Unraveling Protections: Trump, Civil Rights, and the Power of the Administrative State

During his evolution from celebrity CEO to presidential candidate, Donald Trump’s policy positions, as the National Review editorial board suggested, “wobbled all over the lot.” But since taking the oath of office, he has been pretty consistent when it comes to rolling back the policy legacy of his predecessor. In fact, the Washington Post tracked every successful effort to repeal an Obama-era policy during Trump’s first year on the job (spoiler alert: it’s a long list).

We can now add a new policy to the file: undoing civil rights protections for trans folks.

During Obama’s eight years in office, federal agencies expanded civil rights protections based on gender identity for a range of issues from health care to education. They did so largely by broadening how the administration interpreted “gender”—to include people who do not identify their gender with their assigned sex at birth—when applying existing federal anti-discrimination policies. The Trump administration is preparing to reverse that practice. A leaked draft memo from the Department of Health and Human Services proposes to put an end to the Obama-era interpretation of gender. The memo indicates that all federal agencies responsible for implementing Title IX—the policy that outlaws gender-based discrimination in education for programs that receive federal funds—should revert to the following definition of gender:

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth…The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

What exactly is going on here and why? Political scientists can help us figure it out.

The federal government defines us

The federal government has a long history of using policy to actively construct and reconstruct identities. As Stephen Engel explains, “The citizen is subject to the state’s sight, or its recognition, identification, and classification.” This frequently happens, according to Julie Novkov, when the state attempts to define its relationship with a particular group. In The Straight State, for example, Margot Canaday explores how policymakers’ decisions to identify and subsequently regulate certain forms of sexual behavior through welfare, immigration, and military policy actually generated new conceptions of queer identity in the United States. Perhaps nowhere is the state’s ability to define us more obvious than with the overt categorization of groups through demographic data collection like the census. These modes of identity creation are especially crucial because they are typically used both to recognize and to understand the needs of disadvantaged populations in order to set benefit levels for a variety of federal social programs. Dean Spade explains in Normal Life, “Population-level interventions rely on categorization to sort the population… What characteristics are used for such categorization and how those categories are defined and applied creates vectors of vulnerability and security.” The result, of course, is that the state can use identity categorization to, as Spade writes, “distribute life chances.”

This is especially true for civil rights protections

One of the most consequential realms of state identity creation occurs through civil rights protection and anti-discrimination policy. Rogers Smith argues that U.S. policymaking has long been plagued by ascriptive hierarchies—power relationships embedded in laws that derive from inborn characteristics like sex and race—that lead to inegalitarian outcomes. Perhaps that’s why most major civil rights protections in the United States are centered on a person’s identity, including safeguards against gender discrimination. Many scholars caution against allowing the state to promote equality through narrow, identity-based protections. According to Wendy Brown, “[T]he state achieves a good deal of its power through its devious claims to resolve the very inequalities that it actually entrenches.” Kimberlé Crenshaw argues that providing identity-based rights fails to protect those who need to make claims that are unique to the intersection of overlapping identities. And Kenji Yoshino notes that identity-based protections tend to define marginalized groups, and thus legitimate claims of discrimination, through immutable characteristics like skin color rather than behavioral aspects of identity. All of these critiques suggest that allowing the government to narrowly define people’s identities, especially for the purpose of enforcing civil rights policies, leaves many members of marginalized groups vulnerable to discrimination.

Presidents have incentives to make policy through the administrative state

This isn’t the first time we’ve seen Trump try to limit trans people’s rights through executive action. The President has attempted to outlaw, or severely curtail, the ability of transgender troops to serve in the military, an issue that is currently making its way through the courts. In fact, of the 130 Obama-era policies overturned during the first year of Trump’s presidency, 87% were changed through either executive order or cabinet-level decisions. So, why is Trump relying on the administrative state to make significant policy changes?

One explanation is that Trump looks to federal agencies because they are increasingly responsible for civil-rights policymaking and enforcement. Most Americans have at least passing familiarity with the role that the courts and Congress play when it comes to creating and enforcing civil rights protections—after all, we learn in school about Brown v. Board of Education and the 1964 Civil Rights Act. But people are far less aware that the administrative state is actually responsible for defining and implementing many of the most significant civil rights protections. Anti-discrimination laws, as Martha Derthick and Paul Quirk recount, increasingly took the form of regulations beginning in the 1960s. For example, Title VII of the 1964 Civil Rights Act prohibited employment discrimination based on gender and the 1974 Equal Credit Opportunity Act prevented gender-based lending discrimination. This means federal agencies tasked with implementing anti-discrimination measures are one of the most powerful government actors when it comes to defining identity. In fact, one of the most significant federal policy gains for trans folks came from the Department of State’s 2010 decision to make it easier to get a passport with appropriate gender markers; a policy adopted by Secretary of State Hillary Clinton. The executive branch—of which the administrative state is a part—has the power to interpret identities broadly, as the Obama administration did vis-à-vis gender identity, or narrowly, as the Trump administration is poised to do.

A second explanation for Trump’s reliance on the administrative state to carry out his agenda extends beyond civil rights issues. Ted Lowi described the predicament modern presidents face: technology allows them to communicate their plans directly to the public, raising voters’ expectations that presidents can carry out their agendas. But presidents, Lowi argued, are still hindered by checks and balances; they frequently cannot deliver on their legislative promises without the help of Congress. The potential workaround lies in the growing capacity of the administrative state. Presidents from both parties are turning to more substantial executive actions—from signing statements to executive orders to regulatory guidance—to fulfill their campaign promises. In the face of an opposition Congress, Obama used the administrative state to follow through with his campaign pledge to expand LGBTQ legal protections; Trump will rely on the same tactic to bypass an ineffective Congress and appeal to his conservative base.

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So, what does this all mean for the estimated 1.4 million Americans who may lose federal legal protections if this draft memo turns into agency policy? The potential elimination of protections in–and therefore access to–schooling, healthcare, prisons, and homeless shelters, to begin with. Next, confusion. The measure may conflict with a number of court rulings issued in the last few years. It will also create inconsistencies with some state regulations, putting trans folks in a precarious legal position. Finally, trans folks are faced with the likelihood that future administrations will continue this civil rights seesaw, leaving them in limbo.

More broadly, this all suggests that the most vulnerable Americans (indeed, all Americans) should be more attentive to what goes on in the federal bureaucracy.

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