March 04, 2021 HUMAN RIGHTS

Reversing the Damage Done to LGBTQ+ Rights and Equality

by Emily Hecht-McGowan

On January 20, Joe Biden was sworn in as the 46th president of the United States against the backdrop of a deeply divided nation facing unprecedented challenges—a global pandemic, a recessing economy, an existential climate crisis, and a national reckoning on racial justice and the tragic human costs of systemic racism. This, along with the civil unrest we witnessed during the final days of the Trump presidency, has tested the very foundations of our democracy in ways we never previously could have imagined. And after four years of the Trump-Pence administration systematically dismantling our government institutions, the executive branch Joe Biden is now tasked with leading is nearly unrecognizable from the one he left in January 2017.

After four years of attacks on the LGBTQ+ community, the work before us is daunting, but this is not unfamiliar territory.

After four years of attacks on the LGBTQ+ community, the work before us is daunting, but this is not unfamiliar territory.

ELYSSA FAHNDRICH ON UNSPLASH

After four years of attacks on the LGBTQ+ community by the Trump-Pence administration, the work before us is daunting, but this is not unfamiliar territory. When the Obama-Biden administration took office on January 20, 2009, “Don’t Ask, Don’t Tell” and the Defense of Marriage Act (DOMA) were the law of the land. LGBTQ+ people could not rely on federal civil rights laws to protect them against discrimination. And on the same historic day that we elected our first African American president, LGBTQ+ people across the country felt the crushing blow of the passage of Proposition 8, the ballot initiative which stripped the freedom to marry from thousands of same-sex couples in California.

But by January 20, 2017, the last day of the Obama-Biden administration, historic advances in LGBTQ+ equality had been achieved. “Don’t Ask, Don’t Tell” had been repealed, and the military was preparing to lift the ban on open service by transgender individuals. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act had been enacted, and the freedom to marry for same-sex couples was the law of the land. Throughout their eight years in office, the Obama-Biden administration leveraged the legal and moral authority of the federal government to expand rights and defend the LGBTQ+ community from discrimination to an extent unprecedented in our nation’s history.

Unfortunately, the Trump-Pence administration spent the last four years unwinding these gains. They withdrew policies, reversed legal positions, advanced anti-LGBTQ+ arguments in litigation, and weaponized the concept of “religious liberty” to undermine LGBTQ+ equality. To undo this damage and improve the lives of LGBTQ+ people nationwide, President Biden will need to restore and then build on the work he helped to accomplish as vice president by (1) taking decisive administrative action, (2) pushing Congress to pass pro-LGBTQ+ legislation, and (3) filling positions in the judiciary and throughout the federal government with people who represent the diversity of America and who are committed to the rule of law and upholding civil rights and liberties.

Administrative Actions

From the outset, President Biden should use the executive authority vested in him by Article II of the U.S. Constitution to root out discriminatory policies implemented by the Trump-Pence administration and to deploy federal resources to protect LGBTQ+ people from discrimination.

First, the Biden administration has already begun this work by directing all federal agencies to implement the U.S. Supreme Court’s decision in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), immediately. In Bostock, the Supreme Court held that discrimination because of sexual orientation and gender identity is a form of sex discrimination covered under Title VII of the Civil Rights Act of 1964. For decades, courts have looked to Title VII jurisprudence when interpreting other federal laws prohibiting sex discrimination. Therefore, it is both reasonable and necessary to ensure consistent application and enforcement across federal agencies to apply Bostock’s definition of “sex” to all federal statutes prohibiting sex discrimination, including Title IX (education), the Affordable Care Act, and the Fair Housing Act.

Second, the Biden administration must reverse the dangerous trend of using religious liberty as a basis for gutting nondiscrimination protections, particularly (but not exclusively) for LGBTQ+ people. For example, the Department of Health and Human Services (HHS) established an entire Conscience and Religious Freedom Division to protect health care providers “. . . who refuse to perform, accommodate, or assist with certain health care services on religious or moral grounds.” Furthermore, it issued a so-called “conscience” regulation that threatened to claw back millions of dollars in federal funding from health care providers who did not put the religious objections of their employees ahead of the health and safety of their patients. And in the last days of the Trump administration, HHS rolled back other Obama-era protections against discrimination by recipients of federal funding, a change that will, among other things, invite discrimination by adoption agencies that refuse to work with same-sex couples.

Under President Biden, federal agencies must get back into the business of enforcing civil rights protections for everyone rather than privileging those with anti-LGBTQ+ religious or moral world views. HHS’s Conscience and Religious Freedom Division and similar entities, like DOJ’s Religious Liberty Task Force should be disbanded, and all regulations, directives, and memoranda diluting nondiscrimination protections in the name of advancing religious liberty should be rescinded.

Third, President Biden should reinstate Obama-Biden era executive actions that were undone by the Trump-Pence administration. As commander-in-chief, Biden has already directed the Department of Defense to lift the ban on open service by transgender individuals. The Department of Education should withdraw its anti-transgender position statements, and, along with the Department of Justice, should reissue guidance clarifying that all students are entitled to attend school free from discrimination and harassment and to participate in school activities consistent with their gender identity. Any harmful regulatory proposals that were not finalized prior to January 20 should be immediately withdrawn and those that were finalized should be reversed. Sexual orientation and gender identity should be included in the Census and all other federal data-gathering activity, and LGBTQ+-inclusive language that was erased from federal agency websites must be restored.

Legislative Action

Even after Bostock, LGBTQ+ people need legislative action to ensure comprehensive coverage and protection under federal law. Biden has pledged to make the enactment of the Equality Act a priority. The act will accomplish a number of important objectives, including securing Bostock through legislative codification; adding sex discrimination protections to the federal public accommodations law; expanding the definition of “public accommodations” to provide broader coverage against all forms of discrimination (including race); and clarifying that the Religious Freedom Restoration Act (RFRA) does not exempt those who claim a religious right to discriminate against protected classes, including LGBTQ+ people. Legislative clarity about the limits of RFRA, particularly with respect to its interaction with other civil rights laws, is incredibly important in light of the shift in the federal judiciary. Finally, all legislative proposals—from COVID-19 relief to criminal justice reform—must take into account the experience of the LGBTQ+ community, including the disproportionate effects on LGBTQ+ people of color.

Federal Judiciary and Litigation

From Romer v. Evans, 517 U.S. 620 (1996) (striking down anti-LGBTQ state constitutional amendments), to Lawrence v. Texas, 539 U.S. 558 (2003) (striking down remaining state sodomy laws), to United States v. Windsor, 570 U.S. 744 (2013), and Obergefell v. Hodges, 576 U.S. 644 (2015) (securing marriage equality), and most recently to Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), the federal courts have been responsible for some of the LGBTQ+ community’s most triumphant victories. But the courts can also deliver heartbreaking setbacks, like the striking down of the Voting Rights Act. After four years of Trump’s judicial appointments who were overwhelmingly young, white, conservative men—many with records evidencing deep hostility to LGBTQ+ equality—President Biden must make good on his promise to restore the federal judiciary by appointing judges who reflect the diversity of America and who believe in the Constitution’s promise of equal justice for all.

President Biden must also ensure that those selected to serve in his administration are committed to the rule of law and upholding civil rights and liberties for all, including but not limited to the leadership of the Department of Justice. Over the last four years, Trump’s Justice Department sought out opportunities to advance arguments that would undermine the civil rights of LGBTQ+ people. For example, in Fulton v. City of Philadelphia (Docket 19-123), DOJ argued that the city of Philadelphia “impermissibly discriminated against religious exercise” when it required Catholic Social Services to comply with the same nondiscrimination requirements that it applied to all agencies wishing to contract with the city to provide foster care services. Trump’s Justice Department also urged the Supreme Court to strike down the Affordable Care Act (ACA), which would have devastating effects for LGBTQ+ people and everyone living with HIV. President Biden’s DOJ should review all pending litigation and take immediate action to correct course, whether that means dismissing appeals taken by DOJ in cases involving challenges to Trump-era assaults on civil rights or withdrawing briefs filed in cases like Fulton and the ACA challenge.

Joe Biden has put forth the most comprehensive and ambitious plan for LGBTQ+ equality we have ever seen from a presidential administration. At an LGBTQ+ event in late September 2020, he said, “You deserve a partner in the White House to fight with conviction and win the battles ahead.” Given the challenges we face and the deep partisan divides in Congress and throughout the country, the fight will not be an easy one, but given the actions he has already taking during his first few weeks in office, it is clear President Biden is well on his way to rebuilding our government into one that reflects all of America.

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Emily Hecht-McGowan

LGBTQ+ Attorney and Advocate

Emily Hecht-McGowan is a longtime LGBTQ+ attorney and advocate who has served as legal director at Servicemembers Legal Defense Network, chief public policy officer at Family Equality Council, and most recently as director for LGBTQ+ Equality at the Biden Foundation.