The Trump administration's latest effort comes at the '11th hour,' one expert says, but may still be hard to undo later on.
In its final days, the Trump administration is continuing its push to gut protections for marginalized groups.
Over the course of a month, it has moved forward with four rules that would make life harder for LGBTQ people, asylum seekers, and people of color.
Its latest salvo against civil rights came from the Justice Department, according to a Wednesday report from the New York Times, which had access to a draft document of the regulation. The rule would affect discrimination based on race, color, or national origin from organizations receiving federal funding, but it could also affect other groups that face discrimination, including LGBTQ people.
The department submitted the rule to the White House, on Title VI of the Civil Rights Act, to ensure that it wouldn't have to focus its efforts on discrimination that isn't blatant in nature.
Depending on whether the policy is finalized by Jan. 20, it could be challenging for the Biden administration to reverse.
The administration is also forgoing a normal part of the rulemaking process, where they provide notice of the regulation and a period for the public to comment on the potential effects of the rule, which was submitted on Dec. 21. The Justice Department justified this by saying that there is an exception in this case because it relates to federal funding, the Times reported.
"They're embarking on this massive shift in civil rights enforcement without any notice or comment," said Sharon McGowan, chief strategy officer and legal director at Lambda Legal, an organization focused on LGBTQ rights and public policy.
Lambda Legal has requested a meeting with the Office of Management and Budget over the issue.
According to McGowan, the new regulation would mean that a federal program offering services that says it's open to all could limit its location to a part of town that is hard for minority communities to access, and the department would not have to concern itself with the issue.
Although this rule relates to discrimination based on race, color, or national origin, it could affect other kinds of bigotry, including anti-LGBTQ efforts, McGowan said. When the administration suggests that certain kinds of discrimination are "less problematic" than others, it is part of a larger attack on the idea that all discrimination in all its forms is pervasive in the United States.
"I think it's fair to suggest that something that happens in the context of discrimination in one area may have effects in other places," she said.
Over the past month, the Trump administration has finalized several rules that are harmful to LGBTQ people and other marginalized groups, including asylum seekers. Federal rules will take longer for the Biden administration to roll back compared to other administrative actions that can be rolled back immediately, such as the trans military ban. The Biden administration would instead have to go through the federal rulemaking process all over again to reverse them, which could take many months.
In December, the administration moved forward with a rule change across nine agencies that rolled back Obama-era protections barring discrimination by religious groups that receive federal funding. The change meant that social services groups would no longer be required to disclose their religious leanings to clients, or clients' rights not to be involved in their religious practices.
The Trump administration called the requirement "burdensome" to religious organizations before eliminating the protections.
In the past few weeks, the Labor Department also moved to the final steps of a regulation that gives federal contractors more room to discriminate against LGBTQ workers, and the Justice Department and Department of Homeland Security released a rule that would essentially raise standards for LGBTQ asylum seekers, which are already high, to have their claims granted.
McGowan said she wasn't sure that this latest rule would "necessarily get over the finish line" before Biden assumes office. "They should slow it down and at a minimum, put it out for public comment," she said.
If it doesn't slow down, however, it would be "more cumbersome to unwind." McGowan warned that conservative groups could attack Biden's efforts to undo the regulation.
"Then it puts the onus on the [Biden] administration to unwind it and there will be people very much poised to suggest that the unwinding of this completely unsound regulation in and of itself is a thing that is offensive," she said.
Published with permission of The American Independent Foundation.