Biden's LGBTQI+ policies are nothing short of transformational reforms that now touch nearly every aspect of the federal government. With the International Trans Day of Visibility on March 31, the administration launched a new tranche of measures to "better serve" the transgender, non-binary, and gender non-conforming communities. Multiple agencies, including the Department of Justice (DOJ) and the Department of Homeland Security (DHS), are now prominently "reinforcing non-discrimination obligations" on behalf of the LGBTQI+ communities.
DOJ Sends Letter to State Attorneys General
The Department of Justice sent out a letter on March 31 to all state attorneys general "reminding them of federal constitutional and statutory provisions that protect transgender youth against discrimination, including when those youth seek gender-affirming care." The letter focuses, in part, on "ban[s] on gender-affirming procedures, therapy, or medication" as discriminatory. It also states that "gender-affirming care for transgender youth is not only appropriate but often necessary for their physical and mental health," citing Section 1557 of the Affordable Care Act.
The letter also warns local law enforcement that taking a transgender minor who is "receiving gender-affirming care into custody" or arresting the minor's parents "on suspicion of child abuse because the parents permitted such medical care" can also be discriminatory, using the Omnibus Crime Control and Safe Streets Act of 1968 as a basis for discrimination. Gender Dysphoria is also mentioned and categorized as a disability under Section 504 of the Rehabilitation Act of 1973.
The letter could directly impact states like Texas, whose governor Greg Abbott issued a directive in March to push authorities to investigate "gender-affirming medical care for transgender youth as child abuse." The order came on the heels of a February 18 opinion written by the state's Attorney General, Ken Paxton, "concluding that performing certain "sex-change" procedures on children, and prescribing puberty-blockers to them, is "child abuse" under Texas law."
Paxton Opinion/Feb. 18, 2022
According to the Freedom For All Americans website, 15 states are currently considering bans on gender reassignment surgery for children under 18. Those states are WI, LA, KY, IN, AL, AZ, OK, TN, SC, MS, MO, UT, ID, FL, and NH. Arkansas was the first state to "ban gender-affirming treatments and surgery for transgender youth." The bill went into effect in April 2021 after the Republican-controlled Senate overrode Governor Asa Hutchinson's prior veto of the legislation.
A 2019 Bloomberg Law article states that "Medicaid coverage for gender-affirming surgery is required federally, but varies state to state." Even if covered, there can be "roadblocks."
Gender Affirmation Surgery/Bloomberg Law
DHS Announces New Screening Protocols at Airports and the Border
The TSA and CBP are now reforming technology updates and process changes to improve their screening procedures and ensure "they are conducted in a manner that respects the dignity of each individual. The announcement states that these measures are part of a concerted effort by the Biden-Harris Administration to advance equality for transgender, non-binary, and gender non-conforming Americans." Secretary Alejandro N. Mayorkas continued:
"DHS is committed to protecting the traveling public while ensuring that everyone, regardless of gender identity, is treated with respect. The new measures announced today are part of a whole-of-government effort to promote equity and inclusion in all our programs and processes. We are proud to work with our interagency partners on this effort and look forward to rapidly implementing these changes to better serve the American public."
Federal agents will implement a number of technological and procedural measures both in airports and at the border. New "more neutral" algorithms are being tested to replace the "gender-based" software in the Advanced Imaging Technology (AIT) scanners at TSA checkpoints. The change in algorithms will help reduce pat-downs.
"By replacing the current, gender-based AIT system, this new, more accurate technology will also advance civil rights and improve the customer experience of travelers who previously have been required to undergo additional screening due to alarms in sensitive areas. TSA will begin deploying this new technology in airports throughout the country later this year."
The Trusted Traveler Program application form is also being reconsidered "to add an "X" gender marker option." All changes aim to make the experience at the airport and the border more inclusive for "gender non-conforming travelers."
Transgender at The Border/DHS
WH Press Release: Equality and Visibility for Transgender Americans
The March 31 White House press release provides a "fact sheet" of Biden-Harris policy guidance on behalf of transgender Americans. The policies span multiple agencies and address and reinforce federal protections for transgender youth and transgender adults. Admiral Rachel L. Levine, MD, a transgender female, was confirmed in 2021 to be the Assistant Secretary of Health (ASH) for HHS. Thus, these recently launched measures are merely a continuation of transgender and LGBTQI+ policies supported by this administration.
Another example of transgender-friendly policy is Secretary of State Blinken's announcement in June of modifications to passport application requirements. He stated:
"U.S. passport applicants could self-select their gender and were no longer required to submit any medical documentation, even if their selected gender differed from their other citizenship or identity documents."
On March 31, Blinken announced the requirement of "X" gender marker to be implemented on passports beginning April 11.
Mental health resources for transgender youth will also be a priority. The Department of Health and Human Services (HHS) now offers a new website with "resources for transgender and LGBTQI+ youth, their parents, and providers. These resources include best practices for affirming an LGBTQI+ child and information about suicide prevention services."
Schools will also be affected. Educational and training programs under the Office of Safe and Supportive Schools in the Department of Education have been implemented to provide mental health care for youth. The Office of Population Affairs, under the Office of the Assistant Secretary for Health, produced a new resource pamphlet to educate the public about how to provide "gender-affirming care." The pamphlet asserts that such care "improves the mental health and overall well-being of gender diverse children and adolescents."
Gender Affirming Care and Young People/HHS
Even the Social Security Administration will see changes in procedures. Kilolo Kijakazi, Acting Commissioner of Social Security, announced in March that the agency "will offer people the choice to self-select their sex on their Social Security number (SSN) record." This change will be offered in the fall of 2022.
The U.S. Equal Employment Opportunity Commission (EEOC) also announced that it will allow "the option to select a nonbinary "X" gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination."
The recently launched policies and protocols have been informed by research conducted by HHS with a collaborative questionnaire on how the community wants to be seen on federal IDs and a "comprehensive new consensus study on Measuring Sex, Gender Identity, and Sexual Orientation." The study was "commissioned by the National Institutes of Health and carried out by the National Academies of Sciences, Engineering, and Medicine will inform additional data collections and future research in how to best serve LGBTQI+ Americans."
There is almost no corner that has gone untouched by identity politics in the Biden-Harris administration. Service members, veterans, transgender women of color, The Bureau of Prisons, transgender or "Two-Spirit Indigenous people," the Department of Housing and Urban Development (HUD), and "transgender equality around the world" represent only a fraction of the Biden administration's transformational LGBTQI+ strategic policy.
