ACLU Releases Legal, Legislative, and Advocacy Roadmap for Defending LGBTQ Freedom Under a Possible Second Trump Term
Analysis and roadmap continue ACLU’s 2024 election policy memo series exploring likely policies from a potential Trump or Biden second term.
NEW YORK – Today, the American Civil Liberties Union launched a roadmap for defending LGBTQ people, our rights, and our health care under a possible second administration of former President Donald Trump.
Following Trump’s inauguration in January 2017, his administration led a sustained, years-long effort to erase protections for LGBTQ people across the entire federal government, including efforts to “define ‘transgender’ out of existence.” While the Biden administration reversed many of those attacks, Trump himself has promised to go even further if re-elected to the White House. Trump on LGBTQ Rights details expected threats and how the ACLU and its nationwide affiliate network will respond in the courts, Congress, statehouses, and communities across the country.
“For four years, President Trump and his administration left no stone unturned in their effort to roll back federal non-discrimination protections for LGBTQ people, including with respect to transgender people’s access to health care, safety for LGBTQ students in our schools, and the right of LGBTQ people to live and work as who we are,” said James Esseks, Director of the ACLU’s LGBTQ & HIV Project. “We fully expect a second Trump administration to go further, weaponizing federal law to override state-level protections and mandate discrimination by schools and health care providers nationwide. Regardless of the election’s outcome, we stand ready to fight to uphold the fundamental freedom we are guaranteed by the Constitution to live our lives as we choose.”
“In many states across the country, we have seen the disastrous consequences of a hateful campaign targeting LGBTQ people and their families with discriminatory laws, forcing many from their home states and denying many more the freedom to get the healthcare they need, to live their lives openly, and even to decide what name to go by, “said Mike Zamore, National Director for Policy & Government Affairs. “Should a second Trump administration take office and attempt to implement these kinds of policies nationwide, it could leave transgender people and their families nowhere to hide from extremist politics. We are determined to use every tool at our disposal to oppose any attempt to deny LGBTQ people the freedom to live and love freely and openly.”
Based on his own campaign promises -- and the detailed policy proposals of Project 2025 -- advocates can expect a future Trump administration to deploy three tactics against LGBTQ rights:
- Rolling back protections for LGBTQ people including regulations prohibiting discrimination in healthcare, ensuring the safety of LGBTQ students in school, and establishing full protections from workplace discrimination
- Mandating discrimination against transgender people by the federal government by excluding gender-affirming medical care from federal healthcare programs, withholding federal funding from hospitals that provide gender-affirming care for adolescents, and reinstating the ban on transgender people serving in the military
- Weaponizing federal law to require states and private actors to discriminate against transgender people by threatening to sue schools that protect the rights of trans students for allegedly violating federal civil rights law, or telling hospitals that they would lose their Medicaid funding if they provide gender-affirming medical care to trans adolescents. Far-right advocates have advised a second Trump administration even to criminalize gender nonconformity.
The ACLU’s playbook issued today outlines multiple routes for defending LGBTQ rights against these attacks:
- Litigation challenging these policies in federal court. Legal challenges brought by the ACLU previously blocked anti-transgender initiatives in the first Trump administration and the ACLU now has over two dozen active lawsuits in state and federal court defending LGBTQ rights as of June 2024
- Pushing Congress to proactively restrain federal policies attacking LGBTQ rights via its oversight, investigative, and funding authorities
- Working with states and municipalities to advance LGBTQ rights through nondiscrimination laws and expanding access to gender-affirming health care
- Organizing across movements to build political power against these attacks and solidarity between reproductive rights, immigration rights, and other movements alongside LGBTQ rights
The Trump on LGBTQ Rights memo is the second of seven the ACLU is releasing on anticipated policies from a second Trump administration as part of its 2024 election policy memo series. Topics include immigration, LGBTQ rights, abortion, the criminal legal system, DEI (diversity, equity, and inclusion), voting rights, and surveillance, protest, and free speech. Following its focus on policies of a potential second Trump administration, the ACLU will focus on those of a potential second Biden administration. A new memo will be released each week from June through August. All released memos will be available here.
Learn More About the Issues in This Press Release
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.