The Unclear Future of Trans Rights Under Trump

Transgender Americans have experienced unprecedented support from the Obama administration. What will happen to those protections under President Trump?

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Nov 9 2016, 8:20pm

Photo by Marija Manic via Stocksy

Two years ago, a black trans woman was photographed for the cover of Time magazine. That image represented a clear change in America—after decades of oppression and victimization, a trans woman of color had gained public power.

Laverne Cox declared that we'd reached a tipping point in America for transgender people, a notable shift toward equality across society, from pop cultural representation to fundamental needs like healthcare. There was no precedent for Cox to follow: After decades of invisibility and oppression, trans people had leapt out from a cultural shadow to seize the liberties they had been deprived of. We wanted to believe in that future, but after the presidential election of Donald Trump, many fear that years of progress are about to be undone.

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"The trans movement has moved faster in advancing public policy than any other movement in the history of the United States," says Mara Keisling, the executive director of the National Center for Transgender Equality. "We've seen about 150 policy changes that have helped trans people during the Obama administration." Based in the nation's capitol, NCTE is our country's greatest transgender rights organization. They cannot take a position on the presidential candidates, but on Saturday, Keisling told me that whoever wins the presidency has the power to either enforce existent protective policies for trans Americans, or to refuse to do so.

These policies and laws structure our lives. Here are some: the 1557 Affordable Care Act regulations that protect against discrimination in healthcare, federal guidance on the inclusion of transgender students in the protections of Title IX, and the interpretation of Title VII, which protects against sex discrimination at work, to include trans employees.

If we lose these protections, it will cause immediate material harm to the 1.4 million trans people estimated to live in the United States. "It means a child cannot go to school; it means an adult cannot have a job," Kiesling said. "These are not theoretical queer theory questions—this is real life. Can you be a full member of society? Can you be a member of society at all?"

Trump has previously seemed fine with trans Americans (he allowed a trans woman to compete in his Miss Universe pageant, and said Caitlyn Jenner can use the women's bathrooms of Trump Tower), but recently he began supporting anti-trans legislation, like the vile HB2 in North Carolina—a bill that strips away protections for a wide range of diverse identities, including trans people. Many worry that similar legislation will become more possible under Trump rule—especially given his running mate's history of fighting against LGBT equality. Future Vice President Mike Pence has passed legislation that enables businesses to refuse service to LGBT Americans, and he supports the military's "don't ask, don't tell" policy. He is an opponent of marriage equality, has suggested that LGBT rights constitute "societal collapse," and has "rejected the Obama administration directive on transgender bathrooms," according to Time.

These are not theoretical queer theory questions—this is real life.

In the light of a looming Trump presidency, one of the most pressing issues for LGBTQ advocates is the Supreme Court: As president, Trump will be able to fill Antonin Scalia's vacant seat, meaning the Court will lean conservative; in the event that another justice dies or retires, the balance of power could shift even further right. This is extremely troubling, as the Supreme Court plays a key role in granting or extinguishing legal protections for trans people.

One example is the upcoming case of Gavin Grimm, a transgender boy from Virginia. As a senior in high school, Grimm was told he could not use the men's restroom because he is transgender. With representation by the ACLU, Grimm won the right to use the bathroom, and that win was achieved in part because of the DOJ's interpretation of Title IX to include trans people. But this case isn't over yet: Earlier this fall, the Supreme Court agreed to review the verdict in the 2017 legislative season. Will the Court agree with the lower court ruling, affirming that Title IX protects this child—and therefore setting an important precedent in support of trans rights that can be used to win in similar cases across the US? Or will that court revoke Grimm's freedoms, placing a seal of approval upon the institutional discrimination against trans youth and setting a very different precedent, one that supports dangerous anti-trans laws?

"We will have the Supreme Court cases in the coming years," Keisling said. "These are real people's lives." She recalled a recent press conference she had done with a young man named Sam, who is from North Carolina. "He had to switch schools four times because they wouldn't let him use the bathroom," she explained. "It is simply not possible for him to use the woman's room. If he can't use the men's room, it means not only that he can't use the bathroom—it means that he cannot be a student. He cannot go to school. He cannot have all the emotional and economic benefits that going into school conveys. And all of that is at stake."

Donald Trump's bigoted immigration policy is another huge concern for trans activists. His campaign notoriously tapped into the nationalist prejudices of uneducated white Americans; he brutally generalized Mexican immigrants as rapists and murderers, calling for the mass deportation of millions of immigrant families living in America today.

The majority of trans women who come to this country come fleeing from violence.

If he achieves that end, then transgender immigrants will face devastating effects. Trans women often migrate to the United States to escape extreme violence and discrimination in their home countries, and, according to Keisling, there are as many as 35,000 to 50,000 undocumented trans immigrants currently living in the country. Today, advocates says that they're already fighting against the detention of trans immigrants—but what will it look like if the Trump administration fails to appreciate the danger they're fleeing from?

"The majority of trans women who come to this country come fleeing from violence and, you know, really trying to find a better place to live," said Bamby Salcedo, a trans activist and member of the Trans Latin@ Coalition, an advocacy organization that aims to improve the lives of trans Americans. Salcedo pointed out that trans women are disproportionately affected by poverty, and they are often unable to obtain visas.

"So the only way that we come here is to come here undocumented and in an illegal way," Salcedo explained. "We try to get here; sometimes when we try to do that, we get arrested and detained." According to Keisling, detention centers are especially dangerous for trans people, who are "particularly susceptible to violence and sexual assault and discrimination." "It is a life-or-death question," she said.

When we spoke before the election, Salcedo said she was hopeful that Trump, who appears to be on a "quest to continue to marginalize people," would not win, stating that such a thing would be harmful to trans people in the United States and "bring disgrace to the whole community."

It is a life-or-death question.

Now that Trump has won, women's fight for reproductive healthcare, the Black Lives Matter movement, and the transgender tipping point that Laverne Cox called for in 2014 all now face resistance from a man whose political platform was built on the promise to rebuild some mythic world of white power on the backs of other people. So how will we move forward? How do transgender Americans—who already suffer disproportionate levels of mental illness and substance abuse as a result of discrimination—survive a Trump presidency?

Perhaps we'll turn to the advocates who have been, and promise to continue, working on our behalf. Mara Keisling and the NCTE are moving forward. When we spoke this weekend, prior to Trump's win, Keisling outlined the NCTE's goals for the coming years. "Our top priorities are to continue the federal government enforcing the laws that protect trans people," Keisling said. "We still need to see immigration and detention be more reasonable and safe. Same thing with the federal bureau of prisons; these are people that are among our most vulnerable people."

"People need to be public about the injustices and really invest resources into making sure that this type of thing gets stopped," Salcedo said. "I think we need to have our government really invest in resources that will make it happen."

Read more: How a Trump Presidency Will Eviscerate Your Abortion Rights

Clinton's campaign often asked: What are our values? What sort of world do we want to live in? The progress made under the Obama administration was unprecedented, and trans people, who are now able to access healthcare more than ever before and to benefit from a myriad of legal protections, have been able to believe that they belong in this country for the first time in history. Many now wonder how they're going to survive.

"If people are having rational conversation, using scientific data, common sense and reason, trans people will win every time because we are just people trying to live our lives," Keisling said. "We need a president who will be rational, will listen to data... If we get a rational compassionate president, we will win. If we get a president who is not basing things on that—is basing things on his or her own passions or the passions of his or her supporters—then we lose. America loses; everybody loses."