Trump Administration continued to advance discriminatory policies

PB 1

Trump Administration continued to

advance discriminatory policies and

practices against LGBT people and

people living with HIV in 2018

By Sean Cahill, Tim Wang and Bishar Jenkins

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INTRODUCTION

In 2018 the Trump Administration continued to advance discriminatory policies that under-

mine the ability of LGBT people to access health care and other services. It also restrict-

ed the right of transgender people to serve in the military, and the right of people living

with HIV to serve in the Peace Corps. The Trump Administration promoted religion-based

discrimination against LGBT people, eliminated critical nondiscrimination protections, and

appointed federal judges who oppose LGBT equality. The administration’s frequent alia-

tions with anti-LGBT advocacy organizations, such as Focus on the Family and the Family

Research Council, clearly display hostility toward LGBT equality.

Despite this bleak picture, there were some potentially hopeful developments, such as the

Food and Drug Administration’s regulation of e-cigarettes, which LGBT people use at a dis-

proportionate rate, and indications that the federal government will develop a new national

HIV/AIDS strategy to take eect in 2020, and reconvene the President’s Advisory Council

on HIV/AIDS.

During its ﬁrst year in oce, as we documented in a January 2018 report,

the Trump

Administration compiled a strikingly anti-LGBT record of executive branch actions that

undermined the health and well-being of LGBT people. These included rescinding guidance

to schools that discrimination based on gender identity violates Title IX of the Education

Amendments of 1972, reversing Department of Justice policy interpreting Title VII of the

In 2018 the Trump Administration restricted

the right of transgender people to serve in the

military, and the right of people living with HIV

to serve in the Peace Corps.

Cahill S, Geen S, Wang T (2018, January 16). One year in, Trump Administration amasses striking anti-LGBT record. Boston: The Fenway Institute.

4 5

Civil Rights Act of 1964 to prohibit gender identity discrimination, reversing progress on

sexual orientation and gender identity (SOGI) data collection in federal surveys, weaken-

ing the Aordable Care Act, and failing to

promote LGBT equality as a key goal of U.S.

foreign policy.

Overall in its second year in oce, the Trump

Administration continued building upon the

striking record against LGBT rights that it

amassed in its ﬁrst year. This assault on the

human rights of LGBT people and people

living with HIV (PLWH) is part of a broader

attack on racial, religious, and gender equal-

ity, and on key institutions of our democracy,

such as an independent, free press. Despite

candidate Trump’s claim that he would advo-

cate for LGBT Americans, the Trump Admin-

istration continues to expand discriminatory

policies toward LGBT people.

I. ROLLBACK OF LGBT NONDISCRIMINATION

REGULATIONS

Trump Administration ocials took a number of steps in 2018 that undermine nondiscrimi-

nation protections for LGBT people. In February 2018, the Department of Education de-

cided not to hear complaints regarding transgender individuals’ access to restrooms that

correspond to their gender identity. Further, the Department has refused to issue rulings

on complaints on that issue, signaling that it will not advocate for transgender youth in

schools.

This builds on anti-transgender actions taken in 2017. In February 2017, the U.S.

Department of Justice and the Department of Education notiﬁed the U.S. Supreme Court

that they were ordering schools across the U.S. to ignore 2016 guidance issued by President

Obama’s Department of Justice and Department of Education stating that discrimination on

the basis of gender identity in schools is prohibited under Title IX.

3,4

Despite this bleak picture,

there were some potentially

hopeful developments, such

as the Food and Drug Admin-

istration’s regulation of e-ciga-

rettes, which LGBT people use

at a disproportionate rate.

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

www.npr.org/sections/ed/2018/02/12/585181704/the-education-department-says-it-wont-act-on-transgender-student-bathroom-access

Somashekar S, Brown E, Vucci E. (2017). Trump Administration rolls back protections for transgender students. Washington Post. https://www.

washingtonpost.com/local/education/trump-administration-rolls-back-protections-for-transgender-students/2017/02/22/550a83b4-f913-11e6-

bf01-d47f8cf9b643_story.html?utm_term=.11ef42f0311c

Department of Justice press release (2016, May 13). U.S. Departments of Justice and Education release joint guidance to help schools ensure the civil

rights of transgender students. https://www.justice.gov/opa/pr/us-departments-justice-and-education-release-joint-guidance-help-schools-ensure-

civil-rights

4 5

In March 2018, Secretary of Housing and Urban Development (HUD) Ben Carson altered the

Department’s mission statement to eliminate references to inclusion and protection from dis-

criminatory housing practices. This development is especially concerning, as HUD was formed

to address systemic racial discrimination in housing and lack of access to quality housing.

This

approach also diverges from the Obama Administration’s inclusive approach to expanding ac-

cess and opportunity to housing. In 2012, the Obama Administration released an Equal Access

Rule, which said that “the federal Department of Housing and Urban Development guarantees

access to its programs regardless of ‘actual or perceived sexual orientation, gender identity or

marital status (Equal Access Rule, 24 CFR 5.105(a)(2)).’”

In an October 2018 brief to the U.S. Supreme Court, the Department of Justice argued that

gender identity is outside of the scope of Title VII of the Civil Rights Act of 1964, which

prohibits discrimination on the basis of “race, color, religion, sex and national origin.”

This

contradicts six federal appellate court rulings as of

October 2018 that gender identity discrimination is a

form of sex discrimination and therefore prohibited

under Title VII.

In October 2018, the Department of Health and Hu-

man Services, in collaboration with the Department

of Justice and the Department of Education, was re-

ported to have drafted a memorandum which sought

to redeﬁne sex as ﬁxed and unalterable under Title

IX. The only recognized sexes would be male and

female. This narrow deﬁnition would ignore the reality

and existence of the estimated 1.4 million transgen-

der Americans living across the U.S.,

as well as the

up to 1.7% of the population with variations in their sex characteristics (known as intersex).

The memorandum encouraged departments and agencies throughout the federal government

to adopt a similar approach by stating, “[gender should be determined] on a biological basis

that is clear, grounded in science, objective and administrable.”

However, this narrow deﬁnition

The Trump Administration

has sought to redeﬁne sex

as ﬁxed and unalterable

under Title IX.

Terkel A. (2018, March 6). Ben Carson Removes Anti-Discrimination Language from HUD Mission Statement. Hungton Post. https://www.hung-

tonpost.com/entry/hud-mission-statement_us_5a9f5db0e4b002df2c5ec617

Sullivan B. (2016, September 20). HUD ISSUES FINAL RULE TO ENSURE EQUAL ACCESS TO HOUSING AND SERVICES REGARDLESS OF

GENDER IDENTITY. U.S. Department of Housing and Urban Development. https://archives.hud.gov/news/2016/pr16-137.cfm

Moreau J. (2018, October 25). Transgender workers not protected by civil rights law, DOJ tells Supreme Court. NBC News. https://www.nbcnews.

com/feature/nbc-out/transgender-workers-not-protected-civil-rights-law-doj-tells-supreme-n924491

Ibid.

Flores, A., Herman, J., Gates, G., and Brown, T. (June 2016). How Many Adults Identify As Transgender In The United States. The Williams Institute.

https://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf

Melanie Blackless et al. (2000). How Sexually Dimorphic Are We? Review and Synthesis, 12 American Journal of Human Biology 151.

Green E, Benner K, Pear R. (2018, October 21). Transgender Could Be Deﬁned Out of Existence under Trump Administration. New York TImes.

https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-Administration-sex-deﬁnition.html

6 7

is not grounded in science at all, as professional medical and health organizations—such

as the American Medical Association

and the American Psychiatric Association

—have

for years conﬁrmed that there is a complex medical spectrum of sex that includes genetic

markers, internal and external anatomy, and gender identity, which may itself have a biolog-

ical component. Not only is this memo at odds with established medical research, it could

also have wide-reaching public health consequences by weakening nondiscrimination pro-

tections for transgender people in health care, education, and elsewhere. This is especially

concerning, as discrimination against transgender people is already common, and can act

as a barrier to seeking necessary care.

II. SEXUAL ORIENTATION AND GENDER IDENTITY

DATA COLLECTION

In 2018, the Trump Administration continued to remove sexual orientation and gender

identity (SOGI) questions items from federal surveys. The Bureau of Justice Statistics (BJS)

released a proposal to remove SOGI questions from the National Crime Victimization Survey

(NCVS) for 16- and 17-year old respondents. BJS said it was removing the questions be-

cause they are too “sensitive” for adolescents to consider.

The NCVS is one of the coun-

try’s main sources of data on criminal victimization, including information on hate violence,

sexual assault, intimate partner violence, and experience with the criminal justice system.

LGBT people—and especially black gay and bisexual men and transgender women—are of-

ten the victims of bias-motivated hate violence. In fact, on a per capita basis, LGBT people

are more likely to be the targets of hate crimes than any other group in America.

In 2014,

one ﬁfth (20.4%) of reported hate crimes were perpetrated based on the victim’s sexual

orientation or gender identity.

According to data from the 2015 Youth Risk Behavior Survey, 10% of LGB youth nationally

reported being threatened or injured with a weapon on school property, compared with

American Medical Association. Medical Spectrum of Gender D-295.312.https://policysearch.ama-assn.org/policyﬁnder/detail/spectrum%20gen-

der?uri=%2FAMADoc%2Fdirectives.xml-D-295.312.xml.

American Psychiatric Association. Gender dysphoria. DSM-5. Arlington, VA, 2013. http://www.dsm5.org/documents/gender%20dysphoria%20

fact%20sheet.pdf

Reisner SL, White Hughto JM, Dunham E, Heﬂin K, Begenyi JB, Coey-Esquivel J, Cahill S (2015, Sep). Legal protections in public accommodations

settings: A critical public health issue for transgender and gender nonconforming people. Milbank Quarterly. 93(3):484-515.

Bureau of Justice Statistics, Department of Justice. (April 11, 2018). “Agency Information Collection Activities: Proposed eCollection eComments

Requested; Revision of a Currently Approved Collection; Comments Requested: National Crime Victimization Survey (NCVS).” Document Citation

83 FR 15634. https://www.federalregister.gov/documents/2018/04/11/2018-07448/agency-information-collection-activities-proposed-ecollec-

tion-ecomments-requested-revision-of-a

Park H, Mykhyalyshyn I. (2016, June 16). L.G.B.T. People Are More Likely to Be Targets of Hate Crimes Than Any Other Minority Group. The New

York Times.

Federal Bureau of Investigation. (2014). Uniform Crime Reports: 2014 Hate Crime Statistics. Available at https://www.i.gov/about-us/cjis/ucr/

hate-crime/2014

6 7

5.1% of heterosexual youth. According to

GLSEN’s 2015 National School Climate Sur-

vey, 27.0% of LGBT students reported being

physically harassed in the past year based

on sexual orientation, and 20.3% reported

being physically harassed based on their

gender expression. Because of harassment

in schools, compounded with other factors

such as family rejection and homelessness,

LGBT youth are particularly vulnerable to

interaction with the criminal justice system.

Removing the SOGI questions from the

NCVS for 16- and 17-year old respondents

will impair attempts to better understand

and address the pervasive violence and

victimization disproportionately aecting

LGBT youth. As to the claim that SOGI are

too sensitive to ask adolescents, most states now ask high school students about sexual

orientation on the Youth Risk Behavior Survey,

and a growing number of states ask about

transgender status.

Background

For decades, researchers and activists have promoted adding sexual orientation and gender

identity (SOGI) questions to federal surveys to capture health and demographic data about

LGBT people. Under the Obama Administration the number of federal surveys and studies

measuring sexual orientation increased to 12; seven of these also measured gender identity

or transgender status.

In 2017, the Trump Administration halted the forward momentum

on adding SOGI questions to surveys by proposing the elimination of SOGI questions from

the National Survey of Older Americans Act Participants (NSOAAP) and reversing plans to

add SOGI questions to the Administration for Community Living’s (ACL) Annual Program

Performance Report for Centers for Independent Living in 2017.

While the sexual orien-

tation question was eventually added back onto the NSOAAP, it continues to exclude a

transgender status question that was asked previously. The ACL survey, which could provide

important data on LGBT people living with disabilities, has not added the SOGI questions as

originally planned for 2017.

In 2018 the Bureau of Justice

Statistics released a proposal

to remove SOGI questions

from the National Crime

Victimization Survey (NCVS)

for 16- and 17-year old

respondents.

Kann L., McManus T., Harris W.A., et al. (2018). Youth Risk Behavior Survey—United States, 2017. MMWR Surveill Summ;67(No. SS-8):1-479. https://

www.cdc.gov/healthyyouth/data/yrbs/pdf/2017/ss6708.pdf

Federal Interagency Working Group on Improving Measurement of Sexual Orientation and Gender Identity in Federal Surveys. (2016, Au-

gust). Current measures of sexual orientation and gender identity in federal surveys. https://s3.amazonaws.com/sitesusa/wp-content/uploads/

sites/242/2014/04/WorkingGroupPaper1_CurrentMeasures_08-16.pdf

Singh S, Durso LE, Tax A. (2017). The Trump Administration is rolling back data collection on LGBT older adults. Center for American Progress.

https://www.americanprogress.org/issues/lgbt/news/2017/03/20/428623/trump-administration-rolling-back-data-collection-lgbt-older-adults/

8 9

III. PREVENTING TRANSGENDER PEOPLE

FROM SERVING IN THE MILITARY

The Trump Administration has opposed legal equality for transgender people on a number

of fronts. In July 2017, President Trump issued a series of tweets announcing a ban on trans-

gender people serving in the U.S. military based on “tremendous medical costs and disrup-

tion” that he believed transgender troops would impose.

Several attorneys representing

active-duty service members moved to block Trump’s transgender military ban. In response,

Secretary of Defense General James Mattis revised the policy so that it would prevent trans-

gender people from serving if they sought to undergo medical transition, but would allow

transgender personnel already serving to continue serving. It would also technically allow

transgender troops to serve, but they would have to serve in accordance with their biologi-

cal sex rather than their gender identity. This clearly still presented unnecessary roadblocks

to allowing transgender people to serve openly in the military.

The Trump Administration has attempted to imple-

ment its transgender military ban multiple times

over the past two years through the issuance of

rules and regulations within the U.S. Departments

of Defense and the Department of Homeland

Security. However, the military ban continued to be

blocked by federal courts. As a result, the Trump

Administration is now attempting to circumvent

the typical process, by suggesting that the con-

servative-leaning U.S. Supreme Court abandon

its custom and rule on a transgender military ban

before all regional circuit courts render a decision

on the matter.

This approach demonstrates the

Administration’s aversion to proper governmental checks and balances, but it also reveals

the Administration’s eagerness to eectuate a discriminatory policy that would prevent

transgender individuals from serving their country. As we went to press, the U.S. Court of

Appeals for the D.C. Circuit sided with the Trump Administration and the Pentagon in sup-

port of the transgender military ban.

23.1

The transgender military

ban continued to be

blocked by federal courts.

Cahill S, Geen S, Wang T (2018, January 16). One year in, Trump Administration amasses striking anti-LGBT record. Boston: The Fenway Institute, 7.

Marimow A. (December 10, 2018). “Trump administration: It’s ‘extraordinary’ judges won’t let military restrict transgender troops.” The Washington

Post. https://www.washingtonpost.com/local/legal-issues/president-trumps-transgender-military-ban-is-back-in-court/2018/12/09/56a0c13a-f965-

11e8-8c9a-860ce2a8148f_story.html?utm_term=.69317f5fc7c7

Barnes R. (2018, November 23). Trump Administration asks Supreme Court to immediately take up military transgender ban. The Washington Post.

https://www.washingtonpost.com/politics/courts_law/trump-Administration-asks-supreme-court-to-immediately-take-up-transgender-military-

ban/2018/11/23/6cf11b32-ef39-11e8-8679-934a2b33be52_story.html?utm_term=.b8e2e5c3709e

23.1

AP Sta. (2019, Jan. 6). “Appeals court sides with Trump in transgender military case.” Associated Press. https://www.wric.com/news/politics/ap-

peals-court-sides-with-trump-in-transgender-military-case-1/1688792700

8 9

In an eort to garner support for his proposed military ban after several court injunctions, it

was revealed in reports that President Trump enlisted the assistance of the Family Research

Council, an evangelical organization actively opposed to LGBT rights, to help draft the new

policy to implement the transgender military ban.

Employing the advice of the Family

Research Council, the Trump Administration attempted to frame the transgender ban as a

military readiness issue, when the evidence proves that transgender individuals are able to

carry out their ocial duties with the same eectiveness as their cisgender counterparts

and that there are no medical impediments to their service in the military.

IV. JUDICIAL APPOINTEES WITH PROBLEMATIC

RECORDS ON LGBT EQUALITY

In July 2018, President Trump appointed U.S. Court of Appeals Circuit Court Judge Brett

Kavanaugh to the vacant seat left by retiring Justice Anthony Kennedy. Kennedy was a

supporter of LGBT equality and privacy going back to the landmark Romer v. Evans case,

which found that an anti-gay Colorado ballot referendum violated the “equal protection

of the laws” guaranteed by the Fourteenth Amendment to the U.S. Constitution.

Judge

Kavanaugh’s record on LGBT rights and his comments during his 2006 and 2018 conﬁrma-

tion hearings are concerning for LGBT people. During his U.S. Supreme Court conﬁrmation

hearing, Kavanaugh was asked by Senator Kamala Harris if he believed that the Supreme

Court’s landmark decision in Obergefell v. Hodges, which legalized same-sex marriage in all

50 states, was correctly decided or not. Kavanaugh repeatedly refused to answer Senator

Harris’s question and instead quoted Justice Kennedy’s opinion in the Masterpiece Cake

Shop case, which found that a wedding cake baker could refuse to serve a gay couple.

Kavanaugh’s unwillingness to fully elucidate his opinion on LGBT rights or arm the funda-

mental equality of LGBT people is a source of concern.

Stern M. (2018, March 24). “Trump’s Trans Troops Ban Will Never Take Eect.” Slate. https://slate.com/news-and-politics/2018/03/trumps-new-

trans-troops-ban-is-still-unconstitutional.html

Schaefer A. (2016, June). Impact of Transgender Personnel on Readiness and Healthcare Costs in the U.S. Military Likely to Be Small. RAND Corpo-

ration. https://www.rand.org/news/press/2016/06/30.html

Romer v. Evans, 517 U.S. 620 (1996

Scott E. (2018, September 7). “In Kavanaugh’s non-answer on same-sex marriage, many heard a troubling response.” The Washington Post.

https://www.washingtonpost.com/politics/2018/09/07/kavanaughs-non-answer-same-sex-marriage-many-heard-troubling-answer/?utm_ter-

m=.2ea4b10629f3

10 11

From June 2003 to May 2006, Kavanaugh served as Sta Secretary to President George

W. Bush. During this time, President Bush spoke out frequently against same-sex marriage,

which became legal in Canada in mid-2003 and in Massachusetts in late 2003.

In 2004, 13

states considered and passed anti-gay ballot measures banning same-sex marriage. This was

widely viewed as a factor in the election of Bush and Dick Cheney in 2004.

President Bush

also promoted a federal anti-gay marriage amendment at this time. During Kavanaugh’s

2006 conﬁrmation to the U.S. Court of Appeals, in response to a question regarding expand-

ing the deﬁnition of marriage through judicial or legislative means, Kavanaugh remarked that

“some of the worst moments in the Supreme Court history have been moments of judicial

activism, where courts have imposed their own policy preferences.”

This echoed President

Bush’s statement in 2004, when he endorsed

the federal anti-gay marriage amendment, in

which he denounced “activist judges…[who]

have made an aggressive attempt to rede-

ﬁne marriage.”

Of course, religious right and

anti-gay activists and politicians, such as the

American Center for Law and Justice, have no

problem challenging pro-gay family recognition

policies in the courts,

leading to the conclu-

sion that “activist judges” are simply those

whose rulings they don’t agree with.

The conﬁrmation of Brett Kavanaugh as a U.S. Supreme Court Justice heightens concerns

among LGBT people that their civil rights will not be protected under the much more con-

servative Supreme Court. Kavanuagh’s conﬁrmation, on top of that of Justice Gorsuch in

2017, raises concerns that pro-LGBT court victories, such as the 5-4 Windsor and Obergefell

decisions, could potentially be reversed.

“Activist judges” are simply

those whose rulings anti-gay

activists don’t agree with.

Abramson, A. (2018, September 4). Democrats put Kavanaugh’s time in the Bush White House in the spotlight. Time. http://time.com/5386461/

brett-kavanaugh-conﬁrmation-hearings-bush/

Cahill, S. (2005). The Symbolic Centrality of Gay Marriage in the 2004 Presidential Election. In The Future of Gay Rights in America. Hirsch, H.

(Ed.). New York: Routledge. 47-79.

Peltz, J, Sherman M. (2018, July 19). LGBT advocates fear Kavanaugh’s votes on gay rights issues. Associated Press. https://apnews.com/

47537133ca5042f88e5f55df9a94ec3f

The White House, Oce of the Press Secretary (2004, February 24). Remarks by the President. Cited in Cahill S (2004). Same-Sex Marriage in the

United States: Focus on the Facts. NY: Lexington, 90.

Cahill S & Tobias S (2007). Policy Issues Aecting Lesbian, Gay, Bisexual and Transgender Families. Ann Arbor: University of Michigan Press, 105-106.

10 11

In April 2018, the U.S. Senate conﬁrmed Trump nominee Kyle Duncan for an appointment to

the 5th U.S. Court of Appeals based in Louisiana. LGBT advocacy groups opposed his nom-

ination. Duncan ﬁled an amicus brief to the US Supreme Court during the historic Oberge-

fell v. Hodges case, which struck down state anti-same-sex marriage laws. Duncan claimed

that a U.S. Supreme Court decision arming marriage equality for same-sex couples would

“damage” the political and social institutions of the country.

Further, he represented a

Virginia school board in its lawsuit against a transgender high school student who sought to

use the restroom that aligned with their gender identity.

According to Lambda Legal, President Trump has appointed numerous anti-LGBT judges to

the federal courts: “In nomination after nomination, his picks for federal courts are hostile

to civil rights in general and speciﬁcally hostile to LGBTQ rights…many of these nominees

(1 in 3) have deep histories of anti-LGBTQ advocacy…”

We know that many of President

Trump’s recent judicial nominees oppose legal equality for LGBT people, and worry that

the others will oppose LGBT equality when cases come before them. Their conﬁrmation to

the judiciary threatens the progress that LGBT people have achieved over the past several

decades.

V. FOREIGN POLICY

The federal government has taken a number of steps in 2018 that undermine the rights of

LGBT people and people living with HIV at home and abroad. The Trump Administration has

also undermined vulnerable LGBT communities in the global South by failing to champion

LGBT equality and challenge anti-LGBT persecution, often by governments.

In 2018, the Peace Corps dismissed volunteers who tested positive for HIV. Peace Corps

volunteer Romany Tin was issued a “medical separation” after being diagnosed with HIV

during his term of duty in Cambodia.

This stigmatizing and insensitive policy is alarming,

as it has been applied to individuals who are physically ﬁt to serve and have achieved viral

suppression. Further, the Peace Corps has refused to disseminate pre-exposure prophylaxis

for HIV prevention (PrEP) to at-risk volunteers. In one case, a volunteer tested HIV positive,

after being denied PrEP.

These developments demonstrate a lack of sensitivity and under-

standing of HIV, and perpetuate stigma around HIV. This is a dangerous message to send,

especially as many of these volunteers work in countries where HIV and homosexuality are

Sopelsa, B. (2018, April 25). Senate conﬁrms anti LGBTQ-rights opponent to judgeship. NBC News. https://www.nbcnews.com/feature/nbc-out/sen-

ate-conﬁrms-lgbtq-rights-opponent-judgeship-n868996

Ibid.

Lambda Legal (Last updated 10/16/2018). Stacking the courts: The ﬁght against Trump’s extremist judicial nominees. https://www.lambdalegal.org/

judicial-nominees

Straube, T. (2018, March 12). Peace Corps Volunteer Claims He Was Sent Home After Contracting HIV. Poz. https://www.poz.com/article/peace-corps-

volunteer-claims-sent-home-contracting-hiv

Ibid.

12 13

already highly stigmatized and criminalized. This discriminatory and counterproductive

Peace Corps policy could send a message condoning the stigmatizing of HIV and same-sex

behavior in countries that already experience high rates of HIV stigma and that are already

hostile to LGBT people.

In October 2018, the Trump Administration announced that it will no longer issue G-4 visas

to same-sex domestic partners of foreign diplomats or employees of international organi-

zations—such as the World Bank or the United Nations—who are working and living in the

United States. The G-4 visa is typically oered to family members and dependents of for-

eign diplomats and employees of international organizations. Under the Obama Administra-

tion, G-4s were issued to same-sex partners

and legally married same-sex couples. Under

the Trump Administration’s new rules, only

same-sex partners who are legally married

will continue to be eligible for the visa, and

foreign couples will need to present proof of

marriage to obtain or renew the visas. If proof

of marriage is not submitted, the same-sex

partner will be forced to leave the United

States. This is an especially problematic and

discriminatory rule given that only a small

number of countries around the world (27)

have legalized same-sex marriage.

These

countries are in the Americas and Western

Europe, and also include South Africa, Aus-

tralia, and New Zealand. Other than South

Africa, no country in Africa, Asia, and Eastern

Europe recognizes marriage between same-

sex couples.

State Department ocials have noted that they can work on a case-by-case

basis for legal workarounds if the foreign couple is from a country that has not legalized

same-sex marriage. Even so, this new rule presents needless barriers for foreign same-sex

couples working for international organizations to obtain visas to work in the United States.

The policy also sends a discriminatory message.

Contrary to the Obama Administration, which promoted LGBT equality as a key goal of U.S.

foreign policy,

the Trump Administration has largely dropped LGBT equality, and human

rights more broadly, from its foreign policy priorities. The Trump Administration’s lack of

The Trump Administration

announced that it will no

longer issue G-4 visas to

same-sex domestic partners

of foreign diplomats or

employees of international

organizations.

Tang E (2018, June 22). Here are the 27 countries where same-sex marriage is ocially legal. ABC News. https://abcnews.go.com/GMA/Cul-

ture/27-countries-sex-marriage-ocially-legal/story?id=56041136

Ibid.

Wong E. and Schwirtz M. (2018, October 2). “U.S. Bans Diplomatic Visas for Foreign Same-Sex Domestic Partners.” The New York Times. https://www.

nytimes.com/2018/10/02/us/politics/visa-ban-same-sex-partners-diplomats.html

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

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

12 13

leadership on LGBT rights abroad has neg-

ative ramiﬁcations for LGBT people around

the world, especially those in sub-Saharan

Africa, majority Muslim and Arab countries,

and the former Soviet bloc in Eastern Europe

and Central Asia. It also poses a threat to

American citizens living abroad, for foreign

diplomats within the United States, and for

foreigners who beneﬁt from U.S. foreign aid. It

is likely no accident that in the past two years

a number of governments have unleashed

campaigns of persecution against gay men or

LGBT people, including Tanzania,

Chechnya,

and Indonesia.

In 2018 the wave of anti-gay persecution worsened in Tanzania, with the government of Dar

es Salaam launching a task force to identify and round up gay people.

“They are raiding

houses. It is a horrible thing,” one activist told The Guardian. “It is just going to get worse.

So many people are leaving the city, running away. They are targeting the activists, saying

we are promoting homosexuality. We have to hide.” Another activist said that it is “open

season on gay people” and reported lists of names being published on social media

to “out people.”

The Trump Administration

has largely dropped LGBT

equality, and human rights

more broadly, from its foreign

policy priorities.

Gaey, Conor. (2017, June 27). Gay in Africa: “Even cows” disapprove of homosexuality, says Tanzanian president amid crackdown. Newsweek. https://

www.nytimes.com/aponline/2017/12/08/world/africa/ap-af-tanzania-gays.html

Kramer, Andrew E. (2017, April 1). Chechen authorities arresting and killing gay men, Russian paper says. New York Times. https://www.nytimes.

com/2017/04/01/world/europe/chechen-authorities-arresting-and-killing-gay-men-russian-paper-says.html?mtrref=www.google.com

Hutton, Jerey. (2017, December 20). Indonesia’s crackdown on gay men moves from bars into the home. New York Times. https://www.nytimes.

com/2017/12/20/world/asia/indonesia-gay-raids.html?mtrref=www.google.com

Burke J (2018, November 5). Hundreds in hiding as Tanzania launches anti-gay crackdown. The Guardian. https://www.theguardian.com/world/2018/

nov/05/tanzania-gay-people-in-hiding-lgbt-activists-crackdown

Ibid.

14 15

On January 1, Secretary of State Mike Pompeo attended the inauguration of Brazil’s new

president Jair Bolsonaro. Bolsonaro, a former Army captain who long served as a con-

gressman but operated at Brazil’s political margins because of his far right political views,

campaigned on a racist, sexist, homophobic platform.

46.1

Bolsonaro has in the past said he

would rather die than have a gay son, advocated that parents should “beat the gay” out of

their children, and in 2013 proclaimed, “Yes I am homophobic–and very proud of it.”

46.2

Bol-

sonaro has already inspired violence against the LGBT community in Brazil. In October 2018,

a transgender woman and a drag queen were both murdered, with the attackers in both

incidents invoking Bolsonaro’s name.

46.2

On his ﬁrst day in oce, he signed an executive

order prohibiting the country’s human rights ministry from hearing any concerns from the

country’s LGBT community.

46.3

He also signed executive orders targeting the descendants of

slaves and the country’s indigenous populations. After the inauguration, Pompeo tweeted

out a photo of himself meeting with Bolsonaro thanking him for a great meeting to “rein-

force our shared commitment to democracy, education, prosperity, security, and #human-

rights.”

46.4

VI. RELIGIOUS REFUSAL POLICIES

In its second year in oce, the Trump Administration continued to enforce and endorse

religious liberty policies and legislation that would allow for discrimination against LGBT

people based on religious beliefs.

In January 2018, the U.S. Department of Health and Human Services created the Division of

Conscience and Religious Freedom under the Oce of Civil Rights (OCR). This division was

created following President Trump’s 2017 executive order, which directed federal agencies

to expand religious freedom protections in ways that could increase discrimination against

LGBT individuals and same-sex couples.

Also in early 2018, OCR collected public com-

ments regarding a new proposed rule titled, “Protecting Statutory Conscience Rights in

Health Care; Delegations of Authority.” While this proposed rule did not speciﬁcally mention

LGBT people, sexual orientation, or gender identity, it could easily be interpreted as codi-

fying anti-LGBT discrimination in health care. The proposed rule states that “freedom from

discrimination on the basis of religious belief or moral conviction…does not just mean the

right not to be treated dierently or adversely; it also means being free not to act contrary

46.1

Haltiwanger, J (2018, Oct. 29). “The ‘Brazilian Donald Trump’ just became president in a landslide. He got there despite saying he couldn’t love

a gay son and that a colleague was too ‘ugly’ to be raped.” Business Insider. https://www.businessinsider.com/jair-bolsonaro-brazil-election-re-

sults-trump-2018-10

46.2

Sullivan, Zoe. (2018, Oct. 29). “LGBTQ Brazilians on edge after self-described ‘homophobic’ lawmaker elected president.” Associated Press. https://

www.nbcnews.com/feature/nbc-out/lgbtq-brazilians-edge-after-self-described-homophobic-lawmaker-elected-president-n925726

46.3

AP Sta. (2019, Jan. 3) Brazil’s Bolsonaro targets minorities on 1st day in oce. Associated Press. https://www.nbcnews.com/feature/nbc-out/bra-

zil-s-bolsonaro-targets-minorities-1st-day-oce-n954181

46.4

(2019, Jan. 2) Twitter. https://twitter.com/SecPompeo/status/1080485576564969472

Cha, A., Eilperin, J. (2018, January 17). New HHS civil rights division to shield health workers with moral or religious objections. Washington Post.

https://www.washingtonpost.com/national/health-science/trump-administration-creating-civil-rights-division-to-shield-health-workers-with-moral-

or-religious-objections/2018/01/17/5663d1c0-e2-11e7-8f66-2df0b94bb98a_story.html

14 15

to one’s beliefs.” This language is exceptionally broad,

and could be interpreted to allow providers to deny

general health care services to LGBT people, as well

as speciﬁc services such as STI screening to a gay

man, fertility treatment to a lesbian couple, or gen-

der armation treatment to a transgender individual.

Rules and regulations that allow health care providers

to discriminate based on religious beliefs will only ex-

acerbate anti-LGBT discrimination in health care.

In July 2018, then-Attorney General Je Sessions an-

nounced the creation of a Religious Liberty Task Force

that will enforce the 2017 memo issued by the De-

partment of Justice on religious liberty. In the speech

announcing the formation of the task force, Sessions

said, “A dangerous movement…is now challenging

and eroding our great tradition of religious freedom,”

which “must be confronted and defeated.” The Reli-

gious Liberty Task Force is led by Associate Attorney

General Jesse Panuccio, who previously defended

supporters of Proposition 8, the 2008 ballot measure

which prohibited marriage for same-sex couples in

California.

The Human Rights Campaign called the Religious Liberty Task Force part of:

“…a brazen campaign to erode and limit the rights of LGBTQ people in the name

of religion. The Attorney General standing shoulder-to-shoulder this morning with

anti-LGBTQ extremists tells you everything you need to know about what today’s

announcement was really all about.”

In August 2018, the Department of Labor (DOL) issued a new religious liberty directive

that could allow religiously-aliated organizations receiving federal funding to discrimi-

nate against LGBT people. The directive instructs Department of Labor sta to consider

recent religious liberty developments when enforcing nondiscrimination policies, citing the

Masterpiece Cakeshop (2018) and Hobby Lobby (2014) U.S. Supreme Court rulings in favor

of religious refusal as well as previous Trump Administration executive orders regarding

religious liberty. It states, “This Directive supersedes any previous guidance that does not

reﬂect these legal developments, for example, the section in OFCCP’s Frequently Asked

The 2018 directive was

clearly aimed at gutting

the sexual orientation

and gender identity

nondiscrimination

regulation aecting

federal contractors.

Burton T. (2018, July 31). “Je Sessions announces a religious liberty task force to combat ‘dangerous’ secularism.” Vox. https://www.vox.com/identi-

ties/2018/7/31/17631110/je-sessions-religious-liberty-task-force-memo-christian-nationalism

Ring T (2018, July 30). Sessions launches new LGBT assault with ‘Religious Liberty’ Task Force. The Advocate. https://www.advocate.com/poli-

tics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force

16 17

Questions: Sexual Orientation and Gender Identity regarding ‘Religious Employers and

Religious Exemption.’” The OFCCP is the Oce of Federal Contract Compliance Programs.

The DOL directive speciﬁcally states that religious liberty should be taken into account

when enforcing Executive Order 11246, a 2014 order by President Obama that prohibits

anti-LGBT discrimination by organizations contracting with the federal government. This

2018 DOL directive was clearly aimed at gutting the sexual orientation and gender identity

nondiscrimination regulation aecting federal contractors, and will increase religion-based

discrimination against LGBT by federal contractors.

Background

In recent years, religious refusal legislation, which would allow the refusal of services to

LGBT people based on religious beliefs, has become more and more popular in states

across the country. Since religious conservatives’ U.S. Supreme Court victory in Burwell v.

Hobby Lobby Stores, Inc. (2014)—upholding a company’s refusal to cover contraception in

an employee health plan

—and the two pro-same-sex marriage Supreme Court rulings in

2013 and 2015,

religious conservatives have introduced a slew of state and federal bills

that frame refusal to serve LGBT people and/or same-sex couples as the Constitutional-

ly-guaranteed “free exercise” of religion. In September 2017, the Department of Health and

Human Services released its Draft Strategic Plan for FY 2018-2022 which made extensive

mention of faith and faith-based organizations, and, in contrast with previous years, not a

single mention of LGBT health. The strategic plan stated that the Department would “vig-

orously enforce” and “armatively accommodate” religious beliefs.

This language closely

mirrored the language of state and federal religious refusal legislation that is being used to

discriminate against LGBT people under the guise of religious freedom.

54,55,56

In October 2017, the Department of Justice issued a memorandum to all executive depart-

ments and agencies that could allow individuals and organizations to discriminate against

LGBT people and same-sex couples in health care and social services under the guise of

religious freedom. In the memo, then Attorney General Je Sessions argued that the Free

Exercise Clause “protects the right to perform or abstain from performing certain physical

acts in accordance with one’s beliefs.” This protection “encompass[es] aspects of obser-

vance and practice, whether or not central to, or required by, a particular religious faith.”

These freedoms apply to “private associations, and even businesses” as well as individuals

and religious organizations.

Johnson C. (2018, August 14). “New Trump Administration memo on Obama order alarms LGBT advocates.” The Washington Blade. https://www.

washingtonblade.com/2018/08/14/new-trump-admin-memo-on-obama-order-troubles-lgbt-advocates/

Supreme Court of the United States. 2014, June 30. Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al. Retrieved

from: https://www.aclu.org/legal-document/burwell-v-hobby-lobby-stores-supreme-court-opinion

Supreme Court of the United States. 2013. United States v. Windsor. 570 U.S. __ Docket No. 12-307; Supreme Court of the United States. 2015. Obergefell

v. Hodges. 576 U.S. __ Docket No. 14-556

U.S. Department of Health and Human Services. (2017). Draft Strategic Plan FY 2018-2022. https://www.hhs.gov/about/strategic-plan/index.html

Mississippi House of Representatives. 2016. House Bill No. 1523. http://billstatus.ls.state.ms.us/documents/2016/pdf/HB/1500-1599/HB1523SG.pdf

Tennessee State Legislature. (2016). An Act to amend Tennessee Code Annotated, Title 4; Title 49 and Title 63, relative to conscientious objections to

the provision of counseling and therapy. Amendment No. 1. Available online at: http://www.capitol.tn.gov/Bills/109/Amend/HA1006.pdf

O’Hara ME. (2016). First Amendment Defense Act would be “devastating” for LGBTQ Americans. NBC News. http://www.nbcnews.com/feature/nbc-

out/ﬁrst-amendment-defense-act-would-be-devastating-lgbtq-americans-n698416

Attorney General Je Sessions. 2017. Federal law protections for religious liberty. Memorandum for all executive departments and agencies. Washing-

ton, DC. https://www.justice.gov/opa/press-release/ﬁle/1001891/download

16 17

This memo could enable and encourage individuals and organizations to discriminate

against LGBT people and same-sex couples in health care and social services, including

health care and services funded by government contracts. It could also be seen as protect-

ing the right of government employees in a wide range of ﬁelds to refuse service to LGBT

people, same-sex couples, unmarried heterosexual couples, and single-parent families. In

the memo, Sessions also states that religious organizations should be able to accept federal

government grants and discriminate in hiring for programs funded by those grants.

A proposed rule issued by HHS on October 25, 2017 reiterated the Administration’s view

that religious organizations could receive funding from HHS to provide health care and other

services, even if they discriminate in providing care and services and in hiring based on their

religious views.

Ibid.

Removing Barriers for Religious and Faith-Based Organizations To Participate in HHS Programs and Receive Public Funding. A Proposed Rule by the

Health and Human Services Department on 10/25/2017. https://www.federalregister.gov/documents/2017/10/25/2017-23257/removing-barriers-for-re-

ligious-and-faith-based-organizations-to-participate-in-hhs-programs-and

18 19

Religion has been invoked to deny LGBT people access to health care. For example, LGBT

individuals have been denied appropriate mental health services and counseling;

a new-

born was denied care because her parents were lesbians;

transgender patients have been

denied transition-related medical care;

and an individual was denied his HIV medication,

all because of someone else’s religious beliefs. LGBT people already experience discrimina-

tion in health care. Federal regulations should be aimed at speciﬁcally enumerating sexual

orientation and gender identity in nondiscrimination regulations rather than codifying dis-

crimination under the guise of freedom of religion.

VII. HIV/AIDS POLICY

For most of its ﬁrst two years in oce, the Trump Administration has been notably absent

from leadership on HIV/AIDS policy at a critical juncture in the domestic and global HIV

epidemics. In the U.S., 1 in 2 Black men who have sex with men (MSM) and 1 in 4 Latino MSM

will acquire HIV in their lifetimes if current infection rates persist.

As of January 2019, Pres-

ident Trump had not appointed a White House Oce of National AIDS Policy Director. The

important position has been vacant for two years, since Amy Lansky resigned in January

2017. At the end of 2017, President Trump summarily dismissed the Presidential Advisory

Council on HIV/AIDS (PACHA), exacerbating a vacuum of leadership on HIV/AIDS at the

federal level.

PACHA did not meet at all in 2018.

In November 2018, the Centers for Medicare and Medicaid Services (CMS) released a pro-

posed rule that would change requirements for protected classes of drugs in Medicare Part

D plan formularies. Currently, Part D plan formularies generally must include all drugs in six

protected categories, including antiretrovirals used to treat HIV. If enacted, the proposed

rule could allow insurance companies to have more control over patients’ access to medica-

tions–typically restricting the more expensive medications by requiring patients to ﬁrst try

generic lower cost medications–rather than allowing providers to work directly with pa-

tients to decide what medication would be most eective, regardless of cost. Furthermore,

many HIV medications are not available in generic form in the U.S.

Ward v. Wilbanks, 09-CV-11237, 2010 WL 3026428 (E.D. Mich. 2010, July 26), rev’d and remanded sub nom. Ward v. Polite, 667 F.3d 727 (6th Cir. 2012),

dismissed with prej. by Ward v. Wilbanks, 09-CV-11237 (E.D. Mich. Dec. 12, 2012) (case settled).

Phillip A. (2015, February 19). “Pediatrician Refuses to Treat Baby with Lesbian Parents and There’s Nothing Illegal About It.” Washington Post. https://

www.washingtonpost.com/news/morning-mix/wp/2015/02/19/pediatrician-refuses-totreat-baby-with-lesbian-parents-and-theres-nothing-ille-

gal-about-it/

National Women’s Law Center. (2014, May.) Health Care Refusals Harm Patients: The Threat to LGBT People and Individuals Living with HIV/AIDS.

Available online at: http://www.nwlc.org/sites/default/ﬁles/pdfs/lgbt_refusals_factsheet_05-09-14.pdf

Complaint, Simoes v. Trinitas Reg’l Med. Ctr., No. UNNL-1868-12 (N.J. Super. Ct. Law Div. 2012, May 23).

The Centers for Disease Control and Prevention. (2016, February 23). Lifetime Risk of HIV diagnosis. https://www.cdc.gov/nchhstp/newsroom/2016/

croi-press-release-risk.html

Guaino, B. (2017, December 29). Trump administration ﬁres all members of HIV/AIDS advisory council. Washington Post. https://www.washingtonpost.

com/news/to-your-health/wp/2017/12/29/trump-administration-ﬁres-all-members-of-hivaids-advisory-council/?utm_term=.2c6b3d12ee0d

18 19

Despite these negative HIV/AIDS policy developments, at the Ryan White HIV/AIDS Confer-

ence in Maryland in December 2018, Secretary of Health and Human Services Alex Azar made

a number of announcements that indicate that the Trump Administration is taking steps to

address HIV in the U.S. First, Azar announced

that HHS will update the National HIV/AIDS

Strategy launched by President Obama in 2010

and updated in 2015 through 2020.

HHS host-

ed a listening session on the national strategy

at the conference. Azar said in his speech to

conference attendees that the 2020 strategy

would highlight PrEP uptake as a major tool to

prevent HIV infection. He also talked about the

importance of addressing disparities aecting

African Americans, Latinos, and gay men.

Azar also announced that he would reconvene

the Presidential Advisory Council on HIV/AIDS

in March 2019. PACHA will be cochaired by Carl

Schmid, Deputy Director of the AIDS Institute,

and John Wiesman, Secretary of Health for

Washington State.

The administration’s renewed attention to the

domestic epidemic and Secretary Azar’s ex-

plicit mention of PrEP, gay men, and Black and

Latino populations in his speech are welcome developments. We urge him to also explicitly

prioritize transgender women, and to understand that public policies that stigmatize gay men

and other LGBT people—such as the assaults on legal equality described above—and policies

that inhibit immigrants from accessing services, such as the proposed public charge rule (see

Section X below), undermine eorts to reduce racial/ethnic disparities in the epidemic.

One other positive development in domestic HIV policy in 2018 was the U.S. Preventive

Services Task Force’s proposed A rating for PrEP for HIV prevention.

Such a rating would

mean that insurance will fully cover PrEP, including copays. In its comment in support of this

proposed rating, the Fenway Institute encouraged the U.S. Preventive Services Task Force

(USPSTF) to also cover screenings for HIV and other STIs, and for some patients renal moni-

toring, as recommended by the CDC.

Fenway also recommended that future PrEP medica-

tions be covered, and that the USPSTF explicitly mention bisexuals in its guidance.

Focus on the Family was

awarded a grant from the

President’s Emergency Plan

for AIDS Relief (PEPFAR)

to implement an

abstinence-based

curriculum in South Africa.

Azar, A. (2018, December 12). HHS Secretary Azar’s Remarks to the National Ryan White Conference on HIV Care and Treatment. US Department of

Health and Human Services. https://www.hiv.gov/blog/hhs-secretary-azar-s-remarks-national-ryan-white-conference-hiv-care-and-treatment

Ibid.

U.S. Preventive Services Task Force (2018, November). Draft Recommendation Statement, Prevention of Human Immunodeﬁciency Virus (HIV) Infec-

tion: Pre-Exposure Prophylaxis. https://www.uspreventiveservicestaskforce.org/Page/Document/RecommendationStatementDraft/prevention-of-hu-

man-immunodeﬁciency-virus-hiv-infection-pre-exposure-prophylaxis

Centers for Disease Control and Prevention: US Public Health Service: Preexposure prophylaxis for the prevention of HIV infection in the United

States—2017 Update: a clinical practice guideline. https://www.cdc.gov/hiv/pdf/risk/prep/cdc-hiv-prep-guidelines-2017.pdf. Published March 2018.

Pages 47-48.

20 21

At the global HIV/AIDS level, the Trump Administration is giving renewed support to absti-

nence as a HIV/AIDS prevention tool. An international aliate of the anti-LGBT U.S. group

Focus on the Family was awarded a $49,505 grant from the President’s Emergency Plan

for AIDS Relief (PEPFAR) to implement an abstinence-based curriculum in South Africa.

Evidence has demonstrated a lack of ecacy of abstinence-based HIV/AIDS prevention

programs. Researchers have found no discernible change in sexual behavior as a result of

abstinence messaging on HIV/AIDS prevention.

The Focus on the Family South Africa web-

site promotes heteronormative constructs on its website, by stating “[marriage] is intended

by God to be a thriving, lifelong relationship between a man and a woman.”

Further, the

organization denigrates transgender individuals, by arguing that humans are “intentionally

and immutably” male and female.

VII. UNDERMINING THE AFFORDABLE CARE ACT

On December 14, 2018 Judge Reed O’Connor, a United

States District Judge of the United States District

Court for the Northern District of Texas, ruled that the

individual mandate of the Aordable Care Act (ACA)

was unconstitutional, and as a result, struck down the

entire ACA, which he argued cannot stand without the

individual mandate. In 2012, the U.S. Supreme Court

ruled that the individual mandate was constitutional

based on Congress’s ability to legally impose a tax

penalty on people who did not have health insurance.

As part of President Trump’s tax overhaul in Decem-

ber 2017, the tax penalty for not having health insur-

ance was dropped to zero dollars. This prompted a

group of Republican governors and state attorneys

general to ﬁle a lawsuit, arguing that since Congress

was no longer exercising its legal taxing power with

the penalty zeroed out, the individual mandate was

now unconstitutional. Judge O’Connor agreed, stating that the individual mandate “can no

longer be sustained as an exercise of Congress’s tax power.”

President Trump, who has

made several attempts to dismantle the ACA since the beginning of his presidency, tweeted

his approval of Judge O’Connor’s decision: “Great news for America!”

The ACA has been

McNeil, D., Jr. (2015, February 26). U.S. Push for Abstinence in Africa Is Seen as Failure Against H.I.V. New York Times. https://www.nytimes.

com/2015/02/27/health/american-hiv-battle-in-africa-said-to-falter.html

Lavers, M. K. (2018, April 24). Anti-LGBT South Africa group receives PEPFAR grant. Washington Blade. https://www.washingtonblade.

com/2018/04/24/anti-lgbt-south-africa-group-receives-pepfar-grant/

Ibid.

Goodnough A. and Pear R. (2018, December 14). “Texas Judge Strikes Down Obama’s Aordable Care Act as Unconstitutional.” The New York Times.

https://www.nytimes.com/2018/12/14/health/obamacare-unconstitutional-texas-judge.html

Yilek C (2018, December 14). Trump: ‘Great news’ that Obamacare ruled unconstitutional. The Washington Examiner. https://www.washingtonexamin-

er.com/news/trump-great-news-that-obamacare-ruled-unconstitutional

In 2018 President Trump

allowed insurance

plans that do not cover

pre-existing conditions,

such as HIV or cancer.

20 21

vital in expanding health insurance coverage to millions of Americans, and has dispropor-

tionately beneﬁted traditionally underinsured and vulnerable populations, including LGBT

people

and people living with HIV

and other pre-existing conditions.

During 2018 President Trump took other steps to undermine the ACA, such as allowing

inexpensive, short-term insurance plans to be sold that do not cover pre-existing conditions,

such as HIV or cancer, and that do not oer most of the beneﬁts and safeguards that the

ACA requires.

IX. PARTICIPATION IN FAMILY RESEARCH COUNCIL’S

ANTI-LGBT VALUES VOTERS SUMMIT

The Trump Administration’s alignment with the Family Research Council, a staunchly

anti-LGBT activist group, underlines the administration’s hostile stance toward LGBT peo-

ple. In September 2018, Vice President Mike Pence and Secretary of State Mike Pompeo

addressed the Family Research Council’s annual Value Voters Summit in 2018.

President

Trump spoke to the 2017 Values Voters Summit.

Anti-LGBT rhetoric is a recurring theme

among the speeches given at this summit.

That Trump, Pence and Pompeo would address

this religious right, anti-LGBT political pep rally underscores the Trump Administration’s

deep hostility to LGBT people and LGBT equality.

Karpman M, Skopec L, Long S. (2015, April 5). QuickTake: Uninsurance Rate Nearly Halved for Lesbian, Gay, and Bisexual Adults since Mid-2013.

Health Reform Monitoring Survey. http://hrms.urban.org/quicktakes/Uninsurance-Rate-Nearly-Halved-for-Lesbian-Gay-and-Bisexual-Adults-since-

Mid-2013.html

Belluz J (2017, February 15). Why Obamacare repeal would be devastating to people with HIV. Vox. http://www.vox.com/2017/2/8/14532310/

obamacare-aca-repeal-hiv-aids

Benen S (2018, August 1). To undermine the ACA, the Trump administration pushes ‘short-term’ plans. MSNBC. http://www.msnbc.com/rachel-mad-

dow-show/undermine-the-aca-the-trump-administration-pushes-short-term-plans

Fitzsimon T. (2018, September 24). Pence is ﬁrst VP to speak at anti-gay group’s Values Voter Summit. NBC News. https://www.nbcnews.com/feature/

nbc-out/pence-ﬁrst-vp-speak-anti-gay-group-s-values-voter-n912641

Taylor, J (2017, October 13). “Trump To Values Voters: In America ‘We Don’t Worship Government, We Worship God.’” National Public Radio. https://

www.npr.org/2017/10/13/557459193/trump-set-to-address-values-voter-summit-for-ﬁrst-time-as-president

Cahill, S. and Burack, C. (2006, October). Internal enemy: Gays as the domestic al-Qaeda; A report from the Family Research Council’s Values Voter Sum-

mit. 2006: National Gay and Lesbian Task Force Policy Institute

Vice President Mike Pence, left, stands with Family Research Council President Tony Perkins before speaking at the

2018 Values Voter Summit in Washington, Saturday, Sept. 22, 2018. (AP Photo/Susan Walsh)

22 23

X. PROPOSED PUBLIC CHARGE RULE AND

ITS LIKELY IMPACT ON IMMIGRANTS’ ACCESS

TO HEALTH CARE AND OTHER SERVICES

On October 10, 2018, the Department of Homeland Security released a proposed rule

regarding the public charge deﬁnitions used to determine whether an immigrant is inadmis-

sible to the United States.

As written, the rule radically lowers the historical standard for

determining whether someone is “likely to become a public charge.” Under current policy,

only cash welfare assistance and government funded long-term care can be taken into con-

sideration in the public charge test. The proposed rule would alter this test such that any

person who seeks or uses a wide range of life-saving health and human services programs—

from housing assistance to health care (including treatment for HIV/AIDS) to anti-hunger

and anti-poverty services—could be deemed a public charge, which could create barriers to

maintaining or improving their immigration status.

If the proposed rule remains as is, it could result in individuals being deterred from using

vital services such as the Special Supplemental Nutrition Program for Women, Infants, and

Children (WIC), Medicaid or the Children’s Health Insurance Program (CHIP) to address their

basic health needs, ultimately leading to worse health and developmental outcomes for

them, their children, and their communities.

This is especially concerning for immigrants who identify as LGBT. Immigrants make up a

signiﬁcant population of the LGBT community. The Williams Institute at UCLA School of

Law estimates there are 637,000 LGBT-identiﬁed individuals among the adult authorized

immigrant population.

Concerns regarding barriers to health care utilization as a result of

this proposed rule could be ampliﬁed for LGBT immigrants, because anti-LGBT discrimi-

nation in healthcare is common and already acts as a barrier to seeking necessary medical

treatment. A survey conducted by Lambda Legal found that 56% of LGB respondents and

70% of transgender respondents reported having at least one discriminatory experience—

such as refusal of service, harsh or abusive language, being blamed for their health sta-

tus, etc.—in a healthcare facility.

The survey also found that a higher proportion of LGBT

people of color and/or low-income people reported experiencing discriminatory care. These

experiences of discrimination act as a barrier to seeking necessary care in the ﬁrst place,

and if the proposed rule is adopted, LGBT immigrants will be deterred even further from

seeking healthcare that they need.

Department of Homeland Security. (2018, October 10). Inadmissibility on Public Charge Grounds. Proposed Rule. DHS Docket No. USCIS-2010-0012.

https://www.federalregister.gov/documents/2018/10/10/2018-21106/inadmissibility-on-public-charge-grounds

Gates, G.J. (2013), “LGBT Adult Immigrants in the United States,” UCLA School of Law: The Williams Institute. https://williamsinstitute.law.ucla.edu/

wp-content/uploads/LGBTImmigrants-Gates-Mar-2013.pdf

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.

22 23

The proposed rule also introduced a new test for income, where earning under 125% of the

federal poverty level ($31,375 annually for a family of 4) would be considered a negative

factor in deciding whether an immigrant could be granted a green card or permanent resi-

dency. LGBT people, including those who are immigrants, experience widespread workplace

discrimination which hurts their ability to attain and maintain economic security. A 2017

national survey found that one in ﬁve LGBT people experienced discrimination due to their

sexual orientation or gender identity when applying for a job, and 22% reported experienc-

ing this discrimination in pay or promotions.

In eect, this proposed rule would punish

LGBT immigrants for systemic workplace discrimination.

Furthermore, LGBT people are also more likely to depend on programs that could lead to a

public charge determination under the proposed rule. Research has shown that LGBT people

are more likely than non-LGBT people to report experiencing food insecurity,

and LGBT

people and their families are more than twice as likely to report receiving Supplemental Nu-

trition Assistance Program (SNAP) beneﬁts.

LGBT people and their families are also more

likely to receive Medicaid beneﬁts and more likely to rely on housing assistance programs

than non-LGBT people.

Penalizing immigrants for actual or predicted usage of a wide-

range of supplementary assistance in their lifetimes will likely disproportionately impact

LGBT immigrants and their families.

The proposed rule could also dispropor-

tionately aect the health and well-being

of immigrants living with HIV. Under the

proposed rule, an immigrant’s health,

including HIV status, would be considered

when determining whether the appli-

cant is likely to be able to work, attend

school, care for themselves, or require

expensive care or institutionalization.

For many people, HIV/AIDS treatment is

prohibitively expensive without assistance.

Under this rule, immigrants living with

HIV might forego using support services

and payment assistance for HIV treatment

due to fear of a public charge determination. This would be devastating to the health of the

individual, and could also have negative health consequences for the community at large, as

disruptions in HIV care and treatment—especially resulting in reduced adherence or medica-

tion rationing—can lead to drug resistant strains of HIV and increased transmission of HIV.

LGBT people are more

likely to depend on programs

that could lead to a public

charge determination under

the proposed rule.

Sejal Singh and Laura E. Durso (2017). “Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Signiﬁcant Ways,”

Washington, DC: Center for American Progress. https://www.americanprogress.org/issues/lgbt/news/2017/05/02/429529/widespread-discrimina-

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

Taylor N.T. Brown, Adam P. Romero, and Gary J. Gates (2016). “Food Insecurity and SNAP Participation in the LGBT Community.” UCLA: The Williams

Institute. https://williamsinstitute.law.ucla.edu/research/lgbt-food-insecurity-2016/

Rooney C (2018). “Protecting Basic Living Standards for LGBTQ People.” Washington, DC: Center for American Progress. https://www.americanprog-

ress.org/issues/lgbt/reports/2018/08/13/ 454592/protecting-basic-living-standards-lgbtq-people/

Ibid.

24 25

XI. BUREAU OF PRISONS CHANGE IN POLICY ON

HOUSING ADULT TRANSGENDER PRISONERS

The Federal Bureau of Prisons (BOP) announced in May 2018 that, while it will continue to

make housing determinations on a case-by-case basis as required by the Prison Rape Elim-

ination Act (PREA), it will use “biological sex” to make initial determinations in the type of

housing transgender inmates are assigned, and will assign transgender prisoners to facilities

conforming to their gender identity only “in rare cases.”

This reverses a 2016 BOP policy

that housed adult prisoners based on their gender identity, not their birth sex.

The BOP’s latest decision runs directly counter to

the text and spirit of PREA, will undermine the safe-

ty and security of one of the most vulnerable prison

populations, and negates decades of progress on

LGBT rights and protections that were reﬂected in

the issuance of PREA standards in 2012.

Transgender prisoners are at higher risk of being

raped in prison than other prisoners. A best practice

is to place transgender women in women’s pris-

ons. According to the Bureau of Justice Statistics,

data from 2007 through 2012 indicate that 34.6%

of transgender people in state and federal prisons

and 34% in local jails reported some kind of sexual

victimization while incarcerated.

Among cisgender

heterosexual men, between 3.5% and 5.2% reported

sexual victimization. Among cisgender heterosexual

women, between 3.7% and 13.1% reported sexual vic-

timization. Rates of sexual victimization by another

prisoner against gay and bisexual men in prison are

also very high, about 10 times the rate for

heterosexual men.

The Federal Bureau of

Prisons will house

transgender prisoners

based on their sex at birth,

putting them at greater

risk of sexual and

physical abuse.

Federal Bureau of Prisons (2018, May 11). Change Notice to Transgender Oender Manual. https://www.documentcloud.org/docu-

ments/4459297-BOP-Change-Order-Transgender-Oender-Manual-5.html

http://www.prearesourcecenter.org/node/3927.

Cahill S (2017). From “Don’t drop the soap” to PREA standards: Reducing sexual victimization of LGBT people in the juvenile and criminal justice

systems. LGBTQ Politics: A Critical Reader. New York: New York University Press. 134-152.

Beck A. (2014). Sexual victimization in prisons and jails reported by inmates, 2011-12. Supplemental tables: Prevalence of sexual victimization among trans-

gender adult inmates. Washington DC: U.S. Department of Justice, Oce of Justice Programs, Bureau of Justice Statistics. http://www.bjs.gov/content/

pub/pdf/svpjri1112_st.pdf

Source: Beck AJ, Johnson C. (2012, May). Sexual victimization reported by former state prisoners, 2008. U.S. Department of Justice, Oce of Justice

Programs, Bureau of Justice Statistics. http://www.bjs.gov/content/pub/pdf/svrfsp08.pdf

24 25

According to the National PREA Resource Center, the new policy violates PREA Standards:

Does a policy that houses transgender or intersex inmates based exclusively on

external genital anatomy violate Standard 115.42(c) & (e)?

Yes. Standard 115.42(c) states:

In deciding whether to assign a transgender or intersex inmate to a facility for

male or female inmates, and in making other housing and programming assign-

ments, the agency shall consider on a case-by-case basis whether a placement

would ensure the inmate’s health and safety, and whether the placement would

present management or security problems.

In addition, Standard 115.42(e) states:

A transgender or intersex inmate’s own views with respect to his or her own safety

shall be given serious consideration.

National PREA Resource Center (2016, March 24). https://www.prearesourcecenter.org/node/3927

26 27

XII. DEPARTMENT OF VETERANS AFFAIRS

PROPOSED EXCLUSION OF GENDER ALTERATIONS

FROM THE MEDICAL BENEFITS PACKAGE

On July 9, 2018, the Department of Veterans Aairs (VA) released a request for comments

regarding gender armation surgery.

Currently, in the VA’s medical regulations, there is

a provision that excludes “gender alterations” from its medical beneﬁts package. While the

VA will provide medical services to transgender veterans before and after gender ar-

mation surgery, the VA has thus far excluded the actual surgery from its medical beneﬁts

package. Gender armation surgery and hormone treatment are considered medically

necessary by many physicians for their transgender patients. The American Medical Associ-

ation adopted a resolution in 2008 supporting public and private health insurance coverage

for treatment of gender identity disorder as recommended by the patient’s physician.

response to petitions to include medically necessary gender armation surgery in its medi-

cal beneﬁts package, the VA released this request for comments to seek input to determine

whether or not to amend the medical beneﬁts package and eliminate the exclusion of medi-

cally necessary and life-saving gender armation surgery. A ﬁnal decision regarding gender

armation surgery has not yet been released by the VA.

XIII. FOOD AND DRUG ADMINISTRATION

REGULATION OF E-CIGARETTES

In November 2018, the Food and Drug Administration announced aggressive new regula-

tions to reduce youth use of e-cigarettes. These include banning the sale of ﬂavored tobac-

co products used in e-cigarettes.

Stricter regulation of e-cigarettes is important for LGBT

people. According to the Massachusetts Behavioral Risk Factor Surveillance System survey,

LGBT people aged 18-24 reported nearly three times the rate of e-cigarette use compared

to non-LGBT people in the same age category (16.7% vs. 5.7%).

National data from the

Population Assessment of Tobacco and Health (2013-2014) found higher rates of e-cigarette

use among LGB people.

Department of Veterans Aairs. (July 9, 2018). “Exclusion of Gender Alterations From the Medical Beneﬁts Package.” Request for Comments. Doc-

ument Citation 83 FR 31711. https://www.federalregister.gov/documents/2018/07/09/2018-14629/exclusion-of-gender-alterations-from-the-medi-

cal-beneﬁts-package

H-185.950 Removing Financial Barriers to Care for Transgender Patients. Our AMA supports public and private health insurance coverage for treat-

ment of gender identity disorder as recommended by the patient’s physician. (Res. 122; A-08). http://www.ama-assn.org/ama/pub/about-ama/our-peo-

ple/member-groups-sections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.page?

U.S. Food and Drug Administration (2018, November 16). FDA’s deeming regulations for e-cigarettes, cigars, and all other tobacco products. https://

www.fda.gov/tobaccoproducts/labeling/rulesregulationsguidance/ucm394909.htm

Massachusetts Department of Public Health. 2016. Massachusetts Behavioral Risk Factor Surveillance System.

Wheldon C, Kaufman A, Kasza K, Moser R (2018). Tobacco use among adults by sexual orientation: Findings from the Population Assessment of Tobac-

co and Health Study. LGBT Health

26 27

28 29

LGBT people and people living with HIV in the U.S.

and around the world are now much more vulnerable

to discrimination.

CONCLUSION

During its ﬁrst year in oce, the Trump Administration compiled a strikingly anti-LGBT

record of actions that undermined the health and well-being of LGBT people. In its second

year in oce, the Trump Administration added to its anti-LGBT record by continuing to un-

dermine the ability of LGBT people to access health care and other services, restricting the

right of transgender people to serve in the military, prohibiting people living with HIV from

serving in the Peace Corps, promoting religion-based discrimination against LGBT people,

eliminating critical nondiscrimination protections, appointing federal judges who oppose

LGBT equality, and aliating frequently with anti-LGBT advocacy organizations, such as

Focus on the Family and the Family Research Council.

While there were some potentially hopeful developments—such as the FDA’s regulation of

e-cigarettes and the plans to develop a new national HIV/AIDS strategy to take eect in

2020—these positive developments were few and far between. Overall in its second year in

oce, the Trump Administration continued building upon the striking record against LGBT

rights that it amassed in its ﬁrst year. Unfortunately, the Trump Administration continues to

expand discriminatory policies toward LGBT people.

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

quantiﬁable repercussions, such as the loss of health insurance due to the undermining

of the ACA. However, it is more dicult to predict the full extent of harm of many of the

Trump Administration’s anti-LGBT actions, such as its support of religious refusal legislation,

reinterpretation of sex discrimination, appointment of anti-LGBT conservative justices, and

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

The Trump Administration’s embrace of anti-gay leaders like Brazilian President Bolsonara,

and anti-LGBT groups like the Family Research Council, endanger the safety of LGBT people

around the world. Discrimination against idealistic Americans living with HIV trying to serve

in the Peace Corps exacerbates stigma, which undermines the global ﬁght against HIV. It is

undeniable that LGBT people and people living with HIV in the U.S. and around the world

are now much more vulnerable to discrimination in health care, social services, employment,

education, and access to basic government services.

28 29

AUTHORS

Sean Cahill, PhD

Director of Health Policy Research

The Fenway Institute

Tim Wang, MPH

Health Policy Analyst

The Fenway Institute

Bishar Jenkins

Health Policy Fellow

The Fenway Institute

ACKNOWLEDGEMENTS

The Fenway Institute acknowledges the National Center for Transgender Equality and

GLAAD for their helpful lists of Trump Administration actions undermining LGBT equality.

Jordan Hutensky

Designer

Cover photo: PAUL J. RICHARDS/AFP/Getty Images

Photo top of page 21: AP Photo/Susan Walsh

All other photos purchased through Getty Images

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