- 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.
Biden Calls on Congress To Extend Eviction Moratorium
The move comes just two days before the federal ban is set to expire.
Eviction Freeze Set To Expire
President Joe Biden asked Congress on Thursday to extend the federal eviction moratorium for another month just two days before the ban was set to expire.
The request follows a Supreme Court decision last month, where the justices ruled the evictions freeze could stay in place until it expired on July 31. That decision was made after a group of landlords sued, arguing that the moratorium was illegal under the public health law the Centers for Disease Control and Prevention had relied on to implement it.
While the court did not provide reasons for its ruling, Justice Brett Kavanaugh issued a short concurring opinion explaining that although he thought the CDC “exceeded its existing statutory authority,” he voted not to end the program because it was already set to expire in a month.
In a statement Thursday, White House Press Secretary Jen Psaki cited the Supreme Court decision, as well as the recent surge in COVID cases, as reasons for the decision to call on Congress.
“Given the recent spread of the delta variant, including among those Americans both most likely to face evictions and lacking vaccinations, President Biden would have strongly supported a decision by the CDC to further extend this eviction moratorium to protect renters at this moment of heightened vulnerability,” she said.
“Unfortunately, the Supreme Court has made clear that this option is no longer available.”
Delays in Relief Distribution
The move comes as the administration has struggled to distribute the nearly $47 billion in rental relief funds approved as part of two coronavirus relief packages passed in December and March, respectively.
Nearly seven months after the first round of funding was approved, the Treasury Department has only allocated $3 billion of the reserves, and just 600,000 tenants have been helped under the program.
A total of 7.4 million households are behind on rent according to the most recent data from the Census Bureau. An estimated 3.6 million of those households could face eviction in the next two months if the moratorium expires.
The distribution problems largely stem from the fact that many states and cities tasked with allocating the fund had no infrastructure to do so, causing the aid to be held up by delays, confusion, and red tape.
Some states opened portals that were immediately overwhelmed, prompting them to close off applications, while others have faced technical glitches.
According to The Washington Post, just 36 out of more than 400 states, counties, and cities that reported data to the Treasury Department were able to spend even half of the money allotted them by the end of June. Another 49 — including New York — had not spent any funds at all.
Slim Chances in Congress
House Speaker Nancy Pelosi (D-Ca.) urged her colleagues to approve an extension for the freeze Thursday night, calling it “a moral imperative” and arguing that “families must not pay the price” for the slow distribution of aid.
However, Biden’s last-minute call for Congress to act before members leave for their August recess is all but ensured to fail.
While the House Rules Committee took up a measure Thursday night that would extend the moratorium until the end of this year, the only way it could pass in the Senate would be through a procedure called unanimous consent, which can be blocked by a single dissenting vote.
Some Senate Republicans have already rejected the idea.
“There’s no way I’m going to support this. It was a bad idea in the first place,” Senator Patrick Toomey (R-Pa.) told reporters. “Owners have the right to action. They need to have recourse for the nonpayment of rent.”
With the hands of the CDC tied and Congressional action seemingly impossible, the U.S. could be facing an unprecedented evictions crisis Saturday, even though millions of Americans who will now risk losing their homes should have already received rental assistance to avert this exact situation.
See what others are saying: (The Washington Post) (The New York Times) (The Associated Press)
Mississippi Asks Supreme Court To Overturn Roe v. Wade
The Supreme Court’s decision to consider Mississippi’s restrictive abortion ban already has sweeping implications for the precedents set under the landmark reproductive rights ruling, but now the state is asking the high court to go even further.
Mississippi’s Abortion Case
Mississippi filed a brief Thursday asking the U.S. Supreme Court to overturn Roe v. Wade when it hears the state’s 15-week abortion ban this fall.
After months of deliberation, the high court agreed in May to hear what will be the first abortion case the 6-to-3 conservative majority will decide.
Both a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit had ruled that Mississippi could not enforce the 2018 law that banned nearly all abortions at 15 weeks with exceptions for only “severe fetal abnormality,” but not rape and incest.
If the Supreme Court upholds the Mississippi law, it would undo decades of precedent set under Roe in 1973 and upheld under Planned Parenthood v. Casey in 1992, where the court respectively ruled and reaffirmed that states could not ban abortion before the fetus is “viable” and can live outside the womb, which is generally around 24 to 28 weeks.
When the justices decided to hear the case, they said they would specifically examine the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional.”
Depending on the scope of their decision on the Mississippi law, the court’s ruling could allow other states to pass much more restrictive abortion bans without the risk of lower courts striking down those laws.
As a result, legal experts have said the case will represent the most significant ruling on reproductive rights since Casey nearly three decades ago, and the Thursday brief raises the stakes even more.
When Mississippi asked the justices to take up its case last June, the state’s attorney general, Lynn Fitch (R), explicitly stated that the petition’s questions “do not require the Court to overturn Roe or Casey.”
But that was before the court’s conservatives solidified their supermajority with the appointment of Justice Amy Coney Barrett — who personally opposes abortion — following the death of liberal Justice Ruth Bader Ginsburg.
New Filing Takes Aim at Roe
With the new filing, it appears that Fitch views the high court’s altered makeup as an opportunity to undermine the constitutional framework that has been in place for the better part of the last century.
“The Constitution’s text says nothing about abortion,” Fitch wrote in the brief, arguing that American society has changed so much that the previous rulings need to be reheard.
“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability,” she added, claiming the power should be left to state lawmakers.
“Roe and Casey shackle states to a view of the facts that is decades out of date,” she continued. “The national fever on abortion can break only when this Court returns abortion policy to the states.”
The Center for Reproductive Rights, which represents Mississippi’s sole abortion provider in the suit against the state’s law, painted Fitch’s effort as one that will have a chilling effect on abortion rights nationwide.
“Mississippi has stunningly asked the Supreme Court to overturn Roe and every other abortion rights decision in the last five decades,” Nancy Northup, the president and CEO of the group said in a statement Thursday. “Today’s brief reveals the extreme and regressive strategy, not just of this law, but of the avalanche of abortion bans and restrictions that are being passed across the country.”
The Supreme Court has not yet said exactly when during its fall term it will hear oral arguments on the Mississippi case, but a decision is expected to come down by next June or July, as is standard.
An anticipated ruling just months before the 2022 midterms will almost certainly position abortion as a top issue at the ballot box.
See what others are saying: (The New York Times) (The Washington Post) (Politico)
Republicans Boycott Jan. 6 Committee After Pelosi Rejects Two of McCarthy’s Picks
The House Minority Leader said that unless House Speaker Pelosi reinstated the two members, Republicans will launch their own investigation into the insurrection.
Pelosi Vetoes Republicans
Republicans are boycotting the select committee to investigate the insurrection after House Speaker Nancy Pelosi (D-Ca.) rejected two of the five GOP members Minority Leader Kevin McCarthy (R-Ca.) picked to serve on the panel Wednesday.
In a statement, Pelosi cited the “statements and actions” of Rep. Jim Jordan (R-Oh.) and Jim Banks (R-In.), whose nominations she said she was opposing “with respect for the integrity of the investigation.”
Jordan and Banks — both staunch allies of former President Donald Trump — have helped propagate the previous leader’s false election claims, opposed efforts to investigate the insurrection, and voted not to certify the election for President Joe Biden.
A senior Democratic aide also specifically told The Washington Post that Democrats did not want Jordan on the panel because he reportedly helped Trump strategized how to overturn the election and due to the fact he spoke to the then-president on Jan. 6, meaning there is a possibility he could be called to testify before the very same committee.
The aide also said that Democrats opposed Banks’ selection because of a statement he issued after McCarthy chose him.
In the statement, the representative compared the insurrection to the racial justice protests last summer, implied that the rioters were just normal American’s expressing their political views, and claimed the committee was a political ploy “to justify the Left’s authoritarian agenda.”
Notably, Pelosi did say she would accept McCarthy’s three other nominees — including Rep. Troy Nehls (R-Wi.), who also voted against certifying Biden’s win.
McCarthy Threatens Separate Investigation
McCarthy, however, refused to select new members, and instead opted to remove all his appointees from the would-be bipartisan committee.
In a statement condemning the move, the minority leader said that Pelosi’s action “represents an egregious abuse of power.”
“Denying the voices of members who have served in the military and law enforcement, as well as leaders of standing committees, has made it undeniable that this panel has lost all legitimacy and credibility and shows the Speaker is more interested in playing politics than seeking the truth,” he said.
“Unless Speaker Pelosi reverses course and seats all five Republican nominees, Republicans will not be party to their sham process and will instead pursue our own investigation of the facts.”
Pelosi defended her decision during a press conference Thursday, where she said that Banks and Jordan were “ridiculous” choices for the panel.
“When statements are ridiculous and fall into the realm of, ‘You must be kidding,’ there’s no way that they’re going to be on the committee,” she added.