American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 1
Following the inauguration of Donald Trump in
January 2017, we witnessed a sustained, years-long
effort to erase protections for LGBTQ people across
the entire federal government. This included an
all-of-government effort to define “transgender” out
of existence by eroding protections for transgender
students and workers and weakening access to
gender-affirming health care most transgender
people already struled to obtain
.
1
While the Biden administration reversed many of
those attacks, Trump himself has promised to go
even further if re-elected to the White House. Based
on his own campaign promises — and the detailed
policy proposals of Project 2025
2
— we can expect a
future Trump administration to deploy three tactics
against LGBTQ rights.
First, a new Trump administration would reinstate
and significantly escalate the removal of anti-
discrimination policies. Indeed, Trump recently
said that he would eliminate protections for
transgender students “on day one” of his presidency.
We can expect the federal government to rescind
all federal regulations, rules, and other policies
that prohibit discrimination on the basis of sexual
orientation and gender identity, and to assert that
federal civil rights statutes don’t cover anti-LGBTQ
discrimination either. This could strip LGBTQ people
of protections against discrimination in many
1 Trump Administration Eyes Defining Transgender Out of Existence,” The New York Times (Oct. 21, 2018), https://www.nytimes.
com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html.
2 Heritage Foundation. Mandate for Leadership: The Conservative Promise (Paul Dans & Steven Groves eds., 9th ed. 2023).
contexts, including employment, housing, education,
health care, and a range of federal government
programs.
Second, a new Trump administration would not
only roll back existing protections, but proactively
require discrimination by the federal government
wherever it can, including by banning transgender
people from serving openly in the Armed Forces
and blocking gender-affirming medical care for
transgender people in federal healthcare programs
such as Medicare. The results would be devastating,
as thousands of transgender people would
immediately lose access to needed medical care.
Third — and most ominously — if Trump returns to
the White House, we expect him to try to weaponize
federal law against transgender people across
the country. He plans to use federal laws —
including laws meant to safeguard civil rights — as
a cudgel to override critical state-level protections,
arguing that state laws that protect transgender
students violate the federal statutory rights of non-
transgender students. Additionally, a second Trump
administration would take the extreme position that
the Constitution entitles employers to discriminate
against LGBTQ people based on their religious
beliefs, notwithstanding state nondiscrimination
laws. And, shockingly, it would try to erase
transgender people from public life entirely by
using federal obscenity laws to criminalize gender
TRUMP ON LGBTQ RIGHTS
ERASING LGBTQ FREEDOMS BY ROLLING BACK PROTECTIONS,
MANDATING DISCRIMINATION, AND WEAPONIZING FEDERAL LAW
AGAINST TRANSGENDER PEOPLE
BY IAN THOMPSON, SENIOR LEGISLATIVE ADVOCATE
JAMES ESSEKS, PROJECT DIRECTOR FOR THE LGBTQ & HIV PROJECT
LESLIE COOPER, DEPUTY DIRECTOR LGBTQ & HIV PROJECT
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 2
nonconformity.
The ACLU will use every tool at its disposal to fight
these dangerous plans, including taking the Trump
administration to court wherever we can. Litigation
will be essential, but it will not be enough. We will
engage on every advocacy front, including mobilizing
and organizing our network of millions of ACLU
members and activists in every state to work to
protect LGBTQ people from the dangerous policies
of a second Trump administration. 
OVERALL RESPONSE
Courts
As detailed below, many of the planned anti-LGBTQ
policies of a second Trump administration would
violate the Constitution and federal law, such that
litigation would be a significant part of our response.
The ACLU has extensive experience litigating against
the first Trump administration’s egregious anti-
LGBTQ policies, such as its exclusion of transgender
people from military service and its interpretation
of the Constitution and federal sex discrimination
laws as carving out LGBTQ people from protection.
3
Should a second Trump administration take
office, we are ready to get courts to confirm that
LGBTQ people are protected from discrimination
under federal law, to invalidate policies mandating
discrimination across the federal government, and
to shut down Trump’s expected efforts to weaponize
the Constitution and federal laws to require
discrimination against LGBTQ people by state and
local governments and private entities. The ACLU
has prevailed on these fronts in the past,
4
and we
will continue to fight.
We are clear-eyed about the challenging road
we face in turning to the federal courts to stop
3 See, e.g., Stone v. Trump, No. 1:17-cv-02459 (D. Md.) (challenge to transgender military service ban); Bostock v. Clayton County,
590 U.S. 644 (2020) (rejecting Trump administration argument that Title VII of the Civil Rights Act does not protect against
anti-LGBTQ discrimination in employment).
4 See, e.g., Bostock v. Clayton County, 590 U.S. 644 (2020) (confirming that federal civil rights statute covers anti-LGBTQ
discrimination); United States v. Windsor, 570 U.S. 744 (2013) (invalidating federal statute that unconstitutionally discriminated
against lesbian, gay, and bisexual people); Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), cert. denied 141 S. Ct.
894 (2020) (rejecting effort to use federal statutory and constitutional claims to require discrimination against transgender
students); Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018), cert. denied 139 S.Ct. 2636 (2019) (same).
5 See, e.g., L.W. v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023) (holding ban on gender-affirming medical care for minors
unconstitutional), rev’d 83 F.4
th
460 (6
th
Cir. 2023), cert. pet. pending; Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (M.D. Ala.
2022) (same), vacated 80 F.4th 1205 (11
th
Cir. 2023).
these planned attacks on the LGBTQ community.
Four years of the first Trump presidency had an
enormous impact on the courts, including the
Supreme Court. Getting courts to understand the
experience of transgender people and the impact
of discriminatory policies on their lives was difficult
even before Trump reshaped the judiciary. It is that
much harder now.
That doesn’t mean that we can’t make an important
impact with litigation. We have seen some Trump-
appointed judges rule in favor of LGBTQ rights in
the lower courts.
5
And it was a Trump appointee
— Justice Neil Gorsuch — who authored Bostock
v. Clayton County, 590 U.S. 644 (2020), our
clients’ case establishing that Title VII, a federal
law prohibiting sex discrimination in employment,
protects against discrimination based on sexual
orientation and gender identity.
But even when we don’t prevail in courts, filing
cases allows us to publicly call out unconstitutional
and illegal policies and build political and grassroots
support that will ultimately result in more just
policies over time. Accepting the illegal and
unconstitutional assaults on the LGBTQ community
promised by a second Trump administration without
a legal fight is not an option.
Below we discuss how the planned policies of
a second Trump administration are illegal and
unconstitutional under any proper reading of
precedent.
Congress
Given the gravity of Trump’s threats to the health
and dignity of transgender people, and the fact we
cannot count on litigation to stop all these planned
attacks, it is imperative that the elected leaders in
our democracy act. We anticipate that, in a second
term, Trump will attempt to carry out much of
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 3
his sweeping, anti-LGBTQ policy agenda through
executive actions. But this in no way eliminates
the role for Congress to play in challenging these
assaults.
Congress can and must use the power of the purse,
and its oversight and investigative authorities, to
constrain a second Trump administration’s anti-
LGBTQ agenda. If a pro-equality opposition controls
either or both chambers of Congress in a second
Trump administration, members of Congress who
support the transgender community can use the
appropriations process to hinder Trump’s ability to
mandate anti-trans discrimination and weaponize
federal law against LGBTQ rights. Moreover, Trump’s
announced “day one” elimination of protections
for transgender students in our nation’s schools
should prompt pro-equality members of Congress
to go on the offensive by prioritizing passage of
comprehensive nondiscrimination protections for
LGBTQ people across the country in the form of the
Equality Act
6
. We understand that comprehensive
nondiscrimination legislation will not become law
under a Trump presidency, however, it is important to
demonstrate a stark contrast to the ugly discrimination
of this administration, making clear that Trump’s
values are not those of most Americans. Polling
consistently shows that the public supports strong
nondiscrimination protections for LGBTQ people — not
the Trump campaign’s extreme anti-trans agenda.
States & Municipalities
Likewise, at the state and local level, we need elected
officials to begin coordinating and planning now to
protect transgender people from Trump’s attempts
to implement sweeping discrimination against
them, including criminalizing gender nonconformity.
Collective and coordinated action among committed
pro-equality officials will be vital to anticipating,
6 Brooke Migdon, Trump vows to reverse transgender student protections ‘on day one,’ The Hill, May 10, 2024, https://thehill.
com/homenews/lgbtq/4656405-donald-trump-transgender-students-athletes-title-ix-lgbtq/
7 Supra note 6; See supra note 2 at 584 (“The President should direct agencies to rescind regulations interpreting sex
discrimination provisions as prohibiting discrimination on the basis of sexual orientation, gender identity, transgender status,
sex characteristics, etc.”); at 496 (“Issue a proposed rule to restore the Trump regulations under Section 1557, explicitly
interpreting the law not to include sexual orientation and gender identity discrimination”); at 489, (“The [HHS] Secretary’s
antidiscrimination policy statements should never conflate sex with gender identity or sexual orientation. Rather, the Secretary
should proudly state that men and women are biological realities that are crucial to the advancement of life sciences and
medical care and that married men and women are the ideal, natural family structure because all children have a right to be
raised by the men and women who conceived them.”); and at 447, (“HHS, through ACF and the Assistant Secretary for Financial
Resources (ASFR), should repeal the unnecessary 2016 regulation that imposes nonstatutory sexual orientation and gender
identity nondiscrimination conditions on agency grants . . .”).
revealing, and quickly responding to the Trump
administration’s blitz of anti-trans actions.
Organizing
The ACLU is also committed to fighting for LGBTQ
rights in the court of public opinion. Legal and policy
battles — even those that are unsuccessful in the
short run — can serve to frame and focus fights over
values in ways that are politically resonant in the
long term. Banning books and bullying children are
not popular actions outside of the MAGA base, and
as advocates we will organize with our allies around
specific moments that highlight the extremism and
unpopularity of Trump’s attacks on transgender people.
The goal will be for the Trump administration’s plans
or actions to generate a public backlash that helps
raise the political cost of discriminatory policies.
Mobilizing public support on behalf of vulnerable
children and youth — as the ACLU did in the
context of family separation — will help deter further
draconian policies and can help reshape the political
narrative around transgender justice.
SPECIFIC THREATS &
POSSIBLE RESPONSES
Erasing federal nondiscrimination
protections for LGBTQ people
Just as the first Trump administration did, a second
Trump administration would remove federal
nondiscrimination protections by rescinding
regulations and interpreting federal laws to eliminate
such protections.
7
This would strip LGBTQ people of
nondiscrimination guarantees across a vast swath
of federal government programs including Social
Security, Medicare, and housing programs, as well
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 4
as federal government employment.
8
Rescinding
regulations that interpret federal civil rights laws
to apply to anti-LGBTQ discrimination
9
— and likely
promulgating new regulations taking the position
that they don’t
10
— would convey the message to
school districts, landlords, employers, healthcare
providers, and others
11
that discrimination against
LGBTQ people is lawful and, thus, embolden more
discrimination.
Transgender people, in particular, already face
discrimination across nearly every aspect of their
lives. The 2022 U.S. Transgender Survey
12
found they
faced higher rates of poverty and homelessness
than their cisgender peers, and data from the
8 See, e.g., Federal Register, Nondiscrimination in Health Programs and Activities (May 6, 2024), https://www.federalregister.
gov/documents/2024/05/06/2024-08711/nondiscrimination-in-health-programs-and-activities; U.S. Department of Health
and Human Services, HHS Issues Final Rule to Prevent Discrimination in Health and Human Services Grant Programs
(April 30, 2024), https://www.hhs.gov/about/news/2024/04/30/hhs-issues-final-rule-prevent-discrimination-health-and-
human-services-grant.html; U.S. Dep’t of Housing and Urban Development, Housing Discrimination and Persons Identifying
as Lesbian, Gay, Bisexual, Transgender, and/or Queer/Questioning (LGBTQ) (Feb. 1, 2022), https://www.hud.gov/program_
offices/fair_housing_equal_opp/housing_discrimination_and_persons_identifying_lgbtq#:~:text=Pursuant%20to%20that%20
Executive%20Order,orientation%20and%20gender%20identity%20under; The White House, Executive Order on Preventing and
Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (Jan. 20, 2021), https://www.whitehouse.gov/
briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-
identity-or-sexual-orientation/.
9 See, e.g., Federal Register, Nondiscrimination in Health Programs and Activities (May 6, 2024), https://www.federalregister.
gov/documents/2024/05/06/2024-08711/nondiscrimination-in-health-programs-and-activities; U.S. Department of Education,
U.S. Department of Education Releases Final Title IX Regulations, Providing Vital Protections Against Sex Discrimination
(April 19, 2024), https://www.ed.gov/news/press-releases/us-department-education-releases-final-title-ix-regulations-
providing-vital-protections-against-sex-discrimination.
10 For example, Project 2025 (at 584) takes the position that the Supreme Court’s decision inBostock v. Clayton County, 590
U.S. 644 (2020), holding that Title VII’s prohibition against workplace discrimination on the basis of sex covers discrimination
based on sexual orientation or gender identity, applies only to“hiring and firing” decisionsand does not apply to other types
of discrimination in the workplace such as discrimination involving dress codes, restrooms,or locker rooms.
11
Numerous federal laws prohibit discrimination based on sex.See, e.g., Title IX, Education Amendments of 1972, 20 U.S.C. §§
1681-1688; Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq; Patient Protection and Affordable Care Act, section 1557, 42
U.S.C. § 18116.
12 Sandy E. James, Jody L. Herman, Laura E. Durso, and Rodrigo Heng-Lehtinen, Early Insights: A Report of the 2022
U.S. Transgender Survey, Ntl. Center for Transgender Equality (Febr. 2024), https://transequality.org/sites/default/
files/2024-02/2022%20USTS%20Early%20Insights%20Report_FINAL.pdf.
13 The Wage Gap Among LGBTQ+ Workers in the United States, Human Rights Campaign, https://www.hrc.org/resources/the-
wage-gap-among-lgbtq-workers-in-the-united-states (last visited June 2024).
14 Brian Glassman, Financial Insecurity and Hardship in the Pulse: An In-Depth Look at Gender Identity and Sexual Orientation,
Poverty Statistics Branch of U.S. Census Bureau (April 20, 2023), https://www.census.gov/content/dam/Census/newsroom/
press-kits/2023/paa/2023-paa-paper-financial-insecurity-hardship-pulse-gender-identity-sex.pdf.
15 Madeline Smith-Johnson, Transgender Adults Have Higher Rates Of Disability Than Their Cisgender Counterparts, National
Library of Medicine (Oct. 2022), https://pubmed.ncbi.nlm.nih.gov/36190882/.
16 Kellan E. Baker, Findings From the Behavioral Risk Factor Surveillance System on Health-Related Quality of Life Among
US Transgender Adults 2014-2017, JAMA Internal Medicine (April 22, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC6583830/.
17 Issue Brief: HIV and Transgender Communities, U.S. Centers for Disease Control & Prevention (May 16, 2024), https://www.cdc.
gov/hiv/policies/data/transgender-issue-brief.html#references
18 Ryan Ruppert, Shanna K. Kattari, & Steve Sussman, Review: Prevalence of Addictions among Transgender and Gender
Diverse Subgroups, Int J Environ Res Public Health (Aug. 22, 2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8393320/.
19 Bridget M. Kuehn, MSJ, Higher Mortality Risk Among Transgender People, JAMA (Oct. 19, 2021), https://jamanetwork.com/
journals/jama/article-abstract/2785253.
Human Rights Campaign
13
found a persistent wage
gap between transgender and cisgender people. The
U.S. Census Bureau
14
found that transgender people
report higher rates of hunger. Numerous studies
also found that they face higher rates of disability,
15
long-term health risks
16
— including HIV
17
— and
substance-use disorders,
18
all of which contribute to
a mortality risk twice that of their cisgender peers.
19
Legal protections are but one pillar of addressing
these systemic and widespread inequities, and the
rollback of those protections would make matters
worse.
In 2020, the U.S. Supreme Court ruled that
Title VII of the Civil Rights Act, which bars sex
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 5
discrimination in the workplace, also covers anti-
LGBTQ discrimination, rejecting arguments from
the Trump administration.
20
Since then, both federal
courts and federal agencies have interpreted other
federal statutory bans on sex discrimination to bar
anti-LGBTQ discrimination as well, including in the
contexts of health care, education, and housing.
21
While a second Trump administration would likely
announce its view that these federal civil rights
statutes do not protect LGBTQ people, the courts
ultimately will decide this question. When they
decide, Justice Gorsuch’s reasoning in the Bostock
case that “… homosexuality and transgender status
are inextricably bound up with sex”
22
should prevail.
The ACLU is already litigating the scope of federal
nondiscrimination coverage for LGBTQ people in the
courts, and we will continue to sue to protect the
broad scope of these federal civil rights laws if a
new Trump administration tries to narrow it. 
In addition, should a new Trump administration
cause the federal government itself to discriminate
against LGBTQ people (such as interfering with
LGBTQ people’s participation in federal programs
or discriminating against LGBTQ federal employees),
that would violate the Constitution’s Equal
Protection Clause, as well as federal statutes. Such
discrimination should be subjected to heightened
equal protection scrutiny, since the Supreme Court
has recognized in Bostock
23
that discrimination
20 Bostock v. Clayton County, 590 U.S. 644 (2020).
21 See, e.g., A.C. v. Metro. Sch. Dist. of Martinsville, 75 F. 4th 760 (7th Cir. 2023) (applying Bostock’s reasoning to Title IX); Doe v.
Snyder, 28 F. 4th 103 (9th Cir. 2022) (applying Bostock’s reasoning to section 1557 of the Affordable Care Act); The White House,
Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, (Jan. 20,
2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-
discrimination-on-basis-of-gender-identity-or-sexual-orientation/; Implementation of Executive Order 13988 on the Enforcement
of the Fair Housing Act (Feb. 11, 2021), https://www.hud.gov/sites/dfiles/PA/documents/HUD_Memo_EO13988.pdf.
22 Bostock v. Clayton County, 590 U.S. 644 (2020).
23 Bostock v. Clayton County, 590 U.S. 644 (2020).
24 See, e.g., United States v. Virginia, 518 U.S. 515 (1996).
25 Bostock v. Clayton County, 590 U.S. at 660.
26 See, e.g., Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (en banc).
27 See e.g., supra note 2 at 586, (“The President should make clear via executive order that religious employers are free to
run their businesses according to their religious beliefs, general nondiscrimination laws notwithstanding, and support
participation of religious employees and employers as federal contractors and in federal activities and programs.”); at
481 (“Protect faith-based grant recipients from religious liberty violations and maintain a biblically based, social science–
reinforced definition of marriage and family. Social science reports that assess the objective outcomes for children raised
in homes aside from a heterosexual, intact marriage are clear: All other family forms involve higher levels of instability (the
average length of same-sex marriages is half that of heterosexual marriages); financial stress or poverty; and poor behavioral,
psychological, or educational outcomes. For the sake of child well-being, programs should affirm that children require and
deserve both the love and nurturing of a mother and the play and protection of a father. Despite recent congressional bills
like the Respect for Marriage Act that redefine marriage to be the union between any two individuals,[Healthy Marriage and
Relationship Education]program grants should be available to faith-based recipients who affirm that marriage is between not
just any two adults, but one man and one unrelated woman.”).
based on sexual orientation or gender identity is
discrimination based on sex, which is unconstitutional
unless the government can prove that the
discrimination is substantially related to an important
government interest.
24
Bostock specifically involved
employment discrimination prohibited by Title VII, but
its reasoning—that “it is impossible to discriminate
against a person for being homosexual or transgender
without discriminating against that individual based
on sex”
25
— applies equally to equal protection claims
involving sex discrimination, as some courts have
already recognized.
26
Therefore, excluding LGBTQ
people from government programs or employment, or
subjecting them to discriminatory conditions because
of their sexual orientation or gender identity, would
violate the Constitution. The ACLU will continue to
advocate this position as these issues eventually
work their way up to the Supreme Court. 
In addition to rescinding nondiscrimination
protections for LGBTQ people, a second Trump
administration would permit faith-based, taxpayer-
funded contractors that carry out vital federal
government programs (e.g. disaster assistance and
care for unaccompanied refugee minors, among
many others) to use religious eligibility criteria to
exclude LGBTQ people from participating in those
programs.
27
If such discrimination were to occur, it
would violate not only the Equal Protection Clause
for the reasons discussed above, but also the
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 6
Establishment Clause, which the Supreme Court
has recognized prohibits religious criteria to be used
in carrying out government programs, whether those
programs are carried out by government employees
or government contractors.
28
We will continue to
challenge efforts to allow the use of religion to
discriminate in government programs wherever
possible, recognizing that the current Supreme
Court has been hostile to our arguments.
Mandating discrimination against
transgender people by the federal
government
As argued above, a second Trump administration
would go beyond policies that make discrimination
legal and would also mandate discrimination
against LGBTQ people by the federal government.
Prohibiting gender-afrming medical care in
federal healthcare programs
A second Trump administration would ban gender-
affirming medical care for transgender people in
federal healthcare programs, including Veterans’
Administration healthcare and Medicare.
29
This
would result in the disruption of medically
necessary care for transgender people across the
country who depend on it, and the implications
would be catastrophic. Gender dysphoria is a
serious medical condition that, if left untreated, can
result in significant distress, depression, anxiety,
self-harm, and suicidality.
30
Categorically denying such healthcare would violate
the Constitution and section 1557 of the Affordable
Care Act, which prohibits discrimination on the
basis of sex in healthcare programs. This has been
recognized by several courts,
31
while others have
28 See, e.g. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 126 (1982).
29 Supra note 2 at 644 (“Rescind all[Veterans’ Administration]clinical policy directives that are contrary to principles
of conservative governance starting with abortion services and gender reassignment surgery.”); at 474 (“CMS should
repromulgate its 2016 decision that CMS could not issue a National Coverage Determination (NCD) regarding ‘gender
reassignment surgery’ for Medicare beneficiaries. In doing so, CMS should acknowledge the growing body of evidence that
such interventions are dangerous and acknowledge that there is insufficient scientific evidence to support such coverage in
state plans.”).
30 See, e.g., American Psychological Ass’n, APA Policy Statement on Affirming Evidence-Based Inclusive Care for Transgender,
Gender Diverse, and Nonbinary Individuals, Addressing Misinformation, and the Role of Psychological Practice and Science
(Feb. 2024), https://www.apa.org/about/policy/transgender-nonbinary-inclusive-care.
31 See Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (en banc); Flack v. Wisc. Dep’t of Health Servs., 395 F.3d 1001 (W. D. Wisc.
2019); Tovar v. Essentia Health, 342 F. Supp. 3d 947 (D. Minn. 2018).
32 See, e.g., L.W. v. Skrmetti, 73 F.4th 408 (6
th
Cir. 2024) (cert. pet. pending).
33 Supra note 2 at 104 (“Reverse policies that allow transgender individuals to serve in the military.”).
disagreed.
32
The ACLU will continue to litigate
this issue as it works its way up the courts, likely
reaching the Supreme Court.
In addition, borrowing from lessons learned from
the strule to maintain access to abortion care, we
will advocate for states to create reliable, permanent
funding streams to ensure that those who would
otherwise be cut off from gender-affirming medical
care due to the exclusion of such care from federal
programs are still able to access care under
state programs. For example, in September 2022,
California established a Reproductive Health Equity
Fund within its Department of Health Care Access
and Information. In April 2022, Maryland created
an Abortion Clinical Training Program and allocated
a $10.6 million training grant over three years. In
April 2024, the Illinois Department of Public Health
awarded $2 million in grants for abortion training.
These programs — and similar ones at a much
larger scale — exemplify the kind of support for and
investment in the health of transgender people that
will become necessary at the state level in a second
Trump administration.
Excluding openly transgender people from
serving in the military
Just as the Trump administration did in 2017, a
second Trump administration would reverse policies
allowing transgender people to serve openly in the
military.
33
This would push out many active-duty
transgender servicemembers who have served with
distinction and would bar new transgender recruits
from enlisting. Such a discriminatory policy would
also violate the Equal Protection Clause because it
should be subjected to heightened equal protection
scrutiny, and there is no justification for excluding
transgender people from service. In fact, a RAND
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 7
report from 2016 stated the effects of trans-inclusive
“foreign military policies indicate little or no impact
on unit cohesion, operational effectiveness, or
readiness. Commanders noted that the policies
had benefits for all service members by creating a
more inclusive and diverse force.”
34
Should Trump
have a second term, the ACLU will work with
allies to elevate the contributions of transgender
servicemembers to raise the political costs on
the Trump administration of reinstituting the ban
on service, as well as explore all legal avenues to
preventing its reinstatement. We know from our
prior litigation on behalf of both transgender
35
and
gay and lesbian servicemembers
36
that their stories
of service and sacrifice
37
can help move public
opinion and make Trump’s expected anti-trans
policy deeply unpopular with the country.
Weaponizing federal law to require
states and private actors to discriminate
or tolerate discrimination against
transgender people
A second Trump administration would likely take
the extreme, potentially devastating position that
federal law and the Constitution require states
and private actors to discriminate against
transgender people in a variety of contexts. If
they are successful in these efforts, even strong,
state-level nondiscrimination protections could
be overridden.However, states can and should
lay down clear markers that their own laws and
constitutions require protection of transgender
34 Agnes Gereben Schaefer et al., Assessing the Implications of Allowing Transgender Personnel to Serve Openly, RAND Corp.
(2016), https://www.rand.org/pubs/research_reports/RR1530.html.
35 See Stone v. Trump, no. 1:17-cv-02459 (D. Md.) (challenge to transgender military service ban).
36 See, e.g., Witt v. Dep’t of the Air Force, 527 F.3d 806 (9
th
Cir. 2008).
37 Juliet Eilperin, Transgender in the Military: A Pentagon in Transition Weighs Its Policy, The Washington Post (April 19
2015), https://www.washingtonpost.com/politics/transgender-in-the-military-a-pentagon-in-transition-weighs-its-
policy/2015/04/09/ee0ca39e-cf0d-11e4-8c54-ffb5ba6f2f69_story.html.
38 President Trump’s Plans to Protect Children from Left-Wing Gender Insanity (Feb. 1, 2023),https://www.donaldjtrump.com/
agenda47/president-trumps-plan-to-protect-children-from-left-wing-gender-insanity (See 8. “Direct the Department of
Education to inform states and school districts that if any teacher or school official suests to a child that they could be
trapped in the wrong body, they will be faced withsevere consequences, including,potential Civil Rights violationsfor sex
discrimination, and theelimination of federal funding.”).
39 President Trump’s Plan to Save American Education and Give Power Back to Parents (Jan. 26, 2023),https://www.
donaldjtrump.com/agenda47/president-trumps-plan-to-save-american-education-and-give-power-back-to-parents(See 6.
Keepmen out of women’s sports.).
40 Supra note 2 at 495 (“The noxious tenets of “critical race theory” and “gender ideology” should be excised from curricula in
every public school in the country.”).See supra note 1 at 334 (“The next Administration should abandon this change redefining
“sex” to mean “sexual orientation and gender identity” in Title IX immediately across all departments.” “On its first day in office,
the next Administration should signal its intent to enter the rulemaking process to restore the Trump Administration’s Title IX
regulation, with the additional insistence that “sex” is properly understood as a fixed biological fact.”).
people both to provide practical protections at
least for a time and to create the opportunity for
political organizing and mobilization when and if
the Trump administration tries to override those
state protections. We would also argue that states
should have the freedom to create greater civil
rights protections for groups they believe face
discrimination — such as transgender youth and
adults —and that federal civil rights laws should not
be interpreted to overrule those state protections.
If a second Trump administration allows abortion
rights to be decided on a state-by-state basis — a
scenario we doubt and will explore in a subsequent
memo related to reproductive freedom — we would
make the same states’ rights argument in the
transgender rights context to preserve extant state
protections.
Education
A second Trump administration could take action
to stop school districts across the country from
maintaining trans-inclusive policies and practices.
Specifically, it would target school districts — by
bringing civil rights enforcement actions against
them and/or withholding federal funding — if
school officials affirm transgender students’ gender
identity by allowing them to use restrooms that
accord with their gender identity
38
or by allowing
39
or
acknowledging the existence of transgender people
in the school.
40
Such actions would coerce school districts to
discriminate against transgender students and
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 8
erase the existence of transgender people in the
curriculum, causing substantial harm to students
in every state. As the Centers for Disease Control
& Prevention found in its Youth Risk Behavioral
Surveillance System survey,
41
transgender youth
are already significantly more likely to report
feeling unsafe going to or attending school, to cite
instances of physical or sexual violence, to indicate
harassment at school and online, and to indicate
mental health distress including suicide attempts.
A second Trump administration would likely attempt
to justify these harmful actions by saying that
trans-inclusive restroom or sports policies violate
the rights of cisgender students under Title IX and
their constitutional right to privacy. The ACLU has
convinced courts to reject such claims in the past,
42
and we will continue to fight against them should
a new Trump administration try these arguments
again.
Given the gravity of the threat and the uncertain
legal landscape, as part of the ACLU’s strategy for
state-based resistance to assaults on civil rights, we
will advocate for states and school boards to act
wherever they can to ensure the highest possible
level of protections for LGBTQ students. Such
protections would include policy guidance regarding
updating student names and pronouns, inclusive
rules on gender-based activities, and best practices
for school records. They would also include state
policies that, in accordance with student privacy
laws, direct school districts not to share information
regarding transgender and non-binary students
with a federal government intent on discriminating
against these students except when legally required.
While these actions may not ultimately block the
harm of a Trump administration’s anti-LGBTQ
assault on Title IX, they will provide students with
important protections that could take a second
41 Michelle M. Johns et al., Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and
Sexual Risk Behaviors Among High School Students — 19 States and Large Urban School Districts, 2017, 68 MMWR. 66-71
(Jan. 25, 2019). https://www.cdc.gov/mmwr/volumes/68/wr/mm6803a3.htm.
42 See Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020), cert. denied 141 S. Ct. 894 (2020); Doe v. Boyertown Area Sch.
Dist., 897 F.3d 518 (3rd Cir. 2018), cert. denied 139 S.Ct. 2636 (2019).
43 President Trump’s Plans to Protect Children from Left-Wing Gender Insanity (Feb. 1, 2023),https://www.donaldjtrump.com/
agenda47/president-trumps-plan-to-protect-children-from-left-wing-gender-insanity(See 5. “Declare that any hospital or
healthcare provider participating in the chemical or physical mutilation of minor youthwill no longer meet federal health
and safety standards for Medicaid and Medicare—and will be terminatedfrom the program.”).See alsosupra note 2 at 5
(“Allowing parents or physicians to “reassign” the sex of a minor is child abuse and must end.”).
44 Elana Redfield, Kerith J. Conron, Will Tentindo, and Erica Browning, Prohibiting gender-afrming medical care for youth,
Williams Institute (March 2023), https://williamsinstitute.law.ucla.edu/publications/bans-trans-youth-health-care/.
Trump administration time to override. Moreover, the
federal government overturning policies enacted by
local and state officials can create a clear narrative
for the media about a MAGA government ramming
through unpopular and extreme policies around
which to build political resistance.
Healthcare
A second Trump administration would attempt to
halt gender-affirming medical care for adolescents
nationwide by threatening to deny Medicaid funding
for hospitals that provide that care, asserting —
against the recommendations of all major medical
associations — that it does not meet federal
health and safety standards.
43
This could coerce
hospitals to discontinue care, making it difficult, if
not impossible, for youth with gender dysphoria to
access the treatment they need.
In the last three years, 24 states have categorically
banned gender-affirming medical care for
transgender youth, effectively ending health care
access for more than 100,000 transgender youth.
44
Weaponizing federal law to target transgender
health care in the remaining states would create
a dire situation for transgender youth across
the country, effectively ending access to care
nationwide.The ACLU has already brought multiple
cases challenging state-law bans on gender-
affirming medical care for minors and would
continue to litigate this issue in courts across the
country should a second Trump administration
further restrict this care for adolescents.
Where politically feasible, the ACLU will be
encouraging states to pass their own laws or state
constitutional provisions protecting access to
gender-affirming health care and even, as noted
above, ensuring access to consistent state funding
for the care. Although the coercive power of federal
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 9
funding cannot be underestimated, a coordinated
effort by multiple states could force a showdown
between medical ethics and state law and a punitive
and overreaching federal government. The ACLU is
laying groundwork to amplify and capitalize on such
moments to create political backlash that forces the
administration to reconsider.
The ACLU is also urging states to strengthen data
privacy policies. Many states have enacted shield
laws that prevent state officials from being complicit
in other states’ efforts to target transgender
individuals or providers of gender-affirming medical
care, among others. Although the Constitution’s
Supremacy Clause means that states must obey
federal law, shield laws can be strengthened to
limit cooperation with federal authorities unless
compelled.
Workplace
A second Trump administration would take the
position that employers may discriminate against
LGBTQ employees based on the employer’s
religious beliefs notwithstanding applicable
state or federal nondiscrimination laws.
45
This
could be implemented as an executive order
from the president, issued as a regulation. The
administration might also intervene in litigation to
try to prevent state and local governments from
enforcing nondiscrimination requirements where
the defendant asserts a religious motivation for the
discrimination.
This position would likely be based on the Trump
administration’s extreme interpretation of the First
Amendment as establishing a free exercise right to
refuse to follow nondiscrimination requirements that
conflict with one’s religious beliefs, even though
there is no Supreme Court precedent supporting
that view. To the contrary, the court has rejected
such claims in the past,
46
although it is not clear
how the Supreme Court would rule on this issue
now.
By enacting policies supporting a religious right
45 Supra note 2 at 586 (“The President should make clear via executive order that religious employers are free to run their
businesses according to their religious beliefs, general nondiscrimination laws notwithstanding . . .”).
46 See Hishon v. King and Spalding, 467 U.S. 69, 78 (1984); Newman v. Piie Park Enters., 390 U.S. 400, 402 n.5 (1968).
47 See, e.g., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617, 631 (2018) (remarking that ”it is a general
rule that [religious] objections do not allow business owners and other actors in the economy and in society to deny protected
persons equal access to goods and services under a neutral and generally applicable public accommodations law.”).
48 Supra note 2 at 5.
to be exempt from workplace nondiscrimination
laws, a second Trump administration could
create uncertainty about the enforceability of
nondiscrimination laws against those who have
religious objections to LGBTQ people. The ACLU has
litigated against claims that the First Amendment
entitles businesses that are open to the public to
discriminate against LGBTQ people
47
and would
similarly oppose such arguments asserted by
employers.
Criminalizing gender nonconformity
One of the most extreme positions included in
Project 2025 is the use of criminal laws to punish
gender nonconformity in public life:
Pornography, manifested today in the omnipresent
propagation of transgender ideology . . . has no
claim to First Amendment protection. . . Pornography
should be outlawed. The people who produce and
distribute it should be imprisoned. Educators and
public librarians who purvey it should be classed as
registered sex offenders. And telecommunications
and technology firms that facilitate its spread
should be shuttered.
48

A second Trump administration would not be able
to implement such a policy without Congress,
making it likely that fair-minded people could
prevent such a horror. If Congress were to create
such a federal criminal provision, it could result
in school officials and librarians facing potential
felony criminal penalties for including books or
lessons discussing transgender people in schools or
libraries. And transgender people could face these
criminal penalties for merely being themselves in
public. This would not only threaten the freedom of
countless transgender and cisgender people across
the country; it would also send the damaging and
stigmatizing message about what it means to be
transgender, with significant implications for how
transgender people are treated in all aspects of their
lives. Such criminal laws would clearly violate well-
established First Amendment law, and the ACLU
would sue to stop them.
American Civil Liberties Union TRUMP ON LGBTQ RIGHTS 10
As part of the ACLU’s playbook for states, we will
urge governors, state attorneys general, and state
legislatures to act now to prohibit the use of state
resources to support any criminal prosecutions
or other enforcement measures by the federal
government unless compelled by federal law. While
the end result of this approach may be to merely
slow down the enforcement of federal criminal
provisions, such as those Project 2025 is advocating
for, it could be incredibly significant for the daily
lives and futures of transgender people across the
country.
The ACLU will urge states to offer an alternative,
positive vision that welcomes transgender people to
be full participants in society. For example, states
should ensure that gender, whenever its disclosure
is required, is always self-reported in the state,
with no medical documentation requirements, and
bar state and local officials from questioning or
investigating sex or gender designations. Such a
policy would prevent state and local officials from
being complicit in the Trump administration’s efforts
to attack the legitimacy of transgender people and
demonstrate that the state respects the dignity of
transgender people and supports the community.
CONCLUSION
Across the country in recent years, transgender
people and their families have been targeted by a
relentless assault on their rights, their safety, and
their fundamental freedom to be themselves. States
have adopted laws criminalizing their health care,
attempting to ban them from public life, and even
threatening to remove transgender youth from
families that love and affirm them. Throughout
this political onslaught, the ACLU, our nationwide
affiliate network, and our millions of members
have remained stalwart in defense of the basic
principle that all people deserve the freedom to be
themselves and every state should be a safe place
to raise every family.
Donald Trump’s promises to take these
discriminatory policies nationwide should be
unthinkable, but it is nonetheless a future we’re
prepared for. Transgender people are no strangers
to government persecution, political slander, or the
criminalization of gender nonconformity. They know
how to build safety, community, and care among one
another, and the ACLU has a century-long history
of representing, supporting, and advocating for the
powerless, the silenced, the marginalized, and the
unapologetically queer against the kinds of attacks
outlined in this report. We would zealously and
unflinchingly defend LGBTQ families, LGBTQ rights,
and LGBTQ health care against Donald Trump or
anyone else who tries to extinguish LGBTQ freedom.