National
Would President Romney undo pro-LGBT advances?
Array of regulatory changes could be in jeopardy under GOP administration

As President Obama and Mitt Romney articulate competing visions for the future in their presidential campaigns, most LGBT rights advocates agree the choice couldn’t be more stark given the advances the community has seen over the past three-and-a-half years and the anti-gay positions espoused by the Republican candidate.
On one hand, President Obama has endorsed marriage equality, capping off a first term of efforts at the legislative and regulatory levels aimed at benefitting the LGBT community. On the other, Romney signed a pledge with the anti-gay National Organization for Marriage to back a Federal Marriage Amendment and defend the Defense of Marriage Act in court. Last month, he backed off his earlier stated belief that adoption by same-sex couples is a right by saying he simply “acknowledges” the legality of such adoptions in many states.
Obama has made “forward” the theme for his 2012 campaign. The extent to which Romney has adopted anti-gay views and aligned himself with anti-gay groups raises a key question for LGBT voters: Under a Romney administration, how far “backward” could the LGBT community go?
Many of the pro-LGBT advances that have happened under the Obama administration occurred through changes made by the executive branch rather than through legislation. Changes that were made without the consent of Congress could be reversed under an administration that wanted to cozy up to the religious right.
The Washington Blade has identified five regulatory changes and 16 sub-regulatory changes enacted by the Obama administration that could be reversed if Romney were elected to the White House. These changes include giving greater recognition to same-sex couples, protecting federal LGBT workers against discrimination and ensuring the federal government recognizes the correct gender of transgender people.
Major changes that were made under the Obama administration at the regulatory level include a memorandum requiring all hospitals receiving Medicaid and Medicare funds to allow visitation rights for same-sex couples; lifting the HIV travel ban; and a Department of Housing & Urban Development rule prohibiting discrimination in federal public housing programs and federally insured mortgage loans.
Jerame Davis, executive director of the National Stonewall Democrats, predicted Romney would aim to roll back these policies if he takes the oath of office in January 2013.
“If Mitt Romney were to accede to the presidency, he would have no choice but to deliver on the regressive, ultra-conservative agenda he’s been promising the radical GOP machine,” Davis said. “It is without question that rolling back advances in LGBT equality would be at the top of the list.”
Romney has never pledged during the campaign to rescind any pro-LGBT regulatory changes made under the Obama administration. Although he said he doesn’t support same-sex marriage or civil unions with the same benefits as marriage, Romney said he favors some kind of domestic partner benefits for same-sex couples as well as hospital visitation rights. Rescinding this hospital visitation memorandum would appear to break a campaign promise.
Moreover, theĀ Administrative Procedures Act ā a law enacted by Congress in 1946 governing the way in whichĀ administrative agencies may propose and establishĀ rules ā prohibits a quick change in regulation if a hostile administration takes over. InstitutingĀ new final regulations repealing these policies would be a multi-year process and require a justification for overturning them other than for political reasons.
Christian Berle, deputy executive director of the Log Cabin Republicans, said he doubts that Romney would take away this progress based on the candidate’s tenure as Massachusetts governor and as a business executive.
“As governor of Massachusetts, Mitt Romney sustained executive orders providing for domestic partnership benefits including hospital visitation rights for gay and lesbian state employees,” Berle said. “This action directly builds upon his record in leading companies like Bain Capital and Staples, which had strong nondiscrimination policies and partner benefits. This history both as a chief executive in the business sector and as governor of Massachusetts give precedence for sustaining President Obama’s positions on matters including hospital visitation.”
But Romney did rescind some pro-LGBT changes as governor. According to MassEquality,Ā Romney abolished the Governorās Commission on GLBT Youth and rescinded an executive order prohibiting sexual orientation discrimination in the state workforce. Another Republican, former Gov. William Weld, had instituted those measures.
It’s the sub-regulatory initiatives where the most sweeping changes could be made. The time needed to change these would be shorter than the time needed to change more formal regulations, although it wouldĀ vary from agency to agency and issue to issue. For many, an agency could rescind guidance issued by the Obama administration, issue a superseding directive or discontinue a certain program.
Among theseĀ sub-regulatory changes areĀ revising standards to allow transgender people to change a gender marker on a passport;Ā the Education Department’s guidanceĀ clarifying that student bullying may violate sex discrimination protections under federal law; the reinterpretation of the Family & Medical Leave Act to allow employees to care for their same-sex partnerās child; andĀ the Census Bureau’s decision to release data on married same-sex couples along with other demographic information in the 2010 Census.
Davis said all the administrative changes ā ranging from the regulatory to sub-regulatory level ā would be in jeopardy if Romney wins the election.
“The bigoted wing of the GOP, which Romney has embraced with gusto, cannot stand the idea that same-sex relationships have been afforded near equal status in so many federal rules and regulations,” Davis said. “It grates against their very being that transgender Americans can get passports with the appropriate gender marker and there are more than a few who want to see the HIV travel ban put back into place.”
The Romney campaign didn’t respond to a request for comment on whether these changes would remain in place under a Romney administration. The Obama campaign and the Democratic National Committee declined to comment for this article.
Are there steps the Obama administration could take now to ensure the changes become more permanent?
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said the sub-regulatory changes could be, in a sense, upgraded to regulatory changes, but that process would be lengthy and cumbersome.
“Of course, advances made through regulations are more difficult to undo, but it is also more challenging to move new regulations through the process of review, public comment and approval,” Cole-Schwartz said. “Making LGBT inclusion part of the culture of federal government across departments and agencies is a big part of making these changes more difficult to roll back ā and the administration has done a great deal to foster that inclusiveness.”
These changes don’t include the anti-gay promises that Romney has made. Romney has campaigned on resuming defense of DOMA, which would be a stark change from the Obama administration’s practice of filing legal briefs against the anti-gay law in court and sending Justice Department attorneys to litigate against the statute. Romney also pledged to set up a presidential commission on religious liberty to investigate the alleged harassment of opponents of same-sex marriage.
Cole-Schwartz said the array of ways in which a Romney administration could reverse the progress made on LGBT rights undescores the significance of the upcoming election.
“It further emphasizes the importance of re-electing a fair-minded president whose administration will continue to seek out ways to further LGBT equality,” Cole-Schwartz said.
Pro-LGBT policy changes under Obama
Regulations
The Administrative Procedures Act provides safeguards against politically motivated policy switches.Ā Thus repealing the policies below would involve a multi-year process.
- The Department of Health and Human Services (HHS) adopted a regulation ending the ban on HIV-positive visitors and immigrants.
- President Obama issued Presidential Memorandum in April 2010 directing HHS to issue regulations requiring all hospitals receiving Medicaid and Medicare to prohibit discrimination in visitation against LGBT people.Ā HHS issued a final regulation that went into effect in early 2011.
- HUD issued final regulations in January 2012 prohibiting discrimination in federal public housing programs and federally insured mortgage loans.Ā HUD also requires its grantees to comply with LGBT-inclusive state and local housing discrimination protections.
- The Office of Personnel Management published final regulations in the Federal Register expanding the eligibility for long-term care coverage to same-sex partners and sick leave to care for a same-sex partner.
- Ā The federal Prison Rape Elimination Commission proposed national standards to reduce sexual abuse in correctional facilities, including standards regarding LGBT and intersex inmates. They were later instituted as a rule finalized by the Justice Department last month.
Sub-Regulatory Guidance/Policy Announcements
These are policy advances instituted by ā and subject to the will of ā the administration.
- The Department of Health and Human Services revised its funding guidance around abstinence-only-until-marriage sex education programs, requiring that recipient programs are inclusive of and non-stigmatizing toward LGBT youth.
- HHS, in partnership with the Department of Education and Department of Justice, launched stopbullyingnow.com.
- The U.S. Immigration and Customs Enforcement agency recently released new 2011 Performance Based National Detention Standards.Ā These new standards provide guidance that aims to improve treatment of LGBT and HIV-positive people in detention facilities.
- In summer 2011, ICE published a memo and clarifying guidance providing that an individualās family relationships, including a same-sex relationship, would be considered as a factor in labeling certain deportations as low-priority deportations.
- The U.S. Customs and Border Patrol announced a proposed regulatory change expanding the meaning of āmembers of a family residing in one householdā for the purposes of the customs declaration form, which must be completed prior to re-entry to the United States.
- The DOJ issued an opinion clarifying that the criminal provisions of the Violence Against Women Act related to stalking and abuse apply equally to same-sex partners.
- The State Department revised the standards for changing a gender marker on a passport, making the process less burdensome for transgender people.
- In September 2011, the Social Security Administration confirmed that it ended the practice of allowing gender to be matched in its Social Security Number Verification System (SSNVS). This resulted in the immediate cessation of SSA sending notifications that alert employers when the gender marker on an employee’s W-2 does not match Social Security records.
- The State Department extended numerous benefits to the partners of Foreign Service officers, including diplomatic passports and access to emergency evacuation.
- The State Department reversed a Bush administration policy that refused to use a same-sex marriage license as evidence of a name change for passports.
- The Department of Education issued guidance clarifying when student bullying may violate federal law, distributed a memo outlining key components of strong state anti-bullying laws and policies and made clear to public schools that gay-straight alliances have a right to form and meet.
- The Department of Education published guidance and, in coordination with the Department of Justice, has pursued Title IX complaints filed by LGBT students experiencing harassment based on sex or sex stereotyping.
- OPM added gender identity to the equal employment opportunity policy governing all federal jobs.
- The Department of Labor issued guidance clarifying that an employee can take time off under the Family and Medical Leave Act to care for a same-sex partnerās child.
- The IRS clarified that domestic partners (and their children) can be designated beneficiaries for VEBA funding/payment purposes.
- The Census Bureau overturned the Bush administrationās interpretation of the Defense of Marriage Act and agreed to release data on married same-sex couples along with other demographic information from the 2010 Census.
SOURCE: HRC
U.S. Federal Courts
Federal judge blocks Trump passport executive order
State Department can no longer issue travel documents with ‘X’ gender markers

A federal judge on Friday ruled in favor of a group of transgender and nonbinary people who have filed a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.
The Associated Press notes U.S. District Judge Julia Kobick in Boston issued a preliminary injunction against the directive. The American Civil Liberties Union, which represents the plaintiffs, in a press release notes Kobick concluded Trump’s executive order “is likely unconstitutional and in violation of the law.”
“The preliminary injunction requires the State Department to allow six transgender and nonbinary people to obtain passports with sex designations consistent with their gender identity while the lawsuit proceeds,” notes the ACLU. “Though todayās court order applies only to six of the plaintiffs in the case, the plaintiffs plan to quickly file a motion asking the court to certify a class of people affected by the State Department policy and to extend the preliminary injunction to that entire class.”
Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.
Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an āXā gender marker. Zzyym in October 2021 received the first gender-neutral American passport.
The State Department policy took effect on April 11, 2022. Trump signed his executive order shortly after he took office in January.
Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.
āThis ruling affirms the inherent dignity of our clients, acknowledging the immediate and profound negative impact that the Trump administration’s passport policy would have on their ability to travel for work, school, and family,ā said ACLU of Massachusetts Legal Director Jessie Rossman after Kobick issued her ruling.
āBy forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of our right to privacy and the freedom to be ourselves,” added Rossman. “We will continue to fight to rescind this unlawful policy for everyone so that no one is placed in this untenable and unsafe position.ā
State Department
HIV/AIDS activists protest at State Department, demand full PEPFAR funding restoration
Black coffins placed in front of Harry S. Truman Building

Dozens of HIV/AIDS activists on Thursday gathered in front of the State Department and demanded the Trump-Vance administration fully restore President’s Emergency Plan for AIDS Relief funding.
Housing Works CEO Charles King, Health GAP Executive Director Asia Russell, Human Rights Campaign Senior Public Policy Advocate Matthew Rose, and others placed 206 black Styrofoam coffins in front of the State Department before the protest began.
King said more than an estimated 100,000 people with HIV/AIDS will die this year if PEPFAR funding is not fully restored.
“If we continue to not provide the PEPFAR funding to people living in low-income countries who are living with HIV or at risk, we are going to see millions and millions of deaths as well as millions of new infections,” added King.
Then-President George W. Bush in 2003 signed legislation that created PEPFAR.
The Trump-Vance administration in January froze nearly all U.S. foreign aid spending for at least 90 days. Secretary of State Marco Rubio later issued a waiver that allows the Presidentās Emergency Plan for AIDS relief and other ālife-saving humanitarian assistanceā programs to continue to operate during the freeze.
The Washington Blade has previously reported PEPFAR-funded programs in Kenya and other African countries have been forced to suspend services and even shut down because of a lack of U.S. funding. Two South African organizations ā OUT LGBT Well-being and Access Chapter 2 ā that received PEPFAR funding through the U.S. Agency for International Development and the Centers for Disease Control and Prevention in recent weeks closed down HIV-prevention programs and other services to men who have sex with men.
Rubio last month said 83 percent of USAID contracts have been cancelled. He noted the State Department will administer those that remain in place “more effectively.”
“PEPFAR represents the best of us, the dignity of our country, of our people, of our shared humanity,” said Rose.
Russell described Rubio as “ignorant and incompetent” and said “he should be fired.”
“What secretary of state in 90 days could dismantle what the brilliance of AIDS activism created side-by-side with George W. Bush? What kind of fool could do that? I’ll tell you who, the boss who sits in the Harry S. Truman Building, Marco Rubio,” said Russell.

U.S. Military/Pentagon
Pentagon urged to reverse Naval Academy book ban
Hundreds of titles discussing race, gender, and sexuality pulled from library shelves

Lambda Legal and the Legal Defense Fund issued a letter on Tuesday urging U.S. Defense Secretary Pete Hegseth to reverse course on a policy that led to the removal of 381 books from the Nimitz Library of the U.S. Naval Academy in Annapolis, Md.
Pursuant to President Donald Trump’s executive order 14190, “Ending Radical Indoctrination in K-12 Schooling,” the institution screened 900 titles to identify works promoting “diversity, equity, and inclusion,” removing those that concerned or touched upon “topics pertaining to the experiences of people of color, especially Black people, and/or LGBTQ people,” according to a press release from the civil rights organizations.
These included “I Know Why the Caged Bird Singsā by Maya Angelou, āStone Fruitā by Lee Lai,Ā āThe Hate U Giveā by Angie Thomas, āLies My Teacher Told Me: Everything Your American History Textbook Got Wrongā by James W. Loewen, āGender Queer: A Memoirā by Maia Kobabe, and āDemocracy in Black: How Race Still Enslaves the American Soulā by Eddie S. Glaude, Jr.Ā
The groups further noted that “the collection retained other books with messages and themes that privilege certain races and religions over others, including ‘The Clansman: A Historical Romance of the Ku Klux Klan’ by Thomas Dixon, Jr., ‘Mein Kampf’ by Adolf Hitler, and ‘Heart of Darkness’ by Joseph Conrad.
In their letter, Lambda Legal and LDF argued the books must be returned to circulation to preserve the “constitutional rights” of cadets at the institution, warning of the “danger” that comes with “censoring materials based on viewpoints disfavored by the current administration.”
“Such censorship is especially dangerous in an educational setting, where critical inquiry, intellectual diversity, and exposure to a wide array of perspectives are necessary to educate future citizen-leaders,”Ā Lambda Legal Chief Legal Officer Jennifer C. PizerĀ andĀ LDF Director of Strategic Initiatives Jin Hee Lee said in the press release.
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