FAQ: How Might the Incoming Presidential Administration Impact the LGBTQ Community?
Following the presidential election we know that many of you have questions about the future of LGBTQ rights and protections. Below are a few initial answers to questions we've been hearing from the community.
Q: Is my existing marriage safe? Is my right to marry in the future secure?
A: If you are legally married to a spouse of the same sex, your marriage is secure from any attack by the government. The law is quite clear that a valid marriage cannot be undone by any government effort to change the marriage laws.
As to your right to marry in the future, there is no reason to think that the right to marry that was affirmed by the Supreme Court’s Obergefell decision in June 2015 will be reversed. The Supreme Court only rarely overturns its constitutional decisions because it creates stability and respect by generally binding itself to its prior decisions. Moreover, at the moment, the Justices who supported marriage equality in Obergefell remain on the Supreme Court. Finally, the Court is also attuned to the opinion of American citizens; and it knows that a large majority of Americans now support marriage equality.
Q: Will the federal government continue to respect my marriage – for federal taxes, Social Security, civil service retirement, immigration, etc.?
A: Yes. Since the Supreme Court struck down the Defense of Marriage Act (DOMA) with the Windsor decision in June 2013, the federal government has been obligated to treat all marriages – same-sex and different-sex – the same for all purposes under federal law. The election does not change that.
Even assuming there was some successful effort by Congress in the next several years to reinstate DOMA (or the discrimination embodied in DOMA in some other legislation), it is very unlikely that the Supreme Court would overturn the Windsor decision for the same reasons it is unlikely to overturn the marriage equality decision Obergefell.
Q: Will my rights and status as a parent be impacted? Will my ability to do a second-parent adoption be impacted?
A: No. By and large, issues of parental status and adoption are matters of state law and are not impacted by changes in Presidential administrations.
Q: Are my rights as a transgender individual cut back or reversed because of the election?
A: No. The election of a new president does not automatically change federal law or policy. Some of the protections currently in place, such as in employment under Title VII and in education under Title IX, are secured by court interpretations of federal statutes. The election of a new President does not change that.
However, many of the gains secured by the transgender community have come from federal policy which can be changed by a new administration. The reality is we do not know what this administration will do with regard to federal policy as it impacts transgender people and the President-elect made inconsistent statements during the campaign. GLAD and other legal groups will remain vigilant and stand poised to respond should a new administration reverse course on important protections currently in place at the federal level.
At the same time, we urge people to be mindful that some policies, such as the standard for gender marker changes on passports and social security markers, are vulnerable to change. We will be rolling out more resources soon to help people navigate these issues.
Furthermore, many of the protections against discrimination for transgender individuals are provided by state laws which are unchanged by the election. .
Q: Will transgender students cease to be protected from discrimination because of the election?
No. First, there are a number of ways transgender students can be protected under existing state laws and policies. Nothing about the election changes that. In addition, as a result of changes in law and policy and increased visibility of transgender students and the vocal support from their families, more and more schools, school districts, and local communities recognize the importance of protecting our youth and are voluntarily doing so. No Presidential administration can stop them.
With regard to federal law, the election of a president does not change federal law. Specifically, it does not change the bedrock antidiscrimination law, Title IX, which has been interpreted by courts to protect transgender students.
The area of concern around which GLAD and other legal groups will remain hyper vigilant is with regard to Department of Education policy. A new administration could change the way in which the Department of Education interprets federal law. Doing so would not itself change the scope of the law’s protection. But it could diminish the degree of federal resources committed to protecting transgender youth and it could influence court outcomes interpreting the law. For this reason, it is even more important to ensure robust protections at the state and local level for our youth, and we will continue fighting for those protections.
Q: Will the new Administration undo positive work done by the Obama Administration for LGBTQ people through executive orders and agency regulations?
A: At this point, it is too soon to assess. Every new Administration has the power to undo executive orders of prior Presidents (agency regulations are quite a bit harder to reverse). This is another area where we will need to remain vigilant.
GLAD will remain vigilant and will continue fighting to sustain and advance legal protections for all in the LGBTQ community and for people living with HIV. As always, if you have a specific legal question or concern, reach out to us at www.GLADAnswers.org.
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