Here's how Biden can reverse some of Trump's worst damage to LGBTQ people

President-elect Joe Biden has ambitious plans for LGBTQ equality. Earlier this month, he spoke at the International LGBTQ Leaders Conference and said he and Vice President-elect Kamala Harris “are committed to being the most pro-equality administration in history.”

Biden told Philadelphia Gay News in October that he plans to “immediately reverse discriminatory practices that Trump put in place.” He said he would make the Equality Act, a sweeping federal nondiscrimination bill, a priority in his first 100 days in office and take action to prevent more violence against transgender people.

The damage Donald Trump and his administration have done to LGBTQ people is vast. He has attacked health care access for LGBTQ people, has tried to gut Obama-era nondiscrimination protections for transgender people who need access to shelters, and proposed a rule that makes it harder to have asylum claims granted.

Reversing many of Trump’s harmful policies will be easier said than done, however, experts say. How long it takes all depends on the kind of attack Biden seeks to roll back.

What a Biden administration could tackle immediately

There are some policies Biden can quickly reverse, such as the transgender military ban that officially went into effect in April of last year.

Sharon McGowan, legal director and chief strategy officer for Lambda Legal, said ending the ban should be one of Biden’s first rollbacks.

“We hope and expect the commander-in-chief will very quickly and definitely reverse the Trump administration policy and return to the plan that was there under [Secretary of Defense] Ash Carter that allowed for open service,” McGowan said.

Biden could also remedy problems for married same-sex couples abroad who want their child’s citizenship to be recognized, according to McGowan. Under the Trump administration, the State Department has interpreted immigration and citizenship laws in such a way that requires both parents of a child born outside of the United States to have a biological connection to that child or to be married. But that means same-sex couples living in countries where marriage is not legal are unable to obtain citizenship for their children, even if one of the parents is a United States citizen.

Lambda Legal and Immigration Equality filed a lawsuit on behalf of one such couple, and in August, a federal judge ordered the State Department to recognize the citizenship of that couple’s child, rejecting the State Department’s interpretation of the law.

A new administration could officially change the State Department’s interpretation of the law and make it clear that the children of same-sex couples have the same citizenship rights as any other children.

“They should not only stop fighting these individual cases but clean up the interpretation so it doesn’t come up for other people,” McGowan said. 

The Biden administration could also change survivor benefits for widows and widowers who have also been fighting to have their full rights recognized through the Social Security Administration. The current policy requires people to have been married for at least nine months to receive survivor benefits. Many same-sex couples who lived in states that banned marriage equality before the Supreme Court ruled in favor of it in 2015 were excluded from benefits under this policy.

Some married couples saw a spouse pass away before the nine-month period and other people in long, committed relationships lost their partners before the landmark ruling. McGowan said the Biden administration could implement new policies that would stop denying benefits to people “who are continuing to be affected by this residual marriage discrimination.”

Federal agencies could also act quickly to fully implement the Supreme Court decision in June that said LGBTQ people are protected from employment and other types of discrimination under federal law — something the Trump administration has resisted doing. McGowan said the Justice Department could release a statement clarifying what the “the rules of the road” are for every federal agency under the landmark decision.

Biden could also immediately reverse the Education Department’s decision to roll back Obama administration guidance that affirmed transgender students’ equal access to facilities and activities, according to the New York Times.

There is a long road ahead to reverse Trump’s rules

Although some of Trump’s discriminatory policies have been halted by the courts, others are still in place, have only recently been finalized, or could be finalized before a Biden administration begins. The Trump administration has been moving fast to finalize rules before Biden takes office. The Department of Labor finalized a rule in December that creates a broad religious exemption for federal contractors, allowing them to discriminate against LGBTQ workers on supposedly religious grounds.

The following week, the administration released its final package of rules eliminating protections for nine federal agencies, including the Justice Department and Health and Human Services. The new rules allow faith-based groups and service providers to discriminate against LGBTQ people on supposedly religious grounds.

A final rule, which was first proposed in June and would change the standards asylum seekers need to meet to have their claims granted, was also published this month. Under the new rule, LGBTQ asylum seekers would have a particularly hard time seeking asylum, experts on immigration and LGBTQ rights said earlier this year.

The Trump administration could also complete the final steps in the rule-making process for a Department of Housing and Urban Development policy that encourages discrimination against transgender people at homeless shelters.

Advocates are also watching out for a rule proposed last year by Health and Human Services that removes protections for grant recipients. It would essentially say that groups receiving federal grants from the department, such as foster care providers, can discriminate against LGBTQ families.

“It also erases the explicit requirement that all marriages be treated equally, which is alarming,” said Sharita Gruberg, senior director of the LGBTQ research and communications Project at the Center for American Progress. “They won’t even restate what the law is in terms of protections for same-sex couples.”

The law requires several steps for implementing or reversing new agency rules, so it’s hard to say just how long it will take to reverse all of these dangerous policies. In some cases, Gruberg said, the process can take about a year to complete.

“Given the many things the incoming administration is going to have to do, including the fact that they are coming into a government that has lost a lot of great career staff that do this work, it will take time to do rule-making and for us to have these really terrible policies rescinded,” Gruberg said.

What the incoming Biden administration has working in its favor is the previous administration’s “sloppy” rule-making, she said.

“They weren’t on firm grounds to begin with. We’ve seen that with the numerous injunctions on attacks that have come out from this administration, so that is helpful in process of rescinding these since the prior administration violated the law,” Gruberg explained.

Published with permission of The American Independent Foundation.