“We don’t do ourselves any favor by pretending like it’s not going to be horrible during the Trump administration,” state Rep. Leigh Finke (D), author of Minnesota’s trans refuge law, told LGBTQ Nation. “And I’m not the kind of person who would sugarcoat what’s coming.”
She knows that many of her constituents—not to mention the queer community at large—fear Donald Trump’s second term. It’s not yet Inauguration Day, but queer folks are taking precautions for the next four years like updating their ID documents and getting married.
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They’re also looking to their elected officials. How can Democratic governors protect the LGBTQ+ community when the president-elect has already promised to effectively end trans rights on day one? What kind of legal nightmare would overturning Obergefell v. Hodges create for states with marriage bans on the books?
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Jay Kaplan, lead attorney for the ACLU of Michigan LGBT Project, called upon Democrats in power to implement every strategy at their disposal to protect the queer community.
“We need to expect our leaders to stand up and to speak out,” Kaplan told LGBTQ Nation. ”It can’t just be members of the LGBTQ community. We need people who are in positions of power because I think the worst thing we can do is to be afraid or to cower or do that ‘advanced obedience’ that seems like a lot of entities are doing right now.”
As Kaplan suggested, Finke is not cowering.
“Part of the way that fascism works is it makes you afraid of everything,” she said, noting that not everything the right has threatened LGBTQ+ people with will come to fruition. “And it pits communities against each other because it puts every community at the brink of complete disaster at every moment. And for me, if we walk on that line all the time, we are doing the work of fascism on its own behalf.”
“We’re going to survive,” Finke said. “Queer communities do not require permission from the government to survive.”
Some Democratic-led states will stand up to Trump
Immediately following the November election, California Gov. Gavin Newsom (D) announced that he planned to convene a special session of the state legislature to protect California values, including “fundamental civil rights, reproductive freedom, climate action, immigrant families, and more.” By establishing a new litigation fund, Newsom hopes to provide sufficient resources to “Trump-proof” California.
Meanwhile, governors in Illinois and Colorado established Governors Safeguarding Democracy, a tax-exempt nonprofit whose purpose is to shape policy and defend states against autocracy.
Illinois Gov. J.B. Pritzker (D) included the LGBTQ+ community when he called Illinois “a refuge for those whose rights are being denied elsewhere.”
Out gay Colorado Gov. Jared Polis’ (D) spokesperson told LGBTQ Nation in a statement, “Governor Polis and his administration are committed to building a Colorado For All where everyone can thrive, no matter who they are or how they identify. Colorado is, and will continue to be a state that protects and welcomes the LGBTQ community and everyone no matter who is in the White House.”
Further, “Governor Polis will continue to protect LGBTQ Coloradans’ personal, economic, and health freedom and is proud of Colorado’s leadership as a compassionate state for everyone.”
Separately, LGBTQ Nation confirmed that Polis has not wavered from his qualified support for the nomination of RFK Jr. for Secretary of Health and Human Services.
Kaplan suggested steps governors and others can take to make good on their statements, especially as it relates to transgender health. It’s a safe bet that all federal assistance for gender-affirming care will be cut. Comparing it to the Hyde Amendment, Kaplan described how states can still support the trans residents whose coverage is at risk.
“In the issue of abortion, where you have the federal Hyde Amendment, which prohibits federal funds to be used for abortion care, Medicaid, and in some instances, Medicare, some states have separated the funding and they’ve used state funding in order to cover abortion care services,” Kaplan said. He said it’s a discussion that states like Michigan need to have with regard to gender-affirming care so members of the trans community don’t lose healthcare.
When it comes to the likely ban on trans people serving openly in the miltiary, some blue state governors could stand up to Trump. The unconfirmed but expected ban will affect an estimated 15,000 service members. And unlike the 2017 ban, when transgender troops could remain in the military, they will receive a medical discharge.
During the first ban, the leaders of National Guards in California, New Mexico, Oregon, Nevada, and Washington stood defiant and refused to implement the ban.
“The ban stayed in place until [President Joe] Biden came in [and] rescinded that ban,” Kaplan said. “So we know how quickly some of these things can be done. We also know how impulsive this man is. And we have to be ready.”
Blue states could become refuges for trans people
Prioritizing transgender healthcare will be more important than ever during the next administration, as the president-elect has already promised to effectively end trans rights on “day one” and make it official policy that there are only two genders.
Some Democratic governors have said they will work with a Trump administration as they have in the past, deciding where and when to pick their battles. One way they could push back is to help people living in neighboring red states.
While Michigan Gov. Gretchen Whitmer (D), a longtime champion for LGBTQ+ rights who has famously sparred with Trump in the past, hasn’t telegraphed any specifics, she told LGBTQ Nation in broad terms that she will “fight for the LGBTQ+ community.”
“Michigan is a welcoming place for all, and I’m going to fight like hell to keep it that way,” she began. “That’s why we’ve protected fundamental rights, including expanding the Elliott-Larsen Civil Right Act, because no one should be fired from a job, evicted from their home, or unable to marry because of who they love.”
“As a mom of a gay woman, I want my daughter to have full access to the same rights and freedoms as everyone else in our state. I will continue to fight for the LGBTQ+ community and make Michigan a safe space for all.”
The Human Rights Campaign reports that as of August 2024, almost 40% of transgender youth aged 13 to 17 live in one of the 26 states that have passed a gender-affirming care ban. For large swaths of the country, receiving healthcare is outlawed.
Currently, two bills (HB5300 and HB5303) sit on Whitmer’s desk that, if signed, would remove archaic, harmful, and inequitable restrictions in Michigan’s legal name change process. And Michigan lacks an explicit “shield” law, which could be modeled on legislation in a politically comparable state like Minnesota. At present, 12 states have such a law on the books and two states are protected by an executive order to that effect.
It’s within the governor’s power to issue an executive order “making it clear that just like with providing abortion care services, that the state would not cooperate [with] a state attorney general looking to prosecute medical providers or even families that are receiving gender-affirming care in the state of Michigan,” Kaplan said, describing a sanctuary state by executive order.
Rep. Finke said Minnesota’s trans refuge law is already achieving its aims. Now, individuals are protected when crossing state lines to access gender-affirming care.
“What we had hoped to do was allow the people in the surrounding states from Minnesota to be able to come to Minnesota and access their care,” Finke said. “And that is happening. People from Iowa and the Dakotas especially are driving across the border and accessing HRT, going to their doctor’s appointments with their kids, making sure that their health care remains uninterrupted.”
Marriage equality could face renewed attacks
Finally, while marriage equality has been the law of the land for almost 10 years, the far right is making a lot of noise about overturning Obergefell. Kaplan said he doesn’t believe that will happen in the next couple of years. However, “should there be another vacancy on the Supreme Court, you can count on Trump to nominate an ideological judge who most likely did not support Obergefell and LGBTQ rights,” he said.
States could follow the lead of states like Colorado, whcih removed their anti-marriage amendment from their state constitutions in case the Supreme Court overturns Obergefell.
“Governor Polis would be deeply disappointed if the federal government seeks to take away this right that Coloradans just overwhelmingly protected and would stand up to any effort to take away Coloradans’ ability to marry who they love,” Gov. Polis’ office told LGBTQ Nation in a statement.
Out Massachusetts Gov. Maura Healey (D) also referenced marriage in a statement to LGBTQ Nation: “Massachusetts is proud to be the birthplace of marriage equality, and we have followed that up with strong legal protections for LGBTQ+ health care and parentage rights. We’re always going to stand for equality and freedom here in Massachusetts.”
But Massachusetts is one of only 17 states with no ban on marriage equality.
Other states are not as ready, should Obergefell be overturned. For example, Michigan has both a statute and a constitutional amendment banning same-sex marriage. Such “zombie laws” are only dormant as long as the right to marry is guaranteed at the federal level.
Kaplan said what needs to happen is for the legislature to rescind Michigan’s 1996 statute, though there might not be the political will in a Republican-led state House. “And it will take a ballot initiative approved by voters to remove the constitutional amendment,” he added.
Twenty-four states have both a constitutional amendment and legislation banning marriage equality. Nine more have either a constitutional or statutory ban. In November 2024, voters repealed constitutional bans on same-sex marriage in Colorado, California, and Hawaii. Colorado’s unenforceable law banning same-sex marriage is still on the books.
There are already signs that Democrats won’t all hold the line
It remains to be seen whether Democratic governors will step up or prove disappointing, as 81 Democratic members of Congress did with their vote in favor of the NDAA, which contained a provision that strips coverage for gender-affirming care from the transgender children of service members.
“It was a terrible vote,” said Finke, who spoke with LGBTQ Nation before President Biden signed the bill. “It’s a terrible outcome. I’m very sad to see what happened there. You know, the Democrats have control of the Senate, even though they often like to say that they don’t. And they passed the first anti-LGBTQ bill through both chambers since the 1990s. And we have to live with that fact.”
She stressed that representation from trans and nonbinary communities in the government is important, pointing to how she and her colleagues pushed her state to become a trans refuge state.
“We wouldn’t have done what we have done if we had not had our voices heard throughout the government,” said Finke, mentioning the efforts of her Two-Spirit and nonbinary colleagues in the Legislature as well as her own. “And there are lots of states that don’t have that representation.”
“The most important thing that I think people need to do is let trans people speak for themselves about what their needs are,” she continued, “because we see where there is not trans representation, there is also often a lagging policy agenda to protect trans people.”
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