The Washington Post on Thursday reported it had obtained internal memos and source material about the Trump administration’s plans to weaken federal civil rights protections.
According to the Post, an internal Justice Department memo instructs the agency’s civil rights officials to investigate “disparate impact” regulations with the intent to change or revoke them. “Disparate impact” is essentially the legal theory that allows anti-discrimination laws like the Civil Rights Act and the Fair Housing Act to be applied in cases of secondary or less-than-overt discrimination. For example, one 2005 lawsuit brought by a group of Black police sergeants in Memphis, Tennessee alleged that a new written test required for promotion had a discriminatory impact on Black applicants.
A more recent “disparate impact” case in 2016 found that in one California school district, Black students were disciplined at much higher rates than white students. The U.S. Department of Education’s Office of Civil Rights found the school district guilty of disparate impact discrimination and negotiated an agreement to retrain employees and other remedies.
The Trump administration wants to do away with this kind of civil rights case, and not just at the federal criminal justice agency; according to the Post, similar measures are underway at the Department of Housing and Urban Development and the Department of Education.
Changes to civil rights law could greatly impact LGBTQ Americans. Even though the Civil Rights Act does not expressly include sexual orientation and gender identity as protected classes alongside race, religion, and other such groups, the prohibition against ‘sex’ discrimination has been extended to include LGBTQ people in previous legal verdicts.
Doing away with disparate impact regulations could make civil rights protections a lot harder to enforce, and suggests that the Trump administration wants to see civil rights laws applied only in the most purely literal sense — to avoid their protections being extended to anyone not explicitly protected. And, to argue that any unintended or secondary discrimination is not really discrimination at all.
Sarah Kate Ellis, the CEO of GLAAD, said the proposals to roll back federal anti-discrimination laws are just the latest example of Trump’s chipping away at the rights of marginalized Americans.
“Either the Trump Administration is blissfully ignorant or just simply unwilling to understand the depth of discrimination that exists in the United States. But one thing is certain: if you are a part of a marginalized community, President Trump wants nothing to do with you,” said Ellis in a statement Thursday. “These attacks on LGBTQ and other marginalized people must stop.”
There is a glimmer of hope for LGBTQ people in the face of Trump considering changes to anti-discrimination law. With Congress flipped to the Democrats and Nancy Pelosi re-taking the title of Speaker of the House, it’s likely that the Equality Act will be reintroduced in 2019. The bill would add sexual orientation and gender identity language to the Civil Rights Act, and would become the only federal nondiscrimination protection ever offered to LGBTQ Americans.
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