LGBT advocates press Biden to build on early wins

LGBT advocates say they breathed a sigh of relief after President Biden was elected in 2020, and, since then, the administration has moved quickly to reverse discriminatory Trump-era policies and expand protections under civil rights law.

But despite those moves, advocates say there is more work to be done by both the president and Congress for the community — specifically for transgender individuals.

Advocates cheered Biden’s early moves, such as tapping now-Transportation Secretary Pete Buttigieg for a role that made him the first openly gay Cabinet secretary confirmed by the Senate.

They also applauded Biden for reversing former President Trump’s ban on transgender people serving openly in the military.

“It’s been a breath of fresh air,” Arli Christian, campaign strategist for the American Civil Liberties Union (ACLU) told The Hill.

But despite early progress, advocates say more work is needed to make a clean cut with Trump’s policies and to secure rights for transgender individuals.

Biden’s approach to LGBT rights has been aided by a Supreme Court decision near the tail end of the Trump administration. In Bostock v. Clayton County of Georgia, the court ruled 6-3 that gender discrimination in the workplace includes those targeted based on their sexual orientation and gender identity.

On his first day in office, Biden issued an executive order expanding the court decision’s interpretation across the federal government to include housing, health care, education and credit.

“It’s a big deal because the Trump administration refused to acknowledge LGBT people and in many cases sought to erase us. They denied departments the ability to post about us, denied embassies from raising the pride flag, tried to authorize housing services to deny services to trans people, told the Supreme Court we shouldn’t be protected under federal civil rights law,” Human Rights Campaign President Alphonso David told The Hill.

“And on day one, President Joe Biden issued an executive order directing federal agencies to interpret and implement the Bostock Supreme Court decision to protect LGBTQ people,” David added. 

That memo was followed by another reinstating transgender individuals’ ability to serve in the military. Together, the two orders marked a major turnaround from Trump administration policies that had chipped away at a number of anti-discrimination protections weaved into various laws.

In 2017, Trump announced on Twitter that he would reverse an Obama-era policy by reinstating a ban on openly transgender individuals serving in the military. The policy prohibited anyone who received gender-affirming treatment such as hormones or surgery from joining the armed services.

“It sends a strong signal that trans people matter, that you are just as valuable as the person sitting next to you,” David said of Biden’s memo reversing Trump’s ban.

Even with the barrier removed, advocates say they are eager to see the Department of Defense (DOD) look for broader ways it can shift its culture.

“People are experiencing a sense of whiplash on these issues,” said Sharon McGowan, legal director for Lambda Legal. “So we want to work with DOD to make sure that nondiscrimination is solidified and embedded in a way that gives people that lasting sense of comfort.”

That includes helping transgender veterans once they complete their service.

This month, Secretary of Veteran Affairs (VA) Denis McDonough announced that the department is moving to make gender-affirming surgeries part of veterans’ health care coverage.

Speaking at a Pride Month event in Florida, McDonough said the process was still in its early stages but that the agency was “taking the first necessary steps to expand VA’s care to include gender confirmation surgery,” which he said would allow “transgender vets to go through the full gender confirmation process with VA at their side.”

Still, experts say the Biden team has more work to do to reverse Trump-era policies that chipped away at a number of anti-discrimination protections weaved into various laws.

McGowan said her organization is continuing its lawsuit to reinstate protections under the Affordable Care Act that barred doctors from turning away patients, something the Trump administration eased through regulation.

“It protects you from being turned away by a health care provider. They were somehow saying that the only form of discrimination it would cover is a doctor saying, ‘I don’t serve women here,’ but we now know those protections could extend to a lesbian turned away from a fertility provider,” she said.

The administration has also been aggressive in pushing back on some state laws, particularly as Republican-led legislatures increasingly seek limits on transgender individuals.

The Department of Justice (DOJ) recently filed two statements of interest in cases challenging a West Virginia law barring transgender athletes from participating in women’s sports and an Arkansas law prohibiting doctors from providing youth with transition-related medical care.

In both cases, the DOJ warned the states that their new laws violate the equal protection clauses in the Constitution’s 14th Amendment.

“They are going after a law that is doing so much harm to this individual young person but also sends a message of exclusion and stigma,” McGowan said of the West Virginia statute. “And that’s why it’s so important for them to weigh in — putting forward a view of what the law is and what the law requires.”

“It’s not just legal work they can do but moral leadership,” she added.

Christian, of the ACLU, said the recent steps by the DOJ are a sign that “the department will stand behind and defend the rights of students to participate in school activities.”

Still, advocacy groups say there are logistical measures that the federal government can implement to ensure transgender and gender-nonconforming individuals are represented on federal forms and on government-issued IDs.

Christian said the ACLU is encouraging the administration to switch to a “self-attestation” model for government IDs, meaning transgender, intersex and gender-nonconforming individuals would not have to provide the government with medical proof of transition or treatment to change their marker.

The ACLU is also calling on the administration to provide an “X” option for nonbinary people, an addition to IDs that Christian says many states across the U.S. have already implemented, including California, Maine, Maryland, Utah and Vermont.

The organization argues that these changes would make it easier for transgender and nonbinary people to “travel, apply for jobs, and enter public establishments with less risk of harassment or harm.”

Groups also say that both Congress and the administration can take steps to protect the LGBT community by supporting the repeal of SESTA-FOSTA, a 2018 law that is intended to punish online platforms for facilitating trafficking and abuse online. But it also allows prosecutors to go after sites posting ads for prostitution, including consensual sex work.

Shawn Meerkamper, a senior staff attorney for the Transgender Law Center, says transgender women are more likely to turn to sex work as a means of survival due to employment discrimination based on their identity.

“For a lot of people it has pushed them back into street-based sex work, which is much riskier because your opportunity to screen clients or negotiate terms or to know the location that you’re going to — all of that is much harder when working off of the street,” Meerkamper said.

McGowan, of Lambda Legal, said she also wants the administration to stay focused on other matters that could benefit the LGBT community and civil rights in general.

“They have put forward people to be judges who come forward with some knowledge of civil rights cases in which they were supportive of civil rights instead of opposed. That is something where we need a sustained level of commitment all four years of Biden to dilute the harm to the judiciary during four years of the Trump administration where they were putting anti-LGBT nominees on the bench,” she said.

Updated June 29, 9:57 a.m.