The Trump justice department is pushing to make it legal to fire people for being gay or transgender

The Trump administration has attacked LGBT rights in healthcare, employment, housing, education, commerce, the military, prisons and sports.

These efforts, it turns out, were just the beginning.

The president’s anti-LGBT agenda could soon gain significant momentum at the US supreme court, where Trump’s Department of Justice (DoJ) is pushing to make it legal to fire people for being gay or transgender. The move would fundamentally reverse civil rights for millions of people, LGBT leaders say, and raises fears that LGBT people may lose the minimal protections and resources they have won in past years.

“This is a critical point in history,” said Alesdair Ittelson, the law and policy director at interACT: Advocates for Intersex Youth. “The outcome of this case is going to have a tremendous impact on everyone.”

Trump’s most aggressive anti-gay legal argument yet

Under Obama, LGBT people won a number of key victories, including the repeal of the “don’t ask, don’t tell” ban on gay military members, new protections under the Affordable Care Act, an anti-discrimination executive order and expanded recognition of trans rights.

Since taking office, the Trump administration has sought to reverse healthcare protections for trans people, moved to ban trans people from serving in the military, eliminated rules protecting trans students and pushed to allow businesses to turn away gay and trans customers if they seek a religious exemption.

Last month, the Trump justice department made its most aggressive anti-gay legal argument to date, urging the supreme court to rule that gay employees are not protected under a longstanding act that prohibits “sex discrimination”. The DoJ filed briefs related to three supreme court cases to be heard together on 8 October – two involving gay men fired from their jobs, and a third involving a woman terminated by her employer after she came out as trans.

Facebook Twitter Pinterest New Yorkers protest against discrimination towards the LGBT community in the aftermath of the decision to ban transgender people from serving in the US military, in July 2017. Photograph: Erik Mcgregor/Pacific Press/REX/Shutterstock

Courts have repeatedly affirmed that LGBT people are covered by Title VII of the Civil Rights Act of 1964, and the federal government has agreed. But the DoJ is now arguing that sexual orientation and gender identity are excluded under Title VII because “sex” narrowly refers to whether people are “biologically male or female”. The definition not only seeks to invalidate trans people, but also altogether erases intersex people, who are born with a mix of what are typically considered male and female sex characteristics and make up 1.7% of the population.

“When the federal government and the nation’s lawyers come out against you and say that your rights don’t exist, it hurts the most vulnerable members of our community,” said Robin Maril, the associate legal director at the Human Rights Campaign (HRC).

Lifetimes of rejection: ‘We don’t have a place for someone like you’

LGBT people said existing laws meant to shield them are inadequate and poorly enforced – and that if they were to lose what little recourses they have now, the consequences could be devastating.

“We’ve done so much work to prove our humanity to the rest of the world,” said Aria Sa’id, a San Francisco advocate who helped create the country’s first-ever trans cultural district. “The policies and laws are in place, but that doesn’t mean the social attitudes are … Trans people are literally living at the will of other people’s opinions.”

Sa’id cited the danger and abuse trans people face in homeless shelters – a problem that could be exacerbated by a May 2019 proposal by US housing officials that would, in effect, allow “single-sex” shelters to turn away trans people.

“It’s disheartening and terrifying,” said Koomah, a 32-year-old Houston-based activist who was previously homeless and is intersex. “We are made to violate the law because of the way that our bodies are.”

Facebook Twitter Pinterest Aria Sa’id says the nonstop bad news from DC, along with the frequent murders of black trans women, takes a severe toll on trans women Photograph: Dusti Cunningham/Courtesy of Aria Sa’id

Koomah, who goes by a single name and is also genderfluid, said that when they were a teenager at a homeless shelter, they appeared androgynous, and staff forced them to undergo a genital examination to determine if they should be in the boys or girls section. Ultimately, the shelter kicked them out and they wound up on the street.

“I was told, ‘We don’t have a place for someone like you.’” said Koomah. “My housing is still unstable today, and even as an adult I know that if I get put in a homeless shelter, I may or may not be given space to be there.”

Khloe Rios, a 30-year-old not-for-profit manager who made headlines this month when she and a group of other trans women were forcibly dragged out of a downtown Los Angeles bar, said it was already difficult for trans people to find steady jobs.

“We’re all trying to survive,” she said, noting that she was unexpectedly fired from her first job out of college at a marketing agency and that she believed she was targeted because she was trans.

She added it was painful to think about the ways Trump has fueled hate against her community: “I have no words … I feel very defeated. It’s scary.”

Can Trump legalize discrimination?

Civil rights experts said they are confident the DoJ’s arguments would fail at the supreme court, given the well-established precedent from previous rulings.

Maril from HRC noted that it was conservative former justice Antonin Scalia who wrote a critical ruling on Title VII that made clear it covered groups beyond the most narrow interpretation of “sex”. Scalia wrote: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

But Harper Jean Tobin, the policy director at the National Center for Transgender Equality, noted that even if the supreme court does affirm LGBT people’s rights, it’s likely the administration would pursue other avenues to legalize discrimination.

“Trump’s America is an America where anyone who doesn’t look like him can be pushed to the margins of society,” she said. “For being transgender … you can be kicked out of your job, your school and the hospital emergency room.”

The DoJ’s anti-LGBT arguments in court represented such an extraordinary U-turn for the US government, that it raised fears other marginalized groups could be targeted, too, added Lynly Egyes, the director of litigation at the Transgender Law Center. “If they are able to do this complete shift, who is next under Trump’s attacks?”

The DoJ did not respond to requests for comment.

The damage already done: ‘I feel defeated’

The constant barrage of headlines has already emboldened bigotry and caused a lot of anxiety, activists said.

Facebook Twitter Pinterest Tanya Armstrong. Photograph: Courtesy of Tanya Armstrong

River Gowan Stone, a 40-year-old who is non-binary and trans, said he has faced repeated workplace discrimination throughout his career, and that it was hard to accept that things are getting worse: “I have so much to contribute to the world, but it’s terrifying to be at the whims of whoever I’m encountering.”

The nonstop bad news from DC, along with the frequent murders of black trans women, took a severe toll on trans women, said Sa’id, the San Francisco organizer: “It literally has me in stages of severe depression.”

Ultimately, no policy can stop people from living as their true selves, said Tanya Armstrong, a 34-year-old Los Angeles resident who is non-binary and intersex: “We’re here, and we’ve always been here, and no matter how many times they try to sweep us under the rug, we’re still going to be here.”

Sa’id added, “I know who I am. I know that I deserve to breathe, and that I deserve to exist.”