Blog Post

Bathroom Bills & HHS Mandate May be Doomed

46176271 - united states supreme court building columns and porticoWith the election of Donald J. Trump to the White House, and a conservative majority controlling both House and Senate, legal experts believe the new administration will likely scrap lawsuits concerning controversial rules and regulations such as the “Dear Colleague” transgender bathroom letter and the HHS mandate targeting religious institutions.

The Associated Press (AP) is reporting on what could be the demise of several of the most contentious directives of the Obama Administration ranging from  climate change and protection of illegal immigrants from deportation to the fate of the “Dear Colleague” letter from the Department of Education ordering schools to allows students to use the bathroom the corresponds with their perceived gender. Rules forcing religious institutions to provide health insurance for services that violate their beliefs may also be on the chopping block.

“Legal challenges involving immigration, climate change, cost-free contraceptive care and transgender rights all could be affected, without any help from Congress,” reports Mark Sherman for the AP. “ . . . [W]hat one administration can do, the next can undo.”

This includes disputes that are already scheduled to come before the Justices of the U.S. Supreme Court in the current session. As Sherman reports, it is not at all uncommon for the high court’s docket to change when one party replaces the other.

A case in point is Gloucester County School Board v. G.G. which involves a 17 year-old female student from Virginia named Gavin Grimm who identifies as a male. The school board adopted a policy requiring students to use the bathroom that corresponds to their biological gender or to use a private single-stall bathroom. Grimm decided to sue and is now backed by the Obama administration which issued the now infamous “Dear Colleague” letter this summer. The letter instructs schools to allow students to use the restroom that corresponds to their “gender identity” or risk what they argue is a violation of Title IX, a federal law that bars sex discrimination in schools. A lower court ruled in Grimm’s favor but the school board appealed to the U.S. Supreme Court to put the issue on hold until it could be sorted out in court. The Supreme Court agreed and was planning to hear the case in the current session.

The Trump administration could simply withdraw the “Dear Colleague” letter which would cause the justices to return the case to the lower courts to reach their own decision. This would make the issue a matter for the states to decide and end the threat of nationwide fiscal punishment for schools that choose not to comply.

The president already stated on the campaign trail that he believed the matter of transgender rights should be determined by states, not the federal government.

The Department of Health and Human Services (HHS) will also experience a shake-up when incoming members of the Trump team take over key positions in the agency.

This is expected to affect the current administration’s efforts to force religious-affiliated educational and charitable organizations to provide health insurance covering cost-free birth control, sterilization and abortifacient services to women in their employ. Years of wrangling caused the HHS to offer an opt-out procedure for these institutions, but they argue that this compromise still forces them to be complicit in providing the coverage.

The U.S. Supreme Court appeared to agree with the institutions and ordered lower courts across the country to seek a compromise to end the legal dispute.

The Trump administration could bring the matter to a swift end simply by agreeing to meet the demands of religious institutions, which is likely according to statements made on the campaign trail in favor of preserving religious liberty and conscience protections.

The election of a conservative president and Congress, along with sweeping victories for Republicans at the state level, has created a much different outlook for the future than what had been expected.

"We were hoping we'd be looking forward to a progressive majority on the Supreme Court. After the election results, there is a new reality," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, to the AP.

While at least half the country is lamenting this new reality, the other half is seeing it as the dawning of a bright new day.

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