If 2019 is anything like this year, our community will have to be organized and intentional about the ways that we resist the Trump administration's anti-trans agenda. The manufactured public debate over whether we exist and should have rights, fueled by the federal government's rejection of our bodies, our lives, our medical needs and indeed, our very existence, has taken a toll.
Violence is still on the rise, anti-trans legislation continues to dominate on the state-level, and the staggering rates of trans suicide reveal the unrelenting pain that flows from both internal and external alienation. To successfully tackle the substantial work left on our plate, one thing we can do is reflect on the many ways the federal government has attacked us and prepare ourselves and our communities with the tools to resist.
So, here's a list of just four ways the Trump Administration has been trash this year:
1. Arguing against our rights in court. Beginning in 2017 with a series of impulsive tweets from Trump, his administration has been determined to ban trans and nonbinary people from open military service. This year, they continued to defend the ban in court, culminating with a recent request to the Supreme Court to review uphold the ban this term (meaning issue a decision by the end of the term in June of 2019).
Beyond the military, the Administration has also made clear in a series of filings that it supports overturning existing protections for transgender people through a legal redefinition of sex under federal law. That would mean slashing any protections in education, employment, housing, and health care. The position taken in court was also forecast last year in a memo from former Attorney General Jeff Sessions announcing the administration's position that transgender people are not protected under Title VII, the federal law prohibiting sex discrimination in employment. In a brief by the administration [?] the Supreme Court has been asked to adopt this anti-trans position in a case brought by fired trans worker, Aimee Stephens, and the issue could be decided as early as June if SCOTUS takes up the case (stay tuned because we should know in January whether they will take the case).
2. Appointing vehemently anti-trans judges to the federal bench. The fight in the courts is especially scary because Trump is systematically appointing anti-LGBTQ+ judges to the federal bench at an alarming rate. Federal judges are appointed for life so the composition of the federal judiciary will have an impact on our rights for decades. A prime example is the appointment of Kyle Duncan, who defended North Carolina's anti-trans law, HB2, in court and fought to keep Gavin Grimm out of the boys' restroom in Virginia, to the United States Court of Appeals for the Fifth Circuit.
3. Attacking us through the administrative agencies. The Trump administration has used its executive power to attack the civil rights and basic humanity of almost everyone who is not a wealthy, white, cisgender, heterosexual man. Though we focus a lot on the role of the courts and Congress in establishing legal precedent, many rules governing our lives come through executive action. As the New York Times reported in October, the Trump administration is aiming to implement a cross-agency legal strategy to undermine existing legal protections for trans and non-binary people.
In addition to pursuing this strategy in court, we are likely to see a proposed redefinition of sex and a broad-based attack on health care protections for transgender people by a notice from the Department of Health & Human Services (HHS). The notice will attempt to roll back explicit protections for trans and non-binary people enumerated through current regulations implementing the non-discrimination provisions of the Affordable Care Act.
Short of new regulations, we have also seen efforts to attack protections for trans people in agency practice. The Bureau of Prisons (BOP) issued an updated memorandum limiting protections for transgender people in BOP custody. Other federal agencies have removed the word "transgender" from agency websites, in some cases replacing it with "biological sex" in a further attempt to scale back or outright attack legal protections that exist for trans communities.
The administration has also generally expanded religious exemptions to applicable laws and policies opening the door to anti-LGBTQ discrimination across the government.
4. Pushing white nationalist policies. From the Muslim Ban and the attacks on DACA to restrictions on asylum and the emphasis on "law & order" policies, the administration has pushed a discourse and set of policy priorities designed to stoke fear of people of color and justify systemic expansion of the carceral and surveillance state in the service of white supremacy. Attacks on immigrants, attacks on people of color, attacks on women, attacks on disabled people, are attacks on trans and non-binary people.
And these really are just a few of the many ways that the Trump Administration has attempted to attack, divide, and isolate us this year.
But as painful and exhausting as the last year has been, we have seen tremendous power and resistance building within our communities. In Massachusetts we fought an attack on our rights at the ballot with the tremendous victory of the #YesOn3 campaign. In court, we have blocked the ban on trans military service from going into effect, and have continued to successfully defend the rights of trans students and workers under existing federal law. In the public discourse, trans storytellers are giving us authentic, beautiful histories in print, on stage, and on screen.
Our histories stretch back in time and the truth of our bodies, our lives, and connection will continue to disrupt the many attacks this administration seeks to implement. To be successful, though, we have to centered and seen. Trans-led resistance is the antidote to anti-trans repression.
Though Trump and his friends hold a lot of power in the government, we continue to hold power in our collective action, vision, and lives. There is no doubt that 2019 will continue to bring new attacks on people's lives, rights, and well-being. But you better believe that the attacks will also be met with continued resistance.
Chase Strangio is a Staff Attorney with the ACLU's LGBT & HIV Project.