- 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.
Feds Investigate Classified Files Found in Biden’s Former Office
The documents reportedly include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom
What Was in the Files?
President Biden’s legal team discovered about 10 classified files in his former office at the Penn Biden Center for Diplomacy and Global Engagement in Washington D.C., the White House revealed Monday.
The Department of Justice has concluded an initial inquiry into the matter and will determine whether to open a criminal investigation.
According to a source familiar with the matter who spoke to CNN, they include U.S. intelligence memos and briefing materials that covered topics such as Ukraine, Iran, and the United Kingdom.
A source also told CBS News the batch did not contain nuclear secrets and had been contained in a folder in a box with other unclassified papers.
The documents are reportedly from Biden’s time as vice president, but it remains unclear what level of classification they are and how they ended up in his office.
Biden kept an office in the. Penn Biden Center, a think tank about a mile from the White House, between 2017 and 2020, when he was elected president.
On Nov. 2, his lawyers claim, they discovered the documents as they were clearing out the space to vacate it.
They immediately notified the National Archives, which retrieved the files the next morning, according to the White House.
What Happens Next?
Attorney General Merrick Garland must decide whether to open a criminal investigation into Biden’s alleged mishandling of the documents. To that end, he appointed John Lausch Jr., the U.S. attorney in Chicago and a Trump appointee, to conduct an initial inquiry.
Garland reportedly picked him for the role despite him being in a different jurisdiction to avoid appearing partial.
Lausch has reportedly finished the initial part of his inquiry and provided a preliminary report to Garland.
If a criminal investigation is opened, Garland will likely appoint an independent special counsel to lead it.
The case mirrors a similar DoJ special counsel investigation into former President Donald Trump’s alleged mishandling of classified materials and obstruction of efforts to properly retrieve them.
On Nov. 18, Garland appointed Jack Smith to investigate over 300 classified documents found at Trump’s Florida residence, Mar-a-Lago.
Trump resisted multiple National Archives requests for the documents for months leading up to the FBI’s raid on his property, then handed over 15 boxes of files only for even more to be found still at Mar-a-Lago.
“When is the FBI going to raid the many houses of Joe Biden, perhaps even the White House?” Trump wrote on Truth Social Monday. “These documents were definitely not declassified.”
Rep. James Comer (R-KY), the new chairman of the House Oversight Committee, told reporters he will investigate the Biden files.
Republicans have been quick to pounce on the news and compare it to Trump’s classified files, but Democrats have pointed out differences in the small number of documents and Biden’s willingness to cooperate with the National Archives.
The White House has yet to explain why, if the files were first discovered six days before the midterm elections, the White House waited two months to reveal the news to the public.
See what others are saying: (CNN) (The New York Times) (BBC)
Lawmakers Propose Bill to Protect Fertility Treatments Amid Post-Roe Threats
The move comes as a number of states are considering anti-abortion bills that could threaten or ban fertility treatments by redefining embryos or fetuses as “unborn human beings” without exceptions for IVF.
The Right To Build Families Act of 2022
A group of Democratic lawmakers introduced a bill Thursday that would codify the right to use assisted reproductive technologies like in-vitro fertility (IVF) treatments into federal law.
The legislation, dubbed the Right To Build Families Act of 2022, was brought forward by Sens. Tammy Duckworth (D-Il) and Patty Murray (D-Wa.) alongside Rep. Susan Wild (D- Pa.). The measure would bar any limits on seeking or receiving IVF treatments and prohibit regulations on a person’s ability to retain their “reproductive genetic materials.”
The bill would also protect physicians who provide these reproductive services and allow the Justice Department to take civil action against any states that try to limit access to fertility treatments.
The lawmakers argue it is necessary to protect IVF because a number of states have been discussing and proposing legislation that could jeopardize or even ban access to the treatments in the wake of the Roe v. Wade reversal.
“IVF advocates in this country today are publicly telling us, ‘We need this kind of legislation to be able to protect this,’” Murray told HuffPost. “And here we are after the Dobbs decision where states are enacting laws and we have [anti-abortion] advocates who are now starting to talk, especially behind closed doors, about stopping the right for women and men to have IVF procedures done.”
Fertility Treatments Under Treat
The state-level efforts in question are being proposed by Republican lawmakers who wish to further limit abortions by redefining when life begins. Some of the proposals would define embryos or fetuses as “unborn human beings” without exceptions for those that are created through IVF, where an egg is fertilized by a sperm outside the body and then implanted in a uterus.
For example, a bill has already been pre-filed in Virginia for the 2023 legislative session that explicitly says life begins at fertilization and does not have any specific language that exempts embryos made through IVF.
Experts say these kinds of laws are concerning for a number of reasons. In the IVF process, it is typical to fertilize multiple eggs, but some are discarded. If a person becomes pregnant and does not want to keep the rest of their eggs. It is also normal that not all fertilized eggs will be viable, so physicians will get rid of those.
Sometimes doctors will also implant multiple fertilized eggs to increase the likelihood of pregnancy, but that can result in multiple eggs being fertilized. In order to prevent having multiple babies at once and improve the chance of a healthy pregnancy, people can get a fetal reduction and lower the number of fetuses.
All of those actions could become illegal under proposals that do not provide exemptions.
“In my case, I had five fertilized eggs, and we discarded three because they were not viable. That is now potentially manslaughter in some of these states,” said Duckworth, who had both of her daughters using IVF.
“I also have a fertilized egg that’s frozen. My husband and I haven’t decided what we will do with it, but the head of the Texas Right to Life organization that wrote the bounty law for Texas has come out and specifically said he’s going after IVF next, and he wants control of the embryos,” Duckworth added.
In a hearing after Roe was overturned, Murray also raised concerns about “whether parents and providers could be punished if an embryo doesn’t survive being thawed for implantation, or for disposing unused embryos.”
Experts have said that even if anti-abortion laws defining when life begins do provide exceptions, it would be contradictory and confusing, so providers would likely err on the side of caution and not provide services out of fear of prosecution.
“[Abortion bans] are forcing women to stay pregnant against their will and are, at the very same time, threatening Americans’ ability to build a family through services like IVF,” Murray said in a statement to Axios. “It’s hard to comprehend, and it’s just plain wrong.”
The federal legislation to combat these efforts faces an uphill battle. It is unlikely it will be passed in the last few days of lame duck session, and with control of Congress being handed to Republicans come January, movement in the lower chamber will be hard fought.
Duckworth, however, told Axios that she will keep introducing the legislation “until we can get it passed.”
Hundreds of Oath Keepers Claim to Be Current or Former DHS Employees
The revelation came just weeks after the militia’s founder, Stewart Rhodes, was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.
An Agency Crawling With Extremists
Over 300 members of the far-right Oath Keepers militia group claim to be current or former employees at the Department of Homeland Security, the Project on Government Oversight (POGO) reported Monday.
The review appears to be the first significant public examination of the group’s leaked membership list to focus on the DHS.
The agencies implicated include Border Patrol, Coast Guard, Immigration and Customs Enforcement, and the Secret Service.
“I am currently a 20 year Special Agent with the United States Secret Service. I have been on President Clinton and President Bush’s protective detail. I was a member and instructor on the Presidential Protective Division’s Counter Assault Team (CAT),” one person on the list wrote.
POGO stated that the details he provided the Oath Keepers match those he made in a sworn affidavit filed in federal court.
The finding came just weeks after Oath Keepers founder Stewart Rhodes was convicted on seditious conspiracy charges for his involvement in the Jan. 6 insurrection.
“Law enforcement agents who have associations with groups that seek to undermine democratic governance pose a heightened threat because they can compromise probes, misdirecting investigations or leaking confidential investigative information to those groups,” POGO said in its report.
In March, the DHS published an internal study finding that “the Department has significant gaps that have impeded its ability to comprehensively prevent, detect, and respond to potential threats related to domestic violent extremism within DHS.”
Some experts have suggested the DHS may be especially prone to extremist sentiments because of its role in policing immigration. In 2016, the ICE union officially endorsed then-candidate Donald Trump for president, making the first such endorsement in the agency’s history.
The U.S. Government has a White Supremacy Problem
Copious academic research and news reports have shown that far-right extremists have infiltrated local, state, and federal law enforcement agencies.
In May, a Reuters investigation found at least 15 self-identified law enforcement trainers and dozens of retired instructors listed in a database of Oath Keepers.
In 2019, Reveal from The Center for Investigative Reporting found that almost 400 current or former law enforcement officials belonged to Confederate, anti-Islam, misogynistic or anti-government militia Facebook groups.
The Pentagon has long struggled with its own extremism problem, which appears to have particularly festered in the wake of the U.S. invasions of Iraq and Afghanistan.
Nearly one in four active-duty service members said in a 2017 Military Times poll that they had observed white nationalism among the troops, and over 40% of non-white service members said the same.
The prevalence of racism in the armed forces is not surprising given that many of the top figures among right-wing extremist groups hailed from the military and those same groups are known to deliberately target disgruntled, returning veterans for recruitment.
Brandon Russell, the founder of the neo-Nazi group AtomWaffen, served in the military, as did George Lincoln Rockwell, commander of the American Nazi Party, Louis Beam, leader of the KKK, and Richard Butler, founder of the Aryan Nation.
In January, NPR reported that one in five people charged in federal or D.C. courts for their involvement in the Capitol insurrection were current or former military service members.