A Legal Expert Explains: What The Trump Administration Can (and Can't) Do When It Comes to LGBTQ Rights
Uncloseted Media’s editor-in-chief Spencer Macnaughton interviews legal expert Chris Geidner
Video edited by E E Oliver
LGBTQ Americans and their families and friends have been concerned with the legal implications of the incoming Trump administration. When Trump takes office on January 20th, what does he actually have the power to do to LGBTQ rights from a legal perspective?
To help our audience better understand what is and isn’t possible, we called fellow Substacker
of . Geidner has 15 years of experience covering the Supreme Court and the American legal system. He also has extensive political reporting experience, having covered aspects of the past three presidential administrations from D.C.Watch the full interview above or read the transcript here:
Spencer Macnaughton: So today we're here with Chris Geidner, fellow Substacker who founded Law Dork. Chris has covered the Supreme Court and the American legal system for nearly 15 years and is formerly the legal editor at BuzzFeed News. Chris, thanks so much for chatting with me and with Uncloseted Media today.
Chris Geidner: Of course.
Spencer Macnaughton: Fabulous. So what we want to talk about and really use your expertise with is what Trump and a Republican trifecta can and can't do when it comes to LGBTQ rights and the law in his second term. What do you have your eye on the most in terms of what the next Trump administration can and can't do as it relates to LGBTQ rights from a legal POV?
Chris Geidner: Big picture, the first thing to think about when we are looking at what's going to happen in about a month is that the reality is that any action needs to actually be implemented. That might seem like it's a stupid statement, but that's probably one of the most important things that we learned from the first Trump administration is that you really need to watch beyond the vibes and see what's actually being proposed, what's actually being put in place, what's actually going to happen.
And so because of that, I think one of the most important things going into January 20th is the reality that's always true in Washington, that personnel is policy. And that who gets in different positions matters a lot. And I think one of the most notable examples of that is that for all of his troubling positions in some ways, a lot of the concern from the right about RFK's nomination for HHS secretary is that he is not a right-winger, is that he's pro-choice and while he certainly had some right-wing positions on trans issues, on gay issues, on HIV/AIDS. He is also certainly not one of them. It's not like a Stephen Miller type being put into that position. And that's obviously, HHS is one of the areas where I mean, where gay people historically have had the most interactions since the AIDS crisis and where right now in this moment of dealing with efforts to restrict medical care for trans people where trans people are going to be very focused. And so the reality is that depending on who's in what position in what agency could dramatically change what sort of results we get.
I think that another area where that is surprisingly true is basically everyone other than Pam Bondi in the leadership of the Justice Department. The number two and number three in the Justice Department are Trump's former defense lawyers, but they're that, they're criminal defense lawyers. They are not right-wing advocates, they are not far-right people. And that's also true for his pick for Solicitor General. There are certainly problems in DOJ picks. You've got Harmeet Dhillon, his pick for the Civil Rights Division, who does have a record of representing detransitioners, of attempting to challenge the woke agenda in court, and she certainly—if confirmed—would be open to prioritizing aspects of the civil rights division for their focus that are not going to be to the benefit of LGBTQ people. So that would be out. You have this question of what he's going to do on day one in the military with regards to transgender people, with regards to medical care.
Spencer Macnaughton: What do you think we can expect from the Supreme Court?
Chris Geidner: We don't know. I mean, we don't know what's gonna happen with the Skrmetti, the transgender care case that oral arguments were held earlier in December and whether the Trump administration, because it was technically a request from the Justice Department to hear that case that the court took and whether or not the Trump administration will try to get that petition dismissed in January.
There's all sorts of complications because there was also a request from the private plaintiffs so the justices could just replace the one petition with the other. But the point is that it could be confusing and confusion and chaos is not good for people who are dependent on healthcare whether it be trans care whether it be PrEP, whether it be cancer screenings, whether it be mental health screenings. For all of these things, the main concern that I have about the first six months of the Trump administration will be slipshod decisions that are poorly understood and poorly implemented that then lead to immediate litigation that then has everything up in the air and confused for six or seven months.
Spencer Macnaughton: When we're talking about Trump's first day in office or Trump's first few months in office and, ‘What is he gonna care about?’ I mean, if we looked at his campaign, he says we need to “eradicate transgender insanity, get rid of left-wing gender insanity,” all these kinds of promises, right? I mean, why wouldn't he push that Supreme Court case as far along as possible and take away trans rights? If you were, a trans kid, a trans person or a family member what would you be genuinely concerned about from a legal perspective right now?
Chris Geidner: The first concern is if states taking anti-trans provisions are upheld. The second, even greater concern would be if there's an effort to stop pro-trans states from taking pro-trans actions. The equivalent of that that is something that's been discussed a lot, so it's easy to discuss is if there would be an effort to ban Mifepristone nationwide.
Spencer Macnaughton: Like in super basic terms, if Trump comes in on day one and says, ‘I want gender affirming care gone for trans kids, I don't want trans girls playing in sports, want gender affirming care gone for trans adults.’ How much power does he have, if he says ‘do it’ to actually get it done?
Chris Geidner: A lot of it would take legislation and as of now you would need 60 votes in the Senate for legislation but if they include it somehow in reconciliation, which is a budget process, so they tie like spending funding to it, that only takes a majority vote. And that's something that Democrats use successfully to get programs and the first Trump administration used successfully to get programs through is by tying them to spending somehow. And so the strongest way is to pass legislation, which then could be challenged and would be challenged in court, but that would be the strongest way. The second way would be to sort of do the opposite of what the Biden administration was trying to do. To do something like under Title IX of the Education Amendments Act of 1972 that provides sex discrimination protection in education is to say that the Biden administration passed a rule that said that in accordance with the principles of the Supreme Court decision in Bostock that said that in employment discrimination, sex discrimination includes sexual orientation and gender identity.
The Biden administration said sex discrimination in Title IX should be treated the same way. And what you could see from the Trump administration, they could withdraw the rule so you would get rid of the rule itself. But in order to propose an alternative role, they would need to go through another whole process of notice and comment that would take time. But when they do that, they could propose a rule that said that sex under Title IX is only referring to biological sex and basically take some of language from some of the different state sports bands and stuff like that.
Spencer Macnaughton: When you listen to the rhetoric though of Trump and of Mike Johnson and all these people, you would imagine that doing exactly what you just described would be top of mind for them, based on what they said.
Chris Geidner: I don't think anything is top of mind of Trump. Donald Trump would say whatever he needed to to win the election. My bottom line take on Donald Trump is that he is going to do what he thinks is right at the moment, what he thinks will win him the most applause at the moment and often based on the last person in the room with him. I had literally written that one weekend after his election, and then like three days later, Matt Gaetz was announced as his attorney general pick. And then the day after that, we found out that the reason why he was Trump's pick was because he was on a flight back from Florida to DC with Gates. And so it was literally the last person in the room with him was why he made his decision. And so in that sense, there's almost in a Trump administration an even greater sense that the personnel is policy because sometimes literally the personnel who in the Oval Office will be the policy. And so to that extent, if you have certain far-right people who get into positions, that will potentially lead to some really bad policies for LGBTQ people.
The bigger problem, I think, in a Trump era is from two groups. It's from the fact that no matter what, the Republicans writ large might decide is the right path forward, the most reasonable anti-abortion and most reasonable anti-LGBTQ positions. There will be a deep red state that has a far-right governor that has a strong right legislature where both houses are super-majority Republican and they will pass a much more extreme bill that will be signed into law that will then go to court that will then be challenged and or that will then become a model for other states that will then become a national problem, which then sometimes if those look too popular, Trump will then pick them up and start doing them himself.
Mike Johnson believes it 100%. The fact that we have a house speaker who is following Marjorie Taylor Greene and Nancy Mace is horrifying, but like what's even more horrifying is that that's not politics for him. That is his position. That is where he came from. That is the job he held before he was a member of Congress. So for him, it's real. And he will definitely try to do things. They will definitely implement the equivalent of a rule that says that education, federal education funding could be withheld if you do not adhere to a definition of sex that is based on biological sex in education. So that that could effectively ban trans kids from using restrooms in schools, locker rooms.
Spencer Macnaughton: I mean, at this moment in time, Trump is super tight with Speaker of the House, Mike Johnson. They were just at the football game together the other day, right? And, you know, Johnson has said that homosexuals are the dark harbinger of chaos. And has compared gay marriage to letting people marry their pets.
Chris Geidner: Yeah, I mean, to be clear, if Donald Trump decides to like become Mike Johnson's toady, then LGBTQ people are in deep trouble. But I think there's a reality that that has not been the experience throughout the past 10 years of the Trump era in public life. Eventually Mike Johnson is going to make Donald Trump angry and Donald Trump is going to say, ‘Why is this loon ruining my agenda?’
I do think that that is more protective right now of gay and lesbian people than it is of transgender people. If you just look functionally, I think the fact that we're going to have a gay married treasury secretary who has children, it makes it seem pretty likely that Donald Trump is not going to try to roll back Obergefell. Seeing that there won't be lower people, there won't be far-right red states with Republican trifectas who won't do it. And that won't mean that there's not interest in some lower courts in doing it.
Spencer Macnaughton: We report a lot on religion and a lot on religious exemptions and how people use religion, freedom of religion laws. What are your biggest concerns about if those religious exemption laws are expanded for LGBTQ folks?
Chris Geidner: The fact of the matter is that a narrow religious exemption is generally pretty reasonable and protects everyone and keeps people safe, keeps people happy. When you have very broad exemptions, they can essentially eat the non-discrimination provision. And this was the concern out of 303 Creative last term, or two terms ago now at the Supreme Court about the woman who allegedly wanted to start making wedding websites, but hadn't, but might have, and might have someday gotten a gay couple who wanted her to make a website, but wouldn't. And the Supreme Court said that the non-discrimination law, that she should have a religious exemption to that. And while that might seem that it could be narrow, I don't know if you remember but in the immediate aftermath of that, there was like a hairdresser in Michigan that put up a sign saying, ‘I don't do lesbian haircuts’ or something like that.
Spencer Macnaughton: That's what I find really interesting. Is that the super red states that introduce these, perhaps, extremely anti-LGBTQ bills in state legislatures, if they bubble up and keep going up the courts and Trump thinks they're cool and in vogue and popular, that could be dangerous.
Chris Geidner: Yeah, oh, that absolutely is—it literally looks like an epidemic spread of the, what was in 2021, where the Arkansas ban passed over the governor's veto. And then in 2022, the Alabama one passed. And then in 2023, you had the explosion.
Spencer Macnaughton: Do you think anything could be different from like the 2016 Trump administration to now? Do you imagine he'll approach LGBTQ at all differently? I mean, his rhetoric, this election cycle has been more aggressive.
Chris Geidner: It's definitely been more aggressive. They went all in on the anti-trans ads. I definitely think that they will do something with at least trans sports. They're going to try to do something with sports. That’s clearly the thing that's polling best for them. The other thing that I would be concerned about that we're seeing already reports out of the UK on is that when you do ban gender-affirming care for minors that providers get concerned even about adult provision of care. That some providers just say, ‘Why would I put myself in this position?’ Obviously there are some providers who are going to do it no matter what just like we're seeing with abortion care. But you certainly are going to have large providers where this is a business decision. ‘We have 25 trans patients a year of our 5 ,000 patients and we have 250 employees.
Spencer Macnaughton: We've seen a lot of headlines of same-sex couples running to get married out of fear of Trump 2 .0. Is that necessary? What are your thoughts on that?
Chris Geidner: I mean, I don't think it's ever bad to protect your rights. Second, I am no one's lawyer listening to this. I think that there is a reality that there probably will be far-right efforts to push back and lay the groundwork for overturning Obergefell. I don't think they have the votes on these courts to do that. I don't know if there's an interest. You look at polling, if anything it continues improving. I'm more worried for individuals being targeted by far-right policies from far-right states trying to implement laws that sometimes will even be applied exterritorially and then litigation aimed at having nationwide effect.
Spencer Macnaughton: What are examples of what you could see the more extreme cases being in those deep red states?
Chris Geidner: We've seen examples out of Florida and Texas that could just get more extreme. Florida has already limited provision of adult gender-affirming care. They have put in place restrictions that make it more difficult, that require additional appointments, require fewer providers being able to actually provide the care.
We have seen efforts by both Paxton and Andrew Bailey, the Attorney General of Missouri, to investigate nonprofits and media entities. Both are going after Media Matters for their reporting on Twitter, X, Elon, advertising Nazis, all of the above. You have seen Paxton has specifically gone after PFLAG trying to get lists of their members and donors. We have seen various versions of efforts to limit books in schools. That certainly could expand.
Spencer Macnaughton: A lot of people are really afraid in the LGBTQ community about Trump 2 .0, about the laws and I think you've given fantastic context to clarify a lot of things for them. Is there anything they can do proactively now that might help mitigate their rights in case Trump decides to do things that could strip them?
Chris Geidner: I mean, certainly handling passport changes for trans people now is smart. Getting any trans documents that need to be changed in place as soon as you can is smart. I do think to the extent that same-sex couples want to feel protected. If you're already engaged, make your parents happy and just finish it and get it done. I don't think that is harmful and I think it is an added protection. It's no different than saying you should have a will. If there is a legal document that you could have to make your life more secure, you should have it. But stepping back, I think the most important thing to do is not to lose hope and to be engaged. The way that these changes happen are by people being engaged. We should have more trans people on school boards. We should have more trans people in legislatures. Having that presence matters. And so I think trans people, gay people, LGBTQ people, people being proactively, aggressively defensive, and transparent and supportive, and demanding of their right and our rights to exist is important. To the extent that there are places where there are already bad laws in place, to the extent that there are bad changes that are going to come, that is the first step in reversing that. People who are feeling safe right now, be there for the people who aren't feeling safe.
Spencer Macnaughton: Amen. I was gonna say, you definitely are a law dork!
Chris Geidner: I am.
Spencer Macnaughton: This is such important and helpful context for our audience so super grateful for your time and thank you so much.
Chris Geidner: Thank you.
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