By Marie-Amelie George, Wake Forest University; The Conversation
Trump and Vance are both relatively new to politics, so their records on LGBTQ rights issues are slim. (Pexels Photo)
Following Donald Trump’s landslide victory in the 2024 presidential election, many people may be looking to his campaign speeches to understand his position on major issues such as LGBTQ rights.
The Republican Party’s electoral promises in this area include cutting existing federal funding for gender-affirming care and restricting transgender students’ participation in sports.
Yet as a legal scholar who has written extensively on the history of LGBTQ rights, I have seen that the clearest indication of how a politician will act once in office is not what they promise on the campaign trail. Instead, it is what they have done in the past.
Let’s examine the records of Trump and the vice president-elect, U.S. Sen. JD Vance of Ohio.
Trump restricted some LGBTQ rights
Trump and Vance are both relatively new to politics, so their records on LGBTQ rights issues are slim. That said, they have both done enough to qualify them as opponents of LGBTQ rights.
Trump enacted two policies restricting LGBTQ rights early in his one term in office. The first was his 2017 executive order Promoting Free Speech and Religious Liberty, which reinforced that federal law must respect conscience-based objections to comply with the First Amendment. This order indirectly imperiled LGBTQ rights because many LGBTQ rights battles are fought over whether conservative Christian businesses run afoul of anti-discrimination laws when they refuse to serve same-sex couples.
A few months later, Trump banned transgender individuals from serving in the U.S. armed forces. He ultimately revoked the directive, implementing instead a new policy that allowed existing transgender soldiers to remain in the military but barred new transgender recruits from enlisting.
Trump’s judicial appointments during his first term also indirectly affect LGBTQ rights. Of the 234 judges he appointed to the bench between 2017 and 2020, 40% had “a demonstrable record of anti-LGBTQ bias,” according to a January 2021 analysis by the legal advocacy group Lambda Legal.
All these judges, including the three conservative justices Trump added to the U.S. Supreme Court, have lifetime appointments.
Vance has opposed trans rights
Vance, a one-term senator, has spent much of his short time in office trying to roll back the rights of transgender Americans during his short time in public office.
Between 2023 and 2024, Vance introduced or sponsored five bills opposing trans rights. One seeks to restrict gender-affirming care for minors by imposing criminal sanctions on doctors who perform such surgeries; another aims to do the same by exposing physicians to civil liability for either prescribing gender affirming hormones or performing surgeries.
Another Vance bill would expand health care workers’ ability to make conscience-based objections to transgender rights. One more would amend Title IX, which prohibits discrimination based on sex in education, to limit transgender student participation in athletics.
Vance has also tried to pass legislation that would stop the Department of State from issuing passports with an unspecified “X” gender designation, a policy that launched in 2021. Gender-neutral passports allow transgender, intersex and nonbinary individuals to carry identity documents that reflect their gender identity and avoid what can be significant problems getting through airport security with misgendered IDs.
Congress has not voted on any of these proposals. That may change in the next Congress, when Republicans will control the Senate.
Anti-trans campaign pledges
The records of Trump and Vance strongly suggest that they will work to fulfill their campaign pledges to roll back LGBTQ rights, especially transgender rights.
At rallies, Trump regularly made false claims like, “Your kid goes to school and comes home a few days later with an operation,” changing their sex. Vance made similarly untrue allegations, chief among them that teenagers claim to be transgender to be more competitive in college admissions.
Trump promised that if he was elected he would cut federal funds for public schools that “push … gender ideology” and “keep men out of women’s sports.” He also pledged to limit access to gender affirming care for transgender youth.
On this topic, at least, I trust that the candidates mean what they say.
Will same-sex marriage survive a second Trump term?
Notably, neither politician seems focused on ending marriage equality.
Indeed, early in the race, Trump urged the Republican Party to soften its opposition to same-sex marriage in its policy platform. That move was likely linked to the fact that, although many social conservatives oppose marriage equality, about two-thirds of Americans support marriage equality.
It is possible that the Supreme Court, with its Trump-appointed conservative majority, could overturn Obergefell v. Hodges, the 2015 decision that declared same-sex marriage bans unconstitutional. Justice Clarence Thomas has signaled he is open to revisiting the marriage rights case, including in his concurrence to the 2021 ruling that ended federal abortion protection in the U.S., Dobbs v. Jackson Women’s Health Organization.
Currently, there are no cases pending in lower courts that directly challenge Obergefell. Any case initiated soon could make its way to the Supreme Court in a few years.
Over two dozen states still have same-sex marriage bans on the books. They have been unenforceable since 2015, but if the court were to overturn Obergefell, many would come back into effect.
This story has been updated to reflect the results of the 2024 election. It was originally published on Oct. 24, 2024.
Marie-Amelie George, Associate Professor of Law, Wake Forest University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
