The Trump administration abruptly waded into the culture wars over gay
rights this week, signaling in three separate actions that it will use the powers of the federal government to roll back civil rights for gay
and transgender people.
Without being asked, the Justice Department intervened in a private employment lawsuit on Wednesday, arguing that the ban on sex discrimination in the Civil Rights Act of 1964 does not protect workers on the basis of their sexual orientation. The friend-of-the-court brief, filed at the United States Court of Appeals for the Second Circuit in New York, was a striking shift in tone from the Obama administration, which had shied away from that question.
The move ended a day that began with a tweet from President Trump announcing a ban on transgender people serving in the military, surprising Pentagon leaders and reversing a year-old Obama administration policy.
Also on Wednesday, Mr. Trump announced that he would nominate Sam Brownback, the governor of Kansas and a vocal opponent of gay
rights, to be the nation’s ambassador at large for international
The constellation of events raised alarm among gay
rights advocacy groups, which portrayed the moves as a concerted effort to limit advancements in gay
“Yesterday was this administration’s anti-L.G.B.T. day,” James D. Esseks, director of the American Civil Liberties Union’s Lesbian Gay
Bisexual Transgender & HIV Project, said on Thursday. “Whether coordinated or not, to have it all happen on the same day certainly brings into focus the profoundly anti-L.G.B.T. agenda of this administration.”
Administration officials insisted that the timing of the three actions was coincidental. Wednesday just happened to be the deadline for the Justice Department to submit briefs in the employment discrimination case, they said, and Mr. Trump’s tweets about transgender troops unexpectedly skipped past lawmakers and the military brass who were considering the issue.
But whether by accident or intent, the result was a striking reversal from Mr. Trump’s predecessor, who repeatedly used administrative actions and legal arguments to press for protections for gays and lesbians.
And taken together, the administration’s actions are a prize for religious conservatives who backed Mr. Trump during the 2016 campaign but were far more enamored of his vice-presidential pick, Mike Pence.
Tony Perkins, the president of the Family Research Council, a group that advocates socially conservative and Christian causes, applauded Mr. Trump’s decision to bar transgender people from the military. The president, he said in a statement, should be praised for “rescuing our troops from the grip of the Obama years and restoring a sense of true pride to a military devastated by two terms of social engineering.”
For Mr. Trump, the issue of transgender service in the military affects a fraction of the population but may resonate with his core political supporters.
Anthony D. Romero, the executive director of the American Civil Liberties Union, said the ban and other moves were “the most cynical of dog-whistle politics” and an effort to “rile up the president’s base as this administration flounders on health care reform and the Russia investigation, and as its popularity ratings plummet.”
Legal specialists said the most important political fact about the friend-of-the-court brief was that it was filed at all. Normally, the Equal Employment Opportunity Commission, not the Justice Department, weighs in on discrimination cases involving private employers. Moreover, the court had asked only the employment commission, and not the Justice Department, for its opinion.
The commission said the Civil Rights Act’s ban on sex discrimination should be interpreted as including protections based on sexual orientation. But the Justice Department contradicted that, submitting its own brief declaring that courts should not extend that protection to gays and lesbians.
The brief was less of a reversal of any concrete position the federal government had taken during the Obama administration, than of its earlier trajectory. During the Obama era, when the Justice Department was called upon to defend the federal government against employment lawsuits, it also sometimes argued that sexual orientation alone was not protected by the Civil Rights Act.
Still, in a 2016 regulation to carry out a provision in the Affordable Care Act banning discrimination in health programs on the basis of gender, the Obama administration said only that it was taking no position on “whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination.” It also seemed to welcome the prospect that “the law will continue to evolve in this area.”
Under the Trump administration, the Justice Department has gone out of its way to say the law should not evolve further in the direction of gay
It is a controversial stance inside the department, according to a person familiar with internal deliberations. When the Civil Division proposed intervening in the New York case, the Office of the Solicitor General was initially skeptical about getting involved, the person said. But the administration ultimately went forward.
The brief’s signers included Chad A. Readler, the acting head of the Civil Division, and Tom Wheeler, the acting head of the Civil Rights Division, who had served as general counsel to Mr. Pence when he was governor of Indiana. It was also signed by Hashim Mooppan, a deputy in the Civil Division who was a former clerk to Justice Antonin Scalia.
Sarah Isgur Flores, a Justice Department spokeswoman, declined to discuss the substance of internal deliberations, but said, “The White House
Counsel’s Office has known about this for a long time.”
Ms. Flores also said it was a “total coincidence” that the deadline for the brief happened to fall on the day of Mr. Trump’s tweets about barring transgender troops.
The tweets followed an amendment to a military spending bill to ban the Pentagon from paying for transition surgery or hormone therapy. Representative Vicky Hartzler, Republican of Missouri, who had proposed the plan, praised the president’s tweets. “We cannot burden our armed forces with the tremendous costs and disruptions that transgender in the military would entail,” she said.
At least three organizations on Thursday said they were planning two lawsuits challenging the ban on transgender troops — including a joint lawsuit by two groups focused on gay
rights, Outserve and Lambda Legal, and one by the A.C.L.U.
But the groups said they could not file a case until the government took a formal policy step — like changing regulations or issuing an executive order — which they could then ask a judge to block. To prepare for that, they have begun looking for potential plaintiffs and developing a legal argument that the ban is a form of unconstitutional discrimination.
Jon Davidson, the legal director of Lambda, said courts may be skeptical of the Trump administration’s claims that transgender troops would be disruptive, given that Obama-era Pentagon studies concluded otherwise.
“Courts don’t deal in alternative facts,” Mr. Davidson said. “There are verifiable studies — not just opinions.”
During the campaign, Mr. Trump promised to be the better “friend of women and the L.G.B.T. community” than Hillary Clinton, a promise that gay
rights advocates accuse him of betraying.
In May, Mr. Trump issued an executive order that sought to allow clergy members to endorse political candidates from the pulpit. But it still stopped short of demands by conservatives, who had wanted the president to exempt their organizations from Obama-era regulations aimed at protecting gay
people from discrimination.
rights groups also denounced the nomination of Mr. Brownback, a longtime opponent of gay
marriage. As a senator, Mr. Brownback pushed for a federal ban on same-sex marriage, and in 2015, as governor, he signed a broad executive order in Kansas prohibiting the state government from acting against religious groups that refuse to provide services to gay
Activists said the administration’s embrace of Mr. Brownback, along with the other moves on Wednesday, suggest its renewed interest in rolling back gay
“Yesterday, he went after everyone with a direct assault. He truly declared war on our community,” said Chad Griffin, the president of Human Rights Campaign. “I promise you, this is a battle we are going to win.”
©2017 The New York Times News Service