But the court’s decision Monday to extend workplace protections to gay and transgender employees underscored the significant challenge Trump will face as he continues to try to play both sides of the rapidly evolving issue during his reelection campaign.
While still celebrating the idea of social change — recently boasting of appointing the first openly gay man to the level of Cabinet secretary — his administration has repeatedly opted to resist or roll back protections for gay, lesbian and transgender people in a nod to his more conservative supporters. And his first pick to the high court, Neil M. Gorsuch, is now responsible for writing the most impactful ruling for gay rights since same-sex marriage was codified as a constitutional right in 2015.
The court’s decision, finding that workplace protections against “sex” discrimination also protect against bias toward sexual orientation and gender identity, rejected arguments made by Trump’s own Justice Department. The ruling came three days after the Trump administration decided to reverse Obama-era protections against discrimination against transgender people in federally administered health care.
“In 2016 the Trump gaslighted LGBT people,” said Alphonso David, the president of the Human Rights Campaign, a civil rights group that opposes Trump’s reelection. “In 2020, we will look at his record and his record is abysmal.”
Trump’s Democratic rival, Joe Biden, reacted quickly to the ruling, releasing a statement that called the decision “a momentous step forward for our country.” The decision is likely to fit into a larger Democratic campaign argument that Trump, who has recently refused to rename military monuments honoring Confederate generals, is on the wrong side of the broader social movements that have been taking place in the country.
“The story of our nation is one of a relentless march toward greater justice and greater equality for all people,” Biden said. “Today . . . the Supreme Court has confirmed the simple but profoundly American idea that every human being should be treated with respect and dignity. That everyone should be able to live openly, proudly, as their true selves without fear.”
The White House, by contrast, waited more than five hours to issue any public statement on the ruling. What Trump finally said was a study in ambiguity.
“They ruled and we live with their decision,” Trump finally offered in the Cabinet Room, during an event on senior issues. “A very powerful decision actually.”
The White House press secretary canceled a previously scheduled briefing, where the ruling would have been addressed, but a Trump campaign official was more vocal in her response to the high court’s ruling.
“It’s bizarre, it’s ridiculous, and it’s disappointing,” Jenna Ellis, a legal adviser for the Trump campaign, said in a Monday appearance on former White House adviser Sebastian Gorka’s radio program. “The president of course disagrees with this decision because he is a constitutional originalist.”
For supporters in Trump’s socially conservative base, the Gorsuch decision was a significant letdown, though the party’s strategists said they doubted it would affect the motivation of supporters in the fall.
As the American public has shifted its views, most Republican elected officials have pulled back from broadcasting their opposition to same-sex marriage and have downplayed the issue during campaigns.
A Gallup poll in May 2019 found that 53 percent of Americans supported new anti-discrimination laws to reduce discrimination against gay, lesbian, bisexual or transgender people. Last month, Gallup found 67 percent of Americans believe same-sex marriage should be legal.
Biden has typified the nation’s movement on gay rights. He voted in 1996 for the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage, but he has more recently pushed his party to embrace more rights for gay, lesbian and transgender people.
As vice president in 2012, Biden came out in favor of same-sex marriage in a television interview days before his boss, President Barack Obama, announced his own evolution on the issue. Previously both men had supported domestic partnerships for same-sex couples, not marriage.
If Democrats have embraced support for legal change, resistance to increasing gay and transgender rights is still embedded in the Republican Party. Over the weekend, freshman Rep. Denver Riggleman (R-Va.) lost a drive-through nomination process in central Virginia to a self-described “biblical conservative,” who had criticized Riggleman for overseeing a same-sex marriage ceremony.
Trump, along with Republicans in the House and Senate, has also continued to resist a bill sponsored by Democrats, called the Equality Act, that would extend anti-discrimination rules for gay and transgender Americans to education, retail establishments, the extension of credit and other areas of daily life.
Carrie Severino, the president of the Judicial Crisis Network and one of the most vocal defenders of Trump’s court picks, reacted with outrage to Gorsuch’s ruling, calling it a disappointment to the memory of Justice Antonin Scalia, whom Gorsuch replaced, “for the sake of appealing to college campuses and editorial boards.”
But she said she stood by her support of Gorsuch and predicted that his departure from the conservative line would only underscore the need for another Republican president to further shift the ideological balance of the court.
“The choice voters have is more justices like Gorsuch, who is going to vote overwhelmingly with Justice Thomas, and a justice like Joe Biden,” Severino said.
Ralph Reed, the chairman of the Faith and Freedom Coalition, which seeks to drive evangelical voters to the polls, said that it was important to recognize that opposition to gay rights was not a primary motivator of the religious right.
“Religious freedom and abortion just rise far higher in the hierarchy of concerns of faith-based voters,” Reed said. “Ultimately seeing a reckoning on Roe vs. Wade looms so much larger in the psyche of the right that I don’t know that this is a de-motivator.”
That gave Trump space in the 2016 campaign to often broadcast conflicting messages to the voting public about gay and lesbian issues.
Trump cast himself as a “real friend” of the gay and lesbian community, saying the June 2016 Pulse nightclub shooting at a gay bar in Orlando was an “assault” on people’s ability to “love who they want and express their identity.”
During his nominating convention speech, Trump scheduled an openly gay speaker and said he would “do everything in my power to protect our LGBT citizens from the violence and oppression of a hateful foreign ideology.”
When the convention audience cheered the line, Trump went off script to say it “was so nice to hear you cheering for what I just said.”
But at other times in the campaign, he sent different signals, once telling a Fox News host that he would “strongly consider” appointing judges to overturn same-sex marriage and promising to appoint Supreme Court judges from a list that had been vetted by socially conservative scholars.
The mixed messages continued after the election. Days after he won, Trump declared same-sex marriage the law of the land.
“These cases have gone to the Supreme Court. They’ve been settled,” he told the CBS News program “60 Minutes.” “I’m fine with that.”
But shortly after his inauguration, Trump began aggressively targeting protections for transgender Americans in a systematic way, beginning with an announcement that he would seek to ban transgender individuals from serving “in any capacity in the U.S. military.”
His Education Department ended Obama-era protections for transgender students and threatened a denial of funding to states that allowed transgender women to compete alongside other women in school athletics.
His Department of Housing and Urban Development removed requirements that applicants for homelessness funding maintain anti-discrimination policies and demonstrate efforts to serve gay and transgender people. His decision Friday to strip health-care protections for transgender Americans came on the fourth anniversary of the Pulse nightclub mass killing.
“The way they have tried to attack the transgender community has been full force across the board,” said Katie Keith, a professor at Georgetown Law School, who predicted that Monday’s high court ruling would lead to more legal challenges of Trump administration policy.
At the same time, Trump has continued to maintain that he supports the gay community, tweeting in May 2019 a note of “solidarity with the many LGBT people who live in dozens of countries worldwide that punish, imprison, or even execute individuals on the basis of sexual orientation.”
He launched an effort, under the guidance of former ambassador to Germany Richard Grenell, to decriminalize homosexuality around the world. Grenell recently resigned from the State Department after a brief stint as interim director of national intelligence.
Grenell announced that upon his departure from government, Trump gifted him a chair for Cabinet secretaries.
“You are the first openly gay Cabinet secretary, and it’s a big deal,” Trump said, according to Grenell.