The Trump administration keeps targeting LBGTQ people in the middle of a pandemic

The Trump administration is quietly advancing a number of rules that will ultimately harm LGBTQ people, even in the middle of a pandemic.

The administration has specifically finalized or is continuing to move forward with agency rules that enable discrimination against the LGBTQ community in health care, labor, and housing, among other things.

Overall, GLAAD has recorded a total of 136 attacks on LGBTQ rights by the administration since Trump took office.

Under the new rules, proposed from spring last year to as recently as January, transgender homeless people would be asked to accept transphobic conditions in shelters, health care providers would be able to discriminate against LGBTQ people more broadly, and LGBTQ kids in the foster care system would undoubtedly experience more disruption in their lives.

Some of the rules have been finalized during the pandemic and others are likely to go into effect soon.

‘Religious freedom’ spreads to nine agencies

The administration has moved to reverse Obama-era requirements across nine separate federal agencies for religious organizations that receive taxpayer funds.

In January, it announced that the Office of Management and Budget would roll back guidelines that require religious social service providers using federal grant money to let beneficiaries know of alternative social services and where to find those services nearby.

Jason Lemieux, director of government affairs at the Center for Inquiry, an organization that advocates for strict church-state separation and opposes religion in government affairs, explained in a phone interview that, under the Obama-era rules, “grant money [had to] be used to implement the program in a secular way.”

“You can identify yourself as a Christian organization, but that service you provide needs to be a government service just like you’d provide for any organization, so you can’t use the money to fund religious programming or inherently religious activities,” he said.

In reality, that meant, for example, that a Christian organization running a soup kitchen using federal grant money couldn’t require someone to go to a church service after dinner.

“Now that is being stripped away, where they’ll be able to say ‘No, if you want dinner tonight you will attend our Mass service and you will recite this Christian creed,'” Lemieux said.

“You [couldn’t] discriminate” under the Obama administration’s rule, he added. “You have to provide services to beneficiaries on the basis of their eligibility under federal requirements and you can’t require that people be members of your religion or turn away people based on your religious conscience, which we see happen with LGBTQ people. That is now being eliminated just completely.”

Under the Justice Department, this could mean that an organization that receives federal grant money from the Juvenile Mentoring Program, which assists young people who are at risk of educational failure and dropping out of school, could say that serving LGBTQ youth is a violation of their conscience or could refuse to serve LGBTQ youth in a way that affirms their gender or sexuality, Lemieux said.

He said that the policy change was part of a larger effort by Christian nationalists and the religious right to redefine religious liberty and discrimination in a more general way “without any regard done to any third party.”

Candace Bond-Theriault, senior policy counsel for the National LGBTQ Task Force, said that she is particularly concerned about how housing entities would operate because many LGBTQ people experience homelessness.

Forty-two percent of black transgender people have experienced homelessness at least once during their lives and 30% of all transgender people said they have, according to a 2015 report from the National Center for Transgender Equality.

Up to 40% of all unaccompanied homeless youth are LGBTQ. For comparison, LGBTQ youth make up 5 to 10% of the overall youth population.

“Housing and shelters and homelessness is where LGBTQ folks are going to be most affected because [LGBTQ people] are part of that population of folks who experience homelessness, especially people of color and trans and gender non-conforming folks,” she said. “These are life and death services.”

Disrupting LGBTQ children’s lives

The Trump administration is also actively interfering to make the most marginalized children’s lives more difficult.

Last fall, the Department of Health and Human Services proposed a rule that would remove Obama-era language ensuring that groups participating in federal grant programs couldn’t discriminate against LGBTQ people. These grant programs include foster care and adoption programs.

With that language removed, faith-based adoption and foster care agencies would be able to receive taxpayer funding even if LGBTQ families were excluded due to the agencies’ religious beliefs.

HHS Secretary Alex Azar claimed that the rule was justified because the previous nondiscrimination language was unconstitutional and violated the Religious Freedom Restoration Act of 1993.

The administration is also disrupting the collection of data on LGBTQ children in the foster care system.

A finalized rule change, set to go into effect in July, will change Adoption and Foster Care Analysis and Reporting System regulations by removing Obama-era requirements to collect data on the sexual orientation of youth or parents in foster care and the adoption system.

Experts say that without proper data collection, it is much more difficult to address mistreatment of LGBTQ youths in the foster care system.

Joey Hernández, policy and mobilization manager at the Los Angeles LGBT Center, said 30% of the LGBTQ young people who come to the Los Angeles LGBT Center’s drop-in center who experience homelessness have had an open welfare case with LA County and 5% of them had over 10 placements in their lives. If this data were collected, it would help stabilize those young people’s lives, they said.

“You have to imagine a young person having all of their stuff thrown into a black garbage bag and taken to to another home, and in six to 12 months, that same exact situation happening all over again,” Hernández said. There really isn’t an ability for them to create strong relationships with the resource families, their parents or guardians because their life is being interrupted on a regular basis and they are experiencing these traumatic events on a regular basis.”

They added, “We’re implicitly thinking about putting young people into homes without knowing whether those households are going to be affirming of their identities or not.”

Although HHS has argued that it is not possible to gather the data or to keep information confidential, Hernández was doubtful.

“It is not impossible to do this. It is the morally correct thing to do,” they said. “All you have to be able to do is create an environment that is safe and confidential for the young person and the information only needs to be distributed at an as-needed basis for the well-being of the young person.”

They added, “This is just a political game of bigots in the federal administration not wanting to pay attention to needs of some of the most vulnerable in the country. We are talking about black and brown, queer and trans children who are being neglected and are being abused in this system.”

Forcing transgender homeless people to make impossible decisions

Last May, the Department of Housing and Urban Development proposed a new rule that essentially eliminated nondiscrimination protections for transgender people at shelters receiving, managing, or operating HUD grants. Under the rule, these shelter providers would be given a lot of flexibility on how to decide to house transgender people, which LGBTQ advocacy groups say would enable discrimination.

In 2012, HUD enacted its Equal Access Rule, ensuring that its programs were open to everyone, including LGBTQ people. And in 2016, the department issued a second rule clarifying that “gender identity” nondiscrimination meant trans people should have equal access to sex-segregated shelters.

According to the 2015 U.S. Transgender Survey, 30% of transgender people have experienced homelessness at some point in their lives and 12% have said they have experienced homelessness in the last year because they are transgender.

The new Trump administration proposal, however, undoes the 2012 and 2016 policies.

HUD said at the time the new rule was proposed that shelter providers that permit single-sex or sex-segregated facilities can “establish a policy, consistent with state and local law” for determining sex for admission into a shelter and asks providers to consider a range of factors when they decide on that person’s accommodation. Some of these factors include “religious beliefs,” “the individual’s sex as reflected in official government documents,” and “gender a person identifies with.”

As long as shelters say their actions are consistent with their overall policy and local and state law, in other words, trans people may have to make the choice to sleep on the street or stay in a shelter that does not recognize their gender. 

“The programs impacted by this rule are life-saving for transgender people, particularly youth rejected by their families … lack of stable housing fuels the violence and abuse that takes the lives of many transgender people of color across the country,” Mara Keisling, the head of the National Center for Transgender Equality (NCTE), stated when the rule was first proposed.

Federal government contractors get a pass to discriminate

LGBTQ workers are also at risk under new regulations proposed by the Trump administration.

The Labor Department proposed a rule in August that could apply to hundreds of thousands of contractors and subcontractors. It allows broad religious exemptions for businesses that have federal contracts, which could harm the LGBTQ people they employ.

According to Politico, the proposal states that “government contractors may make employment decisions that align with their religious beliefs” but that ” contractors may not discriminate on the basis of race, sex or other protected statuses.”

As the outlet noted, the rule is still likely to be perceived as “tacit permission to discriminate against LGBTQ employees.”

As with many Trump administration regulations, the Labor Department rule cites concerns about “religious freedom” to justify the proposed policy.

LGBTQ groups and civil rights experts say the proposal facilitates discrimination against LGBTQ people at companies contracting with the federal government.

When the Labor Department announced the rule, a senior department official told reporters that “conscience and religious freedom rights have been given second-class treatment for too long.”

“This fulfills the president’s promise to promote and protect our fundamental and inalienable rights of conscience and religious liberty, the first freedom protected in the Bill of Rights in the First Amendment itself,” the official said.

LGBTQ legal advocacy groups disagree.

“Given the conservative religious affiliations of many large institutional employers that seek federal contracts, we know the most vulnerable workers will be LGBTQ people, as well as Muslims, Jews and other religious minorities,” Jennifer C. Pizer, director of law and policy at Lambda Legal, stated in reaction to the rule when it was proposed last year.

“For more than half a century, the federal purse has been a transformative driver of equal workplace opportunity in this country. And once again, appallingly, this administration is betraying our nation’s core commitment to liberty and justice for all — in service of an extreme, discriminatory religious agenda.”

Allowing discrimination against LGBTQ people in health care

As the pandemic continues, Trump has also targeted LGBTQ people’s health care.

Last year, the Trump administration attempted to reverse the Affordable Care Act’s ban on sex discrimination. The protections have been halted since 2017 due to an ongoing lawsuit by a Catholic hospital system and medical group, a Christian medical association, and five states.

This Department of Health and Human Services is specifically trying to remove Obama-era language that defines sex discrimination as including “gender identity,” defined as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”

The proposed rule change would get rid of transgender people’s health insurance coverage protections and cuts a provision blocking health insurers from varying benefits to discriminate against LGBTQ people and those with HIV.

The Trump administration rule could be finalized soon, according to Politico.

Bond-Theriault of the National LGBTQ Task Force said the proposed rule is “incredibly harmful for our community,” particularly as the pandemic continues.

According to a 2016 Center for American Progress survey, 23.5% of transgender respondents and 10.3% of LGBTQ people of color avoided doctors’ offices in the past year for fear of being discriminated against or having a negative experience. The survey also revealed that “more than half of LGBT people reported being discriminated against by a health care providers” in 2010, and more than 25% of transgender people surveyed said they had been “refused medical care outright.”

“…We’re in a pandemic so any kind of discrimination the Trump administration is trying to add on to the hardships we’re already facing as a global community is definitely going to impact queer and transgender folks even more,” Bond-Theriault explained.

Published with permission of The American Independent Foundation.