PB 1
One year in, Trump
Administration amasses
striking anti-LGBT record
By Sean Cahill, Sophia Geen, and Tim Wang
2 3
2 3
INTRODUCTION
While the Republican Party and Vice Presidential candidate Mike Pence had a long history
1
of opposing legal equality for lesbian, gay, bisexual and transgender (LGBT) people,
presidential candidate Donald Trump promised to support the LGBT community.
2
Despite
his own mixed record on LGBT issues, following the massacre and terror attack at the Pulse
Nightclub in Orlando, Florida, Donald Trump vowed, “As your president, I will do everything
in my power to protect our LGBTQ citizens.” Yet President Trump’s Administration has
amassed a striking record of anti-LGBT actions in its first year in oce. These include
rescinding nondiscrimination regulations that provided some protections to LGBT people,
appointing anti-LGBT judges, prohibiting transgender people from serving their country in
the military, promoting religious refusal discrimination against LGBT people and same-sex
couples through executive branch actions, attempting to repeal and undermine the Patient
Protection and Aordable Care Act—which cut the uninsurance rate among LGBT people in
half, and many other actions which will undermine LGBT people’s health and well-being.
Not all of the administration’s actions in this area have been anti-LGBT. For example, in
October 2017 Attorney General Je Sessions sent a leading hate crimes lawyer to Iowa to
prosecute a man charged with murdering a transgender high school student there.
3
Despite
this exception, on balance the Trump Administration has pursued policies that will likely
increase discrimination against LGBT people.
“As your president, I will do everything in
my power to protect our LGBTQ citizens.”
– Donald Trump, July 2016
4 5
I. ROLLBACK OF LGBT NONDISCRIMINATION
REGULATIONS
In its first year, the Trump Administration rescinded several important Obama-era nondis-
crimination regulations that oered some protection to LGBT people. In May 2016, under
President Obama, the U.S. Department of Health and Human Services Oce of Civil Rights
(HHS OCR) published a final rule implementing Section 1557, the Aordable Care Act’s
primary nondiscrimination provision.
4
The rule stated that discrimination based on gender
identity is prohibited in health facilities, programs, and activities receiving federal funding,
as it constitutes a form of sex discrimination banned by Title IX of the Education Amend-
ments of 1972. While the rule did not explicitly include sexual orientation, it stated that
discrimination based on sex stereotyping is prohibited, and that some forms of anti-gay/
lesbian/bisexual discrimination may be classified as a form of sex stereotyping. While this
rule had major potential to reduce discrimination in health care for transgender people and,
to a lesser extent, gay, lesbian and bisexual people, it was enjoined nationwide by a federal
district court judge on December 31, 2016. The order prohibited HHS from enforcing the
nondiscrimination rule’s gender identity component.
5
In May 2017, the U.S. Department of Justice
(DOJ), under the leadership of President
Trump and Attorney General Je Sessions,
signaled that it would not seek to overturn
the court order which prohibited HHS from
enforcing Section 1557’s gender identity
nondiscrimination provision. Instead, DOJ
and Attorney General Sessions requested
that the federal courts “remand this matter
to HHS and stay this litigation…pending the
completion of the rulemaking proceedings.”
6
The DOJ requested that litigation be stayed
because it wanted the opportunity to “recon-
sider the regulation at issue.” The DOJ ques-
tioned “the reasonableness, the necessity, and
the ecacy” of the Section 1557 nondiscrimi-
nation regulation related to gender identity.
7
The Trump Administration has taken other steps to oppose and reverse nondiscrimina-
tion protections for transgender people. In February 2017, the DOJ 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 Depart-
ment of Education stating that discrimination on the basis of gender identity in schools
is prohibited under Title IX.
8,9
This is consistent with the 2016 Republican Platform, which
took a strong stance against interpreting sex discrimination under Title IX “to include sexual
In its first year, the Trump
Administration rescinded
several important Obama-era
nondiscrimination regulations
that oered some protection
to LGBT people.
4 5
orientation and other categories.”
10
Without explicitly
naming gender identity nondiscrimination, the 2016
Republican Platform also made clear that it opposed
gender identity nondiscrimination regulations cov-
ering public accommodations. The 2016 Republican
Party Platform referenced Title IX, which outlaws sex
discrimination, saying that it is being used
to impose a social and cultural revolution upon
the American people by wrongly redefining sex
discrimination to include sexual orientation or
other categories…They are determined to reshape
our schools—and our entire society—to fit the
mold of an ideology alien to America’s history
and traditions. Their edict to the states concerning
restrooms, locker rooms, and other facilities is at
once illegal, dangerous, and ignores privacy issues.
11
In October 2017 Attorney General Sessions reversed a long-standing DOJ policy of interpreting
Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, to also prohibit gen-
der identity-based discrimination.
12
A number of federal court rulings and Equal Employment
Opportunity Commission rulings have found that Title VII’s prohibition of sex discrimination
encompasses some forms of gender identity and sexual orientation discrimination.
13
In 2014,
then Attorney General Eric Holder stated in a memorandum that the DOJ would interpret Title
VII to encompass gender identity discrimination.
14
II. ROLLBACK OF SEXUAL ORIENTATION AND
GENDER IDENTITY (SOGI) DATA COLLECTION
For decades now, 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.
15
SOGI data are now included in many public health
surveys, such as the Behavioral Risk Factor Surveillance System (SOGI questions) and Youth
Risk Behavior Survey (sexual orientation (SO) question), the National Health Interview Survey
(SO), the National Survey on Drug Use and Health (SO), and the Health Center Patient Survey
(SOGI). Several other surveys are now collecting SOGI data that examine social determinants
of health, such as the National Crime Victimization Survey (SOGI), which collects data on
intimate partner violence, and the National Inmate Survey (SOGI), which collects data on
sexual assault in prison as mandated by the Prison Rape Elimination Act.
16
Attorney General Sessions
reversed a long-standing
DOJ policy of interpreting
Title VII of the Civil Rights
Act of 1964, which prohibits
sex discrimination, to also
prohibit gender identity-
based discrimination.
6 7
The collection of population-level data is
important to better understand the expe-
riences of LGBT Americans. LGBT people,
especially Black gay and bisexual men and
transgender women, experience a dispro-
portionate burden of bias-motivated hate
violence.
17
On a per capita basis, LGBT people
are more likely to be targets of hate crimes
than any other group in America.
18
Bisexual
women and men, and lesbians, are more likely
to experience intimate partner violence than
heterosexual women and men.
19
Gay men are
11 times as likely as heterosexual men to be
sexually assaulted in state prisons.
20
Bisexual
men and transgender people
21
are 10 times as
likely to be sexually assaulted in state prisons
as heterosexual men.
The Administration on Aging added a sexual orientation question, and a follow-up question
that can measure transgender status, to the National Survey of Older Americans Act Partic-
ipants in 2014, and collected such data in 2015 and 2016 as well.
22
This survey collects data
on participation in Older Americans Act (OAA)-funded programs, such as senior centers,
home care assistance, and congregate meal programs. Collecting data on LGBT older adults
and the extent to which they access elder services is important, as many older LGBT people
experience prejudicial treatment from heterosexual age peers or from service providers,
or fear they will experience such treatment based on past experiences of discrimination.
23
As a result, LGBT older adults may be less likely to access senior services. Older, mostly
heterosexual Americans exhibit a high degree of anti-gay prejudice, and many LGBT older
adults express concern about how they will be treated in mainstream senior settings.
24
The Administration for Community Living (ACL) was planning to add SOGI questions to its
Annual Program Performance Report for Centers for Independent Living in 2017. Collecting
SOGI data in disability services would be important, as research has shown higher rates of
disability among the LGBT population compared to the rest of the general population.
25,26
Unfortunately, the forward momentum on adding SOGI questions to surveys appears to
have ground to a halt under the Trump Administration. The Department of Health and
Human Services’ (HHS) proposed 2017 protocol eliminated the OAA survey’s question
about sexual orientation and transgender status, and reversed plans to add SOGI questions
to the disability survey.
27
An ACL spokesperson said that the SOGI questions were being removed from the National
Survey of OAA Participants and not put onto the disability program survey because since
2014, when SOGI questions were added to the OAA survey, only a small percentage of
elders identified as LGBT.
28
However, this is not a valid reason to remove these questions.
The government is rolling
back essential tools that can
determine whether supportive
services are reaching all elders
and disabled individuals
eectively and equitably.
6 7
Other surveys that ask older people about their SOGI have also found that a relatively small
percentage of older adults identify as LGBT compared to middle age and young respon-
dents. For example, on the 2016 Massachusetts Behavioral Risk Factor Surveillance System
survey, 15.5% of 18- to 24-year-olds self-identified as homosexual, bisexual, or other, while
among 65- to 74-year-olds, only 2.7% did. Also, when questions are first added to a survey,
often response rates are low and increase over time. While some LGBT elders and people
with disabilities may choose not to self-identify on these surveys, the sample of LGBT
program participants who do disclose their SOGI can tell us much about the experiences
of LGBT people in the elder and disability service systems.
In response to community push-back led by SAGE, the Center for American Progress, and
other groups, the ACL added the sexual orientation question back onto the OAA survey, but
not the transgender status question. It continues to exclude SOGI questions from the dis-
ability survey. The collection of data on LGBT program recipients is critical to ensuring that
programs meet the needs of LGBT seniors and LGBT people with disabilities, who experi-
ence high rates of economic insecurity, social isolation, and discrimination. The government
is rolling back essential tools that can determine whether supportive services are reaching
all elders and disabled individuals eectively and equitably. Collecting SOGI data to better
understand barriers to accessing services and reduce health disparities should not be a
political or partisan issue.
III. BAN ON TRANSGENDER PEOPLE SERVING IN
THE MILITARY
In a series of tweets on July 26, 2017, President Trump expressed his intention to ban
transgender individuals from serving in the U.S. military. When strung together, the tweets
read: “After consultation with my Generals and military experts, please be advised that the
United States Government will not accept or allow Transgender individuals to serve in any
capacity in the U.S. Military. Our military must be focused on decisive and overwhelming
victory and cannot be burdened with the tremendous medical costs and disruption that
transgender in the military would entail. Thank you.” These tweets were later followed by
a memorandum for the Secretary of Defense and the Secretary of Homeland Security,
reversing the policy that permits transgender people to serve openly in the U.S. military.
29
Discrimination against transgender people, as embodied in this new policy, contributes to
the physical and mental health burden of not only the transgender Americans who are
serving our country, but of all transgender people. Discrimination contributes to minority
stress and exacerbates health disparities. Research by social scientists at The Fenway
Institute has demonstrated the negative eects on health when transgender individuals
experience discrimination.
30
It is wrong to subject anyone, much less members of the
country’s armed forces, to this kind of treatment.
8 9
The RAND Corporation, a non-profit research institution, worked with the Department of
Defense to analyze the potential eects of the policy that currently permits transgender
individuals to serve openly in the military.
31
Their research found that of the 1.3 million active
service members, an estimated 1,320-6,630 are transgender, and only a smaller subset of
these members would seek gender transition-related medical treatment. The analysis found
that transition-related health care expenditures would represent an “exceedingly small
proportion” of total health expenditures, and that there would be little to no impact on unit
cohesion, operational eectiveness, or readiness. As such, the report concluded that the
policy to allow transgender people to serve openly in the military would have “minimal
impact” on the military in terms of medical costs or unit readiness.
Eighteen other countries allow transgender people
to serve in the military, including many close allies
of the U.S. such as Canada, Britain, Israel and Aus-
tralia. The Netherlands has allowed transgender
people to serve since 1974.
32
The U.S. Veterans Ad-
ministration has taken many steps in recent years
to improve care and services such as counseling
related to gender transition, and evaluations for
hormone therapy and surgery, for the approximate-
ly 5,000 transgender veterans that it serves.
33
An
attempt by House lawmakers to prohibit transgen-
der service members from receiving medical care
related to treatment for being transgender was
defeated after Secretary of Defense James Mattis
called Rep. Vicky Hartzler of Missouri who spon-
sored the measure and urged her to withdraw it.
34
In October 2017, federal judge Colleen Kollar Kotelly blocked key provisions in Trump’s
transgender military ban, stating that the plaintis “have established that they will be in-
jured by these directives, due both to the inherent inequality they impose, and the risk of
discharge and denial of accession that they engender.”
35
In a memorandum opinion from
October 30, 2017, the United States District Court for the District of Columbia held that the
Plaintis “are likely to succeed on their Fifth Amendment claim.”
36
President Obama’s policy
was supposed to allow transgender people to serve openly in the military starting in July
2017, which was later delayed by Secretary Mattis until January 1, 2018. The Trump Admin-
istration’s attempt to rescind this policy has since been enjoined, meaning that transgender
individuals were able to begin enlisting on January 1, 2018. An emergency request to the DC
Circuit Court to stay the lower court decision was rejected on December 21, 2017.
37
President Trump is vastly
reshaping the federal
judicial landscape in a
way that is very concerning
for LGBT people.
8 9
IV. JUDICIAL APPOINTMENTS
President Trump is vastly reshaping the federal judicial landscape in a way that is very
concerning for LGBT people. In his first year in oce, President Trump nominated 59 judges
for lifetime appointments to fill federal judiciary vacancies. As of December 2017, the Senate
had confirmed 18 of these judges–12 circuit court judges and 6 district court judges. The
Trump Administration has already confirmed more circuit court judges than the previous
three presidents had by the end of their first years in oce combined. Federal circuit and
district courts see far more cases than the U.S. Supreme Court, and as such, circuit and
district court judges have great influence over our nation’s laws. This is especially con-
cerning as more and more courts are deciding cases involving issues aecting the rights
of LGBT people, including nondiscrimination protections in the workplace and in public
accommodations, and conditions in jails and prisons for incarcerated LGBT people. Because
most federal judges serve lifetime appointments, the impact of their decisions will likely last
far beyond the Trump Administration’s time in oce.
38
Many of President Trump’s judicial nominees have voting records that clearly demonstrate
strong anti-LGBT bias. Lambda Legal has publicly opposed 16 out of 59 of President
Trump’s nominees because their anti-LGBT records demonstrate that they would be “unable
to administer justice impartially to all Americans.”
39
For example, one of President Trump’s
judicial nominees, Je Mateer, openly stated that he discriminates on the basis of sexual
orientation and that he believes that transgender children are part of “Satan’s plan.”
40
While
White House ocials stated in December 2017 that Je Mateer will not be moving forward
through the confirmation process, other anti-LGBT judicial nominees have been confirmed
for life appointments.
The Trump Administration also filled a U.S. Supreme Court vacancy with Justice Neil Gorsuch.
Justice Gorsuch has a record of opposing the civil rights of LGBT people. In 2005 he criti-
cized pro-same-sex marriage litigation as representing “the politicization of the judiciary”
that would invite “backlash” similar to the 11 statewide anti-gay marriage ballot measures
approved by voters in the November 2004 election.
41
He joined a ruling against an incarcer-
ated transgender woman who claimed that her rights were violated because she was denied
medically necessary hormone treatment and prohibited from wearing feminine clothing
while incarcerated.
42
During his tenure on the Denver-based U.S. Court of Appeals for the
10 11
10th Circuit, Judge Gorsuch joined in an opinion by the full Court of Appeals on the Hobby
Lobby case.
43
Hobby Lobby Stores, an arts and crafts company, opposed the Aordable
Care Act requirement that it provide contraceptive care to its employees, saying it violat-
ed the beliefs of the store owners. In Burwell vs. Hobby Lobby Stores, Inc. (2014), the U.S.
Supreme Court ruled in favor of Hobby Lobby, giving the corporation a religious exemption
from providing contraception as part of employees’ healthcare plans.
44
The Hobby Lobby
ruling legitimized a for-profit corporation’s claim of religious belief, a departure from previ-
ous First Amendment rulings.
45
As a U.S. Supreme Court Justice, Gorsuch joined the dissent-
ing opinion in a ruling that requires states to list same-sex couples on a birth certificate.
46
In
its first year in oce, the Trump Administration has taken steps to create a federal judicial
landscape that is hostile towards recognizing and protecting the civil rights of LGBT people.
V. BAN ON CENTERS FOR DISEASE CONTROL AND
PREVENTION USING CERTAIN WORDS, INCLUDING
“TRANSGENDER”
On December 15, 2017, sta at the Centers for Disease Control and prevention (CDC) were
told by the Trump Administration that they would be prohibited from using a list of seven
words or phrases in ocial budget documents.
47
These words included “vulnerable,” “enti-
tlement,” “diversity,” “transgender,” “fetus,” “evidence-based,” and “science-based.” Some
replacement phrases were oered in some cases, but not in others. For example, instead of
“science-based” or “evidence-based,” the administration suggested analysts use the phrase,
“CDC bases its recommendations on science in consideration with community standards and
wishes.”
48
Two days later, in a series of tweets, CDC Director Dr. Brenda Fitzgerald
asserted that “there are no banned words at CDC.”
49
These reports of restrictions on the use of language by public health ocials at the CDC
are deeply troubling. It does not matter whether this constitutes an outright ban, or whether
the list originated as a strategy to gain support for the CDC budget among Congressional
conservatives. Telling public health ocials working to prevent Zika, HIV and other diseases
what words they can use is Orwellian. It is not what we expect to see in a democracy, and
such policies—whether they are formal or informal—harm public health.
Disease treatment and prevention must be driven by science and evidence. That includes the
proper use of terminology, such as “transgender,” which describes a population that bears
a disproportionate burden of sexually-transmitted infections, including HIV, and which also
experiences barriers to accessing competent and arming health care. Accommodating
intolerance of people who are transgender by discouraging the use of accurate language is
dangerous and undermines public health.
10 11
VI. DACA AND LGBT PEOPLE
In September 2017, the Trump Administration announced that it would end protections for
some 800,000 undocumented immigrants under the Deferred Action for Childhood Arrivals
(DACA) program.
50
DACA, a policy enacted by President Obama, provided temporary
protections for those who would have been protected by the DREAM (Development, Relief,
and Education for Alien Minors) Act, which was never passed.
The Williams Institute estimates there are
over 75,000 LGBT people who are eligible for
DACA, with around 36,000 already enrolled.
51
According to a 2017 study of 3,063 DACA
recipients, 10% of respondents identified as
LG BT.
52
LGBT people of color are more likely
to live in poverty, and the vast majority of
DACA recipients are from Mexico (79.4%).
53,54
DACA has eliminated barriers to economic
security for undocumented LGBT young peo-
ple, with 76.4% of LGBT survey respondents
reporting that DACA has allowed them to
earn more money and become more finan-
cially independent. With DACA, employment
rates of LGBT recipients went from 55.8% to 94.5%. DACA has allowed LGBT recipients to
not only obtain employment at a higher rate, but also to obtain higher paying jobs with
benefits; average hourly wages rose 73.7%. DACA recipients are also able to pursue educa-
tional opportunities that they previously could not.
DACA has allowed recipients to live their daily lives without fear of deportation. Living
without fear of deportation is particularly significant for LGBT DACA recipients, who may
be forced to return to countries with particularly high rates of violence and discrimination
against LGBT people. Same-sex sexual activity is criminalized in at least 72 countries, and
punishable by death in 8 of those countries.
55
Even in countries that do not criminalize
homosexuality, violence against LGBT people persists. In a survey of LGBT Mexicans, 60%
reporting knowing an LGBT person who was murdered in the past 3 years.
56
Because DACA
recipients arrived in the U.S. before the age of 16, most do not meet the legal requirement
for asylum applications to be filed within one year of arrival.
President Trump has signaled
that he and his administration
do not prioritize human rights
the way previous presidents
and administrations have.
12 13
With DACA recipients at an increased risk of deportation, they are also at heightened risk of
facing physical, verbal, and sexual abuse while being held in detention centers. This is of
particular concern for LGBT DACA recipients, due to the disproportionate rates of violence
they face while in confinement. Twenty percent of sexual assault cases in ICE detention
facilities between 2009 and 2013 involved a transgender victim.
57
Following the Trump Administration’s DACA announcement, LGBT organizations across the
country mobilized to protest, including representatives from the Victory Institute, the Nation-
al Center for Lesbian Rights, GLAAD, and the Transgender Law Center.
58
Citing data from the
Williams Institute on LGBT DACA recipients, organizations highlighted the impact that this
policy change would have on LGBT immigrants in the United States.
VII. NO MENTION OF LGBT PRIDE MONTH
In June 2017, President Trump failed to ocially recognize the month as LGBT Pride Month.
President Bill Clinton was the first president to ocially recognize June as LGBT Pride
Month in honor of the 1969 Stonewall Riots, and while the tradition was halted with Presi-
dent George W. Bush, President Obama once again recognized June as LGBT Pride month
throughout his eight-year term. The failure to recognize LGBT Pride Month is in contrast to
Trump’s expressed support of LGBT rights on the campaign trail.
VIII. LACK OF DOMESTIC HIV LEADERSHIP
Following President Trump’s inauguration, the web page for the Oce of National AIDS
Policy (ONAP) was removed. To date, it has not been restored.
59
Former Director Amy Lansky
left ONAP on January 4, 2017, and the position had not been filled as of January 15, 2018.
60
Just under a year into his first term, Trump had yet to appoint an HIV/AIDS chief, the first
time since Bill Clinton created the position in 1993 that a president has failed to do so. In June
2017, six members of the Presidential Advisory Council on HIV/AIDS (PACHA) resigned from
their posts, stating “the Trump Administration has no strategy to address the on-going HIV/
AIDS epidemic.”
61
In late December 2017, the Trump Administration sent letters firing all of
the remaining members of PACHA.
62
While previous administrations have asked for resigna-
tions of entire councils before, they typically ask members to resign early in their terms and
promptly reappoint new members. This also made it dicult for members to reapply for the
position by the January 2, 2018 deadline.
63
In December 2017, President Trump released a World AIDS Day announcement that failed to
include any mention of LGBT people.
64
The statement also ignored communities of color and
the disproportionate impact of HIV on LGBT people of color. The statement does mention the
United States’ “sustained public and private investments in HIV prevention and treatment,”
the same investments the Trump Administration has threatened to cut in its FY18 budget
proposal (see below).
65
12 13
IX. FOREIGN POLICY
The impact of an administration that is unsupportive of LGBT rights extends far beyond U.S.
borders. Policies and priority setting under the Trump Administration have the potential to
endanger LGBT people globally. The United States Department of State no longer promotes
LGBT equality as a major goal of U.S. foreign policy. The page on the State Department
website, promoting LGBT equality abroad, no longer exists.
66
In contrast, the Obama Admin-
istration prioritized LGBT rights in foreign policy through support and funding for advocacy
groups globally.
67
President Trump has signaled that he and his administration do not
prioritize human rights the way previous presidents and administrations have.
68
Over the
past year a number of governments have unleashed campaigns of persecution against gay
men or LGBT people, including Tanzania
69
, Chechnya
70
, and Indonesia.
71
On May 23, 2017, President Trump released his 2018 federal budget proposal that, if enacted,
would sharply cut funding for a number of important HIV prevention and care programs,
including global HIV programs. The proposed budget included a $1.1 billion reduction in
funding for global HIV prevention and treatment eorts, which could lead to more than 1
million deaths according to estimates from amfAR.
72
The majority of the U.S. government’s
global HIV/AIDS eorts are focused in sub-Saharan Africa, which would be disproportionately
burdened by the proposed budget cuts.
[T]he federal government may not condition receipt of a
federal grant or contract on the eective relinquishment
of a religious organization’s hiring exemptions or attributes
of its religious character.
— Attorney General Je Sessions, October 2017
14 15
X. RELIGIOUS REFUSAL POLICIES
In addition to opposing and reversing federal nondiscrimination regulations regarding LGBT
people, the Trump Administration has also taken a strong stance in favor of religious refusal
principles that would allow individuals and businesses, including health care providers, to
refuse to serve LGBT people and same-sex couples based on religious or moral beliefs. In
recent years, this kind of religious refusal legislation 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 contra-
ception in an employee health plan
73
— and the two pro-same-sex marriage Supreme Court
rulings in 2013
74
and 2015,
75
religious conservatives have introduced a slew of state and fed-
eral bills that frame refusal to serve LGBT people and/or same-sex couples as the Constitu-
tionally-guaranteed “free exercise” of religion.
At least 10 states have some form of religious refusal legislation that could authorize dis-
crimination against LGBT people.
76
Seven of these 10 states have religious refusal laws that
permit state-licensed child welfare agencies to refuse to place children with or provide ser-
vices to LGBT people and same-sex couples, if doing so would conflict with their religious
beliefs.
77
Two states have religious exemption laws that allow businesses to refuse to serve
married same-sex couples, and three allow state and local ocials to refuse to marry same-
sex couples.
78
Four states, including Mississippi and Tennessee, have religious refusal laws
that allow medical professionals to refuse to serve LGBT people.
79
The Mississippi law, HB
1523, allows people to refuse to provide services based on their personal belief that “mar-
riage is or should be recognized as the union of one man and one woman; sexual relations
are properly reserved to such a marriage; and male (man) or female (women) refer to an
individual’s immutable biological sex as objectively determined by anatomy and genetics at
time of birth.”
80
The Tennessee law, HB 1840, allows therapists and counselors to reject any
patient who has “goals, outcomes, or behaviors” that would violate the “sincerely held prin-
ciples” of the provider.
81
It is clear that anti-LGBT religious refusal laws are becoming more
and more common in states across the country.
The Trump Administration has shown that it supports religious refusal policies aimed at
allowing discrimination against LGBT people. The federal First Amendment Defense Act, a
bill that may be introduced during the 115th Congress, would also enable anti-LGBT discrim-
ination in health care.
82
As introduced in the last session, the bill would prohibit the federal
government from taking “discriminatory action” against individuals or businesses that “on
the basis that such person believes or acts in accordance with a religious belief or moral
conviction that: (1) marriage is or should be recognized as the union of one man and one
woman, or (2) sexual relations are properly reserved to such a marriage.”
83
The bill has the
support of the Trump Administration
84
and the 2016 GOP Party Platform.
85
This bill would
authorize widespread discrimination by individuals, service providers, and business against
same-sex couples and LGBT people. It could also authorize discrimination against single
parents, children of single parents, and unmarried heterosexual couples.
14 15
In September 2017, the U.S. Department of Health and Human Services (HHS) released
a Draft Strategic Plan for FY 2018-2022.
86
The plan made extensive mention of faith and
faith-based organizations. In contrast to the last HHS Draft Strategic Plan for FY 2014-2018,
which had several references to LGBT health disparities, the current draft strategic plan
made no mention of LGBT health.
87
The language of the Draft Strategic Plan FY 2018-2022,
namely that HHS will “vigorously enforce” and “armatively accommodate” religious
beliefs, 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.
The Draft Strategic Plan FY 2018-2022 stated that HHS should “strengthen partnerships
between…faith-based and community organizations to educate and train the workforce to
provide high-quality, culturally competent care.” Faith-based organizations can play a key
role in providing cultural competency education. However, given that the motivation for
much of the religious refusal legislation and executive branch actions is opposition to legal
equality for same-sex couples and LGBT people, an expansion of the role of faith-based
service providers in health care and training of health care, elder care, and other service
providers is a cause for concern, especially in the absence of sexual orientation and gender
identity nondiscrimination regulations and laws at the federal level.
16 17
On October 6, 2017 Attorney General Je Sessions issued a “Memorandum for all executive
departments and agencies.” In the memo, Attorney General Sessions stated very strongly
that “free exercise” of religion, guaranteed by the First Amendment to the U.S. Constitu-
tion, protects actions far beyond worship in a church, synagogue, mosque, temple, or other
house of worship. 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 observance and practice, whether or not central
to, or required by, a particular religious faith.” These freedoms apply to “private associa-
tions, and even businesses” as well as individuals and religious organizations.
88
This memo ostensibly protected the right of 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 stated that religious organizations should be able to accept federal
government grants and discriminate in hiring for programs funded by those grants.
The memo stated:
…to the greatest extent practicable and permitted by law, religious observance and
practice should be reasonably accommodated in all government activity, including
employment, contracting, and programming.
16 17
…individuals and organizations do not give up their
religious-liberty protections by providing or receiving
social services, education, or health care; by seeking
to earn or earning a living; by employing others to
do the same; by receiving government grants and
contracts; or by otherwise interacting with federal,
state, or local governments.
[T]he federal government may not condition receipt
of a federal grant or contract on the eective relin-
quishment of a religious organization’s hiring exemp-
tions or attributes of its religious character. Religious
organizations…may not be required to alter their
religious character to participate in a government
program…nor eectively to relinquish their federal
statutory protections for religious hiring decisions.
89
The October 2017 memorandum from the DOJ clearly authorized and encouraged anti-LGBT
discrimination in health care and access to other services, as well as in hiring to provide
these taxpayer-funded services, at the hands of both private nonprofits and government
agencies.
A Request for Information (RFI) issued by HHS on October 25, 2017 reiterated the Adminis-
tration’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. The Trump Administration continued to show its support
for anti-LGBT discrimination under the guise of free exercise of religion in its amicus curiae
(friend of the court) brief regarding the Masterpiece Cake Shop case, currently before the
U.S. Supreme Court. The case involves a baker who violated a state nondiscrimination law
by refusing to bake a wedding cake for a gay couple. The Trump Administration’s amicus
curiae brief supported the cake shop in its decision to violate Colorado state law and refuse
to serve the gay couple. In the brief, the U.S. Department of Justice stated that while there
is a compelling federal government interest in prohibiting racial discrimination by a private
business, there is no compelling interest in prohibiting anti-gay discrimination.
90
If bakers are
granted the right to discriminate against LGBT customers, then other professions will likely
follow suit, applying this same logic to their own businesses.
In its first year in oce, the Trump Administration has clearly expressed its support for
religious refusal policies that will increase discrimination against LGBT people. The Trump
Administration has directed all federal agencies to uphold and enforce a distorted definition
of “religious freedom” which would allow for widespread discrimination against LGBT people
in health care, other social services, in employment, and even at the hands of government
ocials performing public duties.
An expansion of the role
of faith-based service
providers in health care
and training of health
care, elder care, and
other service providers
is a cause for concern.
18 19
XI. UNDERMINING AND ATTEMPTING TO REPEAL
THE PATIENT PROTECTION AND AFFORDABLE
CARE ACT
Throughout 2017, the Trump Administration and the Republican-led Congress repeatedly
attempted to repeal the 2010 Patient Protection and Aordable Care Act (ACA). When leg-
islative repeal attempts failed, President Trump took several steps to undermine the law and
insurance markets. The ACA resulted in 20 million more Americans gaining access to health
insurance who were previously unable to obtain it due to pre-existing conditions or cost.
91
The ACA has benefitted all Americans, but it has especially benefitted marginalized commu-
nities that traditionally experience high rates of uninsurance, including lesbian, gay, bisexual,
and transgender (LGBT) people, people living with HIV (PLWH), and people of color.
In 2013, before key provisions to expand access to health insurance were implemented,
PLWH commonly experienced discrimination based on preexisting conditions from insur-
ance providers, and low-income PLWH could not qualify for Medicaid based on income
alone without a diagnosis of AIDS. The U.S. Centers for Disease Control and Prevention and
the Kaiser Family Foundation estimate that the percentage of PLWH who lacked any kind
of health insurance coverage was 22% in 2012 and dropped to 15% in 2014, following imple-
mentation of key elements of health care reform.
92
The percentage of PLWH on Medicaid
increased from 36% in 2012 to 42% in 2014.
93
The ACA, and Medicaid expansion in particu-
lar, have been very important to covering the health care costs and needs of PLWH. A 2014
Gallup study found that LGBT Americans were more likely to report being uninsured than
non-LGBT Americans.
94
Between June/September 2013 and December 2014/March 2015,
however, the percentage of LGB adults without health insurance decreased from 22% to 11%,
which is a larger decrease than in the non-LGB adult population.
95
18 19
The Kaiser Family Foundation found that among Black nonelderly individuals, uninsurance
rates dropped from 17% in 2013 to 12% in 2016.
96
Uninsurance rates among Latino nonelderly
people dropped from 26% in 2013 to 17% in 2016.
97
While uninsurance rates among Black and
Latino people are still higher than uninsurance rates among White people, the racial/ethnic
disparities in health care coverage are improving. The National Center for Health Statistics
reports that the dierence in uninsurance rates between Latino people and White people
decreased from a 26% gap in 2013 to 18% today.
98
The gap in health insurance coverage
between Black people and White people decreased from 10% to 5% over the same time
period.
99
These improvements are due in large part to the ACA.
Both House and Senate Republicans attempted
to pass bills to repeal the ACA in the spring
and summer of 2017. In March 2017, House
Republicans introduced the American Health
Care Act (AHCA).
100
The AHCA would have cut
Medicaid funding, eliminated Medicaid ex-
pansion, capped federal insurance funding for
Medicaid, eliminated the individual mandate,
provided lower tax subsidies to low-income
and older Americans, and defunded Planned
Parenthood. The Congressional Budget Oce
(CBO) estimated that 24 million Americans
would lose their health insurance by 2026 as a
result of the AHCA. Among those that would
have lost their health insurance, LGBT people,
PLWH, and people of color would have been
overrepresented.
In June 2017, Senate Republicans introduced the Better Care Reconciliation Act (BCRA) to
repeal and replace the ACA.
101
Like the AHCA, the BCRA included significant funding cuts to
Medicaid, a per capita cap funding mechanism for Medicaid, elimination of Medicaid expan-
sion, and smaller tax subsidies for low-income Americans. The CBO reported that the BCRA
would result in 22 million more Americans becoming uninsured over the next decade. Neither
the AHCA nor the BCRA could garner enough support to pass through Congress. In a last-
ditch eort to repeal the ACA, Republicans introduced a “skinny repeal” plan that would have
repealed the individual and employer mandates, but would have left Medicaid untouched for
the time being.
102
The CBO estimated that such a plan would result in 16 million more Ameri-
cans losing health insurance. The “skinny repeal” also failed.
Racial/ethnic disparities
in health care coverage have
declined thanks to the ACA.
20 21
While Congressional attempts to replace the ACA had failed, the Trump Administration
continued its eorts to undermine the ACA. In August 2017, the Trump Administration cut
funding for marketplace outreach and consumer enrollment assistance just two months
before the start of the open enrollment period. In September 2017, the Department of
Health and Human Services prevented sta in regional oces from participating in open
enrollment marketing events. This was a stark contrast from previous years, when regional
sta had an active role in outreach and promotion for open enrollment. In October 2017, the
Trump Administration announced that it would stop the cost-sharing reduction payments
that helped to lower the deductibles and out-of-pocket health costs for millions of low- and
middle-income Americans. Also in October 2017, President Trump signed an executive order
which directed relevant agencies to consider ways in which they could sell health insurance
plans that are exempt from ACA requirements, including the requirement to cover essential
health benefits such as preventive screenings, medications, mental health care, and materni-
ty care. Oering cheap plans that do not cover essential health benefits will further contrib-
ute to destabilizing the market and undermine important ACA protections for people with
preexisting conditions.
103
20 21
In December 2017, Congress passed and President Trump signed a new tax bill, which
undermined the ACA by repealing the individual mandate. The individual mandate is a tax
that the federal government imposes on individuals who fail to purchase health insurance.
It motivates healthy Americans to sign up for aordable and comprehensive health care
coverage. With the repeal of the ACA’s individual mandate, healthy people will be less
motivated to purchase health insurance, while many people who are sick or living with
chronic conditions will still need to purchase health insurance. As a result, the markets
will destabilize and costs will be driven up overall because people signing up for health
insurance will disproportionately represent those already requiring care, much of it lengthy
and ongoing. This is what happened in the mid-1990s, when seven states experimented
with health care reform laws that did not include individual mandates.
104
In each case, the
individual insurance market either collapsed, or lawmakers intervened and imposed a
mandate to keep the markets from failing. The CBO estimated that the 2017 tax bill will
result in 13 million more Americans losing insurance coverage over the next decade.
Repealing the individual mandate could result in skyrocketing insurance costs for people
with chronic illnesses, such as PLWH.
Through continued eorts to undermine the ACA, the Trump Administration and Congress
have chipped away at a policy that has cut the uninsurance rate among lesbian, gay and
bisexual people in half, and also reduced it significantly for transgender people and people
living with HIV. The ACA also reduced racial/ethnic disparities in access to health insurance,
a key structural driver of racial/ethnic health disparities in our country.
XII. BUDGET
On December 21, 2017, Congress approved a Continuing Resolution to keep the federal
government open through January 19, 2018. Since the Trump Administration came into
being a year ago, President Trump and Congress have not been able to agree upon a federal
budget. But we do have a sense of how President Trump and Vice President Pence would
spend the government’s money were they able to get a budget passed. On May 23, 2017,
President Trump released his Fiscal Year 2018 federal budget proposal that, if enacted,
would sharply cut funding for a number of important HIV prevention and care programs.
For example, the budget would reduce funding for the Ryan White HIV/AIDS Program by
$59 million. The Ryan White Program is critical for ensuring access to care for people living
with HIV (PLWH) in the U.S., a population that increases annually as approximately 40,000
people are newly diagnosed with HIV each year, and as people with HIV live longer thanks
to better antiretroviral medications. The Ryan White Program has been essentially flat
funded since the early 2000s, even though the number of people accessing Ryan White
services has nearly doubled, and the value of the funding has decreased due to inflation.
105
22 23
Trump’s budget called for the total elimination of AIDS Education and Training Centers
(AETCs) and Special Projects of National Significance (SPNS), which are run under the aus-
pices of the Ryan White HIV/AIDS Program. AETCs and SPNS projects are vitally important
for pioneering and evaluating innovative HIV care models to improve access and retention
in care for vulnerable populations that are disproportionately burdened by HIV. This is es-
pecially important for PLWH who experience unique challenges and have long experienced
discrimination in health care settings, such as transgender people. These projects help
PLWH sustain their healthcare treatment regimens, and when PLWH are retained in care,
their viral load decreases, which reduces the risk of transmitting the virus. The education
centers and special projects program also assist with rapid response to outbreaks of dis-
ease. When nearly 200 people were diagnosed with HIV in rural Scott County, Indiana over
a 15-month period in 2014-15, the Midwest AIDS Education and Training Centers provided
in-depth training to doctors and care providers in the area and helped get those newly
diagnosed with HIV into immediate care.
106
Ironically, Vice President Pence is proposing to
eliminate a program that helped him, as Indiana’s Governor, respond to an infectious disease
outbreak there.
The proposed Trump budget also included a 16.6% cut in funding for the prevention of
HIV/AIDS, viral hepatitis, sexually transmitted disease, and tuberculosis at the Centers for
Disease Control and Prevention. Funding for the National Institutes of Health would be cut
by $5.7 billion under the proposed budget. The National Institute of Allergy and Infectious
diseases, where most HIV/AIDS research is conducted, would be cut by $838 million. Fur-
thermore, the budget also included a $1.1 billion reduction in funding for global HIV
prevention and treatment eorts.
In addition to funding cuts for HIV prevention and care programs, the Trump proposed
budget also included a 13.1% cut in funding to the Oce of Civil Rights at the Department
of Health and Human Services, and a 36.7% cut in funding for the Oce of the Nation-
al Coordinator for Health Information Technology. Under the Obama Administration, the
Oce of Civil Rights was instrumental in promoting nondiscriminatory care for transgender
patients. The Oce of the National Coordinator for Health Information Technology has led
important eorts to shift the U.S. health system from paper medical records to electronic
health records, and has promoted the collection of sexual orientation and gender identity
data from patients to better understand and address LGBT health disparities. This budget
would undermine important progress we have made in preventing and treating HIV, and in
addressing LGBT health disparities.
22 23
XIII. ANTI-LGBT ACTIVIST HEADING HHS OFFICE
OF CIVIL RIGHTS RESTRICTS LGBT ACCESS TO
HEALTH CARE
President Trump has appointed a number of individuals and activists with long records of opposition
to LGBT equality to important positions in his administration. Among the most concerning from the
perspective of LGBT health is Roger Severino, described by The Atlantic as “an outspoken advocate
against abortion and same-sex marriage,” and by the Human Rights Campaign as “a radical anti-
LGBTQ rights activist.”
107
As a legal scholar at the Heritage Foundation, a conservative think tank,
Severino strongly opposed same-sex marriage and public accommodations nondiscrimination laws
inclusive of gender identity. He served as legal counsel in court cases challenging marriage equality
for same-sex couples.
108
He denounced the Obama Administration’s prohibition of some anti-LGBT
discrimination in health care through Section 1557 of the ACA. In a January 2016 Heritage Foundation
report, Severino and coauthor Ryan Anderson argued that sexual orientation and gender identity
can be changed and should not be included in nondiscrimination laws. In 2017 President Trump
appointed Severino to head the Oce of Civil Rights (OCR) at the U.S. Department of Health and
Human Services.
109
As we went to press with this report,
Politico reported that Severino was
preparing “new protections for health
workers who…refuse to treat transgender
patients based on their gender identity
or provide other services for which they
have moral objections.” This would be
only the latest religious refusal regulation
from the Trump Administration that would
limit the ability of LGBT people to access
health care. Similar rules were in place
under the administration of President
George W. Bush, and led to discrimination
against lesbian couples seeking fertility
treatments.
110
In a January 2016 Heritage Foundation
report, Severino and coauthor
Ryan Anderson argued that sexual
orientation and gender identity
can be changed and should not be
included in nondiscrimination laws.
24 25
Instead of protecting the rights of LGBT Americans,
the Trump Administration has amassed a striking list
of anti-LGBT actions in just one year. These actions are
likely to increase minority stress and negatively aect
people’s health and well-being.
CONCLUSION
Donald Trump vowed to be a uniquely pro-LGBT Republican while he was on the campaign
trail, but the first year of his Administration has proved otherwise. Instead of protecting the
rights of LGBT Americans, the Trump Administration has amassed a striking list of anti-LGBT
actions in just one year. These actions increase LGBT people’s vulnerability to discrimination
in health care, social services, employment, and access to government services. They are
likely to increase minority stress and negatively aect people’s health and well-being. They
are also out of step with the American public, 69% of whom support LGBT nondiscrimination
laws that cover employment, housing, and public accommodations.
111
Previous presidents
have enacted anti-gay policies. However, in the case of former President George W. Bush, for
example, this took place over the course of his first four-year term.
112
The Trump Administra-
tion has enacted anti-LGBT policies and appointed anti-LGBT ocials with alarming speed.
24 25
AUTHORS
Sean Cahill, PhD
Director of Health Policy Research
The Fenway Institute
Sophia Geen
Project Manager of HIV Prevention Research
The Fenway Institute
Tim Wang, MPH
Health Policy Analyst
The Fenway Institute
ACKNOWLEDGEMENTS
Jennifer Potter, MD
Co-Chair of The Fenway Institute and Director of LGBT Population Health
Reviewer
Erica Sawyer
Designer
Inside cover photo by Ron Harris, 2016
All other photos purchased through Getty Images
© The Fenway Institute, 2018
26 27
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28 29
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78. Ibid.
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