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SCOTUS Rules that Federal Law Prevents LGBTQ+ Job Discrimination After Trump Administration Rollbacks

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  • On Friday, the Trump administration rolled back an Obama-era law aimed at extending non-discrimination protections to transgender and non-binary patients seeking healthcare.
  • The announcement stoked criticism for multiple reasons, including the fact that it was announced on the fourth year of remembrance since the 2016 Pulse nightclub shooting.
  • On Monday, the Supreme Court of the United States ruled in the opposite direction, deciding 6-3 that “sex” workplace discrimination includes gender identity and sexual orientation. 
  • The Trump administration’s health care rollback could now face legal challenges following SCOTUS’ decision.

SCOTUS Ruling Forbids LGBTQ+ Workplace Discrimination

The Supreme Court of the United States ruled Monday that the Civil Rights Act of 1964 prohibits employers from discriminating against LGBTQ+ workers. 

That decision, which won 6-3, comes after the Trump administration rolled back protections for transgender and non-binary people on Friday. Notably, conservative Chief Justice John Roberts and Trump appointee Neil Gorsuch joined the courts four liberal judges in the majority opinion. 

The Civil Rights Act of 1964 bars job discrimination based on race, religion, national origin, and sex. The question at hand in this series of cases involved whether or not “sex” discrimination extends to gender identity and sexual orientation. 

Aimee Stephens, a transgender funeral home director, claimed she was fired from her job after telling her boss that she planned to begin presenting as a woman. Two gay men, Gerald Bolstock and Donald Zarda, also each filed lawsuits for separate incidents where they claimed to have been fired because of their sexual orientation. Both Stephens and Zarda died prior to Monday’s ruling. 

During the case, the Trump administration argued that when Congress passed the Civil Rights Act of 1964, it did not mean for the act to encompass discrimination based on sexual orientation and gender identity. The administration argued that to pass protections for LGBTQ+ individuals, Congress would need to pass a new law.

Lawyers for the workers have argued that discrimination against employees based on sexual orientation or transgender status must logically already be classified under “sex” discrimination. 

Most federal appeals courts have interpreted the Civil Rights Act of 1964 to exclude discrimination based on sexual orientation, though two in New York and Chicago have ruled in the opposite direction.

Prior to Monday’s decision, 21 states had laws prohibiting job discrimination based on sexual orientations and gender identity. Seven more provided some protection but only to public employees. 

Trump Admin. Formally Rollbacks Trans Healthcare Protections

The new decision could have implications for the Trump administration’s recent rollback to healthcare protections for LGBTQ+ individuals.

Currently, healthcare discrimination on the basis of race, color, national origin, sex, age, or disability is illegal; however, the Trump administration had argued that “sex” discrimination does not include gender identity. Rather, the administration follows the ideology that “sex” it simply refers to a person’s biological sex. 

Under those guidelines, for instance, a transgender man with ovarian cancer could be denied medical treatment or insurance coverage. In reality, however, this rollback may mean he could be denied for services as simple as a check up. 

There have been pushes to include a person’s gender identity in the “sex” category. In fact, the protections that the current administration is rolling back stim from an Obama-era rule. 

That rule would have extended federal protections by changing the definition of sex to include “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.” 

The ruled came about after the Obama administration expressed concern that transgender and non-binary people have a harder time accessing necessary care. Ultimately, those gender identity protections never took effect. Shortly after the rule was issued, those protections were frozen by a federal judge in Texas.

The Trump administration had been working to formally overhaul the rule for years. In April, it was reported that the administration was then moving to formally scrap the protective language.

“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” Health and Human Services Civil Rights Office Director Roger Severino said on Friday during the announcement of the rollback. 

 We are unwavering in our commitment to enforcing civil rights in healthcare.” 

“It will eliminate mass confusion that was unleashed by the Obama-era decision to redefine sex to cover a wide array of gender identities, when sex as a biological reality is so important to the practice of medicine,” he said later that same day. 

LGBTQ+ Advocates Express Concern

A number of LGBTQ+ advocates have spoken out, many arguing that if HHS is removing protections for transgender and non-binary people, then it is not protecting the civil rights of all citizens. Many also pointed to the fact that the United States is still in the middle of a pandemic and asked why the U.S. was rolling back protections for certain Americans at this time. 

“At a time when protecting communities from the COVID-19 pandemic is paramount, your Department and the Trump Administration are knowingly putting the health and wellbeing of vulnerable individuals and children at risk, while blatantly promoting discrimination against LGBTQIA+ communities and religious minorities by pursuing the finalization of this proposed rule,” Senators Ron Wyden (D-OR) and Patty Murray (D-WA) wrote in a letter to HHS Secretary Alex Azar.

Many have also criticized the timing of the announcement as it coincided with the fourth remembrance of the Pulse nightclub shoot. At the time it happened, the Pulse shooting was the deadliest mass shooting in U.S. history, claiming the lives of 49 people, many of which were LGBTQ+.

“Once again the callousness, cruelty and division are by design,” Representative Adam Schiff (D-CA) said on Twitter.

“These actions demonstrate how little this Administration values the life, health and safety of LGBTQ people. It’s even more of a disgrace to do so on the anniversary of the deadliest attack on the LGBTQ community in US history,” Sharita Gruberg of the Center for American Progress said.

Immediately following the release, the Human Rights Campaign criticized the timing of this release and announced that it will be suing the Trump administration to overturn this move.

Despite backlash, a number of religious groups have praised the rule for strictly defining “sex” in terms of biological sex. 

“We are hopeful that this rule will help steer consideration of gender issues in health care back toward science and away from politics and ideology, back to the protection of professional medical judgment and the freedom to adhere to long-observed ethical and moral standards,” Dr. Jeff Barrows of the Christian Medical Association’s executive said.

Responding to the backlash, Severino called the timing of the release “purely coincidental.” He also disputed the claims that the new rules would endanger patients during the pandemic.

“Especially during the Covid-19 pandemic, we’ve gone into overdrive in terms of our civil rights enforcement, and that will not be affected. Everyone deserves to be treated with respect and accordance with the law,” he said of other provisions in Friday’s announcement.

See what others are saying: (NBC News) (USA Today) (NPR)

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Wisconsin Recount, Requested by Trump, Gives Biden Another 87 Votes

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  • The recount of votes in Wisconsin’s two largest counties ended Sunday, solidifying Joe Biden’s lead in the state by around 20,600 votes and also giving him an additional 87 votes.
  • The recount, which cost around $3 million, was both requested and paid for by Donald Trump’s campaign.
  • Before the final totals were even announced, Trump said he would be taking legal action in the state, though that is yet to be seen.
  • The news comes amid a series of sweeping legal losses for Trump, who continued to push unproven and debunked claims about voter fraud over the holiday weekend.

Wisconsin Recount Ends

A recanvass of ballots in Wisconsin’s two largest counties concluded Sunday, firmly solidifying former Vice President Joe Biden’s lead in the state.

In fact, the new tally even gave Biden another 87 votes in the $3 million recount requested and paid for by President Donald Trump.

The Trump campaign asked for ballots to be re-tallied in the two Democratic strongholds, Milwaukee and Dane Counties, which are home to Milwaukee and Madison respectively. The request came after the Wisconsin Election Commission estimated it would cost nearly $8 million to recanvass the whole state.

The two recounts changed very little from the initial count, maintaining Biden’s statewide lead of around 20,600 votes. In Milwaukee County, both Biden and Trump’s totals increased very slightly from the original count, though Biden still won by a hefty majority of 317,527 votes to Trump’s 134,482. 

Meanwhile, in Dane County, both candidates actually saw minor decreases in their totals, with Biden losing 91 votes and Trump losing 46. While that is a net gain of 45 votes for Trump, he still ended up losing the county pretty handily with just 78,754 votes to Biden’s 260,094.

Those numbers are by no means surprising. Instead, they solidify some important elements of recounts: that they usually only change the final tally by just a few dozen votes, and that they almost never change the original outcome of an election.

These facts remain true despite the president’s repeated insinuations that recanvassing ballots will change the outcome of the election in his favor.

The finalization of the recounted ballots also marks another big loss for Trump, who has seen a series of sweeping upsets in the multitude of legal cases his campaign and allies have filed. In fact, according to Democratic voting-rights lawyer Marc Elias, as of Saturday, Trump’s legal strategy had given him a 1-39 loss record in various state and federal courts across the country.

Notably, the vast majority of those lawsuits do not even make any kind of allegations that voter fraud or other irregularities occurred as the president continues to claim.

On top of that, as more states continue to certify their results, Trump’s legal opportunities continue to dwindle.

Once a state has certified its election, it makes it much harder for any new legal challenges to be brought, and with the Wisconsin Elections Commission scheduled to meet Tuesday, the state is expected to fully certify its election for Biden very soon.

Despite that, Trump said on Saturday, before the recount totals were even announced, that he would continue to fight the results in Wisconsin.

“The Wisconsin recount is not about finding mistakes in the count, it is about finding people who have voted illegally, and that case will be brought after the recount is over, on Monday or Tuesday,” he wrote. “We have found many illegal votes. Stay tuned!” 

Fox News Business Interview

No such lawsuit has materialized, and with the clock ticking, it is unclear what such a challenge would even look like. Trump has not provided any evidence of voter fraud or illegal votes being counted in either Wisconsin’s first tally or the recount, which were live-streamed in both counties and where officials reported zero irregularities.

Regardless, Trump still has continued to spout endless conspiracies and baseless claims about fraud all over the country, claiming in numerous tweets over the weekend that were flagged by Twitter as misinformation that the election was rigged.

On Sunday, in the first interview he has given since the election was called for Biden, the president went on Fox News Business where he repeated his unproven allegations, and even accused the FBI and the Department of Justice of rigging the election.

The president did, however, appear to acknowledge that his own legal team and other experts have said many of his lawsuits will not stand, and that it is unlikely any of his cases will go to the Supreme Court, though he faulted the legal system for these factors.

“You mean as president of the United States, I don’t have standing?” he asked. “What kind of court system is this? And the judges stay away from it.” 

Notably, Trump did not answer questions as to when he would end his legal challenges, but during a press conference Thursday, he did say he would leave the White House if Biden won the Electoral College.

His comments marked the closest the president has come to saying he will accept the results of the election, at least in practice. Still, he added that “a lot of things” would happen between now and the Electoral College on Dec. 14 that could change the results of the election.  

See what others are saying: (The New York Times) (NBC News) (Business Insider)

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SCOTUS Hears Case on Whether or Not the Census Must Include Undocumented Immigrants

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  • On Monday, the U.S. Supreme Court began hearing a case over whether a sitting president is allowed to exclude undocumented immigrants from the Census.
  • The arguments in favor, brought by President Donald Trump, have already lost in three lower courts. 
  • If SCOTUS were to side with Trump, it would break 230 years of precedent. It could also affect the makeup of the House of Representatives, the electoral college, and billions of federal dollars sent each year to states.
  • Census officials have indicated that they may not be able to submit a final tally before Trump leaves office, potentially leaving the situation largely moot under President-elect Joe Biden, who would almost certainly include figures for undocumented immigrants.

SCOTUS Begins Hearing Census Case

The United States Supreme Court has begun hearing a case that could affect billions in federal funding as well as the makeup of the House of Representatives for the next 10 years.

The case in question concerns whether or not President Donald Trump is allowed to exclude undocumented immigrants from the Census. In lower courts, the Trump administration has argued that it should be up to presidents to decide whether undocumented immigrants should be counted.

Notably, three lower courts have all rejected the administration’s argument. A fourth said the time wasn’t right to answer the question. Ultimately, the decision will now be up to the Court.

If it decides in favor of the Trump administration, which is seeking to remove undocumented immigrants from the final tally of the 2020 Census, that would be unprecedented. In U.S. history, noncitizens have been counted in every Census since the first one in 1790. Each census is conducted once every 10 years.

This also won’t even be the first time SCOTUS has considered a question around the Census. Last year, President Trump tried to add a question that would ask whether a person was a U.S. citizen.

Source: U.S. Census Bureau

Immigrants rights’ advocates worried that if the Court ruled in Trump’s favor, it could discourage undocumented immigrants from filling out the Census. Ultimately, SCOTUS ruled the opposite way, siding 5-4 with lawyers who argued that just the news of Trump trying to add the question was enough to discourage immigrants from filling out the form. 

Chief Justice John Roberts was the deciding vote in that ruling, as he broke from the Court’s conservative justices to side with the liberal bloc. At the time, that included Justice Ruth Bader Ginsburg. 

Amy Coney Barrett Could Be the Deciding Vote

After failing to have the citizenship question implemented, Trump issued a July memo that directed Commerce Secretary Wilbur Ross to submit two counts to him: one with the full Census count and another with that same count minus undocumented immigrants. The goal? To use the second count as the official Census count.

From there, a group of 22 states and local officials, along with organizations represented by the American Civil Liberties Union, sued the Trump administration.

“Nothing in the text or history of the Constitution or the Census Act suggests that [the Trump administration] may treat millions of people who undisputedly live here as if they were not here, solely because of their immigration status,” lawyers for the state argued. 

In fact, they’ve even argued that Trump’s policy is directly in violation of the Constitution because it requires “the whole number of persons in each state” to be counted for apportionment of the House of Representatives.

As for whether SCOTUS will side with Trump or immigrant rights’ advocates, there is a major difference between the Court this year and the Court last year: Ginsburg is gone. 

In her place, there is now Justice Amy Coney Barret, a conservative Trump appointee who was the deciding vote in a 5-4 case last week that now bars New York Governor Andrew Cuomo’s restrictions on gatherings for religious services. Roberts was the lone conservative to dissent. 

That means that even if Roberts were to dissent from the Court’s other conservatives again for the Census vote, they would still hold a majority of the voting power. 

If those conservative justices do side with Trump, that could have lasting effects for the next 10 years. The Census determines how many Representatives each state sends to Congress. That number is also used to determine how many votes each state has in the electoral college during presidential elections.

That could mean states with large immigrant populations — such as California, Texas, and Florida — could lose seats, while states with smaller populations and low immigrant populations might gain them. For example, Alabama could gain seats even though it is currently projected to lose a seat in the near future.

The Census also determines how much states receive from Congress’ annual $1.5 trillion budget. That could mean a lot of money lost for states with large immigrant populations.

Can Biden Change This?

It’s possible that Trump’s goals could be rendered moot — in part or in full.

For one, it is unclear how SCOTUS will decide. Conservative justices like Barrett could be swayed by arguments that there is no room for interpretation of the Constitution’s words. In fact, Barrett herself has championed her belief that the Constitution should be interpreted as it was written. On Monday, she even seemed to suggest that the founding fathers intended all residents should be counted.

On top of that, judges also risk breaking 230 years of precedent and the decision of dozens of judges in lower courts.

Also on Monday, Roberts suggested that the case may be too premature to rule on, as the Trump administration has yet to go through with its plan.

If it does eventually side with Trump, that could impede Biden’s ability to challenge Trump’s numbers.

SCOTUS aside, Census officials have said that they’re having difficulties processing responses, meaning that a final count could be delayed past Trump’s term. According to The Washington Post, Census employees are frustrated and exhausted, some reportedly working up to 15 hour days.

“We are not currently on pace to send the report to the president by the year-end statutory deadline,” acting Solicitor General Jeffrey Wall said Monday.

While a final count is currently required to be submitted by Dec. 31, in the event that the final count does come after Biden’s inauguration on Jan. 20, Trump’s efforts for this Census will almost certainly be in vain.

Even if Trump did submit the numbers on time, it’s possible that Congress could reject them. That could then leave Biden with a chance to submit a final count that includes uncodumented immigrants once he becomes president. 

See what others are saying: (The Washington Post) (Bloomberg) (Reuters)

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Mnuchin To Cut Off $455 Billion In Stimulus Money and Move It Out of the Biden Administration’s Reach

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  • Treasury Secretary Steven Mnuchin has asked the Federal Reserve to return $455 billion in stimulus funding for key emergency lending programs when they expire at the end of the year. 
  • Previously, the Treasury Department was expected to extend those programs as the pandemic is still raging. Because it’s now pursuing the opposite, the Fed has rebuked Mnuchin’s decision, a rare move to see from the agency.
  • Other critics have called Mnuchin’s move political, saying it appears to be a blatant attempt to hamper Biden’s transition into the White House in January.
  • Still, the Fed has agreed to return the funding, and it’s now being reported that the money will be placed into an account that Mnuchin’s likely successor, Janet Yellen, will need Congressional approval to access.

Mnuchin To End Emergency Funding Without Extension

Treasury Secretary Steven Mnuchin said Thursday that he doesn’t plan to extend $455 billion in key emergency lending programs past the end of the year. Instead, he’s planning on stashing that money in a fund that his successor can’t reach without Congressional approval.

Mnuchin has asked Federal Reserve Chairman Jerome Powell to return the $455 billion in unused funding. Notably, that money is meant to fund programs stemming from the $2 trillion CARES Act — the only stimulus package Congress has agreed upon thus far. Those programs are meant to prop up the economy by providing financial assistance and loans for struggling businesses and local governments.

In his letter to Powell, Mnuchin said the Fed programs “have clearly achieved their objective” because “Markets responded positively, spreads tightened, and banks continued lending.”

While he also said that Congress will later be able to use that $455 billion for other purposes, such as PPP and grants, his decision has been so controversial that even the Fed criticized it. That’s highly unusual because the Fed isn’t usually keen on inserting itself within sensitive political issues.

The Fed has said that the programs are necessary while the pandemic rages on. In fact, it even noted the “important role” of these programs “as a backstop for our still-strained and vulnerable economy.”

The Treasury Department cannot simply reallocate that money on its own. Instead, it needs agreement from the Fed. Despite the Fed’s criticism, it ultimately gave that agreement on Friday.

Critics Blast Mnuchin’s Plan as an Attack on Biden

Top Republicans like Senate Majority Leader Mitch McConnell and Senator Patrick Toomey have backed Mnuchin’s decision. Last week, McConnell described it as “fully aligned with the letter of the law and the intent of the Congress.”

Among some Republicans, there is a concern that leaving the programs operational for too long could distort markets.

On top of that, only about $20 billion of that $455 billion has actually been used, likely because the program’s loan terms for small- and medium-sized businesses are very restrictive. Still, that’s not to say this money hasn’t been useful. As The New York Times pointed out, “Some programs calmed market conditions merely by reassuring investors.”

Connected to that and similar to the Fed’s arguments, economists are concerned that Mnuchin is pulling the plug on these programs too soon, arguing that they should not be ended before the markets have fully recovered.

The U.S. Chamber of Commerce — the largest lobbying group in the country — said that Mnuchin’s decision to end these programs “closes the door on important liquidity options for businesses at a time when they need them most.” 

The chamber also added that it “unnecessarily ties the hands of the incoming administration.”

“This appears to be a political move by Team Trump to limit what President-elect Joe Biden can do next year to boost the economy, especially if Congress fails to pass a big stimulus,” Jaret Seiberg, an analyst at Cowen Inc., added.

“It’s not just closing the store down for Biden,” policy economist Ernie Tedeschi said. “It’s burning the store down.” 

Mnuchin has said that this decision isn’t political. He also argued that in the “unlikely event” that these programs need to be re-established, the Fed can still request approval from other emergency funds.

Yellen Would Need Congressional Approval to Access Funds

Still, as The New York Times noted last week, this move could prevent President-elect Joe Biden’s incoming Treasury secretary from quickly restarting the efforts at scale in 2021.

That incoming secretary is expected to be Janet Yellen, who Biden chose for the role on Monday. Notably, if confirmed by the Senate, she would be the first female Treasury secretary. 

On Tuesday, it was reported that Mnuchin is planning on moving that $455 billion into the Treasury’s General Fund, which means that Yellen would need Congressional approval to access any of that money.

That would then leave Yellen with only $80 billion at her discretion. While that might sound like a lot of money for the average person, it’s much less than the nearly half a trillion dollars currently set to be removed from play. 

It also comes at a time where coronavirus cases are spiking, local and state governments are once again employing more restrictive lockdowns, and millions of people are set to lose their unemployment benefits at the end of the year.

Bharat Ramamurti, a Democratic member of the congressional watchdog panel overseeing the $455 billion, said on Twitter that Mnuchin’s move is illegal and that it can be reversed next year.

A spokesperson for the Treasury has asserted that Mnuchin’s move is legal under the CARES Act. 

In the summer, Mnuchin initially extended the fund’s expiration date, which is why it now expires at the end of the year.

See what others are saying: (Business Insider) (Axios) (Bloomberg)

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