Federal Updates

Supreme Court Updates

October 6, Brett Kavanaugh was sworn into the U.S. Supreme Court following contentious hearings about sexual assault allegations and concerns about his fitness to serve. Thousands of people, including survivors of sexual assault, descended on the Capitol over the course of several weeks to protest Kavanaugh’s nomination and confirmation.

On October 9, Kavanaugh heard oral arguments for his first case as a Supreme Court Justice, Stokeling v. United States. The case involves a federal law that mandates a 15-year minimum sentence for people convicted of felon firearm possession if the defendant had three or more previous “violent felony” convictions. The Court will have to decide what “violent felony” means. Kavanaugh is scheduled to hear several other high-stakes cases this year involving immigration, Native American rights, and potentially cases that consider whether federal protection from employment discrimination based on sex also include sexual orientation or gender identity.

Judiciary Updates

October 24, the Senate Judiciary held a hearing during recess to consider the confirmation of four federal judicial nominees, including two Ninth Circuit nominees. The Ninth Circuit is the largest and busiest federal court in the county, and three Democratic senators strenuously objected to the timing. It is unprecedented to hold such hearings while the Senate is in recess before an election and without consent from the minority party. Yet Trump continues to push conservative nominees through the confirmation process in his attempt to reshape the U.S. judiciary.

Earlier in October, the Senate held hearings on nominees Chad Readler and Eric Murphy for lifetime seats on the Sixth Circuit, which includes Kentucky, Michigan, Ohio and Tennessee. A review of past opinions and court filings suggests that Readler and Murphy hold regressive views on a range of issues, including reproductive rights, immigrant rights, voting rights, and marriage equality.

LGBTQ Rights, Safety, and Justice

The Trump Administration is attempting to revoke the rights and protections of people of trans experience and non-binary people under federal law, according to a New York Times article published October 21. The Department of Health and Human Services (HHS) memo in question was not released by the Times. Reportedly, the memo outlines the administration’s plan to define “sex” as “either male or female, unchangeable, and determined by the genitals that a person is born with” across multiple, key federal agencies.

If implemented, the policy would effectively remove federal protections for discrimination based on transgender status and possibly sexual orientation in health care, employment, education, and more. It could also severely impact funding for certain state and federal programs or activities that support trans-related services, such as gender affirming care, and open the door to states enacting transphobic policies, such as restricting access to state IDs, without opportunities for federal intervention.

This is the latest and most drastic shift in a series of transphobic policies from the Trump administration. In another assault on the rights of people of trans experience, the Department of Justice filed a brief with the U.S. Supreme Court on October 24 asserting that federal employment protections against sex discrimination do not protect people of trans experience. The case involves a funeral home which, according to the Sixth Circuit, violated anti-discrimination laws when it fired its funeral director, Aimee Stephens, after she told the owner that she was transgender. The decision had been widely considered a win for LGBTQ advocates. The funeral home is now asking the Supreme Court to take up the case and overturn that decision.

In response to the HHS memo, transgender rights groups have been pressuring Congress to pass the bipartisan Equality Act (H.R.2282/S.1006), which would explicitly incorporate non-discrimination protections for LGBTQ people into federal civil rights laws, organizing rallies, and using the hashtags #StillEffingHere and #WontBeErased. You can learn more about the trans erasure rule here, about potential consequence here, and ways you can help here.

In stark contrast to the changes on the federal level, there has been a flurry of advocacy to support implementation of non-binary gender markers at the state level. The Washington, D.C., city council unanimously passed a bill that would permanently add non-binary gender markers to driver’s licenses late last month, and eliminated a requirement that a medical or legal professional provide a signed letter for any gender marker change. Minnesota also became the fifth state in the U.S. (plus Washington, D.C.) to add non-binary markers to its driver licenses. Additionally, in Kansas, Lambda Legal filed a lawsuit challenging the state’s policy of refusing to correct gender markers on birth certificates for people of trans experience.

Immigrant Justice

Immigrants and the Census  

The U.S. Supreme Court halted a New York appeals court ruling that would have forced Commerce Secretary Wilbur Ross to answer questions about his decision to add a citizenship question to the 2020 census. The question would likely skew the census, causing areas with higher immigrant populations to be undercounted in the distribution of U.S. House of Representative seats and federal funds.

New Family Separation Policy Proposals

The Washington Post reported that the Trump Administration is considering new ways to deter immigrant families from coming to the U.S., including a new form of family separation and stricter asylum requirements.

One policy would require migrant families to make an inhumane choice between remaining in a long-term detention facility indefinitely or sending their children into foster care. A recent report by Amnesty International found that between April and August 2018, immigration officials separated over 6,000 families, a far higher number of children and parents torn apart than previously thought. The ACLU says that public outcry is “critical” to resisting this policy shift.

Public Charge Rule Targets Sick and Poor Immigrants

The Trump administration officially published its proposed “public charge” rule on October 10, which would make immigrants ineligible to enter the U.S. or to obtain permanent residency (“green card”) status on the basis of using subsidized programs, such as Medicaid, SNAP, and Section 8 housing, as well as considering health status, age, and income in a “totality of circumstances” test.

The proposed rule threatens the rights, health and dignity of immigrant communities and could have a devastating impact on access to essential nutrition, health and housing programs for immigrant families. You can read more about the rule here and can submit comments until December 10.

Trump Threatens Executive Order to End Birthright Citizenship

Trump announced plans to issue an executive order that would purport to revoke the right to citizenship for children born on U.S. soil to non-U.S. citizens, often called “birthright citizenship,” in an interview for Axios on HBO.  

This order would nearly certainly be unconstitutional. Birthright citizenship is expressly enshrined in the Fourteenth Amendment of the U.S. Constitution and most constitutional scholars agree that such a change it would require a constitutional amendment–an incredibly difficult procedure.

Health Care Access

New Proposed Guidance on ACA Waivers Seeks to Undermine Patient Protections

The administration published proposed guidance on Section 1332 of the Affordable Care Act (ACA). The guidance would ease the approval process for 1332 Waivers, or “state innovation” waivers, which allow states to modify their state Marketplace in a way that is consistent with the ACA to meet the needs of their state.

The ACA contains protections, or “guardrails,”  that limit how states can use 1332 waivers. The guardrails help ensure that 1332 waivers do not undermine patient’s ability to access comprehensive health care coverage. For example, currently, Section 1332 requires that patients have coverage that is as comprehensive and as affordable under the waiver as they would have without the waiver.

The proposed guidance would dramatically relax these guardrails and encourage the sale of junk health plans, including short-term limited-duration insurance plans which do not have to cover essential health benefits, like maternity or preventive care, and can discriminate against women and people with pre-existing conditions. Public comments must be received by 5pm on December 24.

Sexual and Reproductive Health, Rights, and Justice

The U.S. Food and Drug Administration (FDA) reclassified the “female condom” as the “single-use internal condom” and approved the tool for vaginal and anal sex late last month. The changes de-gender the tool, which protects users against sexually transmitted infections, including HIV, and represent a more inclusive approach to who can use and benefit from from it.

Civil and Political Rights

Limitations on Free Speech and the Right to Assemble

October 15, the public comment period closed on a proposed rule that would limit the right to protest near the White House and on the National Mall. If it is finalized, the rule would radically decrease the amount of White House sidewalk available for public protest and would allow the National Park Service to charge a fee for demonstration permits on the National Mall.

It is an unprecedented attack on the constitutional right to public assembly in the nation’s Capitol and a clear warning that, in this administration, free speech is not free if it’s anti-Trump. The American Civil Liberties Union (ACLU) warns that rule is constitutionally suspect.

Voter Suppression

Voter suppression is once again making headlines across the nation. In Georgia, where voting has already begun, Secretary of State Brian Kemp–who is the Republican candidate for governor, but who did not resign his position to run as is customary–has stalled over 50,000 voter registration applications, the vast majority from Black voters.

Kemp is facing multiple lawsuits and complaints about possible voter suppression tactics, and on October 25, a federal judge ordered Georgia election officials to stop rejecting absentee ballot and applications solely because the signatures do not match those on file.

Local officials closed the only polling place in Dodge City, Kansas, a majority Latinx community that has 13,000 voters. The polling site was moved to an out-of-town facility that is more than one mile from the nearest bus station.

In North Dakota, many voters, especially Native Americans and people without stable housing, are at risk of being turned away from the polls because of voter ID requirements. On October 9, the U.S. Supreme Court refused to intervene to block a 2017 voter ID law that requires voter to have identification that includes a residential street address–which people living on reservations do not have.

State Updates

California

October 1, Governor Jerry Brown signed an important juvenile justice bill into law. SB 1391 prohibits any district attorney in California from transferring 14- and 15-year-olds accused of crimes from juvenile court to a court of criminal jurisdiction. This change ensures that 14- and 15-year-olds will be tried through juvenile justice system rather than prosecuted as adults and is expected to promote rehabilitation while reducing rates of recidivism (re-entry into the criminal justice system).

October 4, Lambda Legal overcame a significant legal hurdle when a California court rejected a motion to dismiss their cases against A.J. Boggs & Company. The class-action lawsuit was filed on behalf of nearly 100 low-income Californians living with HIV whose private and confidential medical information was leaked in a data breach of A.J. Boggs’ online enrollment system. The suit now heads to discovery, an important pre-trial procedure in which parties request evidence from each other and others who likely have information about the case in order to prepare for trial.

Florida

October 15, the Florida Supreme Court ruled that the incoming governor, rather than current Governor Rick Scott, has the authority to appoint three new Justices to the state Supreme Court after Justices Pariente, Lewis, and Quince retire in January 2019. The Court said that Scott, a conservative Republican, “exceeded his authority” by planning to fill the vacancies in his final days in office, essentially attempting to shift the Court right for years to come. Instead, either Andrew Gillum, a progressive Democrat, or Ron DeSantis, a Republican, will decide the fate of the Florida Supreme Court.

Texas

Two lawsuits were filed — one in federal court on October 6 and one in state court on October 8 — that challenge the LGBTQ-inclusive portion of the City of Austin’s non-discrimination ordinance. Plaintiffs argue that they should be exempt from the anti-discrimination protections because of their religious beliefs, and should be allowed to discriminate against LGBTQ individuals with impunity.

Another lawsuit, filed October 6 in a Texas federal court, challenges the Equal Employment Opportunity Commission’s interpretation of Title VII as including protections against discrimination based on sexual orientation and gender identity. These lawsuits basically argue that LGBTQ individuals should not be protected from bias and discrimination if employers or business have homophobic or transphobic religious convictions.

Wisconsin

October 31, the Secretary of the Department of Health and Human Services (HHS), Alex Azar, approved Wisconsin’s request to add work requirements to its Medicaid program. This change will make Wisconsin the fourth state to add work requirements, along with Arkansas, Indiana and New Hampshire. Kentucky’s request to add work requirements (and other harmful provisions) to its Medicaid program was also approved by HHS, but was blocked by a federal judge, who called the approval “arbitrary and capricious” and accused Azar of a “glaring” oversight in failing to address the estimated 95,000 people that would lose Medicaid coverage under the rules.

Wisconsin is now the first state that has not expanded its Medicaid program under the Affordable Care Act to be approved for work requirements. You can read more about why Medicaid work requirements are harmful here.