Administrative Rule Changes Threaten Safety of Transgender Individuals

By Caitlyn Heter

It seems to be a common concern among historically marginalized groups that they will lose those rights for which they have fought. For example, many women and feminist allies worry about the possible reversal of Roe v. Wade. The Center for Reproductive Rights created a map warning of the possible consequences of Roe v. Wade being weakened or overturned, in preparation for that possibility. When voicing concerns about these sorts of losses, even in the context of credible threats to the events feared, others respond that “that doesn’t happen,” or, “that doesn’t happen in America.” According to these individuals, we as a nation are incapable of going backwards.

I envy the position of privilege that these individuals seem to occupy, wherein their rights are so certain and so long-lived that the erasure of anyone’s rights seems a total impossibility. Unfortunately, this backtracking happens regularly, especially in the context of administrative law. The Administrative Procedure Act (APA), which provides the structure for administrative rulemaking, was designed to allow for regular changes to rules. In theory, the APA’s flexibility allows rules to evolve and be corrected over time in alignment with new information and developing research. In practice, it has been used to revoke administrative rules that protected the health and safety of LGBTQ Americans at the will of the current president.

Whitman-Walker Clinic v. HHS is one example of a case filed in response to this scenario. Under the Obama administration, the Department of Health and Human Services made a rule in 2016 that would protect LGBTQ individuals from discriminatory medical care. The rule prohibited discrimination on the basis of gender identity or sex stereotyping and limited religious exemptions for providers of health care. In 2020, the Trump administration issued a new rule, eliminating those protections for LGBTQ Americans.

The Trump administration has also revoked guidance that protected LGBTQ Americans from a variety of other harms. Those actions jeopardize the ability of transgender individuals to choose a sex-segregated shelter of their choosing; the rights of transgender students to use public school restrooms that match their gender identity; and freedom from workplace discrimination for transgender Americans.

Fortunately, the Supreme Court’s interpretation of Title VII in Bostock v. Clayton County, wherein the Court held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” has effectively restored workplace protections for transgender employees. 140 S. Ct. 1731 (2020). Bostock also played an important role in Whitman-Walker Clinic v. HHS. The District Court for the District of Columbia found the Trump administration’s elimination of the previous definition of “sex discrimination” to be arbitrary and capricious in light of HHS’s apparent misjudgment of, and failure to acknowledge, Bostock. But other provisions of the Trump-era rule, affecting coverage exclusions, are still on the table as discussed by the Kaiser Family Foundation in September 2020.

The rulemaking process under APA is intentionally slowed down, allowing for input from the public and notice of new rules; the Trump administration has also found a faster way to institute change. Trump has taken greater advantage of the 1996 Congressional Review Act (CRA) than any president before him, nullifying sixteen rules early in his presidency according to The National Law Review. Under CRA, Congress can issue a joint resolution of disapproval of an administrative rule. When signed by the president, this resolution nullifies the rule and prohibits issuance of a “substantially similar” rule. CRA had been used to nullify an administrative rule only once before Trump took office.

As suggested by James M. Auslander et al. in the National Law Review, using CRA to eliminate harmful administrative rules will be an option for our next president as well. To enable its use in reinstating protections for transgender Americans, we must elect a president and congressional representatives who will work to quickly repair the current administration’s harms to transgender Americans.

Administrative Rule Changes Threaten Safety of Transgender Individuals

By Caitlyn Heter

It seems to be a common concern among historically marginalized groups that they will lose those rights for which they have fought. For example, many women and feminist allies worry about the possible reversal of Roe v. Wade. The Center for Reproductive Rights created a map warning of the possible consequences of Roe v. Wade being weakened or overturned, in preparation for that possibility. When voicing concerns about these sorts of losses, even in the context of credible threats to the events feared, others respond that “that doesn’t happen,” or, “that doesn’t happen in America.” According to these individuals, we as a nation are incapable of going backwards.

I envy the position of privilege that these individuals seem to occupy, wherein their rights are so certain and so long-lived that the erasure of anyone’s rights seems a total impossibility. Unfortunately, this backtracking happens regularly, especially in the context of administrative law. The Administrative Procedure Act (APA), which provides the structure for administrative rulemaking, was designed to allow for regular changes to rules. In theory, the APA’s flexibility allows rules to evolve and be corrected over time in alignment with new information and developing research. In practice, it has been used to revoke administrative rules that protected the health and safety of LGBTQ Americans at the will of the current president.

Whitman-Walker Clinic v. HHS is one example of a case filed in response to this scenario. Under the Obama administration, the Department of Health and Human Services made a rule in 2016 that would protect LGBTQ individuals from discriminatory medical care. The rule prohibited discrimination on the basis of gender identity or sex stereotyping and limited religious exemptions for providers of health care. In 2020, the Trump administration issued a new rule, eliminating those protections for LGBTQ Americans.

The Trump administration has also revoked guidance that protected LGBTQ Americans from a variety of other harms. Those actions jeopardize the ability of transgender individuals to choose a sex-segregated shelter of their choosing; the rights of transgender students to use public school restrooms that match their gender identity; and freedom from workplace discrimination for transgender Americans.

Fortunately, the Supreme Court’s interpretation of Title VII in Bostock v. Clayton County, wherein the Court held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” has effectively restored workplace protections for transgender employees. 140 S. Ct. 1731 (2020). Bostock also played an important role in Whitman-Walker Clinic v. HHS. The District Court for the District of Columbia found the Trump administration’s elimination of the previous definition of “sex discrimination” to be arbitrary and capricious in light of HHS’s apparent misjudgment of, and failure to acknowledge, Bostock. But other provisions of the Trump-era rule, affecting coverage exclusions, are still on the table as discussed by the Kaiser Family Foundation in September 2020.

The rulemaking process under APA is intentionally slowed down, allowing for input from the public and notice of new rules; the Trump administration has also found a faster way to institute change. Trump has taken greater advantage of the 1996 Congressional Review Act (CRA) than any president before him, nullifying sixteen rules early in his presidency according to The National Law Review. Under CRA, Congress can issue a joint resolution of disapproval of an administrative rule. When signed by the president, this resolution nullifies the rule and prohibits issuance of a “substantially similar” rule. CRA had been used to nullify an administrative rule only once before Trump took office.

As suggested by James M. Auslander et al. in the National Law Review, using CRA to eliminate harmful administrative rules will be an option for our next president as well. To enable its use in reinstating protections for transgender Americans, we must elect a president and congressional representatives who will work to quickly repair the current administration’s harms to transgender Americans.

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