The Presidential Election and LGBT Law Beyond His Impact on the Courts, Trump Positioned to Undo Major Executive Branch Pro-Gay Initiatives
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digitalcommons.nyls.edu Faculty Scholarship Other Publications 2016 The rP esidential Election and LGBT Law Arthur S. Leonard New York Law School, [email protected] Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs Part of the Law and Gender Commons, and the Law and Politics Commons Recommended Citation Leonard, Arthur S., "The rP esidential Election and LGBT Law" (2016). Other Publications. 169. https://digitalcommons.nyls.edu/fac_other_pubs/169 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Other Publications by an authorized administrator of DigitalCommons@NYLS. CIVIL RIGHTS The Presidential Election and LGBT Law Beyond his impact on the courts, Trump positioned to undo major Executive Branch pro-gay initiatives BY ARTHUR S. LEONARD mission (EEOC) decisions on sim- ilar issues under the Civil Rights he Trump/ Pence tick- Act of 1964, which have applied et’s victory will have prohibitions on sex discrimination profound effects for to gender identity and sexual ori- LGBT law, and not just entation claims . Ton the federal level. Some short- The appeal will most likely be term effects should become appar- argued this winter, perhaps in ent soon after the inauguration in February or March. If heard by an January, while others may unfold eight-member court, it may receive for a generation or more. a tie vote affirming the Fourth Cir- Perhaps the most visible will cuit, but creating no precedent be the impact on the Supreme nationwide. But if Trump’s first Court, where the ninth seat has appointee is seated by then and been vacant since Justice Antonin participates, a decision on the mer- Scalia’s sudden death last winter. its may well reverse the Fourth Cir- An eight-member Supreme Court cuit, along the lines of a dissenting can decide cases, but it takes at opinion written by one of the circuit least five votes to make a ruling panel judges in that case. Depend- an official high court precedent. ing how it is written, such an opin- When the court ties 4-4 on a case, ion could affect not only student the lower court ruling that was rights but also employee rights DANIEL KWAK appealed is “affirmed by an equal- throughout the economy, by speak- ly divided Court.” In that case, ing affirmatively or negatively about since there is no majority, no writ- the EEOC’s recent decisions. The president-elect appears on a Times Square jumbotron in the early morning hours of November 9. ten opinion will be issued and no New leadership at the Depart- explanation given for why the jus- ment of Education and Jus- tices voted as they did. tice Department might even try On the current court, one justice loss of federal funds to colleges and first appointment, President-Elect to affect the issue raised in the was appointed by Republican Ron- law schools that barred military Donald Trump will seal in the Fourth Circuit case by rescinding ald Reagan (Anthony Kennedy), one recruiters because of the Defense Republican conservative majori- the letter they jointly sent to school by Republican George H.W. Bush Department’s anti-gay policies.) ty that was diminished by Scalia’s districts around the nation in May (Clarence Thomas), two by Demo- As the senior judge on the court, death, and his next appointment advising them about what Title IX crat Bill Clinton (Ruth Bader Gins- Kennedy is a probable candidate would likely move the court as far requires concerning transgender berg and Stephen Breyer), two by to retire during the next four years, to the right as it ever has been in students. Since it was not adopted Republican George W. Bush (John as is the oldest member of the the past half century. It is unlikely as a formal regulation, it could be Roberts, the chief justice, and court, Ginsberg. that Trump would encounter seri- unilaterally rescinded. Although Samuel Alito), and two by Demo- Scalia’s death seemed to pro- ous opposition from Senate Repub- that would not render the pending crat Barack Obama (Sonia Soto- vide Obama with a brief window of licans were he to appoint anybody case moot, because it was brought mayor and Elena Kagan). When opportunity to create a Democrat- on the lists he published during the by a private party, it would affect they divide along the political lines ic-appointed — and largely progres- campaign, all sitting judges with several other pending lawsuits that of the presidents who appointed sive — majority on the Supreme established conservative voting specifically challenge the policies them, there is no majority. They Court for the first time since the records in the mold of the justice he announced in that letter, effectively don’t always divide that way, how- high-flying years of the court led said is his favorite, Scalia. making them moot. ever, and it is worth remembering by Chief Justice Earl Warren in the On October 28, the high court Those federal departments might that the four big gay rights victories 1960s. Once Richard Nixon started agreed to review the Fourth Cir- also discontinue pending investiga- of the past 20 years were opinions appointing judges, the court moved cuit’s decision from last spring tions. All over the country, school written by Kennedy. to Republican conservative domi- holding that the district court boards reacted to the Obama When we lost Kennedy’s vote nance. Jimmy Carter never got to in Virginia should defer to a US administration letter by debating on the sharply divided Rehnquist appoint a Supreme Court justice, Department of Education’s inter- policy changes, and many locals dis- Court in the case challenging the but Ronald Reagan and George pretation requiring schools receiv- tricts adopted polices in response. Boy Scouts’ anti-gay policy, we H.W. Bush had several appoint- ing federal funding to allow trans- Those might end up being rescinded lost the case. (We lost some other ments each. Despite four terms of gender students to use bathrooms if the letter is withdrawn. cases during this period, but they Democratic presidents since 1992, consistent with their gender iden- Even if the high court were to were not by 5-4 votes — for exam- the balance has never swung back. tity (see page 12). The DOE heav- dispose of the Virginia “bathroom” ple, the challenges to the Boston Obama’s opportunity was sty- ily based that interpretation — of case without setting a precedent, St. Patrick’s Day Parade gay exclu- mied by the Senate Republicans’ Title IX of the Education Amend- similar cases are in the pipeline and sion policy and to the Solomon determination to deny him a third ments Act of 1972 — on the Equal Amendment, which threatened appointment to the court. With his Employment Opportunity Com- c LGBT LAW, continued on p.20 8 November 10 - 23, 2016 | GayCityNews.nyc c LGBT LAW, from p.8 list can probably decimate the Code up to the discretion of environmen- of Federal Regulations within one tal regulators whether to go after likely to come up to the court over term of determined effort. violators. The Justice Department the next few years. There are other Presidents don’t appoint only has a Civil Rights Division, which lawsuits challenging the DOE’s s Supreme Court justices. They has been very active under the interpretation of Title IX, and there appoint judges to the federal courts Obama administration after years are appeals pending in several fed- of appeals, which decide thousands of passivity during the George W. eral circuits considering wheth- of cases each year, and to the fed- Bush years. Given the hostility of er the 1964 Civil Rights Act’s Title eral district (trial) courts, which Trump and Republican legislators VII ban on sex discrimination in decide hundreds of thousands of to regulation, a slowdown in regu- employment includes sexual orien- cases each year. (By contrast, the latory enforcement is a likely con- tation discrimination claims or gen- Supreme Court disposes of only sequence of this week’s election, der identity discrimination claims. about 60 cases each year.) These even if they don’t move to repeal EEOC The court as altered by Trump lower federal courts play an import- the major regulatory statutes. appointments may be less recep- ant role in constitutional and statu- But Republican majorities in both Chai Feldblum, an out lesbian EEOC tive to such claims than a court tory interpretation, and also decide houses of Congress and a compli- commissioner appointed by President Obama, completed through Hillary Clinton thousands of cases that involve ant president may yield repeals as has done much to advance the agency’s proactive posture on LGBT nondiscrimination policy. appointments. state law disputes between parties well, including the number one tar- The Supreme Court is only the from different states. get of Congress, the Affordable Care most visible place for Trump to Obama’s lower court appoint- Act or Obamacare, which Trump The president also appoints the make an impact, however. Much ments have transformed several of campaigned to repeal. directors, commissioners, and of the progress on LGBT rights at the circuit courts of appeals, turn- One area likely to see immedi- general legal counsels of the “inde- the federal level during the Obama ing formerly conservative bench- ate change is immigration policy. pendent” administrative agencies, administration came from execu- es in a much more progressive Changing the law is not so easy, such as the EEOC, the National tive orders, formal directives issued direction, and adding more people because the US is bound under Labor Relations Board (NLRB), and unilaterally by the president to of color, women, and openly lesbi- international law by various trea- the Federal Reserve Board.