What do Trump's executive orders mean for LGBTQ+ Mainers?

Yahoo

27-01-2025

Participants in the Portland Pride Parade head down Congress Street. June 15, 2024 on June 15, 2024. (Photo by Jim Neuger/ Maine Morning Star)
On the first day of President Donald Trump's second term, he used his executive power to remove protections for LGBTQ+ people, including a declaration that the federal government would not recognize trans and nonbinary people.
'It's really turning back the clock on decades of sex discrimination protections,' said Hannah Hussey, attorney for GLBTQ Legal Advocates & Defenders, otherwise known as GLAD Law. 'This is really an attempt to regulate and control people's lives.'
However, Hussey explained, 'An executive order can't just erase state law. An executive order also can't undo a federal statute, and it can't change how courts have interpreted the federal statute.'
Many of Trump's executive actions are expected to face legal challenges. His order to end birthright citizenship already has. If his orders are eventually upheld, the country is likely to see a piecemeal landscape where protections fall to the states, much like with abortion after the overturn of Roe v. Wade ended federal protections, according to Hussey and other legal experts.
Federal power wins out over state authority in some cases, such as the issuance of federal documents like passports. Federal spending power could also be wielded in an attempt to try to force state compliance. Health care providers in Maine already saw that during the last Trump presidency, when he essentially barred providers that rely on federal funding from so much as mentioning abortion care to patients.
Legal minds and leaders of LGBTQ+ organizations in Maine cautioned that there remain many unknowns about how these executive actions, and likely others forthcoming, will settle. GLAD Law is prepared to defend equal protection under the law without exception, Hussey said. Local leaders have been preparing since before the November election to shore up LGBTQ+ protections in Maine law, which already offers some of the strongest in the country.
'Whatever the president says doesn't change who you are as a person or your identity,' said Gia Drew, executive director of EqualityMaine, the oldest and largest LGBTQ+ statewide organization. 'And, we're going to do everything possible to make sure to cushion any blow that comes our way.'
The authority to issue executive orders falls under Article Two of the U.S. Constitution, so the president's executive orders can't contradict the Constitution or federal statute, said Dmitry Bam, who teaches in the fields of constitutional law and the judiciary at the University of Maine School of Law.
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'The theory behind the orders is that either there's an area that Congress has left unregulated, so the president is using his inherent authority to fill in those gaps, or areas that are inherently assigned to the president,' Bam said.
One example is federal documents, such as passports, Bam said.
The U.S. State Department has already frozen applications for passports with 'X' sex markers and changes to gender identity on existing passports in response to Trump's executive order declaring the federal government would only 'recognize two sexes,' according to an internal cable obtained by the Guardian.
A White House official told a reporter for NOTUS that the order won't impact passports that have already been issued and doesn't invalidate current passports but would impact those documents when they need to be renewed.
Maine offers a third gender option, 'X,' on state forms, and the executive order does not override that state-level option. Drew with EqualityMaine said she's been fielding questions about whether having an 'X' gender marker on federal or state IDs could put people in harm's way.
'I'm not sure,' Drew said. 'Those are things that we don't have complete answers to for people.'
Another early action in Trump's presidency was withdrawing an executive order issued by former President Joe Biden that directed federal agencies to apply the conclusion of the Bostock v. Clayton County U.S. Supreme Court ruling to all laws that prohibit sex discrimination. That 2020 ruling concluded that discrimination against someone because they are LGBTQ+ is sex discrimination under Title VII of the 1964 Civil Rights Act.
During the end of Trump's first term, his administration claimed the ruling didn't apply to Title IX, a landmark federal civil rights law on education, but Biden had reversed that guidance.
Bam, Hussey and other law experts expect many of the executive orders to be challenged in court, and perhaps make their way up to the U.S. Supreme Court.
'More and more, the Court will be deciding these really controversial political issues that don't necessarily have a clear cut answer, or even some where we thought there was a clear cut answer,' Bam said.
In most cases, the executive orders will likely take a while to implement. For example, the order declaring there are 'two sexes' which Hussey called broad and in many ways without clear instruction, has myriad downstream impacts.
The order directs federal agencies to enforce laws governing 'sex-based rights, protections, opportunities, and accommodations' using definitions for 'man' and 'woman' based on whether a person 'at conception' belongs to the sex that 'produces the large reproductive cell' or 'produces the small reproductive cell.' The order also includes a broad declaration to 'end the federal funding of gender ideology' but doesn't provide instruction for how to accomplish that.
While Trump can in many ways regulate what federal agencies do, executive orders don't limit state power over their work that is separate from federal agencies.
'That's the value of federalism,' Bam said. 'Some state might say, 'You know what, we are happy with just the federal protections. We don't want to go any broader than that. And some state might say, we want to protect other groups and the states can do that.''
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Maine offers greater protections than federal law when it comes to anti-discrimination and gender-affirming health care.
For example, Title VII of the Civil Rights Act prohibits discrimination in employment on a number of characteristics such as race, national origin and sex. The Maine Human Rights Act also prohibits discrimination based on the characteristics in Title VII but also includes more categories, including sexual orientation. Individual municipalities may go even farther with added protections.
'Folks in Maine should know that state laws cover many areas of concern for LGBTQ people and their families, and an executive order can't just erase state law, ' Hussey with GLAD Law said.
In addition to the anti-discrimination laws that cover education, jobs, housing, and access to services, among other parts of life, Hussey pointed to state protections for gender-affirming care, as well as the 'shield law' passed last year to protect providers of such health care from other state bans.
Drew said EqualityMaine and other LGBTQ+ organizations are eyeing ways to expand the protections in that law, specifically around patient, provider and pharmacy data privacy.
'I know they're more organized than they were eight years ago,' Drew said of the Trump administration. 'But we are more prepared now too, because they told us what they were going to do and we believed them.'
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Medicaid, a federal-state health insurance program for low-income people, covers gender-affirming care in some states, including Maine. Drew is expecting federal money for such health care to be restricted, so another focus of EqualityMaine is ensuring the state has available funds to cover any of those losses.
The state is currently trying to fix an immediate Medicaid shortfall and will be debating a longer-term fix in the biennial budget.
When considering possible changes to gender-affirming care, Aspen Ruhlin, community engagement manager at the Mabel Wadsworth Center in Bangor, said it is important people understand what gender-affirming care includes.
While gender-affirming care is often discussed in the ways it is used to help transgender people, Ruhlin pointed to research that found this type of health care is most often used by cisgender people, meaning people whose gender identity matches their sex assigned at birth.
Gender-affirming care includes hormone replacement therapy for menopause, breast reconstruction after mastectomies, penile implants after testicular cancer, among other procedures.
Ruhlin also pointed out that only recognizing 'two sexes' discounts people who are intersex, meaning people who are born with several sex characteristics, such as primary sex glands or chromosome patterns.
'There is a wide range of human experience, and that is true when it comes to talking about sex,' Ruhlin said.
Overall, Ruhlin said it is important for Mainers to know their rights in the wake of the executive orders. Mabel Wadsworth has client advocates who, among other things, help transgender people navigate barriers to accessing the care they need, which includes things such as legal name changes.
'It's a lot easier to violate someone's rights if they don't know what rights they have,' Ruhlin said.
While the executive orders don't immediately change most policies, Hussey with GLAD Law said they are 'certainly intended to cause chaos and confusion and fear.'
The Trevor Project, the leading suicide prevention and crisis intervention organization for LGBTQ+ young people, saw a 33% increase in crisis line volume on Inauguration Day, which Drew said reinforced what she's been hearing anecdotally from LGBTQ+ people in Maine.
'I've been hearing from folks, especially older LGBTQ people, who are like, 'Oh, we've fought this. We'll fight this again. We're going to get through this,'' Drew said. 'Yes, that's true. We have fought for equality for decades, but this is different. It's different when we've been given rights, the freedom to be ourselves in so many places, and now have them be taken away.'
While Drew said EqualityMaine and its network both state-wide and nationally are preparing for legal battles, she also said community support is vital, including as a means to ensure everyone has accurate information.
'I think what the president and his supporters want is us to be scared, freaking out, running in every direction,' Drew said. 'It's really important to take a breath, step back.'
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