Judge orders Kim Davis freed from Kentucky jail (WNCN television
broadcast Sept. 8, 2015), http://wncn.com/2015/09/08/judge-orders-kim-davis-freed-from-
kentucky-jail
60
Id.
61
University Wire (AP), 4 deputy clerks: No eligible couples denied marriage license,
Northern Star: Northern Illinois University (Sept. 21, 2015),
https://advance.lexis.com/api/permalink/2d720282-c289-461e-b82b-0216ddf81c17/
62
Sunnivie Brydum, Kentucky's New Gov. Will Amend Marriage Licenses to Suit Kim
Davis, The Advocate (Nov. 9, 2015), http://www.advocate.com/marriage-
equality/2015/11/09/kentuckys-new-gov-will-amend-marriage-licenses-suit-kim-davis

18
later enforced was to use executive power to allow defecting County Clerk names to be

removed if they choose to same-sex marriage, while still allowing the marriage licenses to

be provided to same-sex couples64. This would give cover to defecting county clerks that

believed in “traditional marriage” between one man and one woman, but is a different

process and different signature. Meta-legal actions like this could lead way for an ability to

chip away at LGBT marital rights and other federal benefits.

To many same-sex married couples, these are not the same certificate–it is a separate

but equal document. Same-sex married couples just expect the same marriage certificate as

their heterosexual neighbors and fellow citizens do. To allow for religion to provide cover

would get in the way of not fully enforcing the law and could make a separate but equal

marriage certificate. Generally, there shouldn’t be a religious bias to enforcing the law, but

with narrow religious freedom laws needed.

d. The Vice President Pence Administration

Vice President Pence and the LGBT community are not fans of each other. Similar to

Attorney General Sessions as a Senator, Vice President Pence as a Congressmember

supported DOMA, voted for a failed bill that would make same-sex marriage illegal, and

voted against the Employment Non-Discrimination Act (ENDA)65, which provided a vehicle

and legal protections from discrimination based on sexuality and gender in the workplace.

This anti-LGBT voting record has earned Vice President Pence adversaries within the

LGBT community.

63
Id.
64
Id.
65
Hannah Levintova, Mike Pence Has Led a Crusade Against Abortion Access and LGBT
Rights, Mother Jones (Jul. 14, 2016, 1:04 PM),
http://www.motherjones.com/politics/2016/07/donald-trump-mike-pence-vice-president-
abortion-gay

19
 As Governor of Indiana, Pence signed the Religious Freedom Restoration Act which

gave broad protections to businesses to invoke religious freedom and permit business

owners to discriminate against and not provide service to LGBT people, whether for same-

sex marriages or not66. Moreover, as Governor of Indiana, Vice President Pence used state

funds to promote gay-conversion therapy 67 . Even as gay-conversion therapy has been

statistically disproven over the years 68 , Vice President Pence still allowed for taxpayer

money to be wasted in the State of Indiana on this type of “science”.

Vice President Pence is in a strong position to influence domestic policy for years to

come. If he stays true to his legislative past, Vice President Pence would be a strong anti-

LGBT voice from within the administration. Furthermore, if President Trump were to be

impeached or resigns – a Pence administration would certainly spell a chipping away and

erosion of LGBT rights if he keeps in line with Republican platform policies and goals for

such actions. It would be up to LGBT groups to keep the political and legal pressure on the

administration.

e. Possible Strides for LGBT Civil Rights During Trump Era

Although the rhetoric during the 2016 campaign was very anti-LGBT, President

Trump and his children-surrogates proclaimed themselves as friends of the LGBT

community, but with no substantive showing. The 2016 Republican National Convention

became the first convention where an openly gay republican was given a keynote speech;

67
Hannah Levintova, Mike Pence Has Led a Crusade Against Abortion Access and LGBT
Rights, Mother Jones (Jul. 14, 2016, 1:04 PM),
http://www.motherjones.com/politics/2016/07/donald-trump-mike-pence-vice-president-
abortion-gay
68
The Lies and Dangers of Efforts to Change Sexual Orientation or Gender Identity, Human
Rights Campaign (last visited Apr. 30, 2016, 5:00 PM), http://www.hrc.org/resources/the-
lies-and-dangers-of-reparative-therapy

20
however, at the same time, the 2016 Republican National Platform spelled out some of the

most anti-LGBT policies in history, such as repudiating same-sex marriage gains and

prohibiting extending federal protections to LGBT communities 69 . As with many of his

positions, it will remain to be seen how President Trump acts.

V. CONCLUSION

The United States is the beacon of hope around the world on issues of inclusivity,

equality, and liberty. There have been many strides as a country in civil rights, however,

there is still much more work to do. In particular, transgender rights in America still have a

long way to go to achieve full federal equality and be accepted, whether through bathroom

identity issues or constitutional amendments. Title IX of the Civil Rights Act could now be

reinterpreted to not provide ample protections to transgender students due to recent reversals

of Obama-era policies. As President Trump also leaves his legacy on the U.S. Supreme

Court, it remains to be seen if same-sex marital rights get deferred to the states once again.

With historical control of state legislatures by Republicans, the recent achievements in

transgender civil rights and same-sex marital rights are in endanger of being eroded and

rolled back.

69
The Editorial Board, The Most Extreme Republican Platform in Memory, The New York
Times (Jul. 19, 2016, last visited 5:00 PM),
https://www.nytimes.com/2016/07/19/opinion/the-most-extreme-republican-platform-in-
memory.html?_r=0

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