Trump and His Agencies Move To Minimize Gay Rights As The Courts Expand Them

The Trump administration’s ongoing push to limit LGBT rights in employment, health care, and education faces the threat of more litigation following a U.S. Supreme Court ruling that extended job protections based on sexual orientation and gender identity. 

Several federal agencies, including Labor, Health and Human Services, and Education departments, have in recent years issued guidance and rulemaking that rolled back LGBT rights or bolstered religious liberties. Early indications show the high court’s June 15 decision could have broad reach on other statutes, attorneys and academics say. 

And agencies likely will have to continue defending in court efforts that civil rights advocates say could lead to discrimination against the lesbian, gay, bisexual, and transgender community.

“Some of the law isn’t already established, but we expect to see a lot of cases challenging the rollback of gender identity protections,” said Christy Mallory, state policy & education initiatives director at the UCLA School of Law’s Williams Institute, which focuses on LGBT issues.

Just days after the decision, a lawsuit challenged a rule limiting transgender individuals’ access to health care. That came as the administration already was embroiled in litigation over a separate regulation that would have granted religious discrimination protections to doctors and other workers who object to performing or participating in a patient’s care, which can include gender-affirming surgeries.

The administration also is finalizing a regulation that would bolster religious defenses some government contractors can raise against workers’ LGBT discrimination claims. Agency guidance that conflicts with the high court’s ruling could play a role in lawsuits over transgender students using the bathroom or locker room of their choice and participating on sports teams. 

Amid the continuing tension surrounding LGBT rights, President Donald Trump has been reaching out to faith-based organizations on the campaign trail. Yet, he seemed to accept the Supreme Court’s ruling, calling it a “very powerful” decision. 

The White House referred questions about regulations that may clash with the ruling to the Justice Department, which didn’t respond to a request for comment.

The administration’s policies in the realm of school athletics and health care should be able to withstand legal attacks, said Ryan Anderson, a senior research fellow at the conservative Heritage Foundation. Anderson said the policies take the “biological differences between males and females seriously.” 

“The administration should continue to protect the ability of doctors to practice good medicine, of athletes to compete in fair competitions, and everyone to have a safe and private place free from the opposite sex,” Anderson said. “The government should not impose a radically liberal orthodoxy on the nation. “

Government Clash

The divided Supreme Court held inBostock v. Clayton County, Ga., last month that sex discrimination prohibitions under Title VII of the 1964 Civil Rights Act include sexual orientation and gender identity. 

Federal courts and regulatory agencies had debated that question for years before the landmark ruling. The Obama administration issued guidance and rules at agencies to extend the scope of sex discrimination protections to cover LGBT individuals. 

The Trump administration reversed many of those interpretations, while also pushing for rules and guidance reinforcing religious protections.

“This decision typifies how there are a lot of different moving parts,” said Chris Wilkinson, a partner with Orrick Herrington & Sutcliffe. “The government leaves alone the broader protection of the employment law but then chips away at it through religious exemption efforts.”

But if a federal agency previously indicated in a legal brief, policy guidance, or rule that they’re bound to follow Title VII, “You have to take the quote unquote good with the bad. It seems the Supreme Court spoke to that,” said Wilkinson, a former associate solicitor for Civil Rights and Labor-Management at the Labor Department. 

HHS’s Transgender Fight

HHS finalized a rule that will eliminate protections for LGBT individuals under the Affordable Care Act, which like Title VII, includes language that protects against sex discrimination. It also includes exemptions for doctors and health-care providers that have religious or moral objections to caring for certain patients.

Soon after the Bostock decision, several groups sued to stop enforcement of the HHS rule, which would erase the expansive view of sex under Section 1557 of the ACA that includes transgender individuals.

“Obviously, this administration has made it a goal of theirs to put the religious and moral objections of certain people above the civil rights and equality of others,” said Omar Gonzalez-Pagan, a senior attorney and health-care strategist at Lambda Legal, which is representing the groups suing over the rule.

Section 1557 was designed to draw together many civil rights laws to make sure they would apply to health care rather than to prevent them from applying to health care, said Nicole Huberfeld, a health law professor at Boston University School of Law and School of Public Health. 

The administration won’t back down because the ruling was in the employment space, and not a direct application to health care, Huberfeld said.

“I think the administration could say a court has to tell us we’re wrong,” she said.

The HHS argued in the rule that “the binary biological character of sex takes on special importance in the health care context,” and the Title VII ruling doesn’t fully address those concerns. The agency didn’t respond to a request for comment on the high court’s decision.

The HHS also is fighting in the Second and Ninth circuit courts of appeal to enforce a separate rule that would protect health workers and hospitals from religious discrimination if they object to performing or participating in a medical treatment based on their “conscience.” 

Critics of the rule said it impermissibly broadened and conflicted with religious accommodations that employers must grant to workers under Title VII. 

Liability Shield in Labor 

The DOL also proposed a rule that would grant broader discrimination liability shields based on religion for “closely held” federal contractors—where a small number of individuals own the majority of stock. Religious contractors already can make some employment decisions based on their faith without penalty under existing exemptions. 

That proposal drew ire from LGBT advocates, including the American Civil Liberties Union, which said it would “license taxpayer-funded discrimination in the name of religion.” Some employer groups also warned the rule would be inconsistent with religious defenses under Title VII, which the agency follows. A DOL spokesperson said the agency “continues to work” on the proposal, which could be finalized by August.

At least one group advocating on behalf of religious liberties called for the rule’s “swift” finalization in light of Bostock. 

“Religious liberty is increasingly coming under attack in our nation, and rules like this help to ensure that all Americans are treated equally,” said Mary Beth Waddell, a senior legislative assistant with the Family Research Council.

Education Fights Loom

The high court’s Bostock ruling could also have implications for policies in K-12 schools involving transgender students’ access to bathrooms matching their identity and their ability to compete in women’s sports. Courts generally have looked to rulings in Title VII cases when interpreting Title IX of the Education Amendments Act of 1972. 

Trump’s Education Department has taken the stance that transgender protections aren’t covered under Title IX. The department in 2017 withdrew Obama-era guidance on accommodations for transgender students and the agency’s Office for Civil Rights said it would stop investigating complaints over school bathroom access for those students.

The Education Department is reviewing its guidance to schools after the Title VII decision, said Angela Morabito, an agency spokeswoman. 

The Eleventh and Fourth circuits already are weighing cases challenging school districts over policies barring transgender students room using bathroom facilities matching their gender identity. 

The administration also has intervened in Title IX lawsuits that raise questions over whether female transgender athletes should participate on girls’ sports teams. One such suit is pending in Connecticut. 

—With assistance from Cheryl Bolen.

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com; Andrew Kreighbaum in Washington at akreighbaum@bgov.com