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Biden DOJ nixes last-minute Trump administration memo on LGBTQ rights

POLITICO logo POLITICO 1/23/2021 By Josh Gerstein
a man flying a kite in front of a building: Demonstrators carry rainbow flags past the White House. © Zach Gibson/Getty Images Demonstrators carry rainbow flags past the White House.

The Justice Department has taken its first major step under President Joe Biden to reverse the Trump administration’s resistance to expansion of rights accorded to LGBTQ Americans.

Greg Friel, the lawyer just named to oversee the Justice Department’s civil rights division on a temporary basis, issued a directive Friday revoking a 22-page memorandum a Trump appointee released earlier this week taking a cramped view of a major Supreme Court decision last year that longstanding federal law protects LGBTQ individuals from discrimination at work.

In withdrawing the parting-shot memo from the prior administration, Friel said the stance taken in the memo conflicted with a first-day executive order Biden issued promising a vigorous battle against discrimination based on “gender identity or sexual orientation.”

“I have determined that this memorandum is inconsistent in many respects with the E.O.,” Friel wrote to civil rights division colleagues. “I plan to 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.”

Gallery: Biden wastes no time shooting down Trump guidelines on LGBTQ rights (San Francisco Chronicle)

The unexpected, 6-3, Supreme Court ruling last June in Bostock v. Clayton County concluded that a half-century-old prohibition on sex discrimination in employment applies equally to discrimination against gay and lesbian workers as well as those who are transgender.

While the decision — written by Trump-appointed Justice Neil Gorsuch — did not explicitly extend the same rationale to discrimination in areas like education or housing, many lawyers said the ruling’s logic would inevitably apply to other laws that ban sex discrimination.

However, the analysis the Trump administration released publicly one day before Trump left office counseled against such interpretation and often seemed more enamored of Justice Samuel Alito’s dissent in Bostock than the controlling majority opinion.

“We must hesitate to apply the reasoning of Bostock to different texts, adopted at different times, in different contexts,” Acting Assistant Attorney General John Daukas wrote in the memo, which was dated Sunday.

By late Friday, the lengthy memo from Daukas had disappeared from the Justice Department website.



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