Is it still legal to protest? A guide to organizing in Donald Trump’s second term

Is it still legal to protest? A guide to organizing in Donald Trump’s second term
LGBTQ

It’s easy to look at the myriad executive orders issued by President Donald Trump in the first few days of his second presidential term and feel like there’s nothing anyone can do. His first orders of business included rolling back 78 of outgoing President Joe Biden’s executive orders, cutting DEI programs, and attacking the trans community on multiple fronts. But there have been some wins too, like a federal judge blocking Trump’s attempt to end birthright citizenship and several school districts refusing to comply with his anti-trans orders.

Stopping Trump can be done—but it’s essential to know what you’re doing. The most important thing to do is to familiarize yourself with your rights. The ACLU has many handy guides which include legal information for both organizers and protestors. The New York University School of Law has additional tips for protestors, including locking your cell phone, turning off GPS, masking up, and engaging in the buddy system. 

But the first thing that needs to be done is to get over that sense of doom and despair. You can’t be an organizer if you think you have no power. Protest is powerful; after all, it was the immediate uproar that put a stop to Trump’s plan to freeze federal funding

And no matter what Trump does via executive order, every American has the right to protest under the First Amendment to the Constitution. Sruti Swaminathan, a staff attorney with the LGBTQ & HIV Project at the ACLU, told LGBTQ Nation that though the executive orders—especially the anti-trans ones—are meant to steal hope from the population and keep them doom-pilled, they’re not necessarily legal. 

“What folks need to realize is these orders are just an attempt to control people’s freedom to be themselves. And Trump wants to allow and encourage discrimination against trans people. He wants to encourage silence and lack of protest against these types of policies that he’s suggesting are meritorious and lawful, even though we know they are not lawful,” Swaminathan said. 

“The right to protest is protected already – constitutionally and by court opinions that have come out. Folks should not worry that they are going to be violating any sort of order from the president in terms of their right to protest,” they added.

Denise Norris, the co-founder of the legendary activist group The Transexual Menace, had good advice for organizing: be visible and have clear goals.

“We have to think smart, and the acronym I use is SLAP. Everything we do has to be Strategic, Lean, Actionable, and Planned. We just can’t go out and wave signs without thinking what we’re going to actually accomplish by it. Protesting the Supreme Court over Skrmetti. What did that accomplish? Five minutes on the news,” she said, referring to U.S. v Skrmetti, the legal challenge to Tennessee’s ban on gender-affirming care for trans youth. “How do we generate the maximum media impact bang for the buck?”

She emphasized the importance of branding. It’s for that reason The Transexual Menace decided long ago that anyone could use their logo to print shirts without needing to license it. Visibility is the entire point—people ask about it, and hopefully have a positive interaction.  Norris says she’s planning to bring shirts to the upcoming protest in Albany, New York. (The Menace is also planning other actions across the country, and anyone interested in more information can join the Discord server via the link on the Transexual Menace’s official Bluesky page.) 

“[It helps people] have an emotional connection. ‘Oh, I met this really wonderful trans person down at the mall today, honey. They were polite. They work for a major business. Really nice, they helped me put my stuff in my car. Great people,’” she said.

It’s all about reaching what Norris calls “the moveable middle.” 

“Ignore the bigots. Can’t fix them. Just make sure you’re safe,” she said. “The moveable middle is our only target. Don’t care about the people who love you. Don’t care about the people who hate you. Just make sure you’re safe and worry about the people who have not yet made up their minds.”

But just as organizers have techniques for successful actions, Trump also has an anti-protest playbook. One recent executive order is ostensibly to combat antisemitism but instead threatens to revoke the student visas of international students who protested the Gaza genocide. 

“These are threats from the federal government in order to silence people’s voices,” Swaminathan said. “But many, many of the things that are instructed by his executive orders are not lawful. What we want people to do is not just acquiesce to what’s in these orders. We want people to continue engaging in things that are constitutionally protected, like the right to protest. We want folks to know that there are rights under federal law.”

Norris urged activists not to give police an excuse to crack down. She recommends getting the proper permits and making sure everything is in order. That way, if MAGA folks or, worse, the police or National Guard start to interfere with the action, it makes the activists look better in the media. People will see protestors acting peacefully and legally and are more likely to side with them against the aggressors causing trouble.

“Throwing bricks isn’t going to solve anything,” she said. “We have such a siege mentality. Whenever we’re attacked, we act out in outlandish manners which actually the oppressors can use to justify their continued oppression, and they like it that way.”

“Destroying property, harming other people harms our movement,” she added. “Just say no. No matter how angry you are, come join us, and we’ll focus that anger into a way that’s positive, because we’re all freaking angry.”

If Trump’s executive orders keep people afraid of speaking out, he will feel less restricted in what he can do. Americans have rights, and the law protects those rights even if Trump wants the public to forget that. The LGBTQ+ community can’t let Trump win by giving up before we start.

“An executive order dropped [early in Trump’s second term] focused on gender-affirming medical care for young people, 19 and under. And what we’re seeing is hospitals sort of preemptively shutting down care and closing their gender clinics, which is exactly the opposite of what we want folks to do,” Swaminathan said. “They are engaging in the lawful provision of care to trans and nonbinary young people under the age of 19. What we’re saying is, please don’t stop doing this until there is final agency action on this, because this is just an executive order. It’s not self-executing.”

Not complying in advance is one of the most important keys to organizing. The Gender Justice League in Seattle is on the front lines,  Kai Aprill-Tomlin, GJL’s communications manager told LGBTQ Nation that even though Trump’s second administration is moving much faster than the first, the GJL learned a lot from his previous term.

“Trump’s first presidency taught us that our system of government moves slowly, it does still have checks and balances, and there are still ways we can resist and put up roadblocks. For example, when Trump tweeted the first trans military ban, within a week, advocates filed four lawsuits in four jurisdictions, resulting in four nationwide injunctions to prevent any action from happening,” Aprill-Tomlin said.

Though things are tough right now—both Swaminathan and Aprill-Tomlin mentioned how incredibly busy they’d been since Trump took office—remember that the community has been here before. The first thing that Aprill-Tomlin said when asked what he’d tell a brand-new organizer was, “Talk to the elders in your community. And talk to the people already doing the work.”

“Trans people have existed for as long as people have existed—and most of that time has been without protections from the government (and/or enduring direct attacks from the government, as we’re seeing right now). We have always been all we had. Right now, I’m looking to trans elders and Indigenous elders who know this history intimately and who have wisdom to share about how our communities have organized and kept each other alive even during the worst of times,” he said.

For those people who are in a space where they don’t feel like they can safely come out—maybe they’re in a small town in a deep-red state—Norris shared the most important thing someone in that situation can do.

“Stay alive, have faith. Don’t succumb to their stigmatization. Those of us who are there and can do something, live through your experience and we share that with you. It will never allow us to forget that we’re out there for you. So just stay with us,” she said. “What I want from any kid out there who cannot access service? I want them to have the belief that we understand what they went through. I certainly understand what they went through. And we are fighting for them.”

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