The Biden/Harris administration will almost certainly be better for LGBTQ people than the Trump/Pence administration has been. But that is a terribly low bar. Without sustained pressure, the administration will probably do little for the most vulnerable LGBTQ people, including Black trans people and LGBTQ immigrants and incarcerated people. There are also real limitations to what even the best possible administration can do now, given the damage Trump has done.
To assess what will come next, it helps to consider where we are. The federal courts, including the U.S. Supreme Court, have become exceptionally conservative, due to the number of appointments Trump has made. Short of a constitutional amendment or court-packing, that is not likely to change for decades at best. Meanwhile, the Trump administration has specifically attacked trans communities on many fronts, trying to bar trans access to homeless shelters, education, employment, asylum, health care, military service and participation in school sports. And the Trump administration has emboldened extremists who use tactics ranging from physical violence to state legislation to attack our communities.
Trump administration action and inaction has also killed many LGBTQ people. At least two trans women (Roxsana Hernandez and Johana Medina León) died in immigration detention during his time in office, and another was killed shortly after deportation (Camila Díaz Córdova). More trans people have been murdered so far in the U.S. in 2020 than any other year on record.
We have also lost many other LGBTQ leaders to COVID-19 and other, often preventable, causes this year, including Lorena Borjas, Monica Roberts, Aimee Stephens, Stacey Park Milbern, Larry Kramer, Ron Simmons, PJ McClelland, Marty Brown, Garry Bowie, Dan Kirsch, James J. Smith, George Valentine and Joan Drury, among others. Nothing anyone can do will bring them back, although it is possible to change policies in ways that reduce the risk of further premature deaths.
The Biden administration can — and has promised to — roll back most of the Trump administration’s political attacks on LGBTQ people, and trans people in particular. The new administration cannot fully control the forces Trump has empowered, but with political will and resources, it can serve as an important ally to trans and LGBTQ communities fighting these battles on international, federal, state and local levels.
Biden’s record on LGBTQ issues from his time in the Senate is abominable, but he has changed many of his earlier positions. Biden voted in favor of laws barring immigrants living with HIV from entering the country, cutting off federal funds to schools that taught acceptance of “homosexuality,” barring LGBTQ people from serving openly in the military, and defining marriage as between a man and a woman.
He also voted in favor of welfare reform and immigration reform measures in 1996 that devastated low-income and immigrant LGBTQ communities, even though they were not targeted at LGBTQ people in particular. Similarly, in 1994 he sponsored a “crime control” law that increased incarceration rates, particularly for Black, Indigenous and Latinx communities, including Black, Indigenous and Latinx LGBTQ people.
Biden has taken anti-LGBTQ positions throughout his tenure. In the 1970s, he said that LGBTQ people in government would be a security risk. He repeatedly opposed same-sex marriage in the 2000s. And as recently as February, he described Mike Pence, who is virulently anti-LGBTQ, as a “decent guy” (although he then clarified that Pence’s anti-LGBTQ positions were not “decent”). But from 2012 on, he publicly supported same-sex marriage. In 2017, he wrote in support of transgender rights, and in his November speech accepting the presidential nomination, he thanked trans people. Harris supported same-sex marriage in word and deed as early as 2004.
The Obama administration advanced LGBTQ rights in some key respects, and Biden’s platform promises to reverse Trump’s attacks on LGBTQ communities and return to Obama-era policy, which would be a welcome change after Trump’s outrages. For example, Biden has promised not to move forward Trump’s proposed rule to empower homeless shelters to turn trans and gender-nonconforming people away.
Biden has also proposed some improvements to Obama-era policy. For example, he promises to add an X option for gender markers on passports, which would allow many nonbinary U.S. citizens to travel with a form of ID that does not misgender them. He also promises to support the Ending Homelessness Act, a bill Harris introduced that would provide billions for rental assistance to people without housing. While not LGBTQ-specific, it seems plausible that the bill could benefit LGBTQ people — particularly LGBTQ youth and trans women of color with disabilities, who have particularly high rates of homelessness, and nonbinary people, who are least likely to have access to shelter while unhoused.
But Obama’s policies actually made some things worse for the most vulnerable LGBTQ people than they were under Bush. High rates of deportation under Obama led organizers to dub him “deporter-in-chief” and Jennicet Gutierrez to challenge him at a White House event. Obama targeted immigrants with criminal records for detention and removal. Given the racism, classism, ableism and anti-transness of the criminal legal system, that is a way of targeting low-income, disabled, trans immigrants of color for detention and removal. Biden has promised to return to targeting immigrants with criminal records.
Biden has proposed some affirmative changes to the immigration system beyond just reversing Trump’s policies, including increasing the number of U visas available. U visas are available to some crime victims, and, given how frequently trans people of color are crime victims, U visas offer one of the more accessible routes to status for trans immigrants. But while Biden has promised to end “prolonged” immigration detention, he has not promised to end immigration detention, or even to end immigration detention of trans women or LGBTQ people despite demands from organizers and members of Congress.
When it comes to the criminal legal system, the records of both Biden and Harris are cause for alarm. Biden advocated for legislation that increased funding for prison construction and imposed drastic sentences for drug crimes. Harris, a former district attorney and California attorney general, opposed a bill to decriminalize consensual sex work and litigated aggressively to prevent an incarcerated transgender woman from accessing gender-affirming surgery.
Harris has evaded questions about whether she now supports incarcerated trans people having access to gender-affirming health care, and while Biden has said he supports trans federal prisoners having access to hormone therapy (which would not be a change from current policy), he has not spoken out on surgery. While Biden now opposes imprisonment for simple drug possession and has a plan that calls for reducing incarceration rates and prohibiting police profiling based on race, religion, sexual orientation and gender identity, we do not yet know how serious he is about those commitments. He has thus far refused to support the BREATHE Act or meet with Patrisse Cullors to discuss it. The BREATHE Act, a legislative proposal from the Movement for Black Lives, would accomplish many of the goals trans advocates have sought for years: an end to solitary confinement and ICE detention, a repeal of federal laws that punish and endanger sex workers, and diversion of funds from police and prisons to housing, education and health care.
Biden and Harris have also both demonstrated a commitment to harsh hate crime laws. While they tout these measures as protecting trans women of color, no shred of evidence suggests that any hate crime law has ever prevented even a single incident of violence toward a trans woman of color. What is clear is that these laws funnel more resources to the violent, anti-Black, anti-trans, criminal legal system. In fact, Biden’s platform expresses support for a federal hate crime bill that he describes as about collecting data on the incidence of hate crimes. But the bill would make a variety of federal grants available to state and local governments for “law enforcement activities” that go beyond mere data collection, ranging from creating specialized hate crime units to training officers and creating hotlines. The law runs directly counter to calls to defund the police.
So far, the administration’s appointments show an emphasis on centrist Democrats with a great deal of federal government experience. Some D.C. insiders are not necessarily a bad idea — the administration will need folks who can hit the ground running after the chaos of the last months and years — but if the administration plans to appoint people with more diverse experience and an agenda more progressive and ambitious than just a return to a pre-Trump status quo, it has not done so yet.
The LGBTQ appointees to the administration’s transition team have not varied from this pattern. Shawn Skelly, a trans woman, served under Obama in the Department of Defense and Department of Transportation. Chai Feldblum, a lesbian, served on the Equal Employment Opportunity Commission for nearly a decade. Pam Karlan, a bisexual woman, was a deputy assistant attorney general under Obama. Dave Noble, a gay man, served under Obama in the Presidential Personnel Office and NASA. While these appointments may be good choices, they certainly do not represent nonbinary communities of color, trans immigrants living with HIV, or grassroots organizers working for justice and liberation.
However, what happens next is not only up to the administration. As always, we can, and we must, support each other, demand the best from the federal government, and work fiercely and creatively to defend our communities from the worst.