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 drive transgender people out of public life, this is it.
President Trump poses with Evangelical leaders, including representatives of the Family Research Council
All the evidence says that they are taking advantage of this relationship to full effect against transgender people. Such a close relationship 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 rid the country of 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 change their gender markers at the federal level is 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 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, and had the lowest corporate equality score in the history of the index. However, Tillerson’s State Department has been wracked with dysfunction, unfilled positions, low morale, and often been sidelined by a White House seemingly intent on conducting foreign policy without “the swamp” interfering.
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 DOJ 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 anti-LGBT extremists in many top appointed positions in the Federal government. This includes Sam Clovis at the USDA, Tom Price at HHS, 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, Roger Severino, Charmaine Yoest, Teresa Manning (who was a legal counsel at FRC), Valerie Huber, and Katy Talento at 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.
And Justice Kennedy appears ready to retire in 2018.
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 anti-transgender extremists 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: a religious right to refuse care to patients, a right to verbally abuse them, or subjecting them to conversion therapy. Worse, 1 in 6 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 disgusted by transgender people.
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.
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.