Under Trump, LGBTQ Progress Is Being Reversed in Plain Sight

by Kirsten Berg and Moiz Syed, November 22, 2019

Employment

1. On July 26, 2017, just months after taking office, the president tweeted that he planned to ban transgender people from military service. This announcement reportedly came as a surprise to the generals he claimed to have consulted. It took the Department of Defense almost two years to carry out the policy. While transgender members of the military who have served openly since the Obama administration ended the previous ban on trans service members in 2016 are eligible for waivers, no new transgender members may join.
2. Former Attorney General Jeff Sessions sent a memo that reversed the Justice Department’s position on whether the Civil Rights Act protects transgender people from workplace discrimination. The DOJ under the Obama administration interpreted the law’s Title VII in a way that made “discrimination based on gender identity, including transgender status” illegal.
3. The Department of Justice, in accordance with Sessions’ memo, submitted a number of briefs in state and federal courts around the country arguing that employers could legally discriminate based on sexual orientation and gender identity. Among those were briefs filed in three cases currently in front of the Supreme Court that deal with the issue of workplace discrimination against LGBTQ people.
4. The Office of Personnel Management removed guidance written for federal agency managers on how to support transgender federal employees and replaced it with guidance that links to the DOJ’s reinterpretation of the Civil Rights Act, which says that Title VII does not prohibit discrimination based on gender identity.
5. The DOJ sent two memos to all executive branch departments that interpret religious liberty protections in ways that give broad exemptions from federal anti-discrimination laws to agencies and contractors.
6. The Department of Labor issued a directive to its staff to exempt contractors from compliance with federal nondiscrimination rules that cover employment if they conflict with a contractor’s religious beliefs. The directive specifically cites sexual orientation and gender identity, and it contradicts promises made by Trump in the early days of his administration that it would safeguard those rules, which had originally been put in place by Obama in an executive order.
7. The Department of Labor removed sections from its website about workplace rights and resources for LGBTQ workers, including the page on “Advancing LGBT Workplace Rights.”
8. The Department of Labor proposed exempting providers of services and supplies for the military’s TRICARE health program from an executive order that prohibits employment discrimination on the basis of sexual orientation and gender identity by federal contractors. The proposed rule addresses a debate that predates the Trump administration over whether TRICARE providers were considered covered under these and other requirements.

Schools and Youth Groups

1. The day after Sessions was sworn in as attorney general, the DOJ withdrew the federal government’s challenge to an injunction against trans-inclusive Title IX guidance. Later that month, the DOJ and the Department of Education rescinded that guidance entirely. That guidance, issued by the Obama administration, had instructed public schools to treat students according to their gender identity, including using students’ preferred names and pronouns and allowing access to bathrooms and other gender-separated facilities that match their gender identity. Though Title IX — the law that prohibits sex discrimination in federally funded education programs — still provides some protections to transgender students, advocates say that axing the guidance opens the door for schools to misinterpret or resist requirements to accommodate transgender students and keep them safe.
2. The Department of Education confirmed to multiple news outlets that it was no longer investigating or taking action on complaints filed by transgender students who were barred from restrooms or other facilities that match their gender identity.
3. According to a 2019 report by the Center for American Progress, a liberal think tank, the Trump administration’s Department of Education has drastically scaled back civil rights enforcement for LBGTQ students. The report found that complaints students filed alleging sexual orientation- and gender identity-based discrimination were nine times less likely to result in corrective action under the Trump administration than under the Obama administration. It also showed that the current administration was more likely to dismiss these types of complaints without a formal investigation. In a response to ProPublica, the Department of Education did not dispute these specific findings, but it said that on average it has resolved almost double the number of overall civil rights complaints per year than under the Obama administration.
4. The Department of Education’s Office for Civil Rights opened an investigation into a Connecticut policy that allows transgender high school athletes to compete as the gender with which they identify. The investigation followed a complaint filed by the conservative legal group Alliance Defending Freedom on behalf of three cisgender girls who claimed they were discriminated against because they had to compete in track events against “boys who claim a transgender identity to compete in girls’ athletic events.” Critics say the administration may use the case to claim that Title IX requires schools to drop trans-inclusive athletics policies.
5. According to an investigation by The Des Moines Register, the Department of Agriculture pushed the national 4-H youth organization to withdraw guidance aimed at welcoming and protecting LGBTQ members. The Register reported that Agriculture Secretary Sonny Perdue’s chief of staff had requested that the USDA subagency that oversees the program remove the document from its website after the policy prompted fierce opposition from some conservatives and evangelical groups. In a statement, the USDA said the guidance didn’t officially represent 4-H policy and should not have been posted.

Health Care

1. The Department of Health and Human Services proposed a rule that would eliminate Obama-era regulations explicitly prohibiting discrimination on the basis of sex stereotyping — stereotypical notions of how those of a certain gender should look or act — and gender identity by federally funded health providers, programs and insurers that must abide by Section 1557, the nondiscrimation provision of the Affordable Care Act. The move came after a preliminary court injunction put federal enforcement of the regulations on hold. In a press call explaining the proposal, the director of the HHS Office for Civil Rights, Roger Severino, said, “We’re going back to the plain meaning of those terms, which is based on biological sex.”
2. In that same proposed rule, HHS said it planned to eliminate other Obama-era regulations that prohibited discrimination based on gender identity and sexual orientation in certain Medicaid, private insurance and education programs. According to the Kaiser Family Foundation, without these nondiscrimination prohibitions, health plan issuers could charge higher premiums or cancel or deny coverage to LGBTQ individuals, and Medicaid managed care programs could discriminate against LGBTQ beneficiaries in enrollment.
3. HHS dropped proposed requirements for hospitals to establish policies that prohibit discrimination on the basis of gender identity and sexual orientation in order to participate in Medicare and Medicaid. Instead, the agency stated it would defer to the nondiscrimination requirements of Section 1557, which the administration now defines to exclude discrimination on the basis of gender identity.
4. This spring, the administration issued a new “conscience rule” aimed at significantly expanding protections for federally funded health care providers who refuse to provide some medical services because of religious or moral objections. The rule’s implementation, which had been delayed by legal challenges, was blocked by three federal judges this month. As of this writing, the administration has yet to file an appeal. Experts and advocates have expressed concern that the rule’s broad definitions could reduce health care access for LGBTQ people by empowering a wide range of health care workers and entities — including emergency care professionals — to claim protections if they refuse to provide services.
5. The HHS Office for Civil Rights — the part of the agency that enforces health care-related anti-discrimination laws — has taken steps to shift the office’s emphasis from the protection of “equal access” for patients to the protection of “conscience and free exercise of religion” for providers. This has included rewriting the office’s mission statement as well as opening a new Conscience and Religious Freedom Division and directing millions of dollars to it.
6. HHS’ Administration for Community Living removed a proposed question about sexual orientation from a planned revision to its survey that gathers information on federally funded programs for the disabled. According to The Associated Press, a revised draft posted four days after Trump’s inauguration had included the sexual orientation question, but it was subsequently edited to delete the question on sexuality. This deletion was the only notable change. Critics, including a group of senators led by Sen. Susan Collins, R-Maine, voiced concern that removing this question will limit HHS’ ability to address the specific challenges faced by LGBT people with disabilities, “including financial insecurity, social isolation, discrimination, and barriers to access for aging and accessibility services.”
7. HHS announced a new proposed rule that would allow the agency to issue grants to organizations that deny services to LGBTQ people. Specifically, the administration announced that it would immediately drop enforcement of — and will be seeking to roll back — Obama-era regulations that prohibited grant recipients from denying services on the basis of sexual orientation, gender identity and religion. The change would cover the wide range of programs the agency funds, including those related to HIV and STD prevention, substance abuse treatment, youth homelessness, elder care and other areas of public health and education. It also applies to federally funded adoption and foster care agencies (see the Foster Care and Adoption section).

Public Housing

1. The Department of Housing and Urban Development announced a plan to gut Obama-era protections that gave transgender people equal access to homeless shelters by instead giving federally funded shelters broad permission to use their own religious, privacy and safety concerns to “consider an individual’s sex” when making a determination about how and whether to accommodate someone seeking shelter. This may include, for example, turning transgender women away from women’s shelters or housing them with men. Carson had told Congress the day before the announcement that he had no plans to change this rule.
2. HUD removed training and guidance resources from its website that advised emergency shelters on equal access practices for serving transgender and other LGBTQ people, as well as on complying with federal equal access and nondiscrimination rules.
3. HUD withdrew a proposed Obama-era regulation that would have required federally funded shelters to hang a poster notifying residents of their right to equal access regardless of sexual orientation, gender identity or marital status.
4. HUD withdrew a planned survey to evaluate the impact of the LGBTQ Youth Homelessness Prevention Initiative. The initiative was a set of multiyear pilot programs in two cities to come up with strategies that would ensure “no young person is left without a home because of their sexual orientation or gender identity and expression.” The agency gave scant explanation for its decision, but later reconsidered doing the evaluation. HUD did not respond to repeated requests to clarify whether it was ever done.

Foster Care and Adoption

1. HHS announced a new proposed rule that would allow adoption and foster care agencies funded by the department to turn away would-be care providers who are LGBTQ. Specifically, the administration announced that it would drop enforcement of — and planned to roll back — Obama-era regulations that prohibited HHS grant recipients from discriminating on the basis of sexual orientation and gender identity. Although it applies to a wide range of grantees, the rule seemed to target child welfare programs — and same-sex couples are more likely to adopt or foster children.
2. HHS proposed to cut planned information collection on the sexual orientation of foster children and of foster or adoptive parents or guardians. The Obama administration added the questions as part of a major overhaul of the only nationwide, comprehensive source of case information on children who are in foster care or are adopted. At the time of the proposed revision, the agency had yet to start gathering this information. HHS stated that it was making the change because of concerns that the information would be overly detailed, that it may be inaccurately reported, and that children’s answers may not be kept private.

Criminal Justice

1. The Federal Bureau of Prisons approved new policy guidelines rolling back Obama-era policies that recommended housing transgender inmates by gender identity “when appropriate.” The new guidelines direct staff to instead use an inmate’s “biological sex” to make initial housing and facilities assignments. The new manual states that exceptions to those assignments should be rare.

Public Life

1. The Census Bureau, after the DOJ withdrew its request, removed proposed questions about sexual orientation and gender identity from the final 2020 American Community Survey. Several federal agencies and many advocacy groups had proposed asking the questions in order to better understand and track LGBTQ demographics in the country. Data from the census is used to help distribute billions in federal funds, and without such questions, advocates worry that the LGBTQ community’s needs are at risk of not being met.
2. The DOJ dropped an Obama-era federal lawsuit against North Carolina’s “bathroom bill” law, saying that the state had repealed the law and replaced it with a new one. That new law dropped the bathroom requirements, which restricted the public restrooms transgender people could use, but barred local governments from enacting their own anti-discrimination laws until 2020. The ACLU and Lambda Legal, which had filed lawsuits against the bathroom bill, amended their suits and continued their challenge in the courts. That effort resulted in a consent decree giving transgender people access to bathrooms matching their gender identity in North Carolina state-run buildings, but it does not reverse the ban against local anti-discrimination ordinances.
3. In a Supreme Court case over whether a Colorado baker had the right to refuse service to a gay couple on religious and freedom of speech grounds, the DOJ submitted an amicus brief in support of the baker’s right to refuse service. The ACLU opposed the brief, calling it another example of the Trump administration advocating for “nothing short of a constitutional right to discriminate” against LGBT people. The case ultimately resulted in a narrow Supreme Court ruling in favor of the baker, finding that the Colorado Civil Rights Commission was hostile to the baker’s religious beliefs.
4. The Trump administration released a statement opposing the passage of the Equality Act, which passed the House but has not been taken up for a vote by the Senate. The bill, which extends civil rights protections to LGBTQ people and prohibits discrimination on the basis of gender identity and sexual orientation, would need to be brought up for a vote by Senate Majority Leader Mitch McConnell.

Correction, Nov. 25, 2019: This story originally misstated an action by President Donald Trump. He did not sign an executive order stating he was “determined to protect the rights of all Americans, including the LGBTQ community,” he released a statement saying so.