On May 9, U.S. Attorney General Loretta Lynch announced a civil rights lawsuit against the state of North Carolina regarding the discriminatory, anti-trans House Bill 2. In her speech announcing the lawsuit, Lynch spoke directly to transgender Americans, acknowledging their fears and vowing to use the powers of the Department of Justice to protect them, making her words ones that will live on in the hearts of many LGBTQ people:
“But no matter how isolated or scared you may feel today, the Department of Justice and the entire Obama administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
There’s no doubt that the Obama administration has been an ally in many ways to LGBTQ people over the last eight years. Some acts have been more widely known, such as marriage equality and ending “don’t ask, don’t tell,” and some lesser known but equally important, such as extending protections to LGBTQ community in education, housing, health care, and violence prevention.
Many of these strides forward have stemmed from the Department of Justice and the active dedication of Attorney Generals Eric Holder and Loretta Lynch to seek justice and civil rights for those who are most marginalized within our society. These hard-won rights and protections are in jeopardy if the current nominee for attorney general, Sen. Jeff Sessions, who has actively worked to undermine LGBTQ rights, is confirmed.
During his hearing, Sessions avoided questions concerning his voting record and statements against civil rights protections for LGBTQ communities, people of color, immigrants, native people, and other marginalized populations by repeatedly stating that he would “uphold the law that Congress has and will set forth.”
Rather than being reassured, we recognize this tactic for the dodge that it is. The role of attorney general is not so cut-and-dried: our expectation of an attorney general is to uphold the laws that Congress passes and to use those laws to work towards the ongoing protection of civil rights for marginalized communities. For LGBTQ people, particularly those of us working to end violence and discrimination and increase protections for these communities, Session’s remarks on simply “upholding the law” do not ease our fears but amplify them.
One reason that Sessions promise does not comfort us is that laws protecting LGBTQ people simply don’t exist. Only one law passed by Congress includes explicit nondiscrimination provisions for LGBTQ people: the 2013 reauthorization of the Violence Against Women Act. Upholding this law requires a commitment to enforcing the nondiscrimination provisions and dedicated resources for implementation, yet Sen. Sessions voted against the bill when it was refigured to have more inclusive protections. One can assume that Sessions has no intention of actively enforcing the nondiscrimination provisions of VAWA, and if he becomes attorney general, this lack of prioritization would render the law virtually useless.
This will have disastrous consequences for LGBTQ survivors of intimate partner and sexual violence. LGBTQ communities experience similar rates of domestic and sexual violence as other Americans, if not higher, and they often experience barriers when trying to access supportive services. In the National Coalition of Anti-Violence Programs’s LGBTQ and HIV Affected Intimate Partner Violence in 2015 report, 44 percent of survivors of intimate partner violence reported that they were denied access to shelter with the most commonly stated reason being their gender identity. As noted by Amita Swadhin in her powerful testimony against Jeff Sessions, the next attorney general must be committed to ensuring that LGBTQ and other marginalized survivors of violence “can come forward to seek accountability and healing.”
Aside from VAWA, there are no laws passed by Congress that protect LGBTQ communities from discrimination in housing, employment, schools, and other areas of civil rights protections. All other LGBTQ protections come through presidential executive orders, departmental rules and regulations, and departmental guidance. Most notable in the current climate is the guidance issued by the Department of Education and the Department of Justice extending Title IX protections to transgender students. This guidance, along with VAWA, is what the Department of Justice, under Loretta Lynch, used to bring the case against North Carolina’s HB 2, which targeted transgender people. During Sessions’s hearing, Republican Sen. Mike Lee of Utah, asked if Sessions would require courts to follow guidance issued by departments. Sessions noted that “a guidance document cannot amount to an amendment of a law” and that following such documents may “erode respect for the law and the whole constitutional structure” — in other words, another dodge.
The Title IX guidance is vital in that it protects transgender students’ right to get an education without experiencing violence or discrimination. Title IX guidance is also being used to advocate against anti-transgender bills or so-called bathroom bills, which seek to codify discrimination and promote violence through dangerous anti-transgender rhetoric. In 2016, nearly 200 discriminatory anti-LGBTQ bills swept the nation; in the same year, NCAVP recorded the highest number of homicides of transgender people, nearly all of whom were transgender women of color.
In his testimony last Thursday, Democratic Sen. Cory Booker called on his fellow senators to vote against Jeff Sessions, noting that the role of the attorney general isn’t simply to uphold the law but to seek justice and protection for those who are the most marginalized. "The arc of the moral universe does not just naturally curve toward justice; we must bend it," Booker said.
This is exactly what Eric Holder and Loretta Lynch have done as attorney general. They prioritized protecting marginalized communities from violence and harm and used everything at their disposal to do so. Having an attorney general who seeks to undermine departmental guidance and regulations that promote civil rights will have a disastrous impact on the groundwork that has been laid to protect these communities and other marginalized groups from discrimination and violence.
In the weeks following the inauguration, the Senate will be deciding whether Sessions will be our next attorney general. We have the opportunity to tell our senators that we do not want an attorney general who will actively undermine the rights of marginalized communities, placing them at higher risk of violence, and we must take on that responsibility. If our representatives won’t work to bend our universe towards justice, then we will do it ourselves.