Before leaving office, a Donald Trump appointee under Attorney General Bill Barr directed employees to not apply the protections afforded to LGBTQ people under the Supreme Court ruling Bostock v. Clayton Co. in June.
The Biden administration has reversed that.
Acting Assistant Attorney General for Civil Rights John Daukas wrote a 22-page memo just one day before the end of the Trump administration, directing Department of Justice staff to “hesitate to apply the reasoning of Bostock to different texts, adopted at different times, in different contexts.”
This was described as a last-minute attempt to prevent recognition of the rights of LGBTQ people by using a different “interpretation” of the Supreme Court’s ruling. In Bostock, the Supreme Court ruled that job discrimination based on sexual orientation or gender identity was banned under the “because of sex” anti-discrimination rules in Title VII of the Civil Rights Act of 1964.
Greg Friel, President Joe Biden’s temporary replacement for the position, issued a memo on January 22 that revoked the last-minute guidance. Friel said that he “determined that this memorandum is inconsistent in many respects with the E.O.,” referring to an executive order that Biden issued on his first day in office.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the executive order states in the introduction. It extended the definition of “because of sex” applied in Bostock to all relevant laws that prevent discrimination.
Biden’s order directed all executive agencies to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” in order to ensure that they are interpreting bans on sex discrimination in federal law to also ban discrimination “prohibit discrimination on the basis of gender identity or sexual orientation.”
Friel found that Daukas’s directive violated the anti-discrimination rules.
Friel stated that he will “confer with Department leadership about issuing revised guidance that comports with the policy set forth in the E.O. As part of that process, we will seek the input of Division subject matter experts.”
In one of their last official acts, outgoing Attorney General Bill Barr’s staff submitted a change in the Department of Justice’s definition of “discrimination,” something that hadn’t been changed in nearly five decades, explicitly attempting to exclude LGBTQ people and subvert enforcement of Bostock.
Biden’s nominee for Attorney General, Judge Merrick Garland, awaits confirmation.
This is the latest action the Biden administration has had to take to address some of the outgoing Trump administration’s attempt to limit civil rights afforded to LGBTQ people. The previous administration officials made last-minute attempts to limit or complicate policy within several of the executive departments, in order to muddy the ground for the incoming administration.
For example, in her parting speech, Education Secretary Betsy DeVos told Department of Education staff to “be the resistance” after she was gone. Before she left, her staff issued guidance that would ensure that transgender students could still be targeted for discrimination in the American education system, as long as the guidance was in place.