With just over a week left in office, Trump Administration continues to issue discriminatory regulations

BOSTON, January 11, 2021—In its final, chaotic, and violence-filled days, the Trump Administration issued discriminatory regulations and policy directives that will harm LGBTQIA+ people seeking federally-funded health and human services as well as LGBTQIA+ students.

On Tuesday, January 12, 2021, the Trump Administration is expected to publish a final rule that will roll back regulations protecting against discrimination on the basis of sex, religion, sexual orientation, and gender identity in programs that receive funding from the US Department of Health and Human Services (HHS).

Under this dangerous and exceptionally broad rule, women, LGBTQIA+ people, people of minority faiths, and non-religious people could face discrimination by a wide range of health and social service agencies that receive funding from HHS. This would put the health and well-being of millions of Americans at risk.

“In the middle of the worst global pandemic in 100 years, when access to health care and social services is of utmost importance, the last thing anyone should be doing is making it easier to discriminate based sexual orientation, gender identity, or other factors,” said Sean Cahill, PhD, Director of Health Policy Research at The Fenway Institute. “We strongly urge the incoming Biden-Harris Administration to reverse this and other discriminatory Trump-Pence Administration rules soon after taking office.”

HHS awards more than $500 billion in grant funding every year to provide critical services to millions of Americans. HHS grantees include organizations that provide a wide array of health and social services, including health care at federally funded community health centers, HIV and STI testing and prevention, refugee resettlement, elder care programs, childcare and after-school programs, community meal programs, and adoption and foster care services. LGBTQIA+ people are more likely to be poor and in need of social services, especially those who are Black, Indigenous, and other People of Color and those who are transgender or gender diverse. LGBTQIA+ people experience health disparities and numerous barriers to accessing health care, including discrimination.

Over the past two years, The Fenway Institute submitted public comments opposing the HHS grant rule, and met with White House Office of Information and Regulatory Affairs officials in July, 2020 to urge against the finalization of the rule.

Also, on Friday, January 8, 2021, the U.S. Department of Education (DOE) issued a memo that misconstrues the impact of the June 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, GA, which found that anti-gay and anti-transgender discrimination in employment violates federal law. The DOE memo states that Bostock does not apply to Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education.

This contradicts what Justice Neil Gorsuch wrote for the 6-3 majority in the Bostock ruling: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII [of the 1964 Civil Rights Act] forbids.”

The DOE memo interprets Bostock to mean that schools may “regulate access” to “intimate facilities” such as “bathrooms, locker rooms, and showers” on the basis of “biological sex.” This is in line with prior discriminatory acts against transgender and gender diverse students by the Trump Administration. For example, in February 2017, the US Department of Education and the US Department of Justice ordered schools across the country to ignore 2016 guidance issued by President Obama’s Department of Justice and Department of Education stating that discrimination on the basis of gender identity in schools is prohibited under Title IX.

“Former Secretary of Education Betsy DeVos made attacks on LGBTQIA+ students a central theme of her tenure,” said Cahill. “We look forward with hope to the incoming Biden-Harris Administration to reverse DeVos’s discriminatory legacy.”

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