COURTS

As detailed below, many of the planned anti-LGBTQ policies of a second Trump administration would violate the Constitution and federal law, such that litigation would be a significant part of our response.

The ACLU has extensive experience litigating against the first Trump administration’s egregious anti-LGBTQ policies, such as its exclusion of transgender people from military service and its interpretation of the Constitution and federal sex discrimination laws as carving out LGBTQ people from protection. Should a second Trump administration take office, we are ready to get courts to confirm that LGBTQ people are protected from discrimination under federal law, to invalidate policies mandating discrimination across the federal government, and to shut down Trump’s expected efforts to weaponize the Constitution and federal laws to require discrimination against LGBTQ people by state and local governments and private entities. The ACLU has prevailed on these fronts in the past, and we will continue to fight.

We are clear-eyed about the challenging road we face in turning to the federal courts to stop these planned attacks on the LGBTQ community. Four years of the first Trump presidency had an enormous impact on the courts, including the Supreme Court. Getting courts to understand the experience of transgender people and the impact of discriminatory policies on their lives was difficult even before Trump reshaped the judiciary. It is that much harder now.

That doesn’t mean that we can’t make an important impact with litigation. We have seen some Trump-appointed judges rule in favor of LGBTQ rights in the lower courts. And it was a Trump appointee — Justice Neil Gorsuch — who authored Bostock v. Clayton County, 590 U.S. 644 (2020), our clients’ case establishing that Title VII, a federal law prohibiting sex discrimination in employment, protects against discrimination based on sexual orientation and gender identity.

But even when we don’t prevail in the courts, filing cases allows us to publicly call out unconstitutional and illegal policies and build political and grassroots support that will ultimately result in more just policies over time. Accepting the illegal and unconstitutional assaults on the LGBTQ community promised by a second Trump administration without a legal fight is not an option.

Below we discuss how the planned policies of a second Trump administration are illegal and unconstitutional under any proper reading of precedent.

CONGRESS

Given the gravity of Trump’s threats to the health and dignity of transgender people, and the fact we cannot count on litigation to stop all these planned attacks, it is imperative that the elected leaders in our democracy act. 

We anticipate that, in a second term, Trump will attempt to carry out much of his sweeping, anti-LGBTQ policy agenda through executive actions. But this in no way eliminates the role for Congress to play in challenging these assaults.

Congress can and must use the power of the purse, and its oversight and investigative authorities, to constrain a second Trump administration’s anti-LGBTQ agenda. If a pro-equality opposition controls either or both chambers of Congress in a second Trump administration, members of Congress who support the transgender community can use the appropriations process to hinder Trump’s ability to mandate anti-trans discrimination and weaponize federal law against LGBTQ rights. Moreover, Trump’s announced “day one” elimination of protections for transgender students in our nation’s schools should prompt pro-equality members of Congress to go on the offensive by prioritizing passage of comprehensive nondiscrimination protections for LGBTQ people across the country in the form of the Equality Act. We understand that comprehensive nondiscrimination legislation will not become law under a Trump presidency, however, it is important to demonstrate a stark contrast to the ugly discrimination of this administration, making clear that Trump’s values are not those of most Americans. Polling consistently shows that the public supports strong nondiscrimination protections for LGBTQ people — not the Trump campaign’s extreme anti-trans agenda.

STATES, CITIES, AND TOWNS

Likewise, at the state and local level, we need elected officials to begin coordinating and planning now to protect transgender people from Trump’s attempts to implement sweeping discrimination against them, including criminalizing gender nonconformity. Collective and coordinated action among committed pro-equality officials will be vital to anticipating, revealing, and quickly responding to the Trump administration’s blitz of anti-trans actions.

ORGANIZING

The ACLU is also committed to fighting for LGBTQ rights in the court of public opinion. Legal and policy battles — even those that are unsuccessful in the short run — can serve to frame and focus fights over values in ways that are politically resonant in the long term.

Banning books and bullying children are not popular actions outside of the MAGA base, and as advocates we will organize with our allies around specific moments that highlight the extremism and unpopularity of Trump’s attacks on transgender people. The goal will be for the Trump administration’s plans or actions to generate a public backlash that helps raise the political cost of discriminatory policies. Mobilizing public support on behalf of vulnerable children and youth — as the ACLU did in the context of family separation — will help deter further draconian policies and can help reshape the political narrative around transgender justice.

Trump plans to remove federal non-discrimination protections by rescinding regulations and interpreting federal laws to eliminate such protections.

This would strip LGBTQ people of nondiscrimination guarantees across a vast swath of federal government programs including Social Security, Medicare, and housing programs, as well as federal government employment. Rescinding regulations that interpret federal civil rights laws to apply to anti-LGBTQ discrimination — and likely promulgating new regulations taking the position that they don’t — would convey the message to school districts, landlords, employers, health care providers, and others that discrimination against LGBTQ people is lawful and, thus, embolden more discrimination.

Transgender people, in particular, already face discrimination across nearly every aspect of their lives. The 2022 U.S. Transgender Survey found they faced higher rates of poverty and homelessness than their cisgender peers, and data from the Human Rights Campaign found a persistent wage gap between transgender and cisgender people. The U.S. Census Bureau found that transgender people report higher rates of hunger. Numerous studies also found that they face higher rates of disability, long-term health risks — including HIV — and substance-use disorders, all of which contribute to a mortality risk twice that of their cisgender peers. Legal protections are but one pillar of addressing these systemic and widespread inequities, and the rollback of those protections would make matters worse.

In 2020, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act, which bars sex discrimination in the workplace, also covers anti-LGBTQ discrimination, rejecting arguments from the Trump administration. Since then, both federal courts and federal agencies have interpreted other federal statutory bans on sex discrimination to bar anti-LGBTQ discrimination as well, including in the contexts of health care, education, and housing.

While a second Trump administration would likely announce its view that these federal civil rights statutes do not protect LGBTQ people, the courts ultimately will decide this question. When they decide, Justice Gorsuch’s reasoning in the Bostock case that “… homosexuality and transgender status are inextricably bound up with sex” should prevail. The ACLU is already litigating the scope of federal nondiscrimination coverage for LGBTQ people in the courts, and we will continue to sue to protect the broad scope of these federal civil rights laws if a new Trump administration tries to narrow it.

In addition, should a new Trump administration cause the federal government itself to discriminate against LGBTQ people (such as interfering with LGBTQ people’s participation in federal programs or discriminating against LGBTQ federal employees), that would violate the Constitution’s Equal Protection Clause, as well as federal statutes. Such discrimination should be subjected to heightened equal protection scrutiny, since the Supreme Court has recognized in Bostock that discrimination based on sexual orientation or gender identity is discrimination based on sex, which is unconstitutional unless the government can prove that the discrimination is substantially related to an important government interest. Bostock specifically involved employment discrimination prohibited by Title VII, but its reasoning — that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” — applies equally to equal protection claims involving sex discrimination, as some courts have already recognized. Therefore, excluding LGBTQ people from government programs or employment, or subjecting them to discriminatory conditions because of their sexual orientation or gender identity, would violate the Constitution. The ACLU will continue to advocate this position as these issues eventually work their way up to the Supreme Court.

In addition to rescinding nondiscrimination protections for LGBTQ people, a second Trump administration would permit faith-based, taxpayer-funded contractors that carry out vital federal government programs (e.g. disaster assistance and care for unaccompanied refugee minors, among many others) to use religious eligibility criteria to exclude LGBTQ people from participating in those programs. If such discrimination were to occur, it would violate not only the Equal Protection Clause for the reasons discussed above, but also the Establishment Clause, which the Supreme Court has recognized prohibits religious criteria to be used in carrying out government programs, whether those programs are carried out by government employees or government contractors. We will continue to challenge efforts to allow the use of religion to discriminate in government programs wherever possible, recognizing that the current Supreme Court has been hostile to our arguments.

A second Trump administration would ban gender-affirming medical care for transgender people in federal health care programs, including Veterans’ Administration health care and Medicare.

This would result in the disruption of medically necessary care for transgender people across the country who depend on it, and the implications would be catastrophic. Gender dysphoria is a serious medical condition that, if left untreated, can result in significant distress, depression, anxiety, self-harm, and suicidality.

Categorically denying such health care would violate the Constitution and section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex in health care programs. This has been recognized by several courts, while others have disagreed. The ACLU will continue to litigate this issue as it works its way up the courts, likely reaching the Supreme Court.

In addition, borrowing from lessons learned from the struggle to maintain access to abortion care, we will advocate for states to create reliable, permanent funding streams to ensure that those who would otherwise be cut off from gender-affirming medical care due to the exclusion of such care from federal programs are still able to access care under state programs. For example, in September 2022, California established a Reproductive Health Equity Fund within its Department of Health Care Access and Information. In April 2022, Maryland created an Abortion Clinical Training Program and allocated a $10.6 million training grant over three years. In April 2024, the Illinois Department of Public Health awarded $2 million in grants for abortion training. These programs — and similar ones at a much larger scale — exemplify the kind of support for and investment in the health of transgender people that will become necessary at the state level in a second Trump administration.

Just as the Trump administration did in 2017, a second Trump administration would reverse policies allowing transgender people to serve openly in the military.

This would push out many active-duty transgender servicemembers who have served with distinction and would bar new transgender recruits from enlisting. Such a discriminatory policy would also violate the Equal Protection Clause because it should be subjected to heightened equal protection scrutiny, and there is no justification for excluding transgender people from service. In fact, a RAND report from 2016 stated the effects of trans-inclusive “foreign military policies indicate little or no impact on unit cohesion, operational effectiveness, or readiness. Commanders noted that the policies had benefits for all service members by creating a more inclusive and diverse force.” Should Trump have a second term, the ACLU will work with allies to elevate the contributions of transgender servicemembers to raise the political costs on the Trump administration of reinstituting the ban on service, as well as explore all legal avenues to preventing its reinstatement. We know from our prior litigation on behalf of both transgender and gay and lesbian servicemembers that their stories of service and sacrifice can help move public opinion and make Trump’s expected anti-trans policy deeply unpopular with the country.

If they are successful in these efforts, even strong, state-level nondiscrimination protections could be overridden. However, states can and should lay down clear markers that their own laws and constitutions require protection of transgender people both to provide practical protections at least for a time and to create the opportunity for political organizing and mobilization when and if the Trump administration tries to override those state protections.

We would also argue that states should have the freedom to create greater civil rights protections for groups they believe face discrimination — such as transgender youth and adults — and that federal civil rights laws should not be interpreted to overrule those state protections. If a second Trump administration allows abortion rights to be decided on a state-by-state basis — a scenario we doubt and will explore in a subsequent memo related to reproductive freedom — we would make the same states’ rights argument in the transgender rights context to preserve extant state protections.

EDUCATION

A second Trump administration could take action to stop school districts across the country from maintaining trans-inclusive policies and practices. Specifically, it would target school districts — by bringing civil rights enforcement actions against them and/or withholding federal funding — if school officials affirm transgender students’ gender identity by allowing them to use restrooms that accord with their gender identity or by allowing transgender girls to play on sports teams with other girls, or acknowledging the existence of transgender people in the school.

Such actions would coerce school districts to discriminate against transgender students and erase the existence of transgender people in the curriculum, causing substantial harm to students in every state. As the Centers for Disease Control & Prevention found in its Youth Risk Behavioral Surveillance System survey, transgender youth are already significantly more likely to report feeling unsafe going to or attending school, to cite instances of physical or sexual violence, to indicate harassment at school and online, and to indicate mental health distress including suicide attempts.

A second Trump administration would likely attempt to justify these harmful actions by saying that trans-inclusive restroom or sports policies violate the rights of cisgender students under Title IX and their constitutional right to privacy. The ACLU has convinced courts to reject such claims in the past, and we will continue to fight against them should a new Trump administration try these arguments again.

Given the gravity of the threat and the uncertain legal landscape, as part of the ACLU’s strategy for state-based resistance to assaults on civil rights, we will advocate for states and school boards to act wherever they can to ensure the highest possible level of protections for LGBTQ students. Such protections would include policy guidance regarding updating student names and pronouns, inclusive rules on gender-based activities, and best practices for school records. They would also include state policies that, in accordance with student privacy laws, direct school districts not to share information regarding transgender and non-binary students with a federal government intent on discriminating against these students except when legally required.

While these actions may not ultimately block the harm of a Trump administration’s anti-LGBTQ assault on Title IX, they will provide students with important protections that could take a second Trump administration time to override. Moreover, the federal government overturning policies enacted by local and state officials can create a clear narrative for the media about a MAGA government ramming through unpopular and extreme policies around which to build political resistance.

HEALTH CARE

A second Trump administration would attempt to halt gender-affirming medical care for adolescents nationwide by threatening to deny Medicaid funding for hospitals that provide that care, asserting — against the recommendations of all major medical associations — that it does not meet federal health and safety standards. This could coerce hospitals to discontinue care, making it difficult, if not impossible, for youth with gender dysphoria to access the treatment they need.

In the last three years, 24 states have categorically banned gender-affirming medical care for transgender youth, effectively ending health care access for more than 100,000 transgender youth. Weaponizing federal law to target transgender health care in the remaining states would create a dire situation for transgender youth across the country, effectively ending access to care nationwide. The ACLU has already brought multiple cases challenging state-law bans on gender-affirming medical care for minors and would continue to litigate this issue in courts across the country should a second Trump administration further restrict this care for adolescents.

Where politically feasible, the ACLU will be encouraging states to pass their own laws or state constitutional provisions protecting access to gender-affirming health care and even, as noted above, ensuring access to consistent state funding for the care. Although the coercive power of federal funding cannot be underestimated, a coordinated effort by multiple states could force a showdown between medical ethics and state law and a punitive and overreaching federal government. The ACLU is laying groundwork to amplify and capitalize on such moments to create political backlash that forces the administration to reconsider.

The ACLU is also urging states to strengthen data privacy policies. Many states have enacted shield laws that prevent state officials from being complicit in other states’ efforts to target transgender individuals or providers of gender-affirming medical care, among others. Although the Constitution’s Supremacy Clause means that states must obey federal law, shield laws can be strengthened to limit cooperation with federal authorities unless compelled.

WORKPLACE 

A second Trump administration would take the position that employers may discriminate against LGBTQ employees based on the employer’s religious beliefs notwithstanding applicable state or federal nondiscrimination laws. This could be implemented as an executive order from the president or issued as a regulation. The administration might also intervene in litigation to try to prevent state and local governments from enforcing nondiscrimination requirements where the defendant asserts a religious motivation for the discrimination.

This position would likely be based on the Trump administration’s extreme interpretation of the First Amendment as establishing a free exercise right to refuse to follow nondiscrimination requirements that conflict with one’s religious beliefs, even though there is no Supreme Court precedent supporting that view. To the contrary, the court has rejected such claims in the past, although it is not clear how the Supreme Court would rule on this issue now.

By enacting policies supporting a religious right to be exempt from workplace nondiscrimination laws, a second Trump administration could create uncertainty about the enforceability of nondiscrimination laws against those who have religious objections to LGBTQ people. The ACLU has litigated against claims that the First Amendment entitles businesses that are open to the public to discriminate against LGBTQ people, and would similarly oppose such arguments asserted by employers.

One of the most extreme positions included in Project 2025 is the use of criminal laws to punish gender nonconformity in public life:

Pornography, manifested today in the omnipresent propagation of transgender ideology … has no claim to First Amendment protection … Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders. And telecommunications and technology firms that facilitate its spread should be shuttered.

A second Trump administration would not be able to implement such a policy without Congress, making it likely that fair-minded people could prevent such a horror. If Congress were to create such a federal criminal provision, it could result in school officials and librarians facing potential felony criminal penalties for including books or lessons discussing transgender people in schools or libraries. And transgender people could face these criminal penalties for merely being themselves in public. This would not only threaten the freedom of countless transgender and cisgender people across the country; it would also send a damaging and stigmatizing message about what it means to be transgender, with significant implications for how transgender people are treated in all aspects of their lives. Such criminal laws would clearly violate well-established First Amendment law, and the ACLU would sue to stop them.

As part of the ACLU’s playbook for states, we will urge governors, state attorneys general, and state legislatures to act now to prohibit the use of state resources to support any criminal prosecutions or other enforcement measures by the federal government unless compelled by federal law. While the end result of this approach may be to merely slow down the enforcement of federal criminal provisions, such as those Project 2025 is advocating for, it could be incredibly significant for the daily lives and futures of transgender people across the country.

The ACLU will urge states to offer an alternative, positive vision that welcomes transgender people to be full participants in society. For example, states should ensure that gender, whenever its disclosure is required, is always self-reported in the state, with no medical documentation requirements, and bar state and local officials from questioning or investigating sex or gender designations. Such a policy would prevent state and local officials from being complicit in the Trump administration’s efforts to attack the legitimacy of transgender people and demonstrate that the state respects the dignity of transgender people and supports the community.

States have adopted laws criminalizing their health care, attempting to ban them from public life, and even threatening to remove transgender youth from families that love and affirm them.

Throughout this political onslaught, the ACLU, our nationwide affiliate network, and our millions of members have remained stalwart in defense of the basic principle that all people deserve the freedom to be themselves and every state should be a safe place to raise every family.

Donald Trump’s promises to take these discriminatory policies nationwide should be unthinkable, but it is nonetheless a future we’re prepared for. Transgender people are no strangers to government persecution, political slander, or the criminalization of gender nonconformity. They know how to build safety, community, and care among one another, and the ACLU has a century-long history of representing, supporting, and advocating for the powerless, the silenced, the marginalized, and the unapologetically queer against the kinds of attacks outlined in this report. We would zealously and unflinchingly defend LGBTQ families, LGBTQ rights, and LGBTQ health care against Donald Trump or anyone else who tries to extinguish LGBTQ freedom.

COURTS

Litigation will play a critical role in our fight against Trump’s attempt to reinvigorate the politics of mass incarceration.

We will use the courts to halt the Trump administration’s likely attempt to carry out one of the largest — if not the largest — carceral events in our nation’s history: the senseless return to prison of nearly 3,000 individuals released on federal home confinement during the pandemic. Doing so would violate both Congress’s clear purpose in authorizing those releases under the CARES Act, and the fundamental constitutional right to due process before being deprived of liberty.

We will also meet any efforts by Trump to expand the use of the federal death penalty. In the last six months of his presidency, Trump’s administration carried out an unprecedented killing spree in which 13 federal prisoners were executed, despite troubling evidence of the torturous methods of execution used and important constitutional defenses raised by those prisoners. In light of this evidence, Attorney General Merrick Garland ordered a halt to any future federal executions and a review of the rushed policies and procedures adopted during the Trump administration. If Trump is re-elected, the ACLU will be ready to challenge the constitutional and statutory violations of another proposed execution onslaught.

If Trump’s administration adopts a new federal execution protocol, we will use public record laws and, if necessary, the courts to secure information about the protocol. We will challenge any efforts to return to unconstitutional methods of execution. Through this litigation, we will continue exposing the racism and cruelty inherent in the death penalty as we continue to seek its total abolition.

CONGRESS

We will continue to advocate for changes to the criminal legal system in Congress and oppose any federal legislation that threatens civil liberties under any administration, including a second Trump administration. We will continue to advocate for federal agencies to invest in public safety measures during the annual appropriations process. And we will increase federal advocacy efforts to constrain the practice of providing military equipment to local police.

If past is prologue, fighting against the potential for rapidly escalating threats to the criminal legal system under a second Trump administration will require intensive coordination among members of Congress. To that end, the ACLU has expertise and readily available resources to advise and assist members of Congress on how to fully exercise their oversight rights and responsibilities. The ACLU can provide guidance for congressional hearings, congressional testimony, and engagement in and demand for oversight actions, such as sending letters to agencies to constrain authoritarian activities and requesting Government Accountability Office (GAO) reporting.

The ACLU will fight to ensure that Congress works to mitigate potential harm should Trump be re-elected.

STATES, CITIES, AND TOWNS

States and localities control the bulk of the American criminal legal system. While the federal government does not have direct authority over these localized systems, Trump’s rhetoric could influence the agenda for state and local elected officials.

State governors and legislatures must increase transparency and strengthen legal checks throughout their criminal legal systems. From adopting use-of-force standards for law enforcement that prohibit the use of carotid restraints or chokeholds and no-knock warrants, to developing robust transparency standards, such as reporting deaths in custody, states must act to protect communities.

The ACLU and our affiliates will continue our work nationwide to hold state actors accountable for their actions. Under a second Trump administration, the ACLU’s commitment to ensure constitutional protections at every level of government will be stronger than ever and we will continue advocating for safeguards to be implemented immediately.

Efforts to achieve meaningful accountability for police abuse — including the killings of Black people such as George Floyd, Duante Wright, Elijah McClain, Breonna Taylor, William Green, and countless others — and to implement lasting policing reform face serious obstacles under any administration. These efforts will only become more difficult under a Trump administration given his open endorsement of authoritarian and violent policing.

In 2017, then-President Donald Trump spoke openly about his support for police abuse and violence on the part of government actors:

“When you see these thugs being thrown into the back of a paddy wagon, you just see them thrown in, rough. I said, ‘Please don’t be too nice.’…When you guys put somebody in the car and you’re protecting their head you know, the way you put their hand over [their head]? Like, ‘Don’t hit their head,’ and they’ve just killed somebody, ‘Don’t hit their head.’ I said, ‘You can take the hand away, OK?’”

Trump appointed Jeff Sessions as attorney general, the top law enforcement position within the federal government. Sessions mandated that the Department of Justice (DOJ) “pull back” on the practices of investigating police abuse and misconduct and abandon civil rights abuse litigation.

In a second Trump administration, we expect Trump will again use all the tools at his disposal to empower abusive law enforcement and discourage state and local efforts to reform policing. Trump’s rhetoric risks exacerbating police violence. For example, his calls for further protections for abusive police at the expense of community safety and his description of use of force on protesters as a “beautiful thing to watch” could embolden state actors to take a similar approach.

Beyond rhetoric, Trump will also likely exercise his executive power to overturn federal checks on local law enforcement abuse, including by immediately rescinding President Biden’s 2022 executive order on policing. Doing so would eviscerate one of the most substantial federal actions on police reform since George Floyd’s murder and roll back important changes to use of force standards, including restrictions on chokeholds and carotid restraints.

In 2017, Trump rescinded President Obama’s executive order limiting the Pentagon’s 1033 program, which allows the Department of Defense to give state, local, and federal law enforcement agencies military weapons. We expect a second Trump administration will similarly embrace increased militarization of local departments by providing local police with military equipment, tanks, and mine-resistant vehicles that have no place in local communities.

The ACLU has addressed additional threats to civil liberties through the weaponization of the criminal legal system in prior memos. In addition to encouraging the militarization of state and local police, Trump has threatened to bring the National Guard into major cities to quell violence, a clear violation of our democratic laws and norms. Enlisting law enforcement in this manner risks dangerously escalating tensions and exposing peaceful protestors to excessive or deadly force. In a second Trump administration, we will also likely see attempts to deputize local law enforcement to aid an unprecedented mass deportation effort that would decimate communities.

These expected law enforcement policies will have an outsized impact in marginalized communities. Black people are far more likely to experience police use of force and police misconduct, and three times more likely to be killed by police than white people. And, as our research shows, militarized policing is aggressively used against people of color. Trump has consistently downplayed these racialized harms of policing.

OUR RESPONSE: LAW ENFORCEMENT

The ACLU will use our advocacy and litigation expertise to challenge a second Trump administration’s attempts to empower, arm, and immunize police violence. We will chronicle and illuminate the injustices of a second Trump administration, as we did with the first Trump administration.

We will also continue to advocate for evidence-based solutions to public safety, and stand unwavering in our support for data-driven alternatives to incarceration should Trump be re-elected.

If Trump is re-elected, our state-level advocacy is more critical than ever, and we will work to protect communities from the police abuse encouraged by Trump. States can protect against police violence by proactively reducing opportunities for contact with police. The most common way members of the public encounter the police is via police-initiated stops, whether of drivers or pedestrians. The ACLU and our affiliates will work to end the abusive and racially biased use of traffic stops, in part by continuing to revamp traffic stop policy to deprioritize non-safety related stops to minimize overall contact with police. These non-safety related stops can escalate to violent, and even deadly encounters that disproportionately harm Black and Brown people.

Where police contact does take place, we will work to diminish its harms by continuing to push states and localities to establish use of force standards and require de-escalation training to prevent lethal encounters with police. States should ensure guardrails that provide police transparency, oversight, and accountability are in place and enforced. Wherever possible through litigation or legislative advocacy, the ACLU will also encourage robust mechanisms for civilian oversight and police accountability.

On the campaign trail, Trump threatens to return to many of the ineffective and cruel policies that drove our carceral epidemic, undermining progress and fueling mass incarceration.

Below, we outline the ways in which a second Trump administration would further exacerbate our already overcrowded jail and prison system. We focus our analysis on four topics:

• Escalating punitive, draconian sentencing and incarceration approaches;
• Incentivizing dramatically worse conditions for the nation’s 1.9 million incarcerated people;
• Reincarcerating nearly 3,000 people released to federal home confinement during the pandemic; and
• Undermining recent reforms, including the First Step Act.

The ACLU is ready to challenge a second Trump administration’s efforts to further increase the size of our incarcerated population and violate the rights of those currently incarcerated.

THREAT 1: CHARGING AND SENTENCING PRACTICES

A second Trump administration would use federal prosecutorial power to increase mass incarceration. The policies of Trump’s first administration leaned towards a tough on crime approach. Trump’s attorney general instructed prosecutors to seek the most serious charges, increasing the likelihood of lengthy sentences and further fueling the nation’s mass incarceration crisis, especially in low-income communities and communities of color. Trump has made it clear that, with a second term, his administration will be far more aggressive in its approach to prosecution and sentencing, even usurping the authority of state and local prosecutors to use their discretion.

While Trump cannot control the charging decisions of state and local prosecutors, he will likely use his bully pulpit to pressure them to take a draconian approach. He has already declared his intention to “take on the radical Marxist prosecutors who have abolished cash bail and refuse to charge criminals” and direct the DOJ to prosecute civil-rights-minded prosecutors in major cities. The Heritage Foundation’s policy agenda for the next conservative administration calls for the “use [of] applicable federal laws to bring federal charges against criminals when local jurisdictions wrongfully allow them to evade responsibility for their conduct.”

We expect Trump’s attorney general will direct federal prosecutors to pursue the most serious possible charges and generate the longest possible sentences, broadly seeking mandatory minimums and sentences at the top of the Federal Sentencing Guidelines. Simultaneously, Trump’s administration will “support legislative effort to provide further tools” for prosecution, like the restoration of a 1984 bill that mandates severe sentences and mandatory minimums, including for non-violent crimes. This approach would likely result in excessive sentences without effectively deterring crime or improving public safety.

Trump’s plans include an aggressive revival of the severe approach to drug-crime prosecution introduced during the war-on-drugs era. Proposals from Trump and his allies include intensifying federal crackdowns on individuals at the lowest level of the drug distribution chain by “rigorously prosecut[ing] as much interstate drug activity as possible including simple possession of distributable quantities.” These measures will not make communities safer but instead exacerbate racial disparities and fail to address the root causes of the overdose crisis.

OUR RESPONSE 1: CHARGING AND SENTENCING PRACTICES

We will combat any efforts to expand mandatory minimums or lengthen sentences. While we understand it will be a challenge given the current makeup of Congress, we will continue to fight for legislation to end sentencing disparities for crack and powder cocaine, reduce sentences for many other drug offenses — and apply these changes retroactively — and grant judges greater discretion in sentencing for lower-level drug crimes.

As we have done for decades, we will also use our research publications, communication channels, and wide supporter base to educate the public, candidates, and lawmakers on the urgent need for and impact of sentencing reform in a second Trump administration.

Since much of the American criminal legal system takes place at the state and local level, our state-level work will be more critical than ever with Trump in office. The ACLU and our affiliates will continue our state and local advocacy for sentencing reform to make our system more humane, such as by supporting policies that eliminate mandatory minimums, expand judicial discretion for low-level offenses, and reclassify and reduce sentences for drug crimes.

We will continue to advocate for clemency at the state level, urging governors to use their executive authority to provide pardons and commutations to reduce our overreliance on mass incarceration and lessen collateral consequences of convictions.

THREAT 2: CONDITIONS OF CONFINEMENT

In addition to potentially increasing the number of people incarcerated through aggressive prosecution and harsher sentencing, a second Trump administration promises to worsen conditions for incarcerated people. Trump’s future attorney general would likely block the critical role the DOJ’s Civil Rights Division has historically played in fighting dangerous, degrading, and often lethal conditions in state prisons and local jails. The Federal Bureau of Prisons (BOP), which is part of the DOJ, would almost certainly ban abortions as well as appropriate care for incarcerated transgender people, among other marginalized communities. And we believe that a second Trump administration would overturn President Biden’s executive order phasing out the use of private, for-profit prisons and jails, just as the first Trump administration revoked a similar order issued under President Obama.

OUR RESPONSE 2: CONDITIONS OF CONFINEMENT

The ACLU stands ready to defend the health, safety, and dignity of detained and incarcerated people throughout the United States. Mistreatment of prisoners based on race, sex, gender identity, or disability remains far too common. Through education, advocacy when we can, and litigation when we must, we will continue to fight for a criminal legal system in which incarceration is a last resort, rather than a first response.

The ACLU and our affiliates have been engaged in this work for decades, remaining vigilant for abuses of civil liberties across the country and defending the rights of those incarcerated. We will fight in the legislature and the courts to end the use of solitary confinement, especially for juveniles. We will fight to remove youth from adult prisons, advocate for legislative reforms to support incarcerated survivors of sexual abuse and seek proper mental health and medical care — including reproductive and gender-affirming care — for all individuals who are incarcerated. We will continue this fight across the country, regardless of attempts by the Trump administration to make an already inhumane system worse.

THREAT 3: CARES ACT RELEASES

Notably, under the first Trump administration, one of the most successful federal programs during the COVID-19 pandemic was the CARES Act program. Congress passed the Act in March 2020, expanding the BOP’s authority to allow people to serve the remainder of their federal sentences in the community on home confinement during the “COVID-19 emergency period.” Since then, over 13,000 people have been released to home confinement, and about 2,600 remain on home confinement. The overwhelming majority of people released under this Act successfully reintegrated into their communities without committing new offenses. Their success demonstrates that we hold far too many people in jails and prisons, and that we can significantly reduce mass incarceration, provide a second chance for incarcerated individuals, and ensure public safety.

If re-elected, Trump will likely re-imprison thousands of people living and working safely within the community on home confinement — without any legal authority. This senseless return to federal prison of nearly 3,000 individuals would be one of the largest — if not the largest — carceral events in our nation’s history.

Near the end of his term, Trump’s DOJ issued a memo concluding that the BOP “must recall prisoners in home confinement to correctional facilities...unless they would otherwise be eligible for home confinement[.]” Under the Biden administration, the DOJ announced that those released on home confinement from federal prison under the CARES Act could continue in the program subject to all the same rules and requirements of their release. A second Trump administration will form a new DOJ, and that DOJ may reverse course and require the BOP to reincarcerate all remaining individuals on home confinement under the CARES Act.

The return of nearly 3,000 individuals to federal prisons without any violation of the rules of release and without a new charge does not improve public safety. Individuals living, working, and caring for children or dependents in their communities should be given the opportunity to continue their successful rehabilitation and re-entry.

OUR RESPONSE 3: CARES ACT RELEASES

The ACLU is prepared to challenge a second Trump administration’s attempt to reincarcerate those released under the CARES Act. We will publish a report analyzing the success of CARES Act releases and build support for the expansion of this program among key congressional members, administration officials, and the public. We will continue working with bipartisan criminal justice reform coalitions to engage elected officials and administration stakeholders on the legal and public policy imperative for allowing CARES Act home confinement recipients to remain at home.

If those efforts fail, the ACLU is prepared to file a lawsuit on behalf of all people currently on home confinement pursuant to the CARES Act, challenging any potentially unlawful decision by the Trump administration to reincarcerate individuals on home confinement.

Mass home confinement revocations are contrary to the CARES Act. Under 18 U.S.C. § 3624(c)(2), Congress intended for early placement on home confinement to last for the remainder of an individual’s sentence. Requiring people on home confinement to return to prison would destroy their progress towards reintegration, separating them from the jobs, housing, relationships, and family responsibilities they have acquired.

Mass home confinement revocations would violate the Fifth Amendment Due Process Clause. The Supreme Court has made clear that a person conditionally released from prison lives a life far different than one who remains incarcerated, and those released rely on an “implicit promise” that they will remain free as long as they comply with their conditions of release. They are therefore entitled to basic procedural protections before the government can remove them from the program.

The CARES Act is a critical measure, reducing mass incarceration by providing people an opportunity to reintegrate into their communities, and the ACLU is ready to use litigation and advocacy to challenge any attempts at mass revocation from another Trump administration.

THREAT 4: FIRST STEP ACT

In 2018, the ACLU helped secure the bipartisan First Step Act, which then-President Trump signed into law. The First Step Act was significant legislation intended to improve federal prison conditions, reform overly harsh federal sentencing provisions, and provide increased programing and re-entry transition services to people incarcerated in federal prisons.

Despite the promise of the Act, Trump’s record on the First Step Act is mixed and many of its key reforms were undermined by Trump’s own administration. The risk assessment tool known as PATTERN, which was developed as part of the Act, was flawed and racially biased, overcalculating the risk for Black, Hispanic, and Asian individuals to be released. In response to the concerns raised by the ACLU and other reform advocates, Trump’s DOJ announced purported changes to the risk assessment tool in 2020; however, the changes actually made it harder for individuals to qualify as “low risk” and be released during the COVID-19 pandemic. The Trump administration also drastically underfunded the educational and vocational programs necessary for reducing sentences, initially allocating only $14 million of the $75 million required annually for these programs, impeding peoples’ ability to reduce their sentences by completing necessary programming.

While the First Step Act did see some success — 3,100 people were released based on “good conduct time” and 2,300 received retroactive sentence reductions in its first year, — a second Trump term poses the risk of undermining these reforms.

OUR RESPONSE 4: FIRST STEP ACT

Under any administration, the ACLU will strive to preserve criminal justice reforms, implement legislative victories, and advocate for policies to end mass incarceration. In a second Trump term, the ACLU will advocate for full implementation of the First Step Act’s rehabilitative and re-entry programming. We will also endeavor to mobilize Trump allies — like his son-in-law Jared Kushner — to marshal support for full implementation of the Act.

The ACLU will also advocate for solutions to problems with the First Step Act’s implementation, such as the flawed risk assessment tool, PATTERN, which has been criticized for racial bias and perpetuating systemic issues, ultimately making it more difficult for people incarcerated to fully benefit from the Act. For example, as reported, it is “mathematically impossible for men under the age of 26 to qualify as ‘minimum’ risk’ — the lowest possible risk category.” Specifically, we will advocate for adjustments to the definition of “recidivism,” and to expand considerations for individuals to qualify as minimum or low risk by adjusting the relative weight of various inputs.

Given the fact that Trump advocated for and signed the First Step Act, if his second administration is open to further reforms toward the same goals, the ACLU will work with the administration and Congress to expand the First Step Act’s sentencing provisions retroactively, particularly for those affected by racially disparate drug policies. Ultimately, the First Step Act was just that — a first step towards meaningful, necessary changes to our criminal legal system, and the ACLU will push Congress to reject any threats to the progress this bill has made and build on its successes through robust and necessary funding.

Guided by the long-debunked myth that capital punishment deters crime, and with no regard for decades of Supreme Court precedent, Trump seeks to expand the range of crimes that are punishable by death.

He has reportedly called for the death penalty as punishment for treason for those who leak information against him in the press or undermine him politically. He will attempt to expand the death penalty to non-homicide crimes, such as drug sale, human trafficking, and child rape, a move the Supreme Court found to be unconstitutionally cruel and unusual punishment in Kennedy v. Louisiana, 554 U.S. 407 (2008). As the ACLU argued in our amicus brief in Kennedy, our country almost exclusively reserved its executions for non-homicide crimes for people of color, most frequently for cases with white victims. Trump’s insistence on actively pursuing death in non-homicide crimes threatens to drive extreme sentencing across the board, making every sentence less than death (falsely) seem comparatively lenient.

As for manner of execution, Trump has “privately mused” on bringing back firing squads, the guillotine, and hangings by noose — a symbol and tool of our country’s sordid legacy of lynching and racial terror.

Trump’s embrace of capital punishment is longstanding. In the 1980s, as a private citizen, he paid $85,000 from his own funds to publish a page-wide advertisement calling for the execution of five Black and Latine boys wrongfully accused as the “Central Park Five.” Even before his first presidential run, he repeatedly called for death in highprofile cases via his private Twitter account. As Trump has shown, again and again, when given the chance to use the death penalty, he will.

We know Trump’s threat is real, because it is the continuation of his unprecedented killing spree in his final six months in office. Even amid the chaos of his attempts to overturn the 2020 election and his supporters’ raid of the Capitol, Trump continued to rush executions, ultimately executing 13 people on federal death row. Trump executed two Black men for crimes they committed as teenagers. He executed a woman with mental illness who had survived a lifetime of horrific sexual abuse and torture. He executed a man with intellectual disabilities and a 67-year-old man whose Alzheimer’s disease left him unaware of the reason he was sentenced to die. Ultimately, a majority of those executed during Trump’s killing spree were people of color, including seven Black men and one Native American man. These executions put clear disregard for the Constitution on full display.

Trump was able to execute these people so swiftly because of the Supreme Court’s complicity. With its three Trump appointees, the court cast aside lower-court rulings — often in the dead of night — that called for review of critical, life-saving legal claims.

During Trump’s killing spree, the ACLU defended the rights of a medically vulnerable priest who sought, after an 11-year relationship with Wesley Purkey, to witness and minister to Mr. Purkey at his July 2020 execution, but feared COVID exposure and illness. We secured improved death watch conditions for the last days of Lisa Montgomery; after enduring a history of horrific sexual abuse, Montgomery was subjected to 24/7 monitoring by male prison guards (even when using the toilet) preceding her execution. The ACLU’s lawsuit put a stop to this demeaning practice and allowed her a measure of dignity in her final days.

Finally, taking a page from the lessons of Justice Thurgood Marshall, who famously stated that the American people only support the death penalty because they do not understand what it entails, the ACLU has previously sought to expose the federal death penalty’s fatal flaws and inherent racism. We successfully fought in court for the release of federal records revealing some of the costs of the federal executions — both dollars and human lives. The disclosures revealed the inadequacies of the federal government’s COVID-19 contact tracing and testing during executions, and how this recklessness resulted in severe illness and death. The ACLU played a central role in communicating other injustices of the execution spree, including its inherent racism, and the use of executions against people with mental illness, intellectual disabilities, and those that have endured great trauma. And we showed the continuing trauma that executions cause throughout low-income and marginalized communities.

The ACLU’s execution lawsuits and public education efforts brought immense value to the fight against unlawful executions, and we will double down on these efforts should Trump attempt to repeat these actions.

The ACLU stands ready as ever to fight Trump’s dangerous and illegal attempt to expand the federal death penalty.

OUR RESPONSE: LEGAL ANALYSIS & LITIGATION

If Trump is elected and attempts to expand the use of the death penalty, the ACLU will challenge his unconstitutional and unlawful plans in court. Many of Trump’s announced plans would flout the Eighth Amendment’s bar on cruel and unusual punishment.

Trump’s proposal to expand the application of the death penalty to non-homicide crimes like drug trafficking or child rape would be barred under nearly 50 years of settled Eighth Amendment jurisprudence. Expansion of the death penalty to non-homicide cases is just as disproportionate of a punishment today as it was in 1977 when the Supreme Court rejected it, and just as likely to result in racially discriminatory application. The ACLU will challenge any effort by Trump to bring back this unlawful punishment.

The ACLU will also ensure that any effort by Trump to carry out another execution spree is met with intense scrutiny and opposition. While the lawyers appointed to represent the condemned will focus their efforts on the legal claims specific to their individual clients, the ACLU is prepared to uncover and litigate systemic challenges to Trump’s plans.

The ACLU will challenge any future effort by Trump to bring back torturous methods of execution.91 Every federal execution since Congress authorized executions in 1988 has been carried out by lethal injection. All of the executions under Trump were carried out under a new protocol addendum adopted during his administration. This protocol called for a drug that was shown to inflict excruciatingly painful flash pulmonary edema during the federal executions. Recognizing the likelihood that these executions violated the federal government’s obligation to avoid extreme pain and suffering, Attorney General Garland ordered the federal protocol suspended and a placed moratorium on executions while the Office of Legal Policy conducted a full review.

Perhaps in recognition of the problems with lethal injection during his administration, Trump has called for the use of hanging and guillotine as alternative methods. A number of states have introduced or proposed other torturous methods such as lethal gas, the electric chair, and the firing squad. We stand ready to fight back against any unnecessarily cruel new execution methods by invoking twin lines of Eighth Amendment jurisprudence that forbid specific applications that have fallen so out of the norm that only a few jurisdictions retain them, or that involve terror, pain, or disgrace in excess of what is necessary.

OUR RESPONSE: FEDERAL & STATE LEVEL

Equally true of Trump’s other attempts to shred the Constitution, congressional oversight remains important with the federal death penalty. Drawing on our technical expertise, the ACLU will push for such oversight to ensure transparency in the execution process, including with respect to the lethal-injection drugs used (which frequently come from unregulated compounding pharmacies).

While Trump would have no authority over the dwindling number of states that retain the death penalty, his influence from the bully pulpit cannot be ignored. The ACLU will double down on our ongoing work against the death penalty in the states. We will continue our litigation efforts that put the death penalty “on trial” in the states by leveraging state laws that are more protective than the U.S. Constitution — like state Racial Justice Acts and constitutions — to invalidate the death penalty based on its racist administration, including in the selection of juries.

The ACLU’s legislative and other advocacy efforts to abolish the death penalty in the states will continue. In close partnership with our affiliates, we will continue our work to pass legislation abolishing the death penalty, restricting its use, and preventing efforts to either expand offenses eligible for the death penalty or permissible execution methods. Through our advocacy and litigation in recent years, multiple states have abolished the death penalty, imposed a moratorium, or condemned the punishment due to its inherent links with our nation’s history of racism and lynching. This includes states as varied as Virginia, California, Connecticut, and Washington. As the number of states willing to abandon this failed government experiment continues to grow, the movement will expose the Trump administration’s attempt to revive the federal death penalty as an immoral break from our evolving standards of decency.

Ultimately, all of these efforts aim to repeal both the federal death penalty and its imposition in every state jurisdiction.

A new Trump administration threatens to drown out millions of voices across the country demanding investments in their communities that address the root causes of crime. Trump instead promises a return to the tough-on-crime, failed politics of mass incarceration.

The ACLU will defend against Trump’s efforts to bring in a new wave of mass incarceration, including by fighting against his attempts to encourage police abuses, grow our federal prison population – going so far as to reincarcerate people in home confinement — and expand the federal death penalty. We will advocate for congressional oversight to prevent potential harms threatened by Trump. And we will take a Trump administration to court if necessary to protect our civil liberties.

While we defend the hard-won reforms from the last few years to improve the system, we will also continue our long-term fight to end the country’s carceral epidemic and advocate for our long-term vision of public safety.