In its third year in office, the Trump Administration dramatically

PB 1

Connor Simono, Tim Wang, and Sean Cahill

In its third year in oce, the Trump

Administration dramatically expanded

discriminatory anti-LGBT policies

2 3

INTRODUCTION

In 2019, the Trump Administration dramatically expanded upon the discriminatory policies

implemented in 2017

and 2018

that are harming the health and well-being of LGBTQIA+

people in America and around the world. It rolled back sexual orientation and gender

identity (SOGI) nondiscrimination provisions in health care, employment, and housing, and

expanded discriminatory religious refusal policies. It appointed more anti-LGBT federal

court judges and further attempted to roll back the collection of sexual orientation and

gender identity data that is critical to understanding LGBT health disparities. It also enacted

anti-immigration policies that advocates say directly contributed to the deaths of two trans-

gender women seeking asylum

3,4

and are also disproportionately aecting LGBT asylum

seekers, generally.

The Trump Administration did take some positive actions in its third year in oce. It

launched the Ending the HIV Epidemic Initiative, an ambitious campaign to end the domes-

tic HIV epidemic. It also launched a global campaign, which President Trump spoke about

before the United Nations in September,

to advocate for the repeal of 70 laws in other

countries that criminalize same-sex sexual behavior. However, ongoing anti-LGBT policies

by the Trump Administration threaten to undermine progress made by the Ending the HIV

Epidemic Initiative,

and global LGBT advocates claim that there is no substance to the

decriminalization eort.

They also point to other anti-LGBT actions taken by the U.S. State

Department and by the Trump Administration.

1. Cahill S, Geen S, Wang T. (2018). One year in, Trump Administration amasses striking anti-LGBT record. Boston, MA: The Fenway Institute. Avail-

able online at: https://fenwayhealth.org/wp-content/uploads/The-Fenway-Institute-Trump-Pence-Administration-One-Year-Report.pdf

2. Cahill S, Wang T, Jenkins B. (2019). Trump Administration continued to advance discriminatory policies and practices against LGBT people and

people living with HIV in 2018. Boston, MA: The Fenway Institute. Available online at: https://fenwayhealth.org/wp-content/uploads/Trump-Ad-

ministration-Impact-on-LGBTs-Year-Two-Brief_Web.pdf

3. Kesslen B. (2019, June 3). Transgender asylum-seeker dies after six weeks in ICE custody. NBC News. Available online at: https://www.nbcnews.

com/news/us-news/transgender-asylum-seeker-dies-after-six-weeks-ice-custody-n1012956

4. Fitzsimons T. (2019, April 17). Transgender ICE detainee died of AIDS complications, autopsy shows. NBCNews. Available online at: https://www.

nbcnews.com/feature/nbc-out/transgender-ice-detainee-died-aids-complications-autopsy-shows-n994836

5. Hennessy-Fiske M. (2019, October 29). For transgender migrants ﬂeeing death threats, asylum in the U.S. is a crapshoot. Los Angeles Times. Avail-

able online at: https://www.latimes.com/world-nation/story/2019-10-29/trump-administration-returns-vulnerable-lgbt-asylum-seekers-to-mexico

6. Kumar A. (2019, September 24). Decoding Trump’s Speech Before the United Nations. Politico. Available online at: https://www.politico.com/

story/2019/09/24/trump-speech-at-un-1507923

7. Siddons A. (2019, February 5). Trump Could Be His Own Biggest Obstacle on HIV/AIDS Plan. Roll Call. Available online at: https://www.rollcall.

com/news/congress/trump-to-unveil-plan-to-eliminate-hivaids-by-2030-at-sotu-but-his-own-policies-could-hurt-progress

8. Spinelli D. (2019, October 9). “There’s nothing”: Trump’s global LGBTQ campaign is a whole lot of smoke and mirrors. Mother Jones. Available

online at: https://www.motherjones.com/politics/2019/10/trump-decriminalization-homosexuality-lgbtq-richard-grenell-state-department/

4 5

ROLLBACK OF NONDISCRIMINATION REGULATIONS

In its third year in oce, the Trump Administration continued to take action that would

remove, weaken, and/or oppose nondiscrimination protections for LGBT Americans in

health care, housing, employment, education, and civil rights.

Removing LGBT nondiscrimination language from seven federal health care regulations

In June 2019, the Department of Health and Human Services (HHS) released a proposed rule

that, if ﬁnalized, would reverse the Obama-era ﬁnal rule implementing Section 1557 of the

Aordable Care Act (ACA), which prohibits discrimination in the provision of health care.

The 2016 ﬁnal rule implementing Section 1557 of the ACA explicitly prohibits discrimina-

tion based on gender identity across federally-funded health care programs.

It explicit-

ly includes nonbinary and intersex individuals. The Section 1557 rule also prohibits some

forms of sexual orientation discrimination that take the form of sex stereotyping. This could

include, for example, denying fertility treatment to a lesbian couple based on the stereotyp-

ical and discriminatory belief that a woman should only be in a relationship with a man, or

that children should not be raised by same-sex couples.

The 2016 Section 1557 rule was implemented to address anti-LGBT discrimination in health

care which can range from being verbally or physically harassed to being denied treatment

altogether.

This discrimination, as well as the fear of experiencing it, is a barrier to seeking

routine, preventive care as well as emergency care. A 2018 survey by the Center for Amer-

ican Progress (CAP) found that 14% of LGBTQ respondents who had experienced discrim-

ination in health care settings in the past year avoided or postponed seeking necessary

medical care, and 17% of LGBTQ respondents who had experienced discrimination in health

care settings in the past year avoided seeking preventive screenings.

An earlier CAP survey

found that 18% of LGBT respondents who had experienced discrimination in any setting

avoided going to the doctor.

The 2015 U.S. Transgender Survey of nearly 28,000 transgen-

der people found that 33% of respondents had experienced anti-transgender discrimination

in health care in the year prior to the survey, and 23% of respondents chose to forego nec-

essary health care due to fear of discrimination.

Anti-LGBT discrimination itself can worsen health outcomes. In a 2017 study, 69% of LGBT

people who reported sexual orientation or gender identity based discrimination in the past

year reported that it negatively aected their psychological well-being, and 44% reported

that it negatively aected their physical well-being.

The Trump Administration’s proposed

reversal of the 2016 Section 1557 rule would undermine eorts to increase access to care

and eorts to reduce LGBT health disparities, especially for transgender people.

9. U.S. Department of Health and Human Services. (2016, May 18). Nondiscrimination in Health Programs and Activities. Federal Register 81(96), p.

31387. Available online at: https://www.federalregister.gov/articles/2016/05/18/2016- 11458/nondiscrimination-in-healthprograms-and-activities

10. Lambda Legal. (2010). When Health Care isn’t Caring: Lambda Legal’s Survey of Discrimination Against LGBT People and People with HIV.

New York: Lambda Legal.

11. Mirza S, Rooney C. (2018). Discrimination Prevents LGBTQ People from Accessing Health Care. Center for American Progress.

12. Singh S, Durso L. (2017). Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Signiﬁcant Ways. Center for

American Progress. Accessed online at: https://www.americanprogress.org/issues/lgbtq-rights/news/2017/05/02/429529/widespread-discrimi-

nation-continues-shape-lgbt-peoples-lives-subtle-signiﬁcant-ways/

13. James S E, Herman J L, Rankin S, Keisling M, Mottet L, Anaﬁ M. (2016). The Report of the 2015 U.S. Transgender Survey. Washington, DC:

National Center for Transgender Equality.

14. Singh and Durso, 2017.

4 5

The scope of the Trump Administration’s proposed rule promulgated in June 2019 also extends

beyond the gender identity and sex stereotyping provisions of the Section 1557 rule. The

Trump Administration has proposed removing explicit sexual orientation and gender identity

(SOGI) nondiscrimination provisions from several other important health care regulations

governing health insurance exchanges, Medicaid, and the Program of All-Inclusive Care for

the Elderly (PACE).

Medicaid is a health insurance program jointly funded by the federal government and states

that covers low-income people and those in need, including children and people with disabil-

ities. Under the ACA, 36 states expanded their Medicaid programs to cover low-income indi-

viduals without dependent children and to oer coverage immediately to people with HIV who

have not received an AIDS diagnosis. Both changes resulted in much higher rates of health

insurance coverage among LGBT people and people living with HIV.

In states that expanded

Medicaid coverage under the ACA, a signiﬁcant portion (39%) of LGBT adults with incomes

at 139% of the federal poverty level ($16,753 in 2018 for an individual) had health insurance

through Medicaid, and the uninsurance rate among low- and middle-income LGBT adults was

much lower in Medicaid expansion states (18%) compared to non-expansion states (34%).

The PACE program provides social services and health care for frail elders still living in the

community who are generally disabled, low-income, and nursing home eligible. LGBT older

adults experience high rates of social isolation

and discrimination in accessing health, aging,

and disability services.

Rescinding nondiscrimination provisions from the PACE program will

likely make many LGBT elders more fearful of discrimination in accessing elder services and

health care, which in turn would exacerbate social isolation among LGBT older adults.

The Trump Administration has proposed removing explicit

sexual orientation and gender identity (SOGI) nondiscrimi-

nation provisions from several important health care

regulations governing health insurance exchanges, Medicaid,

and the Program of All-Inclusive Care for the Elderly (PACE).

15. Wang T, Cahill S. (2017) The Essential Elements of a Revised National Health Care Policy for LGBT People and People Living with HIV. The Fenway

Institute. Accessed online at: https://fenwayhealth.org/wp-content/uploads/Fenway-ACA-PLWHA-LGBT-Policy-Brief-March-2017.pdf

16. Baker K, McGovern A, Gruberg S, and Cray A. (2016). The Medicaid Program and LGBT Communities: Overview and Policy Recommendations. Cen-

ter for American Progress. Available online at: https://cdn.americanprogress.org/wp-content/uploads/2016/08/08125221/2LGBTMedicaidExpan-

sion-brief.pdf

17. Fredriksen-Goldsen K, Kim H, Barkan S, Muraco A, Hoy-Ellis C. (2013). Health Disparities Among Lesbian, Gay, and Bisexual Older Adults:

Results from a Population-Based Study. American Journal of Public Health, 103(10), pp. 1802-1809. doi:10.2105/AJPH.2012.301110

18. Fredriksen-Goldsen K, Kim H, Emlet C, Muraco A, Erosheva E, Hoy-Ellis C, Petry H. (2011). The Aging and Health Report: Disparities and Resil-

ience Among Lesbian, Gay, Bisexual, and Transgender Older Adults. Seattle, WA: Institute for Multigenerational Health.

6 7

Removing LGBT, sex, and religion nondiscrimination language from Health and Human

Services grants and programming

In November 2019, HHS released a new

proposed rule that would remove regulatory

provisions that explicitly prohibit organiza-

tions that receive HHS grant funding from

discriminating on the basis of sexual ori-

entation, gender identity, sex, and religion.

Under this exceptionally broad proposed

rule, millions of Americans, including LGBT

people, women, people of minority faiths,

and non-religious people could face dis-

crimination from health and social service

agencies that receive funding from HHS.

HHS awards more than $500 billion in grant

funding annually. Its grantees include orga-

nizations that provide a wide array of health

and social services, including health care

at federally funded community health centers, HIV and STI testing and prevention, refugee

resettlement, elder care programs, childcare and after-school programs, community meal

programs, and adoption and foster care services. These programs are vital to millions of

Americans, especially for marginalized communities, including LGBT people, who already

experience pervasive discrimination that acts as a barrier to accessing care and services.

Under this proposed rule, LGBT people in need of medical care could be turned away from

federally funded health centers and clinics. After-school programs like Head Start could

refuse to serve LGBT youth or youth with LGBT parents. Senior service centers could refuse

to serve LGBT elders. This rule, if enacted, would create a broad license to discriminate for

agencies like Miracle Hill Ministries, a Christian nonproﬁt homeless and foster care agency in

South Carolina. Miracle Hill Ministries received a special waiver from HHS to continue to re-

ceive federal grant funding despite only working with evangelical Christians and refusing to

place children with a prospective parent who was Jewish

and another prospective family

that was Catholic.

Under this proposed rule, LGBT

people in need of medical care

could be turned away from

federally funded health centers

and clinics.

19. Lambda Legal. (2010). When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination against LGBT People and People with HIV.

New York: Lambda Legal.

20. Meckler L. (2019, January 23). Trump administration grants waiver to agency that works only with Christian families. Washington Post.

Accessed online at: https://www.washingtonpost.com/local/education/trump-administration-grants-waiver-to-agency-that-works-only-with-

christian-families/2019/01/23/5beafed0-1f30-11e9-8b59-0a28f2191131_story.html

21. Kinnard M. (2019, February 15). AP Exclusive: Lawsuit claims discrimination by foster agency. Associated Press. Accessed online at:

https://apnews.com/ed3ae578ebdb4218a2ed042a90b091c1

6 7

Opposing the Equality Act

In June 2019 the U.S. House of Representatives passed the Equality Act, which would pro-

hibit sexual orientation and gender identity discrimination under federal law. It would also

prohibit discrimination based on sex and religion. As the House was considering the bill, a

White House senior ocial voiced opposition to the Equality Act, stating that “this bill in its

current form is ﬁlled with poison pills that threaten to undermine parental and conscience

rights.”

This reversed Trump’s stated support for LGBT people during the 2016 presiden-

tial campaign, when he tweeted support

for LGBT people after the terror attack on LGBT

people at the Pulse Nightclub in Orlando, Florida and restated his support at the Republi-

can National Convention.

It also reverses Trump’s own expressed stance to The Advocate

magazine in a 2000 interview, when he said that he liked “the idea of amending the 1964

Civil Rights Act to include a ban of discrimination based on sexual orientation…It would

be simple. It would be straightforward,” Trump said. “Amending the Civil Rights Act would

grant the same protection to gay people that we give to other Americans — it’s only fair.”

Delegitimizing LGBT rights as human rights

In July 2019, Secretary of State Mike Pompeo established a “Commission on Unalienable

Rights,” which aims to distinguish between “natural rights” and “ad hoc rights” in the

Universal Declaration of Human Rights.

Pompeo appointed Mary Ann Glendon, a Harvard

Law professor and prominent opponent of marriage equality,

reproductive rights,

and

the idea that women’s rights are human rights

to Chair the Commission. Over 400 human

rights and health care organizations including Amnesty International, the American Civil

Liberties Union, and the American Psychological Association signed a letter to Secretary of

State Mike Pompeo expressing their “deep concern” about the lack of “ideological diversity”

on the Commission and its “clear interest in limiting human rights, including the rights of

women and LGBTQI individuals.”

Additionally, the directors of the Human Rights Clinic at

Duke University School of Law, the Human Rights Clinic at Columbia Law School, and the

Center for Human Rights and Global Justice at New York University School of Law warned

that the “risk is high that the Commission will advance a speciﬁc brand of conservative

arguments aimed at: (a) dialing back gains on LGBTQI rights and women’s rights, including

particularly the right to choose and the right to marriage equality...”

22. Fitzsimons T. (2019, May 14). Trump Opposes Federal LGBTQ Nondiscrimination Bill, Citing ‘Poison Pills.’ NBC News. Available online at:

https://www.nbcnews.com/feature/nbc-out/trump-opposes-federal-lgbtq-nondiscrimination-bill-citing-poison-pills-n1005551

23. Trump D. (2016, June 14). Tweet. Twitter. https://twitter.com/realDonaldTrump/status/742771576039460864

24. Elliott P. (2016, July 22). How Donald Trump Courted Gay Voters at the Convention. Time. https://time.com/4418475/republican-convention-pe-

ter-thiel-lgbt-gay-rights/

25. Advocate.com editors. (2015, September 28). READ: Donald Trump’s Advocate interview where he defends gays, Mexicans. The Advocate.

Available online at: https://www.advocate.com/election/2015/9/28/read-donald-trumps-advocate-interview-where-he-defends-gays-mexicans

26. Marino K M. (2019, August 15). How Mike Pompeo’s New Commission on ‘Unalienable Rights’ Butchers History. The Washington Post. Available

online at: https://www.washingtonpost.com/outlook/2019/08/15/how-mike-pompeos-new-commission-unalienable-rights-butchers-history/

27. Lavers M. (2019, July 8). Marriage opponent to chair State Department human rights commission. Washington Blade. https://www.washington-

blade.com/2019/07/08/marriage-opponent-to-chair-state-department-human-rights-commission/

28. Morello C. (2019, July 8). State Department launches panel focused on human rights and natural law. Washington Post. https://www.washington-

post.com/world/national-security/state-department-to-name-panel-focused-on-human-rights-and-natural-law/2019/07/06/3bfe001e-9f54-11e9-

b27f-ed2942f73d70_story.html

29. Marino K M. (2019, August 15). How Mike Pompeo’s New Commission on ‘Unalienable Rights’ Butchers History. The Washington Post. Available

online at: https://www.washingtonpost.com/outlook/2019/08/15/how-mike-pompeos-new-commission-unalienable-rights-butchers-history/

30. Open Letter to Sec. of State Mike Pompeo. (2019, July 23). Available online: https://www.humanrightsﬁrst.org/sites/default/ﬁles/Unalien-

able-Rights-Commission-NGO-Ltr.pdf

31. Huckerby J, Knuckey S, Satterthwaite M. (2019, July 9). Trump’s “Unalienable Rights” Commission Likely to Promote Anti-Rights Agenda. Just

Security. Available online at: https://www.justsecurity.org/64859/trumps-unalienable-rights-commission-likely-to-promote-anti-rights-agenda/

8 9

Employment

In 2019 the Trump Administration made legal arguments before the U.S. Supreme Court

that would limit existing nondiscrimination provisions under Title VII that have been used to

protect LGBT workers. In August 2019, the DOJ submitted a brief to the U.S. Supreme Court

regarding R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commis-

sion, a case which seeks to establish whether Title VII of the Civil Rights Act of 1964 can be

interpreted to protect transgender workers in cases of discrimination based on their gender

identity or expression. In this case, Aimee Stephens, a transgender woman, was ﬁred by her

employer after she sent the company a letter stating that she struggled with gender iden-

tity disorder and planned to begin living as a woman. The U.S. Court of Appeals for the 6

Circuit found that the company violated the law by ﬁring Aimee, but the case was appealed

to the U.S. Supreme Court. The DOJ brief to the Supreme Court argues that Title VII’s

protections extend only to one’s biological sex, and urges the Supreme Court to take this

stance as well.

The funeral homes case is one of three cur-

rently before the Supreme Court regarding

whether Title VII prohibits anti-LGBT discrim-

ination in employment. The other two cases

(Altitude Express Inc. v. Zarda and Bostock v.

Clayton County) involve gay men who allege

that they were ﬁred from their jobs after

disclosing their sexual orientation.

There are

years of federal court and Equal Employment

Opportunity Commission rulings that have

found that federal prohibitions on sex discrim-

ination also prohibit discrimination based on

sexual orientation and gender identity.

“Amending the Civil Rights

Act would grant the same

protection to gay people that

we give to other Americans—

it’s only fair.”

— Donald Trump in a 2000

interview with The Advocate

32. Law T. (2019, August 17). Trump Administration asks Supreme Court to Permit Employment Discrimination Against Transgender Workers.

TIME. Available online at: https://time.com/5654844/title-vii-trump-transgender-department-of-justice-supreme-court/

33. Millhiser I. (2019, October 8). The Supreme Court showdown over LGBTQ discrimination, explained. Vox. Available online at:

https://www.vox.com/2019/10/2/20883827/supreme-court-lgbtq-discrimination-title-vii-civil-rights-gay-trans-queer

34. U.S. Equal Employment Opportunity Commission (updated 2017). Examples of court decisions supporting coverage of LGBT-related

discrimination under Title VII. https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm

8 9

Education

In 2019, the Department of Education (DOE) continued to build on anti-transgender poli-

cies and actions from the Trump Administration’s ﬁrst two years in oce. In 2017, the DOE

reversed a 2016 guidance which interpreted Title IX of the Education Amendments Act

of 1972 to prohibit discrimination on the basis of gender identity,

and in 2018, the DOE

refused to hear or issue rulings on complaints regarding transgender students’ access to

bathrooms in school.

In 2019, Education Secretary Betsy DeVos refused to verbally con-

ﬁrm that the DOE supports policies that prohibit discrimination based on sexual orientation

or gender identity. Secretary DeVos instead insisted that “we follow the law as deﬁned.”

In a separate instance, DeVos admitted she was aware that her 2017 decision to roll back a

Title IX interpretation that protected students from discrimination based on their gender

identity had resulted in negative impacts on transgender students, including harassment,

depression, and worse educational outcomes.

35. Somashekar S, Brown E, Vucci E. (2017, February 22). Trump Administration Rolls Back Protections for Transgender Students. Washington

Post. Available online at: https://www.washingtonpost.com/local/education/trump-administration-rolls-back-protections-for-transgender-stu-

dents/2017/02/22/550a83b4-f913-11e6-bf01-d47f8cf9b643_story.html?utm_term=.11ef42f0311c

36. Turner C. Kamenetz A. (2018, February 12). The Education Department Says It Won’t Act on Transgender Student Bathroom Access. NPR.

Available online at: https://www.npr.org/sections/ed/2018/02/12/585181704/the-education-department-says-it-wont-act-on-transgender-stu-

dent-bathroom-access

37. Ring T. (2019, March 26). Betsy DeVos Won’t Say if She Opposes Anti-LGBTQ Discrimination. The Advocate. Available online at:

https://www.advocate.com/politics/2019/3/26/betsy-devos-wont-say-if-she-opposes-anti-lgbtq-discrimination

38. Anapol A. (2019, April 10). DeVos Defends Controversial Guidance on Transgender Students. The Hill. Available online at:

https://thehill.com/homenews/administration/438257-dem-asks-devos-if-she-knew-of-potential-harm-to-transgender-students

10 11

Housing

In May 2019, the Department of Housing and Urban Development (HUD) proposed an

amendment to the Equal Access Rule, which ensures that homeless shelters do not dis-

criminate based on sexual orientation or gender identity. This directly contradicts guidance

issued in 2016 by former HUD Secretary Julian Castro.

The proposed change would allow

shelters to use an “individual’s sex as reﬂected in ocial government documents” rather

than gender identity for the purposes of determining admission to facilities.

It would also

allow shelters to take religious beliefs into account when creating policies around sex-segre-

gated facilities.

It is common for many homeless shelters to have sex-segregated facilities

not just in bathrooms and locker rooms, but also in sleeping quarters. This proposed rule

would disproportionately harm transgender Americans, about a third of whom have experi-

enced homelessness during their lifetime, and who are already regularly turned away from

shelters.

In September 2019, HUD additionally amended the 2019 Notice of Funding Availability

(NOFA) to remove a crucial incentive that encouraged housing providers to support LGBT

individuals.

In previous years, among many other criteria, organizations applying for HUD

funding were scored on their ability to address the needs of LGBT individuals, but this

speciﬁc criterion was removed.

HUD also removed nearly all mentions of the Housing First

initiative, which strives to provide stable housing as quickly as possible to homeless individ-

uals. This combination could create a dangerous climate in which homeless LGBT individuals,

especially homeless LGBT youth, struggle to ﬁnd the support that they need.

39. Johnson C. (2019, May 22). HUD Proposes Rule Changes to Gut Trans Protections at Homeless Shelters. The Washington Blade.

Available online at: https://www.washingtonblade.com/2019/05/22/hud-proposes-rule-change-to-gut-trans-protections-at-homeless-shelters/

40. Department of Housing and Urban Development. (2019). Revised Requirements Under Community Planning and Development Housing Programs

(FR-6152). Available online at: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=2506-AC53

41. Jan T. (2019, May 22). Proposed Rule HUD Would Strip Transgender Protections at Homeless Shelters. The Washington Post. Available online at:

https://www.washingtonpost.com/business/2019/05/22/proposed-hud-rule-would-strip-transgender-protections-homeless-shelters/

42. Ibid.

43. Fazin R. (2019, September 19). Democrats Blast HUD for Removing LGBT Language from Grant Competition. The Hill. Available online at:

https://thehill.com/homenews/house/462256-61-lawmakers-knock-hud-for-excluding-incentives-for-housing-ﬁrst-transgender

44. Ibid.

10 11

Disparate Impact Civil Rights Regulations

In January 2019, the DOJ directed Trump Administration senior ocials to pursue chang-

ing or eliminating disparate impact civil rights regulations. Disparate impact regulations,

adopted across federal departments and agencies as part of Title VI of the 1964 Civil Rights

Act, include unintentional bias as a form of discrimination. The concept of disparate im-

pact asserts that policies that are neutral on paper but have an unequal impact in practice

are forms of discrimination, even if this was not the intention of the policy.

This concept

is often used to establish systemic discrimination in areas such as education, housing, and

transportation. In August 2019, HUD proposed to alter disparate impact anti-discrimina-

tion standards within the Fair Housing Act (FHA). The proposal would limit what qualiﬁes

as a disparate impact violation and would shift the burden of proof from the defendant to

the plainti, making many cases of disparate impact discrimination dicult to win.

The

weakening of disparate impact regulations, when linked with the Trump Administration’s

attack on LGBT nondiscrimination protections, threatens the civil rights of millions of LGBT

Americans as well as people of color.

45. Meckler L, Barrett D. (2019, January 3). Trump Administration Considers Rollback of Anti-Discrimination Rules. The Washington Post

Available online at: https://www.washingtonpost.com/local/education/trump-administration-considers-rollback-of-anti-discrimina-

tion-rules/2019/01/02/f96347ea-046d-11e9-b5df-5d3874f1ac36_story.html?noredirect=on

46. Merreﬁeld C. (2019, October 25). How a Proposed HUD Rule Would Make it Harder to File Some Housing Discrimination Claims. Journalist’s Re-

source. Available online at: https://journalistsresource.org/studies/society/housing/proposed-hud-rule-disparate-impact-housing-discrimination/

12 13

RELIGIOUS REFUSAL POLICIES

HHS Oce of Civil Rights issues ﬁnal “Conscience Rule” and changes its mission state-

ment to permit discrimination based on religion and morality

In its third year in oce, the Trump Administration continued to take a strong stance in

favor of religious refusal regulations and policies that could allow for discrimination against

LGBT people and other marginalized communities. In May 2019, HHS published a ﬁnal “Con-

science Rule,” which was originally proposed in 2018. The ﬁnal rule strengthens regulations

that allow healthcare providers to refuse to participate in medical procedures for religious

reasons.

In doing so, it takes the concept of religious freedom and turns it on its head.

True religious freedom protects an individual’s right to worship—or not—and harms no one.

But the Trump Administration’s new rule is designed so that government employees and

healthcare providers can deny service or treatment to LGBT people as a group by claiming

that providing such service or treatment would violate their religious beliefs or sincerely

held principles.

Exacerbating matters, the regulation also applies to any healthcare worker that has an

“articulable connection” to the care being provided which could cover not only doctors

and nurses, but also receptionists, anesthesiologists, or anyone else tangentially connected

to procedures such as abortion, sterilization, assisted suicide, or sexual and reproductive

healthcare such as HIV screening or prescribing birth control.

While LGBT individuals

are not mentioned speciﬁcally in this rule, several procedures such as gender armation

surgery and fertility treatment for same-sex couples are frequently contested on religious

grounds. This overly broad rule allows healthcare providers and sta with any articulable

connection to a procedure to refuse to serve LGBT patients based on religion, even in cases

of emergency. As of this writing, the rule has yet to be implemented as it was struck down

by three federal judges in New York, Washington state, and California.

U.S. District Judge

William Alsup of Northern California stated, “When a rule is so saturated with error, as here,

there is no point in trying to sever the problematic provisions. The whole rule must go.”

In the spring of 2019, the U.S. Department of Health and Human Services Oce of Civil

Rights also changed its mission statement as follows, as reported by National Public Radio:

Until last week, the website said the oce’s mission was to “improve the health and

well-being of people across the nation” and to ensure people have equal access to

health care services provided by HHS. But the new statement repositions the OCR as

a law enforcement agency that enforces civil rights laws, and conscience and religious

freedom laws, and “protects that exercise of religious beliefs and moral convictions by

individuals and institutions.”

47. Kodjak A. (2019, May 2). New Trump Rule Protects Health Care Workers Who Refuse Care For Religious Reasons. NPR. Available online at:

https://www.npr.org/sections/health-shots/2019/05/02/688260025/new-trump-rule-protects-health-care-workers-who-refuse-care-for-

religious-reason

48. Ibid.

49. Ring T. (2019, November 19). Third Judge Voids Trump’s Rule Allowing Discrimination in Health Care. The Advocate. Available online at:

https://www.advocate.com/health/2019/11/19/third-judge-voids-trumps-rule-allowing-discrimination-health-care

50. Ibid.

51. Kodjak A. (2019, May 2). New Trump Rule Protects Health Care Workers Who Refuse Care For Religious Reasons. National Public Radio.

12 13

Enabling religion- and morality-based discrimination by federal contractors

In August 2019, the Department of Labor Oce of Federal Contract Compliance Programs

(OFCCP) released a proposed rule that, if ﬁnalized, would allow a wider range of federal con-

tractors to discriminate against LGBT people, as well as people of minority faiths and other

marginalized groups, on the basis of discriminatory religious beliefs. The mission of the OFC-

CP is to ensure that federal contractors comply with Executive Order (EO) 11246, which pro-

hibits employment discrimination on the basis of race, color, religion, sex, or national origin.

In 2014, President Obama added sexual orientation and gender identity as protected classes

under EO 11246. EO 11246 includes a narrow religious exemption for religious organizations.

The new proposed rule threatens to jeopardize the very mission of OFCCP and the original

intent of EO 11246 by using overly broad and simpliﬁed deﬁnitions that would vastly expand

which organizations can claim the religious exemption to the nondiscrimination provisions

of EO 11246.

The rule proposes to create a new expanded deﬁnition for the term “religious corporation,

association, educational institution or society.” Entities can meet this new deﬁnition and

qualify for broadened religious exemptions even if they are not “engaged primarily” in a

religious purpose and even if they are for-proﬁt organizations. This is a vast expansion on

both the cited legal precedent and the original religious exemption in EO 11246, which used

much narrower deﬁnitions for entities qualiﬁed for religious exemptions. EO 11246’s existing

religious exemption also clearly states that contractors and subcontractors that claim a reli-

gious exemption are “not exempted or excused from complying with the other requirements

contained in this Order.” The proposed rule, on the other hand, explicitly states that federal

contractors may condition employment on adherence to speciﬁc religious tenets, and the

proposed rule fails to emphasize that discrimination on the basis of other protected classes

under the pretext of religious tenets is still not permitted. Given the proposed rule’s broad-

ened religious exemption and the current context of anti-LGBT religious refusal guidance

and legislation, a wider array of federal contractors and subcontractors could feel wrongly

empowered to discriminate against LGBT workers based on religious beliefs. If this sort of

discrimination were to occur, the proposed rule would also make it harder for employees to

challenge discrimination where religion is being used as a pretext for other prohibited dis-

crimination.

14 15

HIV/AIDS POLICY

In February 2019, at the State of the Union address, President Trump announced his plan to

end the HIV epidemic by 2030. Phase I of “Ending the HIV Epidemic: A Plan for America”

began soon thereafter, with targeted outreach and resources into speciﬁc geographic areas

hardest hit by the HIV epidemic.

This phase will last through 2025, with a goal of reducing

new HIV infection rates by 75%.

Phases II and III will continue these eorts by committing re-

sources more broadly across America and implementing an intensive case management sys-

tem, respectively. Phases II and III aim to reduce the infection rate by 90% by 2030.

Trump’s

proposed federal budget for 2020 included an increase of $291 million to fund the Ending the

HIV Epidemic Initiative.

In 2019 the Administration made available $1 million in Ryan White

HIV/AIDS Program Grants, $6 million from the Minority HIV/AIDS Fund, $11.3 million in National

Institutes of Health research funds, $12 million in HHS funds, and $2.4 million in Indian Health

Service funds, all for speciﬁc use towards the Ending the HIV Epidemic Initiative.

Much of

this has come from repurposing existing money in an eort to prioritize this initiative.

In addition, President Trump reconvened

the Presidential Advisory Council on HIV/

AIDS (PACHA); the Council met in March

2019 for the ﬁrst time since December

2017.

The Department of Health and

Human Services (HHS) has additionally

launched the Ready, Set, PrEP campaign,

a vital piece of the Ending the Epidemic

Initiative that strives to get as many at-risk

individuals onto Pre-Exposure Prophylaxis

(PrEP) as possible in an eort to reduce

new HIV infections.

HHS has also part-

nered with Gilead to secure donations of

PrEP for up to 200,000 people per year

for the next ﬁve to eleven years.

Ending the HIV Epidemic:

A Plan for America is a promis-

ing new initiative. However, other

discriminatory policies may

undermine its eectiveness.

52. HIV.gov. (2019, September 3). What is ‘Ending the HIV Epidemic: A Plan for America’? HIV.gov. Available online at: https://www.hiv.gov/feder-

al-response/ending-the-hiv-epidemic/overview

53. Ibid.

54. Ibid.

55. Sun L H. (2019, March 11). Trump Budget Calls for $291 Million to Fund HIV Initiative. The Washington Post. Available online at:

https://www.washingtonpost.com/health/2019/03/11/trump-budget-calls-million-fund-hiv-initiative/

56. HIV.gov. (2019, November 1). Ending the HIV Epidemic: A Timeline. HIV.gov. Available online at: https://www.hiv.gov/ending-the-hiv-epidemic/

overview/ending-epidemic-timeline

57. HIV.gov. (2019, November 15). About PACHA. HIV.gov. Available online at: https://www.hiv.gov/federal-response/pacha/about-pacha

58. HIV.gov. (2019, December 3). Ready, Set, PrEP. HIV.gov. Available online at: https://www.hiv.gov/federal-response/ending-the-hiv-epidemic/

prep-program

59. Department of Health and Human Services. (2019, May 9). Trump Administration Secures Historic Donation of Billions of Dollars in HIV Preven-

tion Drugs. Department of Health and Human Services Press Oce. Available online at: https://www.hiv.gov/blog/news-release-trump-adminis-

tration-secures-historic-donation-billions-dollars-hiv-prevention

14 15

Ending the HIV Epidemic: A Plan for America is a promising new initiative from an Admin-

istration that had done little in its ﬁrst two years in oce to make a meaningful change in

the ﬁght against HIV/AIDS. However, the campaign does little to address anti-LGBT discrim-

ination and stigma, which are the underlying drivers behind the HIV epidemic among the

most disproportionately aected populations in this country.

60,61

Black gay and bisexual men

as well as transgender women of color are at a signiﬁcantly higher risk of contracting HIV

and are much less likely to have health insurance, seek out and engage with HIV services, or

even to receive adequate medical care at all.

The Administration’s work to uphold religious

refusal protections, repeal nondiscrimination protections for LGBT Americans, and other

such actions may actually increase discrimination against LGBT people, creating additional

barriers to success for the Ending the HIV Epidemic Initiative.

Other problematic HIV policies

In February 2019, a federal judge blocked the United States Air Force from discharging

service members who are living with HIV.

The case, which began in 2018, concerned two

Airmen who are HIV-positive but virally-suppressed with an undetectable viral load, and

demonstrates a concerning attitude among Trump’s Department of Defense (DOD) that is

discriminatory and not reﬂective of modern science.

(As we went to press, a federal court

agreed that the service members were wrongly discharged.) In June 2019, President Trump

cut federal funding to government researchers using fetal tissue to test and approve new

HIV therapies.

These troubling moves by the current Administration could further contrib-

ute to anti-HIV stigma, undermining the Ending the HIV Epidemic Initiative and signaling

potential conﬂicting priorities in regards to HIV/AIDS policy in 2020.

60. McNeil Jr. D G. (2019, March 18). Trump Plans to End AIDS Epidemic: In Places like Mississippi Obstacles are Everywhere. The New York Times.

Available online at: https://www.nytimes.com/2019/03/18/health/trump-hiv-aids-blacks.html

61. El-Sadr W, Mayer K, Rabkin M, Hodder S. (2019). AIDS in America – Back in the Headlines at Long Last. The New England Journal of Medicine.

62. Ibid.

63. The Associated Press. (2019, February 15). Judge Halts Air Force’s Eorts to Discharge Airmen with HIV. Air Force Times. Available online at:

https://www.airforcetimes.com/news/your-air-force/2019/02/15/judge-halts-air-forces-eorts-to-discharge-airmen-with-hiv/

64. Ibid.

65. Goldstein A. (2019, June 5). New Restriction on Fetal Tissue Research ‘Was the President’s Decision.’ The New York Times. Available online at:

https://www.washingtonpost.com/health/trump-administration-imposes-new-restrictions-on-fetal-tissue-research/2019/06/05/b13433c0-8709-

11e9-a491-25df61c78dc4_story.html

16 17

One in three Trump nominees

to the federal judiciary have

anti-LGBT records.

JUDICIAL APPOINTMENTS

In 2019, the Trump Administration and Republican-controlled Senate continued to nominate

and conﬁrm federal judges hostile towards LGBT Americans and causes. The appointment

of Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court received a great deal

of attention in 2017 and 2018, but lower court judges play a vital role in the US judicial

system. Lower court justices hear hundreds of cases a year, and a proliferation of anti-LGBT

justices will have real and measurable eects for LGBT Americans. Over the past two years,

nearly 1 in 3 nominees for federal judicial appointments have expressed anti-LGBT senti-

ments and/or have histories of ruling against the interests of LGBT Americans.

Approx-

imately 12 federal judges with anti-LGBT records who were nominated by Trump in 2018

were conﬁrmed by the Senate and began service in 2019; half of them have worked to

oppose or undermine marriage equality.

Several of the justices who were conﬁrmed and

began service in 2019 have spoken out publicly or ﬁled amicus briefs in support of bakers,

ﬂorists, photographers, or other wedding vendors who have refused to serve same-sex cou-

ples. These individuals include Chad Readler of the Sixth Circuit Court of Appeals,

John

Campbell Barker

and Michael Truncale

of the District Court for the Eastern District of

Texas, and Lee Rudofsky of the District court for the Eastern District of Arkansas.

Many of these judicial appointees have been

outspoken about their belief that sexual and

gender minorities should be excluded from

non-discrimination protections. Judges Eric

Murphy of the Sixth Circuit Court of Ap-

peals,

Neomi Rao of the D.C. Circuit Court

of Appeals,

Brantley Starr of the District

court for the Northern District of Texas,

and

Steven Menashi of the Second Circuit Court

of Appeals

have all worked to weaken Title IX protections for transgender and other LGB

students across the United States. Judge Eric Murphy, speciﬁcally, defended the Gloucester

County School Board (Virginia), which refused to allow transgender student and plainti

Gavin Grimm to use the bathroom that matched his gender identity.

66. Lambda Legal. (2019, January 31). Stacking the courts: The Fight Against Trump’s Extremist Judicial Nominees. Lambda Legal. Available online

at: https://www.lambdalegal.org/judicial-nominees

67. Alliance for Justice. (n.d.) Trump’s judges: On the issues – LGBTQ Americans. Alliance for Justice. Available online at: https://a.org/our-work/

judicial-selection/trumps-judges-on-the-issues#lgbtq

68. Alliance for Justice. (2018, June). AFJ Nominee Report: Chad Readler. Alliance for Justice. Available online at: https://a.org/wp-content/up-

loads/2018/06/Readler-Final.pdf

69. Alliance for Justice. (2018, May). AFJ Nominee Snapshot: John Campbell Barker. Alliance for Justice. Available online at: https://a.org/wp-con-

tent/uploads/2018/05/Barker-FINAL-Full-Report.pdf

70. Alliance for Justice. (2019, April 23). Truncale’s Inﬂammatory Statements Raise Questions. Alliance for Justice: Justice Watch Blog. Available

online at: https://www.a.org/blog/truncales-inﬂammatory-statements-raise-questions

71. Alliance for Justice. (2019, July). AFJ Nominee Report: Lee Rudofsky. Alliance for Justice. Available online at: https://www.a.org/wp-content/

uploads/2019/07/Rudofsky-Report-FINAL.pdf

72. Alliance for Justice. (2019, June). AFJ Nominee Report: Eric Murphy. Alliance for Justice. Available online at: https://www.a.org/wp-content/

uploads/2018/06/Murphy-Full-Report-FINAL.pdf

73. Alliance for Justice. (2019, January). AFJ Nominee Report: Neomi Rao. Alliance for Justice. Available online at: https://www.a.org/wp-content/

uploads/2019/01/Rao-Report.pdf

74. Alliance for Justice. (2019, April). Brantley Starr Snapshot. Alliance for Justice. Available online at: https://www.a.org/wp-content/up-

loads/2019/04/Starr-Snapshot-Final.pdf

75. Alliance for Justice. (2019, September). AFJ Nominee Report: Steven Menashi. Alliance for Justice. Available online at: https://www.a.org/

wp-content/uploads/2019/09/Menashi-Report-FINAL.pdf

76. Alliance for Justice. (2019, June). AFJ Nominee Report: Eric Murphy. Alliance for Justice. Available online at: https://www.a.org/wp-content/

uploads/2018/06/Murphy-Full-Report-FINAL.pdf

16 17

Similarly, Judge Brantley Starr has de-

fended several Texas bills that discrim-

inate against LGBT couples looking to

adopt a child.

Judge Rao, before her

appointment to the D.C. Court of Appeals,

worked at the Oce of Information and

Regulatory Aairs (OIRA) on a proposed

Department of Health and Human Ser-

vices (HHS) rule that would strengthen

religious refusal policies for healthcare

providers, all but legalizing discrimination

in healthcare settings.

In June 2019, Judge Matthew Kacsmaryk began service at the District

Court for the Northern District of Texas. Judge Kacsmaryk has shown his disdain for LGBT

rights through his writing. He has written that the Civil Rights Movement was on the “right

side of history,” but LGBT rights movements are not. Kacsmaryk claims LGBT movements

have “sought public armation of the lie that the human person is an autonomous blob of

Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity,

and even the unborn child must yield to the erotic desires of liberated adults.”

In October 2019, President Trump nominated Lawrence VanDyke to the United States Court

of Appeals for the Ninth Circuit.

If conﬁrmed, VanDyke will be the second appellate court

judge to have worked at the Alliance Defending Freedom (ADF). The ADF has been classi-

ﬁed by the Southern Poverty Law Center as a hate group and advocates for the sterilization

of transgender individuals and the criminalization of homosexuality both in the U.S. and

abroad.

The ADF continues to spread misinformation by linking homosexuality to pedo-

philia, and VanDyke continues this legacy in his published writing by claiming LGBT people

are deviant and dangerous. VanDyke opposed marriage equality based on Christian morality

rather than fair-minded and fact-based assessments of the impacts of same-sex marriage.

77. Alliance for Justice. (2019, April). Brantley Starr Snapshot. Alliance for Justice. Available online at: https://www.a.org/wp-content/up-

loads/2019/04/Starr-Snapshot-Final.pdf

78. Alliance for Justice. (2019, January). AFJ Nominee Report: Neomi Rao. Alliance for Justice. Available online at: https://www.a.org/wp-content/

uploads/2019/01/Rao-Report.pdf

79. Kacsmaryk M. (2015, September 4). The Inequality Act: Weaponizing Same-Sex Marriage. Public Discourse: The Journal of the Witherspoon Insti-

tute. Available online at: https://www.thepublicdiscourse.com/2015/09/15612/

80. Alliance for Justice. (2019). AFJ Nominee Report: Lawrence Vandyke. Available online at: https://a.org/wp-content/uploads/2019/10/Van-

Dyke-Final-Report.pdf

81. Southern Poverty Law Center. (n.d.) Alliance Defending Freedom. Southern Poverty Law Center. Available online at: https://www.splcenter.org/

ﬁghting-hate/extremist-ﬁles/group/alliance-defending-freedom

82. Alliance for Justice. (2019). Trump’s Judges: On The Issues. Alliance Defending Freedom. Available online at: https://a.org/our-work/judicial-se-

lection/trumps-judges-on-the-issues#lgbtq

Judicial nominee Lawrence Van

Dyke has portrayed LGBT people

as deviant and dangerous.

18 19

IMMIGRATION POLICY

The Trump Administration continued to enact anti-immigration policies that are having dev-

astating eects on LGBT refugees and immigrants. In June 2019, a transgender woman from

El Salvador seeking asylum in the United States died just days after being released from a

detention center in New Mexico that had been sued in March 2019 for creating “unconscio-

nable conditions” for LGBT immigrants.

Her death came one year nearly to the day on the anniversary of the death of another trans-

gender woman from Honduras seeking asylum. An autopsy report found that the woman

died of complications from AIDS while in the custody of ICE agents.

The Honduran woman

had been denied medical care despite her requests for assistance and additional requests

for assistance on her behalf by other migrants.

ICE destroyed video footage from the

woman’s time in custody despite orders to preserve it.

The March 2019 lawsuit alleging frequent verbal, physical, and sexual abuse at the Otero

County Processing Center, an ICE detention center in New Mexico, was ﬁled by a group of

transgender and gay immigrants working with the ACLU.

Transgender detainees reported

being denied hormone treatment, and one gay detainee reported being sent to solitary con-

ﬁnement for reporting sexual abuse to ICE ocials.

In July 2019, the Departments of Justice and Homeland Security announced a new rule that

restricts asylum hearings in the United States only to people who have been denied asy-

lum in another country or who have been victims of human tracking.

The ACLU and other

rights groups challenged the new rule, asserting that it creates unprecedented barriers to

entry to the United States for asylum seekers. In September, the Supreme Court issued an

order stating that the Trump Administration may enforce the new rule. Justices Sonia

Sotomayor and Ruth Bader Ginsburg dissented from the decision, with Sotomayor writing,

“The rule the government promulgated topples decades of settled asylum practices and

aects some of the most vulnerable people in the Western Hemisphere.”

83. Kesslen B. (2019, June 3). Transgender asylum-seeker dies after six weeks in ICE custody. NBC News. Available online at: https://www.nbcnews.

com/news/us-news/transgender-asylum-seeker-dies-after-six-weeks-ice-custody-n1012956

84. Sanchez A. (2019, April 9). UPDATED: Statement Regarding the Death of Roxsana Hernandez. The University of New Mexico Health Sciences.

Available online at: http://hscnews.unm.edu/news/statement-regarding-the-death-of-roxsana-hernandez

85. Flores A. (2019, March 25). ICE Destroyed Footage Of A Trans Asylum-Seeker Who Died In Custody Despite A Request To Save It. BuzzFeed.

Available online at: https://www.buzzfeednews.com/article/adolfoﬂores/ice-destroyed-footage-of-a-trans-asylum-seeker-who-died-in

86. Ibid.

87. Moore R. (March 25, 2019). Gay, Transgender Detainees Allege Abuse at ICE Facility in New Mexico. The Washington Post.

88. Ibid.

89. Liptak A. (2019, September 11). Supreme Court Says Trump Can Bar Asylum Seekers While Legal Fight Continues. The New York Times.

18 19

SEXUAL ORIENTATION AND GENDER IDENTITY DATA

COLLECTION

In its third year in oce, the Trump Administration continued attempts to roll back the

collection of sexual orientation and gender identity (SOGI) data in federal surveys. In April

2019, HHS announced a new proposed rule which would remove sexual orientation data

collection for foster youth and foster and adoptive parents in the Adoption and Foster Care

Analysis and Reporting System (AFCARS). Sexual and gender minority youth are overrep-

resented in the foster care system, with one Los Angeles area study ﬁnding that nearly 1 in

5 foster youth identiﬁed as LGBTQ. The study also found that sexual and gender minority

youth in foster care reported higher rates of poor treatment and worse outcomes, including

multiple home placements, hospitalizations, homelessness, and criminal justice involve-

ment.

Collecting SOGI data among foster youth is critical to ensuring the safety and

well-being of LGBTQ youth in foster care. Collecting these data among foster and adoptive

parents is also necessary for ensuring that diverse and arming families are identiﬁed to

care for foster youth.

90. Wilson B, Cooper K, Kastanis A, Nezhad S. (2014). Sexual and Gender Minority Youth in Los Angeles Foster Care. The Williams Institute, Los

Angeles LGBT Center, Holarchy Consulting, and Permanency Innovations Initiative. Funded by the Department of Health and Human Ser-

vices. Available online at: https://www.acf.hhs.gov/sites/default/ﬁles/cb/pii_rise_lafys_report.pdf?_ga=2.266159183.1386249068.1575568529-

62561675.1575568529

20 21

FOREIGN POLICY

In February 2019, the Trump Administration announced that it would launch a global

campaign to end the criminalization of homosexuality.

Homosexuality is still a crime in 70

countries around the world,

where the pervasive anti-gay stigma can lead to worse health

outcomes and increased violence and persecution. Many of the exact details of this cam-

paign remain unclear, but it is being led by U.S. Ambassador to Germany Richard Grenell,

the highest proﬁle openly gay person in the Trump Administration.

In early 2019, Grenell

hosted a convening with activists from across Europe to discuss the decriminalization cam-

paign.

In December 2019, Grenell hosted a side event on LGBT issues at the United Nations

Security Council meeting. President Trump spoke of the eort before the United Nations in

September 2019:

As we defend American values, we arm the

right of all people to live in dignity. For this

reason, my Administration is working with other

nations to stop criminalizing of homosexuality,

and we stand in solidarity with LGBTQ people

who live in countries that punish, jail, or execute

individuals based on sexual orientation.

Reporter Michelangelo Signorile looked into this

initiative, and wrote in the Washington Post that:

Ultimately, the State Department conﬁrmed

that there was no new initiative. Rather, in a

rare exception, the Trump Administration was

actually continuing a pro-LGBTQ eort from

the Obama era.

Some political analysts have speculated that the Trump Administration’s anti-criminaliza-

tion campaign may be at least in part motivated by attempts to pressure European allies to

join the U.S in its campaign against Iran, where the public hanging of a gay man was one of

Grenell’s motivations for championing this new initiative.

In February 2019, the

Trump Administration

announced that it would

launch a global campaign

to end the criminalization

of homosexuality.

91. Lederman J. (2019, February 19). Trump Administration Launches Global Eort to End Criminalization of Homosexuality. NBC News. Available

online at: https://www.nbcnews.com/politics/national-security/trump-administration-launches-global-eort-end-criminalization-homosexuali-

ty-n973081

92. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). (2019). Sexual Orientation Laws in the World – 2019. ILGA.

Available online at: https://ilga.org/maps-sexual-orientation-laws

93. Kirby J. (2019, February 19). The Trump Administration Reportedly Wants to Push Countries to Decriminalize Homosexuality. Vox. Available

online at: https://www.vox.com/world/2019/2/19/18232163/trump-administration-grenell-decriminalize-lgbt

94. Ibid.

95. Spinelli, 2019.

96. Signorile M. (2019, August 20). Trump has a devastating record on LGBTQ rights. Don’t deny the truth. Washington Post. Available online at:

https://www.washingtonpost.com/opinions/trump-may-want-you-to-think-hes-lgbtq-friendly-dont-be-fooled/2019/08/20/c2b7a7be-c36b-11e9-

b72f-b31dfaa77212_story.html

97. Signorile, 2019.

20 21

Several global LGBT activists questioned whether there was any substance to the campaign:

“There’s nothing,” says David Pressman, a partner at the Boies Schiller Flexner law ﬁrm

who worked on international LGBTQ policy under Obama. Grenell’s events, he says,

have “not translated into any meaningful, coordinated, strategic eort.”

“President Trump really fancies himself an LGBT ally,” says Ryan Thoreson, a Yale Law

school lecturer and researcher with Human Rights Watch. “He thinks that he’s really

good for LGBT rights and seems disconnected from the reality that his Administration

has consistently attacked LGBT people domestically, and hasn’t oered anything more

than rhetoric for LGBT abroad.”

Sources told Mother Jones that the U.S. State Department’s Bureau of Democracy, Human

Rights, and Labor (DRL), which played a key role in the Obama Administration’s promotion

of LGBT equality as a key goal of U.S. foreign policy,

100

was not involved in the current crimi-

nalization repeal eort:

“No one in DRL has any idea what’s going on,” a former State Department ocial said.

“There is no process.”

Global LGBT rights became a foreign policy priority for the ﬁrst time in U.S. history under

former President Barack Obama.

101,102

Early in his Administration, Obama condemned a pro-

posed anti-gay bill in Uganda, describing it as “odious.”

103

He later warned that passage of

the bill would complicate the United States’ relationship with Uganda.

104

In 2011, then-Sec-

retary of State Hillary Clinton delivered a speech before the United Nations on International

Human Rights Day declaring that “[g]ay rights are human rights and human rights are gay

rights.”

105

In 2015, during the second-ever visit to Kenya by a sitting U.S. president, Obama

stood next to Kenyan president Uhuru Kenyatta and declared that it was wrong to pun-

ish gay people for “who they love.”

106

The Obama Administration also advocated globally

for LGBT rights by having its foreign embassies ﬂy rainbow ﬂags during Pride month and

support local advocacy eorts.

107

In 2012, for example, the US embassy in Kenya hosted the

country’s ﬁrst-ever LGBT Pride event.

108

98. Spinelli, 2019.

99. Signorile, 2019.

100. U.S. State Department fact sheet. (2013). Advancing the human rights of lesbian, gay, bisexual and transgender persons worldwide: A State Depart-

ment priority. U.S. Department of State. http://www.state.gov/documents/organization/211690.pdf

101. Nossel, S. (2013, June 5). How Samantha Power Could Change U.S. Diplomacy: Meet Richard Holbrooke, 2.0. Foreign Policy.

102. Encarnación O. (2016, June 16). Clinton’s Legacy on Gay Rights: From Skeptic to Supporter. Foreign Policy.

103. Spetalnick M. (2010, February 4). Obama condemns Uganda anti-gay bill as “odious.” Reuters. Available online at: https://www.reuters.com/

article/us-uganda-gays-obama/obama-condemns-uganda-anti-gay-bill-as-odious-idUSTRE6134EZ20100204?irpc=932

104. Holland S. (2014, Feburary 16). Obama warns Uganda over anti-gay law. Reuters. Available online at: https://www.reuters.com/article/us-uganda-

usa-obama/obama-warns-uganda-over-anti-gay-law-idUSBREA1F0QL20140217

105. Capehart J. (2011, December 7). Clinton’s Geneva accord: ‘Gay rights are human rights.’ Washington Post. Available online at: https://www.wash-

ingtonpost.com/blogs/post-partisan/post/clintons-geneva-accord-gay-rights-are-human-rights/2011/03/04/gIQAPUipcO_blog.html

106. Smith D. (2015, July 25). Barack Obama tells African states to abandon anti-gay discrimination. The Guardian. Available online at:

107. https://www.theguardian.com/us-news/2015/jul/25/barack-obama-african-states-abandon-anti-gay-discrimination

108. Associated Press in Warsaw. (2014, June 28). Obama uses embassies to push for LGBT rights abroad. The Guardian. Available online at: https://

www.theguardian.com/world/2014/jun/28/obama-gay-rights-abroad-embassies-activism

22 23

This year, in contradiction with its stated campaign to end the criminalization of homo-

sexuality globally, the Trump Administration has been inconsistent in speaking out against

anti-LGBT actions by other governments. In March 2019, the Southeast Asian country of

Brunei enacted a new law punishing adultery and homosexual sex with death by stoning.

The U.S. State Department joined other countries in condemning the law.

109

The department

also issued a statement this year saying that the United States was “deeply disturbed” by

anti-LGBT actions by the government of Chechnya that resulted in at least two deaths.

110

That statement built on sanctions the U.S. imposed in 2017 on two Chechen leaders involved

with an earlier episode of anti-LGBT persecution that aected hundreds of gay men.

111

However, the Trump Administration has been silent on similar anti-LGBT actions this year by

Saudi Arabia, Qatar, and Kenya.

Other actions taken by the Trump Administration conﬂict with its global campaign to de-

criminalize homosexuality and mark a signiﬁcant break with past U.S. eorts to promote

LGBT equality around the globe.

During President Trump’s ﬁrst year in oce, foreign embassies were permitted to continue

the practice of ﬂying rainbow ﬂags during Pride month.

112

But this year that guidance was

reversed after the U.S. Embassy in Brazil requested to ﬂy the rainbow pride ﬂag in June,

citing an increasingly hostile anti-LGBT environment in Brazil after the election last year of

President Jair Bolsonaro.

113

The State Department refused the request and also stated that

the rainbow ﬂag could not be displayed on any public-facing ﬂagpole at embassies across

the globe.

114

Also during Trump’s ﬁrst year in oce, the Trump Administration reassigned the ﬁrst-ever

Special Envoy for the Human Rights of LGBTI Persons, Randall Berry, to the State Depart-

ment’s Bureau of Democracy, Human Rights and Labor.

115

Berry was appointed to the Spe-

cial Envoy position by President Obama in 2015 and since Berry’s reassignment, the position

has remained unﬁlled.

116

109. Stapleton A. (2019, March 31). Brunei’s new anti-gay law goes into eect this week. Here’s how the world is reacting. CNN. Available online at:

https://www.cnn.com/2019/03/30/asia/brunei-lgbt-death-penalty-intl/index.html

110. Laver M. (2019, January 17). State Department ‘deeply disturbed’ by latest Chechnya anti-LGBTI crackdown. Washington Blade. Available online

at: https://www.washingtonblade.com/2019/01/17/state-department-deeply-disturbed-by-latest-chechnya-anti-lgbti-crackdown/

111. Associated Press and Sopelsa B (2017, December 20). U.S slaps Chechen leaders with sanctions over human rights abuses. NBC News.

https://www.nbcnews.com/feature/nbc-out/u-s-slaps-chechen-leaders-sanctions-over-human-rights-abuses-n831546

112. Lavers M. (2017, June 2). State Dept. allows embassies, consulates to acknowledge Pride month. Washington Blade. Available online at:

https://www.washingtonblade.com/2017/06/02/state-department-allow-embassies-consulates-acknowledge-pride-month/

113. Londono E. (2019, June 9). Pride Flags and Foreign Policy: U.S. Diplomats See Shift on Gay Rights. The New York Times.

114. Ibid.

115. Lavers MK (2017, November 30). Randy Berry is no longer US LGBTI envoy. Washington Blade. https://www.washingtonblade.com/2017/11/30/

randy-berry-no-longer-us-lgbti-envoy/

116. Spinelli, 2019.

22 23

During Trump’s second year in oce, presidential advisor Mick Mulvaney, who was then the

Director of the Oce of Management and Budget as well as the Consumer Financial Pro-

tection Bureau, defended anti-LGBT actions by other nations at the Ministerial to Advance

Religious Freedom conference.

117

The religious freedom initiative was created in 2018 by Sec-

retary of State Mike Pompeo to promote religious freedoms worldwide.

118

During his remarks,

Mulvaney described eorts to support LGBT advocacy in African nations as a form of “reli-

gious persecution.”

In June 2019, dozens of global LGBT rights activists sent a letter to Secretary of State Mike

Pompeo asserting that “the State department, under your leadership and that of President

Trump, has abandoned full support of LGBTQI people within its global human rights policy.”

119

The letter cited the refusal to ﬂy the rainbow pride ﬂags, as well as the State Department’s

refusal for the ﬁrst time in many years to issue a statement on the International Day Against

Homophobia, Transphobia, and Biphobia.

120

In November 2019, the U.S Ambassador to Zambia criticized the Zambian government for

sentencing a gay male couple to 15 years in prison for violating a British colonial-era crim-

inalization law. U.S. Ambassador Daniel Foote said he was “horriﬁed” by the sentence. In

response, Zambia President Edgar Lungu ordered Foote to leave Zambia and demanded

that President Trump reprimand Foote.

121

As of this writing, the Trump Administration has not

commented publicly on the controversy, despite Foote’s having received threats to his life

from Zambians over his pro-LGBT remarks considered credible enough that Foote was forced

to cancel public appearances for World AIDS Day.

122

Just before Christmas 2019, the U.S.

State Department recalled Ambassador Daniel Foote from Zambia following his criticism of

the Zambian government for sentencing a gay couple to 15 years in prison.

123

The May 2019 ﬁnal “Conscience Rule” described in the Religious Refusal Policy section of this

report also threatens HIV prevention eorts for gay and bisexual men and transgender women

in Africa and elsewhere across the globe that have been supported by the US President’s Emer-

gency Plan for AIDS Relief over the past decade. The ﬁnal rule states that funding recipients

cannot be required to “endorse, utilize, make a referral to, become integrated with, or otherwise

participate in any program or activity to which the organization has a religious or moral objec-

tion.”

124

This could mean that organizations working in the global south could refuse to work

with LGBT people, sex workers, people who use drugs, prisoners, migrant workers, and others

who are at elevated risk of HIV infection and already extremely marginalized and vulnerable.

117. Vogt B. (2018, July 30). Trump administration will not “press” African nations to repeal anti-gay laws. Metro Weekly. Available online at:

https://www.metroweekly.com/2018/07/trump-administration-will-not-press-african-nations-to-repeal-anti-gay-laws/

118. Online notice. United States Commission on International Religious Freedom. Ministerial to Advance Religious Freedom. Available online at:

https://www.uscirf.gov/ministerial-advance-religious-freedom

119. Bromley M, Mitchum P, Bank R, et al. (2019, June 20). To The Honorable Mike Pompeo, Secretary of State. Public Letter. Available online at:

https://www.washingtonblade.com/content/ﬁles/2019/06/SecPompeoJune2019-1.pdf

120. Ibid.

121. Riley J. (2019, December 3). Zambia demands Trump reprimand ambassador who criticized jailing gay men. Metro Weekly. Available online at:

https://www.metroweekly.com/2019/12/zambian-authorities-demand-trump-reprimand-ambassador-who-criticized-jailing-gay-men/

122. Press Statement from U.S. Ambassador Daniel L. Foote available online at: https://zm.usembassy.gov/press-statement-from-u-s-ambassador-dan-

iel-l-foote/

123. Conte M and Atwood K. (2019, December 25). US ambassador recalled after dispute with Zambian government over gay rights and corruption.

CNN. Available online at: https://www.cnn.com/2019/12/25/politics/daniel-foote-zambia-ambassador/index.html

124. Department of Health and Human Services. (2019, May 21). Protecting Statutory Conscience Rights in Health Care, Delegations of Au-

thority. Final Rule. Available online at: https://www.federalregister.gov/documents/2019/05/21/2019-09667/protecting-statutory-con-

science-rights-in-health-care-delegations-of-authority

24 25

TRANSGENDER MILITARY BAN

In July 2017, President Trump issued a series of tweets announcing a ban on transgender

people serving in the U.S. military based on “tremendous medical costs and disruption” that

he believed transgender troops would impose.

125

In response to public outcry and several

legal challenges, the Trump Administration revised the policy to allow transgender people

to serve so long as they did not undergo medical transition, were already actively serving

in the military, and served in accordance with their biological sex rather than their gender

identity.

126

In 2018, the proposed ban faced several legal battles and was blocked by lower

courts.

127

In January 2019, the D.C. Court of Appeals as well as the Supreme Court of the

United States ruled in favor of the ban, lifting injunctions imposed by lower courts.

128,129

April 12, 2019, this ban formally went into eect, putting an estimated 13,600 transgender

individuals at risk of being discharged.

130

125. Cahill S, Geen S, Wang T. (2018). One year in, Trump Administration amasses striking anti-LGBT record. Boston, MA: The Fenway Institute.

Available online at: https://fenwayhealth.org/wp-content/uploads/The-Fenway-Institute-Trump-Pence-Administration-One-Year-Report.pdf

126. Cahill S, Wang T, Jenkins B. (2019). Trump Administration continued to advance discriminatory policies and practices against LGBT people and

people living with HIV in 2018. Boston, MA: The Fenway Institute. Available online at: https://fenwayhealth.org/wp-content/uploads/Trump-Ad-

ministration-Impact-on-LGBTs-Year-Two-Brief_Web.pdf

127. Ibid.

128. Liptak A. (2019, January 22). Supreme Court Revives Transgender Ban for Military Service. The New York Times. Available online at:

https://www.nytimes.com/2019/01/22/us/politics/transgender-ban-military-supreme-court.html

129. Associated Press. (2019, January 6). Appeals Court Sides with Trump in Transgender Military Case. Associated Press. Available online at:

https://www.wric.com/news/politics/appeals-court-sides-with-trump-in-transgender-military-case/

130. Palm Center. (2019, April 12). Palm Center Corrects Misleading NPR Story on Trump Transgender Ban. Palm Center. Available online at:

https://www.palmcenter.org/palm-center-corrects-misleading-npr-story-on-trump-transgender-ban/

24 25

CONCLUSION

While there were some positive developments—including the launch of the End the HIV

Epidemic Initiative and opposition to other countries’ laws criminalizing homosexuality—

overall the Trump Administration continued to advance policies that undermine the ability

of LGBT people to access health care, earn a living, and access basic human services. Many

of these actions are already having direct negative and quantiﬁable impact on the health,

well-being, and safety of LGBT people in America and those seeking asylum from oppres-

sive, anti-LGBT cultures and regimes.

Some of the actions that the Trump Administration has taken will have predictable and

quantiﬁable repercussions, such as the loss of health insurance and access to health care

due to the continued undermining of the ACA and its nondiscrimination provisions. How-

ever, it is more dicult to predict the full extent of harm of many of the Trump Administra-

tion’s anti-LGBT actions, such as its support of religious refusal legislation, narrow reinter-

pretation of sex discrimination, appointment of anti-LGBT justices, and other attempts to

rollback LGBT rights and protections that have taken decades to pass.

Taken together, these actions are almost certainly worsening the health of LGBTQIA+ peo-

ple generally. It is well-established that discrimination itself—even if it does not limit access

to health care—can negatively impact the physical and psychological health of those expe-

riencing discrimination. Conversely, laws that protect the rights of LGBT people have been

found to have beneﬁcial impacts on health. A study published in the American Journal of

Public Health found that in the 12-month period after marriage equality was enacted in

Massachusetts, gay and bisexual male patients at an urban health center experienced a

13 percent drop in medical care visits, and a 13 percent drop in appointments related to

mental health.

131

Despite President Trump’s 2016 campaign promise to support the LGBTQIA+ community,

and despite the Log Cabin Republicans’ controversial decision to endorse Trump for reelec-

tion,

132

the Trump Administration continues to promote anti-LGBTQIA+ policies in the U.S.

and abroad that harm LGBTQIA+ peoples’ health, well-being, and safety.

131. Hatzenbuehler M, O'Cleirigh C, et al. (2012). Eect of Same-Sex Marriage Laws on Health Care Use and Expenditures in Sexual Minority Men: A

Quasi-Natural Experiment. American Journal of Public Health. https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2011.300382

132. Signorile, 2019.

26 27

ACKNOWLEDGMENTS

AUTHORS:

Connor Simono

Social Work Intern

The Fenway Institute

Tim Wang, MPH

Senior Policy Analyst

The Fenway Institute

Sean Cahill, PhD

Director of Health Policy Research

The Fenway Institute

REVIEWERS:

Kenneth Mayer, MD, FACP

Co-chair and Medical Research Director, The Fenway Institute

Director of HIV Prevention Research, Beth Israel Deaconess Medical Center

Professor of Medicine, Harvard Medical School

Jennifer Potter, MD

Co-Chair and LGBT Population Health Program Director

The Fenway Institute

Carl Sciortino, MPA

Vice President of Government and Community Relations

Fenway Health

DESIGNER:

Erica Sawyer

Fenway Health

28 PB

TFIP-35

TEL 617.927.6400

WEB thefenwayinstitute.org EMAIL information@fenwayhealth.org

1340 Boylston Street, Boston, MA 02215