POLITICS
How Biden can Undo Trump’s Anti-LGBTQ Actions
Incoming administration has tools to reverse predecessor’s bigoted policies
BY ARTHUR S. LEONARD
Federal administrations
in their fi nal days usually
rush to put in place
regulations intended to
codify their policy preferences, in
some cases racing the clock to put
the fi nal touches on measures long
under development. The Trump
administration was no exception,
rushing to the Federal Register
several regulations and rules intended
to overturn Obama administration
policies and to provide a
narrow spin on LGBTQ courtroom
victories.
Notable among new Trump
regulations in recent months are
revisions to the rules governing
asylum for foreign refugees, narrow
interpretations of the Supreme
Court’s landmark ruling from last
June in Bostock v. Clayton County,
and broad interpretations of constitutional
and statutory protection
for free exercise of religion to
excuse compliance with anti-discrimination
laws.
The Biden administration and
the new Democrat-controlled Congress
have various mechanisms at
hand to cancel much of the lastminute
rule-making.
Donald Trump’s executive orders
and formal written directives
can be rescinded by President Joe
Biden with the stroke of a pen. For
example, during his fi rst week in
offi ce, Biden reversed Trump’s ban
on transgender service members
and directed the entire executive
branch to comply with the Supreme
Court’s ruling in Bostock
v. Clayton County that claims of
sex discrimination under Title VII
necessarily include claims of sexual
orientation or gender identity
discrimination, and to apply that
interpretation to all federal laws
banning sex discrimination
Some of the Trump administration
regulations have been announced
and published as “fi nal
rules” but have been blocked from
implementation by court orders.
For example, a regulation altering
the substantive and procedural
rules for dealing with refugees was
President Joe Biden will have options as he aims to unravel Trump’s anti-LGBTQ policies.
recently blocked by a preliminary
injunction while a court determines
whether it is consistent with
the relevant statutes.
This regulation would have made
it very diffi cult for gay refugees to
win the right to remain in the United
States. The new administration
can go through the APA procedure
for replacing it with a new regulation,
but under the Congressional
Review Act, a 1996 statute that
was the brainchild of Newt Gingrich
when he became Speaker
of the House of Representatives
in 1995, recently-adopted regulations
can be repealed by Congress
with simple majority votes in both
houses and the approval of the
president, with no Senate fi libusters
allowed.
There is a time limit, however,
of 60 legislative days from the date
Congress was informed of a new
regulation or rule (a legislative day
is a day when Congress is in session,
so many weekends, holidays,
and periods of legislative recess,
are not counted). During the early
months of the Trump administration,
more than a dozen Obama
REUTERS/JONATHAN ERNST
administration regulations adopted
during 2016 were repealed using
the CRA.
A Trump administration regulation
excluding transgender people
from protection under the Affordable
Care Act’s anti-discrimination
provision has been preliminarily
enjoined in litigation but could be
withdrawn and replaced by the
new administration through administrative
action or, possibly, repealed
under the CRA.
Some Trump administration
policies can simply be reversed as
part of the normal administrative
processes of federal agencies. In
August, the Offi ce of Civil Rights
in the Department of Education
grudgingly recognized that under
the Bostock decision, it was obligated
to deal with gay students’
discrimination complaints under
Title IX of the Education Amendments
of 1972, but the Department
of Education refused to back away
from its position that schools can
treat students differently due to
their “biological sex,” which tends
to leave transgender students out
in the cold in light of the Trump
administration’s consistent disposition
to question the validity of
gender identity.
For example, the department
has persisted in its view that
transgender girls can be excluded
from participating in girls’ sports
programs and that transgender
students can be restricted from using
restroom and locker room facilities
consistent with their gender
identity. The new administration
can rescind this administrative interpretation
of the statute without
going through time-consuming
rule-making, just as the Trump
administration quickly rescinded
the Obama administration’s interpretation
to the contrary early in
2017 when the government effectively
“switched sides” in pending
litigation over the issue.
The Bostock decision was written
by the Supreme Court in such
a way that it should be applicable
to any federal policy that forbids
discrimination because of sex,
contrary to the position, for example,
of the Department of Housing
and Urban Development (HUD),
which has fought against claims
that the Fair Housing Act requires
homeless shelters to accommodate
transgender people. Congress
could override the HUD interpretation,
or new administrators at
HUD can issue new interpretive
guidance to reverse it.
While passage of the Equality
Act remains the primarily legislative
goal for LGBTQ rights under
the new administration, as it
would expressly add “sexual orientation”
and “gender identity or
expression” as prohibited grounds
for discrimination under existing
federal anti-discrimination laws,
much can be accomplished during
the early months through new administrative
rule-making, new executive
orders, and Congressional
action under the CRA. Democratic
leaders in both houses of Congress
should be strategizing with
the new administration over which
rules or regulations to repeal legislatively
and which to leave to administrative
action or presidential
decrees.
JANUARY 28 - FEBRUARY 10, 2 20 021 | GayCityNews.com
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