First-Term LGBTQ Rollbacks: Transgender Military Ban, Healthcare Protections, Bathroom Guidance

Overview

The Trump administration's LGBTQ rollbacks were systematic: bathroom guidance for transgender students rescinded, transgender military service banned by tweet, healthcare anti-discrimination protections reversed, workplace data collection eliminated. Each was an executive action reversing a prior protection.

The most significant legal development of the period, however, was the Supreme Court's ruling against the administration's position in Bostock v. Clayton County — a ruling written by a Trump appointee that directly contradicted the arguments his administration had filed.

The Tweet

The transgender military ban was announced via three tweets before the Secretary of Defense, the Joint Chiefs, or the DOD general counsel had been notified. Secretary Mattis learned of it from the tweets. The DOD had been conducting a study on how to implement transgender service; that process was terminated by the announcement.

The tweets created immediate uncertainty about the status of the approximately 14,700 transgender service members already serving. Federal courts blocked the original ban; a revised version eventually took effect.

The Bostock Ruling

The Trump administration filed briefs arguing that Title VII's prohibition on sex discrimination did not cover LGBTQ workers. The Supreme Court, in a 6-3 decision written by Justice Neil Gorsuch — Trump's first Supreme Court appointment — held that it did.

The ruling was a direct rejection of the administration's legal theory. Gorsuch's majority opinion held that an employer who discriminates on the basis of sexual orientation or gender identity necessarily discriminates on the basis of sex, which Title VII prohibits.