As we round out the decade, Rewire.News dove deep into court cases and executive orders to take stock of where things stand for LGBTQ rights. It was a decade that started out promising but wound up grim for LGBTQ people, thanks in part to the election of Donald Trump.
The Obama Years
Under President Barack Obama, rights for LGBTQ people increased, with victories that primarily aligned with mainstream LGBTQ causes. In late December 2010, Congress passed, and President Obama signed, a comprehensive repeal of “don’t ask, don’t tell” (DADT).
Passed under President Bill Clinton, DADT was a mess of a policy. In theory, it protected LGBTQ service members from discrimination. In reality, it barred LGBTQ people from disclosing their orientation, speaking about their relationships, or engaging in any non-heterosexual behavior. Repeal became inevitable when the Pentagon concluded that the risk it presented “to military effectiveness is low.” A survey found that 70 percent of service members believed allowing gay men and women to serve would have a positive or mixed impact, or be of no consequence.
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That 2010 repeal merely set the stage for the end of DADT. The true end didn’t come until September 2011, a victory secured in spite of the efforts of conservative groups such as the Family Research Council to stop the law. With that, the new decade began with a new right firmly in place: Lesbian, gay, and bisexual people could serve in the military and could not be discharged for pursuing relationships or being open about their sexual orientation. Transgender people were still prohibited from openly serving.
Marriage Equality Emerges in the States and the Courts
The repeal of DADT may have paved the way for the next anti-LGBTQ measure to fall: the Defense of Marriage Act (DOMA), another legacy of the Clinton era. The law defined marriage as between a man and a woman and allowed states to refuse to recognize same-sex marriages performed in states where it was legal. It also banned same-sex spouses from receiving any federal benefits, including survivor benefits upon the death of a spouse.
President Obama endorsed the repeal of DOMA in his 2008 campaign. In 2011, his administration took a strong stand for same-sex marriage rights when his Department of Justice (DOJ) refused to defend DOMA in two court cases challenging the law. In one of those cases, United States v. Windsor, Edie Windsor, a New York resident who had legally married her same-sex partner in Toronto, sought to claim a federal estate tax exemption after her wife died. Ultimately, the Supreme Court agreed with the Obama administration and Windsor. In a 5-4 decision written by then-Justice Anthony Kennedy, the Court held that section 3 of DOMA was unconstitutional and struck down the law in 2013.
DOMA violated the Fifth Amendment’s guarantee of equal protection under the law, and, as Kennedy wrote, interfered with the “equal dignity of same-sex marriages, a dignity conferred by the States” that chose to exercise their “sovereign power” to decide those marriages were legal.
Windsor was a big win, but it didn’t entirely cement same-sex marriage rights. It simply meant that the federal government couldn’t discriminate against legally married same-sex couples when determining federal benefits. Those marriages still must have taken place in states where it was legal; the decision didn’t require other states to recognize same-sex marriages.
Justice Anthony Kennedy and the Dignity Doctrine
For that, we had to wait until 2015, when the Supreme Court decided Obergefell v. Hodges, a case challenging states’ rights to ban same-sex marriage and refuse to recognize same-sex marriages that were lawfully performed in other states. The decision fell along identical ideological lines to Windsor, with Kennedy joining the Court’s liberal wing and writing the 5-4 opinion that made same-sex marriage legal in every state.
Kennedy’s decision, however, relied on the Fourteenth Amendment’s due process and equal protection clauses. In doing so, the Supreme Court ultimately took a traditionally conservative view: that marriage is a fundamental right because it “safeguards children and families” and that “marriage is a keystone of our social order.”
And so while Obergefell was a huge victory that resulted in same-sex marriage being legal everywhere in the United States, it was limited in its overall applicability to other LGBTQ issues.
Much as the repeal of DADT was oriented toward a very traditional goal—the ability to serve in the military—the push for same-sex marriage was by definition limited to another traditional goal: matrimony. It didn’t result in greater protections for LGBTQ people in the workplace or prevent housing discrimination, for example. As such, it was an incomplete victory—one conservatives would soon exploit.
From Weddings to Cakes: The Court Begins to Backslide
Conservatives blocked Obama from appointing a replacement for Supreme Court Justice Antonin Scalia, and then they took over the executive branch when Donald Trump entered the White House. These developments jeopardized the LGBTQ rights gains of the first half of the decade.
At the same time, Justice Kennedy changed his tune on LGBTQ rights just prior to his retirement. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Kennedy authored an opinion for the conservative majority that flew in the face of his past support.
In Masterpiece Cakeshop, a conservative evangelical baker refused to make a wedding cake for a same-sex couple. It was one of a long line of recent cases where evangelical Christians who owned wedding-related businesses tried to deny goods or services to same-sex couples. For a long time, it looked like the Supreme Court would pass on hearing the case, leaving intact a lower court decision in favor of the same-sex couple. But a few months after Scalia’s replacement, conservative jurist Neil Gorsuch, was seated, the Court decided to take the case.
Justice Kennedy, now writing for the conservative bloc, found for the baker, but the decision didn’t go quite the way conservatives wanted. Instead of ruling that baker Jack Philips had a free speech right to refuse to serve a same-sex couple, the Court held that requiring Philips to bake a wedding cake for a same-sex couple would violate his free exercise of religion.
The decision didn’t wipe out marriage equality, but it showed that the newly emboldened conservative Court was open to dismembering LGBTQ rights, and it was a huge step back for the LGBTQ community.
Kennedy’s decision put the beliefs of one baker over the rights of LGBTQ people, cutting them off from goods and services provided by a “public accommodation”—the legal term for businesses that hold themselves open to the public and are required to serve everyone. Put another way, the Court endorsed religious bigotry where LGBTQ people are concerned. Justice Clarence Thomas wrote his own concurrence saying he would have gone even further and ruled for Phillips on free speech grounds. Thomas said that if Phillips was required to bake a same-sex couple a wedding cake, he would have been forced to engage in “expressive conduct” that endorsed an act of which he disapproved.
The Masterpiece decision tarnished Kennedy’s legacy as the Supreme Court’s moderate who could be persuaded to support LGBTQ people in their quest for full legal rights. And Kennedy’s replacement, Justice Brett Kavanaugh, has a lower court record that indicates a deep commitment to allowing religious conservatives to impose their views on others.
Transgender Rights in the Crosshairs
Meanwhile, the rights of transgender people came under attack. The repeal of DADT didn’t address whether trans people could openly serve in the military, and Obergefell only protected marriage.
In 2016, President Obama ended the ban on transgender service members in the U.S. military, but he did so by executive action, not through legislation. President Trump was thus able to reimpose a ban on what was essentially a whim. Out of nowhere, he casually tweeted one morning in July 2017 that transgender people would not be able to serve in the military. This reversal defied the military’s years of research concluding that trans troops would not compromise force readiness and that associated medical costs, such as transition-related care, would be minimal.
Incredibly, litigation over the ban is still winding its way through the courts more than two years later. Multiple lower courts enjoined the ban, stopping it from taking effect. But in early 2019, in a 5-4 decision, the Supreme Court lifted some of those injunctions, allowing the ban to take effect while litigation continued. It was a signal of the Court’s willingness to allow anti-trans discrimination to take root.
While Obama’s Department of Justice sided with trans people seeking to have their rights validated, the Trump administration is working to weaken those rights. In the case of Aimee Stephens, a transgender funeral director who was fired after she announced her transition, the DOJ filed a brief in favor of the company that fired her, reversing the position taken by the Equal Employment Opportunity Commission (EEOC) under Obama.
In its brief, the government argued she was fired—and properly so, in its opinion—because she would no longer conform to her employer’s stereotypical dress code requiring men to wear suits, not because she was transgender.
The argument undercuts the protections of Title VII of the Civil Rights Act, which prohibits discrimination based on sex in the workplace. With its brief in the Stephens case, the Trump administration made clear it doesn’t believe Title VII should be read to protect transgender people from being fired. In a separate case, the DOJ also said Title VII should not be read to protect gay or lesbian people in the workplace either.
An Era of Hostility Toward LGBTQ Rights
The Trump administration is committed to narrowing the protections afforded to LGBTQ people, largely because religious conservatives have demanded it. The U.S. Department of Health and Human Services (HHS) just proposed a sweeping rule allowing federal grant recipients to discriminate against LGBTQ people in areas like adoption and foster care. Groups that arrange foster care and adoption placements will now be able to receive federal money even if they refuse to place children with LGBTQ people.
The U.S. Department of Education has also dramatically scaled back protections for LGBTQ students. Most complaints that are filed with the department over mistreatment based on gender identity or sexual orientation are now simply dismissed. The department also rescinded Obama-era guidance protecting trans students from bullying and harassment while at school.
As we enter the new decade, one potential hope for the protection of LGBTQ rights lies with a Democratic victory in the 2020 presidential election. But that won’t fix the courts—Trump has been able to install enough conservative judges that the federal courts are compromised for many years to come. Rebuilding a robust administrative state is going to be critical to ensure the rights of LGBTQ people in the new decade.