Under the cover of chaos the day after Trump supporters stormed the U.S. Capitol, the Trump administration has officially nixed regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.

HHS went public on Thursday with the final rule, which rescinds regulations implemented in the Obama administration barring discrimination among HHS grantees with respect to sex, religion, sexual orientation and gender identity. The change also rescinds the Obama-era regulations requiring HHS grantees to “treat as valid the marriages of same-sex couples.”

Although Title VI of the Civil Rights Act of 1964, which governs federal programs, prohibits discrimination based on race, color, or national origin, it doesn’t prohibit anti-LGBTQ discrimination, so the regulation allows considerable discrimination in federal programs against LGBTQ people.

“Given the careful balancing of rights, obligations, and goals in the public-private partnerships in federal grant programs, the department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes applicable to the department’s grantees,” the federal rule says.

Most prominently, the new regulation would allow taxpayer-funded child welfare services to replace placement into LGBTQ families or discriminate against LGBTQ youth. Religiously affiliated adoption and foster care centers have been pushing for this change in regulation, including Catholic Social Services in Philadelphia, which currently has a case pending before the U.S. Supreme Court seeking a First Amendment right to reject same-sex couples on religious grounds.

Rachel Laser, CEO of Americans United for Separation of Church & State, criticized the regulation in a statement for allowing discrimination in the child welfare system.

“The federal government should protect our country’s most vulnerable people instead of issuing rules that license discrimination,” Laser said. “People should never be turned away from the services they need. That is especially true for children in foster care and the families who want to provide them with loving, safe homes. Rather than prioritizing the best interests of children and families, the Trump administration’s new rule invites taxpayer-funded foster care agencies to discriminate against them.”

But the proposed regulation will have far-reaching implications in health services, allowing anti-LGBTQ discrimination in HIV and STI prevention programs, opioid programs, youth homelessness services, health professional training and substance-use recovery programs.

The finalization of the rule, first proposed in November 2019, was expected. The Office of Management & Budget, which coordinates the rule-making process among federal agencies indicated on its website it had received the proposed rule and it was scheduled to be made final in the lame duck session before Trump’s exit.

But the Trump administration had already ceased enforcing the non-discrimination components of the Obama-era rule when it proposed the regulation in 2019, arguing the previous administration didn’t go through the correct rule-making process when it was made final in the eleventh-hour of the Obama administration in December 2016.

The Trump-era rule seeks to justify itself by saying the Obama-era regulations aren’t based on statutes and religious-affiliated groups have complained and filed lawsuits over meeting those requirements. These groups, HHS noted, assert the policy is unlawful under the Religious Freedom Restoration Act and the First Amendment.

“In the statutes establishing certain programs and grants, Congress has specified the protected categories with respect to which discrimination is prohibited,” the rule says. “Congress has not expressly included discrimination on the basis of sexual orientation, gender identity, or same-sex marriage status, in any statute applicable to departmental grants.”

HHS had already granted an exemption from the Obama-era rule to South Carolina, which sought to get out of the regulation on behalf of the Miracle Hill Ministries adoption agency. 

Laser cited the exemption granted to South Carolina and Americans United’s lawsuit against it in her criticism of the final rule.

“Discrimination should never be funded or supported by our government, but that’s exactly what this rule does,” Laser said. “Families, senior citizens and children could lose protections against discrimination and suddenly be turned away from taxpayer-funded programs they need. That includes people like Americans United client Aimee Maddonna, who was turned away from helping children in foster care by a government-funded agency solely because Aimee is Catholic – the ‘wrong’ religion according to an evangelical Protestant agency in South Carolina.”

Although the U.S. Supreme Court decision this year Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, against anti-LGBTQ discrimination has widespread implications across all areas of federal law, the decision doesn’t apply to federal programs, such as HHS grants, because Title VI doesn’t bar sex discrimination in federal programs.

HHS notes the Bostock decision, which hadn’t yet come down when the rule was first proposed, in the final text of the regulation.

“Nothing about the Bostock decision undermines the department’s choice in this final rule to refer to statutory nondiscrimination requirements and state that the department will follow applicable Supreme Court decisions in administering its award programs, rather than delineating the specific protected categories from discrimination in the rule or applying two specific Supreme Court decisions,” the rule says. “If anything, Bostock shows the utility of the Department’s approach in this final rule.”

The Equality Act, legislation Biden has pledged to sign within 100 days after being inaugurated on Jan. 20, would amend the Civil Rights Act of 1964 to ban anti-LGBTQ discrimination in federal programs specifically as a form of sex discrimination. 

The Trump-era rule is set to go into effect 30 days after the date of publication in the Federal Register. The White House deferred comment to HHS, which didn’t respond to a request for comment.

Merrick Garland, chosen by President-elect Joe Biden to become the next U.S. attorney general, may have to answer during his confirmation process for his record as a federal judge for a series of rulings against LGBTQ plaintiffs, including LGBTQ protesters who were seeking to sue over police brutality.

Biden formally announced on Thursday that Garland, who became a liberal martyr after Senate Republicans refused to allow him to go through the confirmation process in 2016 for a seat on the U.S. Supreme Court, would be his choice for attorney general. Other names that were in contention were Sally Yates and Sen. Doug Jones (D-Ala.), other media outlets reported the choice had been narrowed down to Garland and Jones.

Other names announced on Thursday were Obama alums Lisa Monaco as deputy attorney general and Vanita Gupta as associate attorney general. Kristen Clarke, former head of the Civil Rights bureau of the New York Department of Law, was named as assistant attorney general for the Justice Department’s Civil Rights Division.

Major media outlets reported and the Blade confirmed on Wednesday the choice to lead the U.S. Justice Department in the Biden administration would be Garland the day after the Democratic victory in the Georgia runoff, which gave Biden a boost with the promise of a Democratic Senate in his administration.

A look at Garland’s record as a federal judge, as the Blade reported upon his nomination to the Supreme Court in 2016, found his LGBTQ-related cases are few in number. However, in at least four cases, Garland joined rulings against gay plaintiffs or self-proclaimed LGBTQ advocates. The Blade didn’t immediately find any additional cases Garland adjudicated on LGBTQ issues since his nomination to the Supreme Court in 2016.

One decision that may have more relevance at a time of renewed scrutiny on policy brutality was against LGBTQ rights protesters seeking to sue law enforcement officials for spraying a chemical deterrent on them during former President George W. Bush’s inaugural parade.

In 2004, Garland was part of a three-judge panel adjudicating a lawsuit filed by the International Action Center, which billed itself as “an unincorporated political association opposed to racism, sexism, oppression of lesbians, gays, bisexuals and transgendered people, war and militarism and the program of the Bush administration,” as well as supporters Elizabeth Ayer and Lowell T. Fletcher.

According to their complaint, Ayer and Fletcher on the day of Bush’s 2001 inaugural parade were “engaged in only lawful, peaceful activity” at the Navy Memorial on Pennsylvania Avenue when officers with the D.C. Metropolitan Police Department “without justification, struck [them]…and sprayed a chemical agent into [their] eyes and faces at close range.” Additionally, Ayer and Fletcher alleged the police struck and sprayed other demonstrators while other uniformed and non-uniformed police officers watched and did nothing.

The plaintiffs sought to hold the officers’ supervisors personally liable for damages for those injuries, which was allowed by the district court overseeing the case on the basis that the supervisors had a duty to train their subordinates to prevent alleged misconduct under the First and Fourth Amendments.

But in an April 16, 2004, decision, Garland joined U.S. Circuit Judge Harry Edwards and then-U.S. Circuit Judge John Roberts (now chief justice of the U.S. Supreme Court) in reversing the lower court decision, remanding with instructions to affirm qualified immunity for the supervisors.

“We hold that absent an allegation that the MPD supervisors had actual or constructive knowledge of past transgressions or that the supervisors were responsible for or aware of ‘clearly deficient’ training, the supervisors did not violate any constitutional right through inaction or failure to supervise,” the decision says. “Having found no constitutional violation … , ‘there is no necessity for further inquiries concerning qualified immunity.’”

Garland similarly joined the rulings against LGBTQ plaintiffs in other cases. One was filed by an Ohio-based radio station professing to serve an LGBTQ audience; another by a sailor discharged from the Navy after being accused of sexual assault against three other shipmates; and another by an inmate jailed for threatening the president who said he was at risk in his place of incarceration because he’s gay.

In 2001, Garland was on a three-judge panel adjudicating a complaint from Grid Radio, an unlicensed low-power radio station in Cleveland, Ohio, professing to serve “gay men and women and the arts community.” The Federal Communications Commission told Jerry Szoka, operator of the station, to cease broadcasting and pay an ancillary $11,000 forfeiture because Grid Radio was operating without a license.

Szoka contended he never sought a license because the FCC at the time had a ban on microbroadcasting, which would have prohibited a low-power station like Grid Radio from operating. The FCC order, Szoka contended, was unenforceable, because the agency’s microbroadcasting ban contravened federal law and the First Amendment, and because the forfeiture was unreasonable, excessive and beyond his ability to pay.

In a Feb. 8, 2002 decision, Garland and Senior Circuit Judge Stephen Williams joined the opinion of Judge David Tatel rejecting Szoka’s claims and affirming the FCC order against him.

“Absent a demonstration that the low-power ban was indisputably unlawful or unconstitutional, the Commission had no obligation to reconsider the ban in the context of an enforcement proceeding against a single unlicensed operator,” the decision says. “Moreover, the forfeiture is reasonable under the circumstances of this case, and the operator waived his inability-to-pay claim.”

In 2003, Garland as part of the same three-judge panel heard an appeal of Jim Turner, a petty officer who served in the Navy for seven years before the service expelled him with an “other than honorable” discharge after three shipmates accused him of sexual assault.

Turner — who petitioned the Navy secretary to reverse the decision, but was rebuffed — argued the commanding officer investigating the charges abused his discretion by proceeding against him under Article 15, which he said is reserved for minor offenses, and by asking him and other shipmates if they were gay, which would have been in violation of the enforcement of “Don’t Ask, Don’t Tell.”

Even though the Board of Corrections of Naval Records found error on procedural points in the discharge and lack of sufficient corroboration, Garland joined Williams in an April 15, 2003, decision that upheld a district court ruling rejecting Turner’s claims.

“Chief Petty Officer Clanahan, who conducted the investigation at Captain Frank’s request, at one point asked Seaman Maurer whether he was homosexual,” the decision says. “Turner says that this — and the coercive conditions of the interview — violated that portion of the ‘Don’t Ask, Don’t Tell’ regulations that precludes asking members of the armed forces ‘their sexual orientation.’ Assuming the question was a violation and the regulations are enforceable, Turner’s claim still fails. There is little reason to believe that the error (if such it was) affected the ADB or Article 15 proceedings.”

In 2013, Garland was part of another three-judge panel hearing a petition from Jeremy Pinson, a gay federal prisoner serving a 20-year sentence for threatening the president, knowingly and willfully making a false statement to a U.S. marshal and mailing threatening communications. According to the decision, Pinson “made good use of the federal courts during his time in prison, having filed more than 100 civil actions and appeals across the nation.”

In the case before Garland and other judges, Pinson sought a fee waiver for challenging his incarceration in the special management unit at the Federal Correctional Institution in Talladega, Ala. Because special management units house gang-affiliated and other disruptive inmates who present unique security concerns, Pinson alleged being placed in such conditions would put him at substantial risk because he’s gay and a former gang member.

But in an Aug. 5, 2014 decision, Garland joined U.S. Circuit Judge Sri Srinavasan and U.S. Circuit Judge Thelton Eugene Henderson in denying Pinson relief. The decision is based on Pinson running afoul of the Prison Litigation Reform Act’s three-strikes provision for a fee-waiver and not being able to show under the precedent of Mitchell v. Federal Bureau of Prisons qualification for the imminent danger exception.

“Like Mitchell, Pinson’s claim rests on the BOP’s decision to designate him to a particular facility notwithstanding its reputation as a dangerous place for inmates possessing certain characteristics — here, as a rival gang-member and homosexual, and in Mitchell, as a government ‘snitch,’” the decision says. “The Mitchell court found such contentions insufficient to satisfy the imminent danger exception, even though Mitchell, unlike Pinson, further alleged that he had already been attacked by the time he filed his complaint. We see no ground to reach a different conclusion here.

The Blade could find no rulings written by Garland himself pertaining to LGBTQ people, only opinions written by other judges that he joined. Since his tenure on the bench starting in 1997, Garland was never asked to rule on major LGBT rights issues, such as the constitutionality of state sodomy bans, state prohibitions on same-sex marriage or the Defense of Marriage Act.

A Biden transition spokesperson had no comment Wednesday in response to the cases and whether Garland would address them.

It remains to be seen whether LGBTQ groups will call on Garland to address the rulings in his confirmation process or refuse to support him otherwise. The Human Rights Campaign didn’t respond Wednesday to a request for comment on the decisions.

The LGBTQ legal group Lambda Legal, which in 2016 via former Legal Director Jon Davidson said “we need a Senate hearing to fully understand Judge Garland’s judicial philosophy” in light of Garland’s decisions, expressed an openness to Biden’s pick as attorney general in 2021.

“A deep commitment to civil rights is an essential qualification for anyone aspiring to the position of Attorney General of the United States,” Sharon McGowan, legal director for Lambda Legal, said in a statement to the Blade. “While Judge Garland does not have the kind of civil rights credentials that Vanita Gupta and Kristen Clarke do, we receive the news of his nomination with an open mind.  The role of a judge and the duties of an advocate are related, but distinct, and so we will be eager to hear more from Judge Garland about his vision for the Justice Department, and how he would exert his leadership as attorney general to ensure that the vindication of civil rights is among the Department’s highest priorities.” 

LaShawn Warren, executive vice president of government affairs at the Leadership Conference on Civil & Human Rights, said in a statement Thursday upon Garland’s nomination he’d uphold civil rights after years of neglect in the Trump administration.

“For the past four years, the top political leaders at the Justice Department have abdicated their duty to enforce the law and defend the interests of the United States,” Warren said. “Attorneys General Sessions and Barr have not only undermined morale, but they have also fallen in lock step with President Trump’s attempts to use the department to weaken civil rights laws and to further his personal agenda. Merrick Garland will lead the department in recommitting itself to the people and restore fidelity to the democratic values embedded in the Constitution and the laws of the United States.”

Newsrooms around the world were stretched to the limit in 2020, as journalists, including those at the Blade, struggled to cover multiple once-in-a-lifetime crises at once: a pandemic, the worst financial crisis since the Great Depression, a reckoning over racial justice and police brutality, and the 2020 presidential election. 

Here are the Blade staff picks for the top 10 national news stories of 2020.

10: Methodist Church faces split

Amid division in the denomination over LGBTQ clergy and same-sex marriage, the Methodist Church proposed a formal plan this year to separate on the lack of agreement on religious views toward LGBTQ people. 

The Methodist Church agreed to adopt a more LGBTQ-inclusive doctrine while allowing a coalition of conservative congregations in the United States and Africa who objected to change to separate. The “Protocol of Reconciliation and Grace through Separation” would allow the departing congregations to keep their property and give them $25 million to form a new denomination. 

The plan would have needed approval in May 2020 in General Conference for ratification. The vote, however, never took place and was postponed until 2021 during the coronavirus pandemic.

9: Trump campaign stages Pride events

Upon stepping down from the Trump administration, Richard Grenell took on a new role as senior adviser for the Trump campaign on LGBTQ outreach and was made co-chair of the Trump Pride coalition, marking the first time a Republican presidential nominee had an LGBTQ political coalition. 

Trump Pride held events in states deemed competitive in the election, including Arizona, Michigan, Pennsylvania, and Florida. Tiffany Trump, who had heretofore kept a low profile during her dad’s administration, participated in Trump Pride events in full support of her father, although she was mocked on Twitter during her public appearances. 

Arguably, the Trump Pride coalition found success in convincing some LGBTQ voters to come to their side. Exit polls revealed 61 percent of LGBTQ voters backed Biden, the lowest percentage of support ever for a Democratic nominee, while 28 percent backed Trump, doubling his LGBTQ support from 2016.

8: Ric Grenell named acting DNI, 1st out gay Cabinet official

A Republican administration made the historic first of appointing the first openly gay person to a Cabinet post when President Trump named Richard Grenell, who had been serving as U.S. ambassador to Germany, as acting director of national intelligence. 

Critics pointed out Trump never sought or won Senate confirmation for the role. Grenell also used the position as a political tool to declassify documents, seeking to impugn Biden for unmasking individuals caught up in surveillance during the Michael Flynn investigation. 

But Grenell also used the position to highlight the global initiative to decriminalize homosexuality he spearheaded, threatening to cut off U.S. partners overseas from shared intelligence if they didn’t respect LGBTQ human rights. 

Upon his departure, Grenell posted a photo to Instagram asserting President Trump gave him his Cabinet chair because being the first openly gay person to serve at that level was a “big deal.”

7: LGBTQ candidates win big on election night

LGBTQ candidates in the 2020 election achieved historic firsts, breaking barriers and demonstrating political aspirants in marginalized communities have no limit in winning public office. 

The LGBTQ Equality Caucus in the U.S. House will be expanded and diversified with the addition of Ritchie Torres and Mondaire Jones of New York, who will be the first Black, openly gay men elected to Congress. Torres is also the first openly gay Afro-Latino elected to Congress. 

Sarah McBride, a transgender advocate famous for her speech at the Democratic National Convention in 2016, was elected to a seat in the Delaware State Senate, setting her up to become the highest-ranking openly transgender legislator in the United States. Other transgender candidates, Taylor Small in Vermont and Stephanie Byer in Kansas, won seats in state legislatures, nearly doubling the number of transgender legislators in the United States.

6: FDA eases gay blood ban

In a move uncharacteristically positive for the LGBTQ community from the Trump administration, the Food & Drug Administration this year eased the ban on blood donations from gay and bisexual men. 

The previous policy, set up by the Obama administration, required men to abstain from having sex with men for 12 months before making a donation. The FDA, amid a blood shortage during the coronavirus pandemic, shortened the deferral period to three months. The 12-month wait instituted during the Obama administration was a drastic change from the lifetime ban on blood donations from gay and bisexual men instituted in 1983. 

President Trump said he had no hand in the FDA decision. When asked by the Blade about the change during a White House news conference, Trump replied, “No. I didn’t know anything about that. That was done by the FDA, very capable people at the FDA.”

5: RBG dies weeks before election

Ruth Bader Ginsburg, known as a champion of LGBTQ rights as an associate justice on the U.S. Supreme Court, died after 27 years on the bench. Hundreds gathered at the Supreme Court on the night of her death to adorn the ground with memorabilia in mourning over her passing.

Ginsburg had joined each of the milestone rulings in favor of LGBTQ rights and same-sex marriage, including Romer v. Evans, Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges. Most recently, Ginsburg joined the Bostock decision finding anti-LGBTQ discrimination is illegal under federal civil rights law. 

President Trump, however, chose to fill Ginsburg’s seat with Amy Coney Barrett, a jurist who’s a favorite among the Christian right. Shortly after confirmation, Barrett participated in arguments for the case of Fulton v. City of Philadelphia, which will determine whether a Catholic foster care agency has a First Amendment right to reject LGBTQ families over religious objections.

4: Landmark SCOTUS ruling on LGBTQ workplace rights

In a historic ruling ending a long fight to prohibit employment discrimination against LGBTQ people in federal law, the U.S. Supreme Court ruled in the consolidated case of Bostock v. Clayton County that anti-LGBTQ discrimination constitutes a form of sex discrimination. 

Although the ruling pertained to employment discrimination under Title VII of the Civil Rights Act of 1964, the decision has broad applications to all laws banning sex discrimination, including civil rights law in housing, health care, education, and credit. 

The litigation came about after Gerald Bostock was fired from his job as a municipal worker after expressing interest in a gay softball league and Aimee Stephens, a funeral home director in Michigan, who was fired for being transgender. Stephens died shortly before the decision was handed down. 

The Trump administration, however, never fully implemented the decision, and outright flouted it with regard to access to sex-segregated spaces for transgender people. Biden is expected to recognize Bostock fully upon taking office.

3: Calls for racial justice after George Floyd killed

The death of George Floyd at the hands of Minneapolis police ignited a firestorm of protests and energized the Black Lives Matter movement, bringing calls for police reform, if not to outright defund the police, and end systemic racism. 

LGBTQ Pride events, which had been cancelled amid the coronavirus epidemic, were in some cases back on with a renewed focus on anti-racism. (Drama followed, however, when LA Pride planned a solidarity march and sought cooperation with police. Organizers ended up handing over the reins to All Black Lives Matter, an advisory board of Black LGBTQ activists.) 

Much of the outrage was directed at President Trump, who reportedly hid in a bunker amid protests that became violent outside the White House. Afterwards, Trump went to St. John’s Church near Lafayette Square with Cabinet officials to hold up a Bible in a controversial photo-op.

2: Biden wins; Kamala Harris makes history

Joe Biden won the presidential election this year, ensuring Donald Trump would be a one-term president and bringing an end to an administration with a record of anti-LGBTQ policies. 

Biden, whose comments in favor of same-sex marriage on “Meet the Press” in 2012 are still remembered for their impact, has long-standing connections to the LGBTQ community and issued a detailed policy plan for LGBTQ initiatives he’d pursue in his administration. Biden has pledged to end the transgender military ban and sign the Equality Act into law within 100 days. 

Vice President-elect Kamala Harris, who made history as the first woman of color elected as part of a presidential ticket, also has deep ties to the LGBTQ community. As California attorney general, Harris declined to defend California’s ban on same-sex marriage on Proposition 8 in court and raised LGBTQ issues as U.S. senator. 

In another historic move, Biden tapped Pete Buttigieg for Transportation Secretary. He would become the first openly gay Senate-confirmed Cabinet official if approved in 2021.

1: Coronavirus ravages U.S. public health, economy

The coronavirus pandemic left hundreds of thousands dead, disrupted lives and threw the economy into a tailspin, stoking fears in a way no other public health crisis has done since the HIV/AIDS epidemic as the virus continued to spread. The outbreak is the Washington Blade’s top national news event of 2020. 

COVID-19, which originated in China, had killed by mid-December an estimated 300,000 people in the United States and infected 16 million. Although states kept tabs on racial, ethnic, and gender demographics on the disease, few recorded data on LGBTQ casualties. 

An estimated 100,000 businesses across the nation closed their doors as governors ordered residents to remain at home, much to the consternation of conservative activists who said the directives were unconstitutional. The annual Pride month celebrations and parades were among the events cancelled. 

The downturn in the economy forced many small business to close and put many workers on unemployment. Hospitality workers, many of whom are LGBTQ people, were hit especially hard. The Paycheck Protection Program saved many jobs, but as of late December, Congress had not come to an agreement on additional stimulus. 

President Trump, who continued to insist the coronavirus would simply “go away,” faced heavy criticism for failing to contain the epidemic, leading to major change in the 2020 election.

Honorable mention: Blade reporter refuses to move seat in WH briefing room 

When Blade reporter Chris Johnson was fulfilling his role in the pool rotation for the White House press corps, the White House press office sought to humiliate CNN’s Kaitlan Collins by ordering Johnson to switch seats with her. Collins had an assigned seat in the front row of the briefing room, while the seating arrangements had the Blade toward the back. 

Johnson refused to move, pointing out the White House Correspondents Association controls the seating assignments, not the White House. Johnson held firm even though he was told the Secret Service was involved in wanting the switch. Secret Service later denied any involvement. Johnson won widespread praise from mainstream media colleagues for his cool-headed, brave handling of the situation. (By Kevin Naff)