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Federal policy on LGBTQ issues, 2017-2018
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During his first year in office, President Donald Trump's major actions on LGBTQ issues were rescinding a guidance issued by the Obama administration that established protections for transgender students to use public school restrooms corresponding with their gender identity and issuing a memorandum banning most transgender individuals from serving in the military.
This page tracked major events and policy positions of the Trump administration and the 115th United States Congress on LGBTQ issues from 2017 and 2018.
March 23, 2018: Trump issues memorandum banning most transgender individuals from serving in the military
On March 23, 2018, President Donald Trump issued a memorandum preventing most transgender individuals from serving in the military. The memorandum stated that "transgender persons with a history or diagnosis of gender dysphoria -- individuals who the policies state may require substantial medical treatment, including medications and surgery -- are disqualified from military service except under certain limited circumstances."[1][2][3]
The memorandum did not change existing policy at the time that required the U.S. Department of Defense to continue accepting transgender recruits and those serving to continue serving. The Trump administration's policy was challenged by multiple groups who said banning transgender individuals from the military on the basis of their gender identity is unconstitutional.
On December 11, 2017, Judge Colleen Kollar-Kotelly denied the Trump administration’s request to delay her earlier injunction against denying admission to transgender individuals into the military. She ordered that transgender recruits be allowed to join the military beginning January 1, 2018. Maj. Dave Eastborn, a Pentagon spokesman, said, “The Department of Defense will continue to comply with the federal court ruling and continue to assess and retain transgender service members."[4][5]
The policy was based on recommendations received in February 2018 from Defense Secretary James Mattis. He wrote in a summary of his recommendations, "In my professional judgment, these policies will place the Department of Defense in the strongest position to protect the American people, to fight and win America’s wars, and to ensure the survival and success of our service members around the world."[2]
Mattis' memo to Trump stated that the Department of Defense concluded there were "substantial risks associated with allowing the accession and retention of individuals with a history or diagnosis of gender dysphoria and require, or have already undertaken, a course of treatment to change their gender. Furthermore, the Department also finds that exempting such persons from well-established mental health, physical health, and sex-based standards, which apply to all Service members, including transgender Service members without gender dysphoria, could undermine readiness, disrupt unit cohesion, and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality."[2]
Aaron Belkin, founder and executive director of the Palm Center, responded to the policy, saying, "In service to the ideological goals of the Trump-Pence base, the Pentagon has distorted the science on transgender health to prop up irrational and legally untenable discrimination that will erode military readiness." The Palm Center describes itself as an independent research institute that has conducted research on sexual minorities in the military.[6][7]
On March 26, 2018, Mattis was asked about the policy and his recommendations to Trump. He said that the military was "out to build the most lethal service. I think the statements stand on their own right now."[8]
On April 16, 2018, Judge Marsha Pechman, of the United States District Court for the Western District of Washington, ordered that an injunction she ordered against the August 25, 2017, policy be maintained, finding that the March 23, 2018, memorandum did not differ substantially from the August 25, 2017, memorandum.
The Trump administration appealed to the United States Court of Appeals for the 9th Circuit, which, on July 18, 2018, rejected a request by the Trump administration to remove Pechman's injunction against implementation of the March 23, 2018, memorandum. In its ruling, the court wrote, "Appellants ask this court to stay the preliminary injunction, pending the outcome of the appeal, in order to implement a new policy. Accordingly, a stay of the preliminary injunction would upend, rather than preserve, the status quo. Therefore, we deny the motion for a stay[.]"[9][10]
January 22, 2019: SCOTUS grants Trump administration’s request to enforce transgender military policy
The U.S. Supreme Court approved the Trump administration’s request to enforce its policy preventing transgender individuals from serving in the military. In December 2018, the administration asked the court to enforce the policy while it was being challenged in lower courts. “Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan all indicated that they would have denied the government’s request,” according to SCOTUSblog.[11]
January 18, 2018: HHS announces formation of Conscience and Religious Freedom Division
On January 18, 2018, the U.S. Department of Health and Human Services (HHS) announced the formation of the Conscience and Religious Freedom Division in the HHS Office for Civil Rights (OCR). It was established to protect healthcare workers who refused to take part in certain medical procedures, including abortions and transition procedures for transgender patients, that they opposed for moral or religious reasons.[12]
OCR Director Roger Severino said, “Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”[12]
Louise Melling, deputy legal director at the American Civil Liberties Union, said that the Trump administration could allow health workers to refuse some services to members of the LGBTQ community. She said, "This administration has taken a very expansive view of religious liberty. It understands religious liberty to override antidiscrimination principles."[13]
According to NPR, “HHS makes clear that it won't allow gender discrimination that is banned by federal law. The question, according to Melling, is whether the administration includes gender identity and sexual orientation in the definition of gender.”[13]
September 7, 2017: Justice Department files amicus brief in the Supreme Court supporting baker who refused to make wedding cake for same-sex couple for religious reasons
On September 7, 2017, the Justice Department filed an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Supreme Court case centered on whether the First Amendment protected a baker's right to refuse to make a wedding cake for a same-sex couple for religious reasons.<ref>[https://www.usnews.com/news/national-news/articles/2017-09-08
- ↑ The Hill, "Trump moves to ban most transgender people from serving in military," March 23, 2018
- ↑ 2.0 2.1 2.2 The Washington Post, "Trump issues order supporting ban on many transgender troops, defers to Pentagon on new restrictions," March 23, 2018
- ↑ WhiteHouse.gov, "Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security Regarding Military Service by Transgender Individuals," March 23, 2018
- ↑ The Wall Street Journal, Transgender Recruits Can Enlist in Military, Judge Says, December 11, 2017
- ↑ Politico, "Trump moves to ban most transgender troops," March 23, 2018
- ↑ Palm Center, "Palm Center: blueprints for sound public policy," accessed March 24, 2018
- ↑ The New York Times, "Trump Approves New Limits on Transgender Troops in the Military," March 24, 2018
- ↑ The Hill, "Mattis: Trump policies banning transgender troops 'stand on their own,'" March 26, 2018
- ↑ The Hill, "Court rules against Trump administration on transgender military ban," July 18, 2018
- ↑ Metro Weekly, "Judge rules to keep injunction blocking Trump's transgender ban in place," April 16, 2018
- ↑ SCOTUSblog, "Justices to review New York gun rights case," January 22, 2019
- ↑ 12.0 12.1 HHS.gov, "HHS Announces New Conscience and Religious Freedom Division," January 18, 2018
- ↑ 13.0 13.1 NPR, "Trump Admin Will Protect Health Workers Who Refuse Services On Religious Grounds," January 18, 2018
