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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2016 The rP esidential Election and LGBT Law Arthur S. Leonard New York Law School, [email protected]

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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 similar 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 appointing 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. These set internal policy for the Execu- an and gay judges than any prior ties on top of our statutory law. appointments are for statutorily-de- tive Branch. Obama expanded on president. Many of his appointees However, Trump’s attitude toward fined terms, usually staggered so a executive orders left by Bill Clinton issued crucial decisions on mar- treaties expressed during the cam- president has one appointment to (and left untouched by George W. riage equality during the period paign was to renegotiate or even each agency per year. Bush) dealing with sexual orien- leading to the Obergefell ruling in ignore the ones he does not like, For example, the NLRB, which tation discrimination, extending June 2015, and are now writing key and his hostility to immigration and enforces statutes governing the rela- them to gender identity discrimina- decisions on discrimination. Just refugee law was a centerpiece of his tionship between workers, unions, tion and applying them for the first days before the election, a district candidacy. Because Congress could and companies affecting interstate time to government contractors. judge appointed by Obama issued not agree on immigration reform, commerce, has five members. The The problem with executive orders a ruling in a case brought by the Obama issued executive orders NLRB decides appeals from deci- is that a president is free to rescind EEOC on behalf of a gay victim of and policy directives, some of which sions by administrative law judges, or amend prior executive orders on employment discrimination. have been challenged and even and its rulings can be appealed to the same unilateral basis as they However, because the Senate has stalled in the courts, to achieve the federal appeals courts. It also are issued. drastically slowed the confirmation reform goals. Much of this could be issues procedural regulations, and Over the summer, news reports of Obama’s appointments since countermanded by Trump without its regional directors, appointed by indicated that the Trump transition Republicans took control in 2010 — having to go to Congress. the Board, may seek injunctions team was readying a list of Obama virtually grinding the process to a The State Department, mean- from district courts to enforce board administration executive orders for halt over the last few years — there while, plays a crucial role in doc- policies and oversees union repre- Trump to revoke as soon as he takes are many vacancies on the federal umenting human rights condi- sentation elections and investigates office. Many such orders and other bench, which could be quickly filled tions around the world through charges of statutory violations. The informal presidential directives may by Trump and an eager Republican its “country reports” issued annu- president also appoints the Board’s be on the chopping block, including Senate with conservative judges, ally, which are then relied upon, chief legal officer, who oversees measures on immigration policy and many of whom may be less likely to especially by immigration judges much of the agency’s investigative labor policy, and, most likely, LGBT issue similarly favorable rulings. deciding asylum and refugee cases. and enforcement activity. No more discrimination measures. Presidents also appoint the cab- Under the Bush administration, the than three of the Board’s mem- Executive branch agencies are inet, of course, and key sub-cabi- treatment of LGBT concerns was bers can belong to the same politi- also empowered to issue regula- net officers throughout the Execu- spotty and relatively unengaged. cal party. That means if the board tions and adopt guidelines for car- tive Branch. These are the people After Hillary Clinton became sec- is fully staffed, a new president rying out the requirements of fed- who make policy decisions for their retary of state, a new attitude per- may take a year or two to achieve a eral statutes. A new administration departments and agencies about meated the department on LGBT majority from his or her party. How- can take steps to repeal or amend the interpretation and enforcement issues, resulting in stronger report- ever, because of the Senate’s refusal such policies, action which does of federal statutes. Without amend- ing in the country reports and to confirm Obama nominees, there not require approval by Congress. ing existing statutes or regulations, LGBT rights advocacy by ambas- are already two vacancies on the In the case of formal regulations, they can decide whether to “clamp sadors in foreign postings, as well NLRB, and one more will open up in however, agencies must follow reg- down” or “ease up” on enforcement, as the addition of special ambassa- 2017. The Supreme Court has ruled ulations specified by the Adminis- resulting in virtual deregulation dors to address LGBT issues. These that the NLRB can’t decide cases trative Procedure Act, which can of activities a past administration developments, which have been without a quorum of three con- take several months or, sometimes, worked to regulate. continued by Secretary John Kerry, firmed Board members. years, but an administration with For example, we have a Clean Air may not survive a change of admin- a regulatory “to do” and “to repeal” Act and a Clean Water Act, but it is istration. c LGBT LAW, continued on p.21

20 November 10 - 23, 2016 | GayCityNews.nyc OFFICE OF THE GOVERNOR/ INDIANA

Vice President-Elect Mike Pence, surrounded by anti-gay clergy, signing Indiana’s anti-gay religious exemptions law last year. c LGBT LAW, from p.20 current term ends on July 1, 2018 — as well as the appointment of Trump could immediately alter less progressive commissioners to the political complexion of the fill the seats that will open in sub- agency, which tends to swing sequent years — will likely drasti- between being pro-union or anti- cally affect enforcement priorities union depending on the politics of and interpretations at the EEOC, appointing presidents, by filling the and have a ripple effect through the two vacancies and promptly fill- Civil Rights Offices in other Execu- ing the third later next year. This tive Branch agencies. can have enormous significance Some gay Republicans have for workplace rights. It is notewor- argued that Trump was the most thy that just days ago the NLRB pro-gay candidate his party has found that a Trump hotel violated ever nominated, and even sug- federal law in its refusal to nego- gested he was more pro-gay than tiate with a union. (I began teach- Hillary Clinton, who only came ing Labor Relations Law at New around to endorsing marriage York Law School in the fall of 1982, equality after Obama had “evolved” just as President Ronald Reagan’s on the issue prior to the 2012 appointments to the NLRB came re-election campaign. Despite that into full power. They overruled so specious claim, Trump has, in many Board precedents in a matter fact, voiced the GOP party line that of months that I had to prepare a these issues should be left to states thick supplement to the textbook, and local governments to decide, which although relatively new was that last year’s marriage equality already seriously out of date.) decision should be reversed, and Perhaps the most consequential that federal law should empha- of these independent agencies for size the right of religious people to LGBT legal rights these days is the refuse to do business with gay peo- EEOC. An openly lesbian commis- ple if it offends their beliefs. sioner appointed and reappoint- Trump’s running mate, Vice ed by Obama, Chai Feldblum, has President-Elect Mike Pence, was taken the lead in persuading the among the nation’s most anti-gay agency to rule that sexual orienta- governors in Indiana, gleefully sign- tion and gender identity discrimi- ing into law a “religious freedom” nation violate the Civil Rights Act’s act that could be used by business- ban on sex discrimination, and es to defend discrimination against those rulings have begun to earn gay customers and employees at a deference from federal courts as ceremony surrounded by anti-gay well as other agencies enforcing clergy, and fighting tooth and nail federal statutes. The EEOC’s inter- to prevent recognition of same-sex pretive rulings have been the main marriages and to amend the State source of progress on anti-LGBT Constitution to ban them. Since discrimination in private sector and Trump is expected to delegate state and local government employ- major responsibility for domestic ment during the Obama years, and policy to Pence, it seems unlikely it is unlikely that a Republican at best that the federal government Congress would pass or Trump will be a force for gay rights in their would sign the Equality Act, which administration the way it became would make such rules explicit. The during Barack Obama’s eight years loss of Feldblum’s voice when her in office.

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