LGBTQ groups are applauding new rules from the Biden administration on health care, foster care, and workplace harassment. The flurry of executive branch actions comes just weeks before a looming deadline established by the Congressional Review Act.
Under the act, if Republicans take over the White House and Congress next year, they could work together to rollback executive agency rules promulgated in the final months of the current administration (some 15 Obama-era rules were rescinded in the first months of the Trump administration via the CRA).
The deadline this year is May 23, meaning any rules published in the Federal Register after that date could be subject to review under the act.
Other executive rules — which find constitutional basis essentially as interpretations by departments and agencies of the laws passed by Congress and interpreted by the courts — have garnered bigger headlines.
For example, the U.S. Department of Education recently revised its interpretation of the 1972 Title IX civil rights law to clarify that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law, pursuant to the U.S. Supreme Court's ruling in the landmark 2020 Bostock v. Clayton County case, as the Bay Area Reporter previously reported. (That rule change notably does not cover school athletics.)
Texas Governor Greg Abbott (R) ordered the Texas Education Agency not to implement the new rules. He stated on X that "Congress wrote Title IX to protect women. [President Joe] Biden, with no authority to do so, rewrote Title IX to protect men who identify as women. ... I am instructing the Texas Education Agency to ignore Biden's illegal dictate."
New rules also came out from the U.S. Department of Transportation, requiring airlines to promptly provide passengers with automatic cash refunds under certain circumstances, and to reimburse passengers when they fail to render services paid for.
"Passengers deserve to get their money back when an airline owes them - without headaches or haggling," stated gay U.S. Transportation Secretary Pete Buttigieg. "Our new rule sets a new standard to require airlines to promptly provide cash refunds to their passengers."
Officials at the U.S. Drug Enforcement Administration told the Associated Press the agency will be reclassifying marijuana from a Schedule I controlled substance (meaning it has no medically-accepted use) to a Schedule III controlled substance (meaning it has currently-accepted medical use).
HHS rule bars health care discrimination
The U.S. Department of Health and Human Services on April 22 announced an interpretation of Section 1557 of the Patient Protection and Affordable Care Act — which prohibits insurers from discriminating on the basis of sex — to include gender identity and sexual orientation.
This prohibits denial of coverage for hormone-replacement therapy, and denial of fertility care for same-sex couples.
Human Rights Campaign President Kelley Robinson stated, "Countless Americans can now find solace in knowing that they cannot be turned away from health care they need just because of who they are or who they love."
"This important milestone would not be possible without years of advocacy from HRC and our partners who refuse to accept discrimination of any kind for LGBTQ+ people and other marginalized Americans," Robinson added. "We thank the Department of Health and Human Services for their work on this regulation and look forward to continue working with the administration to advance toward full liberation, without exception."
Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal Defense and Education Fund, stated, "Health care is a fundamental human right. The rule released today restores critical regulatory nondiscrimination protections for those who need them most and ensures a legally proper reading of the Affordable Care Act's health care non-discrimination law.
"While we evaluate the new rule in detail, it is important to highlight that this rule will help members of the LGBTQ+ community — especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities — to access the care they need and deserve, saving lives and making sure health care professionals serve patients with essential care no matter who they are," Gonzalez-Pagan continued.
HHS rule seeks to protect LGBTQ foster kids
The Children's Bureau of the Administration for Children and Families, part of HHS, regulates child welfare programs run by state and tribal agencies receiving federal funds. A new rule issued April 29 requires agencies that receive federal funds to ensure that kids are placed in families where they will be free from harassment, mistreatment, and abuse, including on the basis of sexual orientation and gender identity.
One in three foster youth are LGBTQ, according to the Child Welfare Information Agency.
"Children in the foster care system face a lot of uncertainty, and LGBTQI+ children even more so," David Stacy, HRC's vice president for government affairs, stated in a news release. "No child should worry that if they share their sexual orientation or gender identity that they'll lose their ability to have a safe home, or be subjected to discrimination, harassment, or even the abuse of discredited 'conversion therapy' efforts.
"LGBTQI+ young folks, like all young folks, deserve safe and stable out-of-home care and these rules will help to ensure that they get it," Stacy added. "We commend the Biden administration for this important work to address the disproportionately negative experiences that LGBTQI+ youth currently experience in our foster care system."
Misgendering is sex harassment, EEOC says
The U.S. Equal Employment Opportunity Commission on April 30 released new guidance that sex-based harassment includes mistreatment on the basis of sexual orientation or gender identity. (Employment discrimination against LGBTQ people is illegal under the Supreme Court's interpretation of the Civil Rights Act of 1964 in Bostock, which the EEOC cited in its rule.)
It was the first time in 25 years that EEOC updated its enforcement guidance on workplace harassment, Reuters reported.
"Workplace harassment can so easily be devastating to LGBTQ+ people, whether it comes from managers or peers or others on the job," HRC's Robinson stated. "This mistreatment can vary greatly, and it's especially prevalent in the form of intentional misgendering or deadnaming for transgender and nonbinary people. Combined with the difficulties that many LGBTQ+ people have in finding employment, members of our community can feel trapped in cycles of harassment with no options to get away from it.
"This new EEOC guidance should make it clear to all employers: they have an obligation to provide a workplace free from harassment for all employees — without exception," she added.
Employers refusing to use a transgender person's preferred pronouns, as well as barring them from using bathrooms that match their gender identity, are covered by the new EEOC guidance, according to Reuters.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
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