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Trump’s “immigrant wealth test”: a case study in APA analysis
As an LGBTQ+ and gender equity advocate, I’ve become kind of obsessed with the Administrative Procedure Act’s “arbitrary and capricious” standard, which plays a big role in most challenges to Trump Administration challenges. It’s had a starring role in the recent SCOTUS rulings on DACA and the Census, as well as a notable role in the recent ruling on contraceptive coverage.
This week I’ve been poring over the recent circuit court rulings on the DHS “public charge” rule—truly among the most sweeping and morally repugnant of the Administration’s moves to date—and in particular at the APA arbitrary-and-capricious analysis in these cases. This standard can both a powerful and a malleable one, depending on the factual record and the court’s approach. It can relate in complex ways with other, substantive claims such as the APA contrary-to-law provision and claims under Equal Protection and Due Process.
As a case study, I simply present here excerpts from the three recent circuit court rulings in the public charges cases that have addressed the arbitrary-and-capricious issue. Neither the SCOTUS orders in these cases to date, nor the Fourth Circuit’s latest ruling rejecting an APA contrary-to-law claim, have addressed the arbitrary-and-capricious claims. The Second, Seventh, and Ninth Circuit panel rulings on this issue prevent strikingly different approaches that should be instructive to other civil rights and progressive advocates bringing APA challenges.
City and County of San Francisco v. USCIS (9th Cir. 2019) (stay order)
…We begin with the observation that DHS addressed at length the costs and benefits associated with the Final Rule. … DHS’s analysis began by stating, “This rule will impose new costs on this population applying to adjust status . . . that are subject to the public charge ground of inadmissibility.” 84 Fed. Reg. at 41,300. It estimated the direct costs to the federal government of the rule to be $35,202,698 annually. Some of these direct costs to the federal government would be offset by “individuals who may choose to disenroll from or forego enrollment in a public benefits program.” Id. DHS estimated the reduction in federal transfer payments would be about $2.47 billion annually. Id. at 41,301. It further estimated that there would be a reduction in state transfer payments of about $1.01 billion annually. Id. DHS also acknowledged that the Final Rule would impose direct and indirect costs on individuals and entities. The first of these, it suggested, were “familiarization costs,” which was “a direct cost of the rule.” Id. Organizations that work with immigrant communities would similarly experience indirect costs of familiarization. Id.
18 Indeed, DHS’s notice is quite comprehensive. In no fewer than 216 pages (which DHS estimated would take sixteen to twenty hours to read), DHS explained the changes proposed, estimated costs and savings, and addressed scores of comments on topics ranging from potential public-health concerns to whether DHS should consider immigrants’ credit scores. See generally 84 Fed. Reg. at 41,292–508.
Elsewhere, DHS responded to comments claiming that the Final Rule would cause aliens to disenroll from or forego enrollment in public benefit programs and that this “would be detrimental to the financial stability and economy of communities, States, local organizations, hospitals, safetynet providers, foundations, and healthcare centers.” Id. at 41,312; see also id. (suggesting that the Final Rule would increase the use of hospital emergency rooms). DHS identified three categories of aliens who might be affected by the Final Rule. First, there are aliens who are entitled to public benefits and seek to immigrate or adjust status. Their receipt of some public benefits are simply not covered by the rule. DHS noted, for example, that “emergency response, immunization, education, or [certain] social services” are not included in its revised definition of “public benefits.” Id. On the other hand, there are public benefits to which such an alien is entitled but which will be considered by DHS in its determination whether such alien is a “public charge.” DHS “acknowledge[d] that individuals subject to this rule may decline to enroll in, or may choose to disenroll from, public benefits for which they may be eligible under PRWORA, in order to avoid negative consequences as a result of this final rule.” Id. DHS could not estimate how many aliens in this category would be affected by the Final Rule “because data limitations provide neither a precise count nor reasonable estimate of the number of aliens who are both subject to the public charge ground of inadmissibility and are eligible for public benefits in the United States.” Id. at 41,313.
The second category of aliens are those who are unlawfully in the United States. These are “generally barred from receiving federal public benefits other than emergency assistance.” Id. (footnote omitted). Nevertheless, DHS announced that it will not consider “for purposes of a public charge inadmissibility determination whether applicants for admission or adjustment of status are receiving food assistance through other programs, such as exclusively state-funded programs, food banks, and emergency services, nor will DHS discourage individuals from seeking such assistance.” Id.
Third are those aliens and U.S. citizens who are not subject to the Final Rule, but erroneously think they are and disenroll from public benefits out of an abundance of caution. Id. Disenrollment by this category of persons should not be influenced by the Final Rule because their receipt of public benefits will “not be counted against or made attributable to immigrant family members who are subject to this rule.” Id. DHS understood “the potential effects of confusion” over the scope of the Final Rule that might lead to over-disenrollment. DHS stated that it would “issue clear guidance that identifies the groups of individuals who are not subject to the rule.” Id. The Northern District of California pointed out that DHS’s response “fails to discuss costs being borne by the states, hospitals, or others, other than to say DHS will issue guidance in an effort to mitigate confusion.” City & Cty. of San Francisco, 2019 WL 5100718, at *34. The court further criticized DHS for “flatly refus[ing] to consider the costs associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id. at *35. We think several points must be considered here. First, the costs that the states, localities, and various entities (such as healthcare providers) may suffer are indirect. Nothing in the Final Rule imposes costs on those governments or entities; the Final Rule does not regulate states, localities, and private entities. Disenrollment will be the consequence of either (1) the free choice of aliens who wish to avoid any negative repercussions for their immigration status that would result from accepting public benefits, or (2) the mistaken disenrollment of aliens or U.S. citizens who can receive public benefits without any consequences for their residency status. DHS addressed both groups. DHS said it did not have data to calculate the size of the first group (and, presumably, the value of the benefits from which they will disenroll), and it had no way to estimate the second. 84 Fed. Reg. at 41,313. DHS stated that it would try to compensate for the latter group’s error by publishing clear guidance, and it also noted that other organizations, public and private, would have an incentive to provide accurate information to persons who might mistakenly disenroll. Id. at 41,486.
Second, DHS did acknowledge the indirect costs the Final Rule might impose “downstream . . . on state and local economics, large and small businesses, and individuals. ...” It did not attempt to quantify those costs, but it recognized the overall effect of the Final Rule, and that is sufficient. See Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 835 (9th Cir. 2002) (“[T]he Secretary acknowledged that some Medicare beneficiaries would possibly have to shoulder an additional financial burden as a result of the repeal of the carry-forward provision. This acknowledgment did not render the Secretary’s rulemaking statement or reliance upon it arbitrary, however.” (internal citation omitted)).
Third, DHS is not a regulatory agency like EPA, FCC, or OSHA. Those agencies have broad mandates to regulate directly entire industries or practices, sometimes on no more instruction from Congress than to do so in the “public convenience, interest or necessity,” 47 U.S.C. § 303 (FCC), or as “appropriate and necessary,” 42 U.S.C. § 7412(n)(1)(A) (EPA). When Congress has vested such broad regulatory authority in agencies, the Supreme Court has sometimes insisted that the agencies perform some kind of a cost-benefit analysis. … By contrast, DHS is defining a simple statutory term—“public charge”—to determine whether an alien is admissible. Its only mandate is to regulate immigration and naturalization, not to secure transfer payments to state governments or ensure the stability of the health care industry. Any effects on those entities are indirect and well beyond DHS’s charge and expertise. Even if it could estimate the costs to the states, localities, and healthcare providers, DHS has a mandate from Congress with respect to admitting aliens to the United States.
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Even had DHS been able to calculate the indirect costs that states, localities, and healthcare providers might bear as a result of the Final Rule, it is not clear what DHS was supposed to balance. Rather, it was sufficient—and not arbitrary and capricious—for DHS to consider whether, in the long term, the overall benefits of its policy change will outweigh the costs of retaining the current policy.
The Northern District of California also found that DHS did not sufficiently respond to certain public-health concerns. ... DHS not only addressed these concerns directly, it changed its Final Rule in response to the comments. 84 Fed. Reg. at 41,297. With respect to vaccines, DHS stated that it “does not intend to restrict the access of vaccines for children or adults or intend to discourage individuals from obtaining the necessary vaccines to prevent vaccine-preventable diseases.” Id. at 41,384. The Final Rule “does not consider receipt of Medicaid by a child under age 21, or during a person’s pregnancy, to constitute receipt of public benefits.” DHS said that would address “a substantial portion, though not all, of the vaccinations issue.” Id. Accordingly, DHS “believes that vaccines would still be available for children and adults even if they disenroll from Medicaid.” Id. at 41,385.
Both the Northern District of California and the Eastern District of Washington expressed concern that the Final Rule was a departure from the 1999 Field Guidance, which raised the vaccine issue, and that the 1999 Field Guidance had “engendered reliance.” City & Cty. of San Francisco, 2019 WL 5100718, at *37; see also Washington, 2019 WL 5100717, at *19. The question is not whether an agency can change a policy that people have come to rely on; clearly, it can. The real question is whether the agency has acknowledged the change and explained the reasons for it. DHS knew well that it was adopting a change in policy; that was the whole purpose of this rulemaking exercise. See Encino Motorcars, 136 S. Ct. at 2126 (holding that a Department of Labor regulation was “issued without . . . reasoned explanation” where there was “decades of industry reliance on the Department’s prior policy” and the new rule was “offered [with] barely any explanation”); INS v. YuehShaio Yang, 519 U.S. 26, 32 (1996) (distinguishing “an irrational departure from [established] policy” from “an avowed alteration of it”). “[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Fox Television Stations, 556 U.S. at 515. Because DHS has adequately explained the reasons for the Final Rule, it has demonstrated a strong likelihood of success on the merits
Cook County v. Wolf (7th Cir. 2020)
The review called for by State Farm is narrow in scope and does not permit us to substitute our own policy judgment for that of the agency. We ask only whether the agency’s “decision was based on a consideration of the relevant factors” and was not “a clear error of judgment.” 463 U.S. at 43.
In response to its notice of proposed rulemaking, DHS received a whopping 266,077 comments, the vast majority of which opposed the proposed rule. In the preamble to the final rule, DHS summarized significant issues raised by the comments and changes it made in the final rule. We assess the validity of DHS’s decision-making process based on this record.
Cook County urges that the Rule is arbitrary and capricious in a number of ways: (1) DHS failed meaningfully to evaluate and address significant potential harms from the Rule, including its substantial chilling effect on immigrants not covered by the Rule; (2) DHS failed to give a logical rationale for the duration-based standard; and (3) DHS added factors to the totality-of-the-circumstances analysis that are “unsupported, irrational and at odds with the Final Rule’s purported purpose.” Numerous amici underscored these points and explained how the Rule will lead to arbitrary results, cause both direct and indirect economic harms, burden states and localities that have to manage fallout from the Rule, and disproportionately harm the disabled and children.
We look first at DHS’s dismissal of concerns about the Rule’s chilling effect on legal immigrants and family members who fall outside its scope. DHS acknowledged a “plausible connection” between the Rule and needless disenrollment by exempt noncitizens (including refugees, asylees, and victims of domestic violence) in covered public benefits, and by covered immigrants in noncovered benefit programs. 84 Fed. Reg. at 41313. DHS also said that it “appreciates … the potential nexus between public benefit enrollment reduction and food insecurity, housing scarcity, public health and vaccinations … and increased costs to states and localities.” Id. Nonetheless, it brushed off these impacts as “difficult to predict” and refused to “alter this rule to account for such unwarranted choices.” Id. Even though these consequences are foreseeable, the Rule does not literally compel them, and so DHS asserted that they could be addressed through additional public guidance.
DHS may think that these responses are unwarranted, but it does not deny that they are taking place and will continue to do so. Moreover, the record indicates that the target population is responding rationally. DHS’s system of counting and stacking benefits is hardly transparent, and so a rational person might err on the side of caution and refrain from seeking medical care, or food, or housing, even from a city, state, or tribe rather than the federal government. And the risk that the Rule may become more stringent at any time and operate retroactively against the use of benefits already used is a real one. DHS trumpets its view that the Rule stops short of its lawful authority and that it could promulgate a more restrictive rule if it so chooses. In response to comments on the proposed rule, DHS used discretionary language: “DHS believes it is a reasonable approach to only designate Medicaid at this time,” id. at 41381 (emphasis added); and “DHS will not consider [Healthy Start] benefits at this time,” id. at 41390 (emphasis added). It warned that it may “updat[e] the list of benefits through future regulatory action.” Id. at 41387. Immigrants thus reasonably anticipate that their receipt of benefits that are currently not covered could eventually hurt them if DHS alters the Rule in the future.
It was not enough for DHS simply to nod at this argument; it called for a serious explanation. The importance of the chilling effect is not the number of disenrollments in the abstract, but the collateral consequences of such disenrollments. DHS failed adequately to grapple with the latter. For example, commenters predicted that disenrollment and under-enrollment in Medicaid, including by immigrants not covered by the Rule, would reduce access to vaccines and other medical care, resulting in an increased risk of an outbreak of infectious disease among the general public. To recognize the truth in that prediction, one need only consider the current outbreak of COVID-19—a pandemic that does not respect the differences between citizens and noncitizens.
There is also the added burden on states and local governments, which must disentangle their purely state-funded programs from covered federal programs. The federal government has no interest in the way that states and localities choose to spend their money. There is no reason why immigrants should not continue to benefit from the state programs without being penalized at the federal level. The Rule will force states to make their own public welfare programs more robust to compensate for a reduction in the availability of federal programs. DHS touts the savings to the federal government from the Rule, primarily through a significant reduction in transfer payments to the states (including, it should be noted, for persons who disenroll unnecessarily because of the chilling effect), but at the same time it expects the states to fill the gaps and continue to provide critical services such as preventive healthcare. See, e.g., id. at 41385 (“In addition, local health centers and state health departments provide preventive services that include vaccines that may be offered on a sliding scale fee based on income. Therefore, DHS believes that vaccines would still be available for children and adults even if they disenroll from Medicaid.”). It assumes this while simultaneously denying that the Rule will have “substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.” Id. at 41481.
Cook County also asserts that DHS failed to give a logical rationale for its chosen durational threshold. In its notice of proposed rulemaking, DHS proposed an array of thresholds that would apply before benefits can be counted against a noncitizen in the public charge analysis. Those lines came under sharp criticism for being arbitrary, confusing, and an unacceptable proxy for undue reliance on public support. Id. at 41357–58.
In the final Rule, DHS opted for the single threshold for both monetizable and nonmonetizable benefits of 12 months (stacked) over a 36-month period. … The INA does not call for total self-sufficiency at every moment; it uses the words “public charge.” DHS sees “lack of complete self-sufficiency” and “public charge” as synonyms: in its view, receipt of any public benefit, particularly one related to core needs such as health care, housing, and nutrition, shows that a person is not self-sufficient. See id. at 41356. This is an absolutist sense of self-sufficiency that no person in a modern society could satisfy; everyone relies on nonmonetary governmental programs, such as food safety, police protection, and emergency services. DHS does not offer any justification for its extreme view, which has no basis in the text or history of the INA. As we explained earlier, since the first federal immigration law in 1882, Congress has assumed that immigrants (like others) might face economic insecurity at some point. Instead of penalizing immigrants by denying them entry or the right to adjust status, Congress built into the law accommodations for that reality. Also, as numerous commenters on the Rule pointed out, the benefits it covers are largely supplemental and not intended to be, or relied upon as, a primary resource for recipients. Many recipients could get by without them, though as a result they would face greater health, nutrition, and housing insecurity, which in turn would likely harm their work or educational attainment (and hence their ability to be self-sufficient).
Finally, Cook County contends that the Rule adds irrational factors into the public-charge assessment, including family size, mere application for benefits, English-language proficiency, lack of disability, and good credit history. With respect to language, we note the obvious: someone whose English is limited on the date of entry may be entirely competent five years later, when the person first becomes eligible for benefits under the Welfare Reform Act and related laws In almost all cases, an immigration official making a determination about whether someone is likely to become a public charge will be speculating about that person’s family size, linguistic abilities, credit score, and the like no fewer than five years in the future.
Even if we grant that these new factors carry some minimal probative value, it is unclear to us, and DHS nowhere explains, how immigration officials are supposed to make these predictions in a nonarbitrary way. Worse, for many people the relevant time is not five years—it is eternity, because the Rule calls for officials to guess whether an immigrant will become a public charge at any time. There is a great risk that officials will make their determination based on stereotype or unsupported assumptions, rather than on the type of objective facts called for by the Act (age, present health, family status, financial situation, and education or skills).
DHS also never explains why it chose not to take into account the possibility that an immigrant might, at some point in the future, be able to repay the value of public benefits received. Someone who seeks to adjust status will be penalized for having previously received public benefits without being given the opportunity to refund the government the cost of those benefits. This is new: the regulations governing deportation on public-charge grounds require a demand and a failure to pay. See 64 Fed. Reg. at 28691.
All of this convinces us that this Rule is likely to fail the “arbitrary and capricious” standard. The Rule has numerous unexplained serious flaws: DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address the significant, predictable collateral consequences of the Rule; incorporated into the term “public charge” an understanding of self-sufficiency that has no basis in the statute it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits.
The fundamental flaw of this justification is that while DHS repeatedly contends that the non-citizens using these programs would be unable to provide for their basic necessities without governmental support, it does not provide any factual basis for this belief. See, e.g., 83 Fed. Reg. at 51,159; 84 Fed. Reg. at 41,354, 41,366, 41,375, 41,381, 41,389. While the 1999 Guidance was developed in consultation with the benefits-granting agencies, DHS does not claim that their expertise again informed its decision that people who use non-cash benefits would be otherwise unable to meet their basic needs.34 Of course, DHS is free to change its interpretation and we do not suggest it is under any obligation to consult with its sister agencies in so doing. But what DHS may not do is rest its changed interpretation on unsupported speculation, particularly when its categorical assumptions run counter to the realities of the non-cash benefits at issue. The goals and eligibility criteria of these benefits programs belie DHS’s assumption and show that these programs are designed to provide supplemental support, rather than subsistence, to a broad swath of the population – as INS recognized in 1999.
34 In response to a comment directly asking whether any such consultation took place, DHS invoked the deliberative process privilege. 84 Fed. Reg. at 41,460.
DHS also suggests that Medicaid is included because “the total Federal expenditure for the Medicaid program overall is by far larger than any other program for low-income people,” 84 Fed. Reg. at 41,379, which DHS takes as evidence that it is “a more significant form of public support” for individuals than other benefits, Appellants’ Br. at 43; see 83 Fed. Reg. at 51,160. We are not persuaded that the difference in dollars expended is an appropriate indicator of a non-citizen’s level of self-sufficiency; rather, it seems plain to us that the difference is due to the high cost of providing healthcare in the United States. Cf. Public Citizen, Inc. v. Mineta, 340 F.3d 39, 58 (2d Cir. 2003) (“The notion that ‘cheapest is best’ is contrary to State Farm.”). The size of the government expenditure on Medicaid may be relevant to a policy debate about the costs and benefits of the program, but it has little bearing on whether Medicaid recipients should be considered “public charges.”
Accepting help that is offered to elevate one to a higher standard of living, help that was created by Congress for that precise purpose, does not mean a person is not self-sufficient – particularly when such programs are available not just to persons living in abject poverty but to a broad swath of low- and moderate-income Americans, including those who are productively employed. DHS goes too far in assuming that all those who participate in non-cash benefits programs would be otherwise unable to meet their needs and that they can thus be categorically considered “public charges.” Its unsupported and conclusory claim that receipt of such benefits indicates an inability to support oneself does not satisfy DHS’s obligation to explain its actions. See Gen. Chem. Corp. v. United States, 817 F.2d 844, 855 (D.C. Cir. 1987) (rejecting agency’s “conclusory” explanation and noting that “[s]uch intuitional forms of decisionmaking . . . fall somewhere on the distant side of arbitrary” (internal quotation marks omitted)); see also State Farm, 463 U.S. at 51.
Casa de Maryland v. Trump (4th Cir. 2020)
In this case, the district court ruled only on the APA “contrary to law” claim, and did not reach the plaintiffs’ APA “arbitrary and capricious” claim or constitutional claims. The Fourth Circuit’s 2-1 opinion reversing the preliminary injunction therefore also did not address these claims.
DACA ruling - a huge win. What are its implications for other civil rights cases?
This is huge! More badly-needed good news. Ever since Monday's incredible SCOTUS victory I've been holding my breath about DACA - but here we are!
I want to talk a little bit about the legal analysis in this case and its implications for a range of other issues – but first, it’s essential to celebrate what the tenacity of undocumented and unafraid youth and dedicated legal advocates has achieved here. This is a game-changer for hundreds of thousands of young people, their families, and communities. There is so much more to do to achieve permanent relief for undocumented Americans and a just immigration system, but this is a big victory.
With that, here are some initial thoughts on the Court’s reasoning and possible implications for other civil rights contexts.
Wait, what exactly did they rule about DACA and what happens now?
To the great anger of the dissenters, the Court actually declines to rule on the whether the government had the legal authority to establish DACA’s system of non-enforcement for Dreamers. The Court says it does not reach this issue, in essence, because of shoddy lawyering by the Justice Department that did not properly tee up the issue.
As the dissenters repeatedly hammer home, all the Justices seem to agree that whether or not the government had authority to establish DACA, it certainly had authority to rescind it. But how, when, and why? Agencies can abuse their discretion, and the Administrative Procedure Act and the Constitution place limits on it, which is what this decision is really about.
Here, SCOTUS rules 5-4 that the government failed to explain the rationale for, timing of, and manner in which it chose to rescind DACA. This is much like what happened in the Census case, New York v. Department of Commerce – another APA decision by the Chief Justice. (It’s actually curious that the majority opinion does not cite Department of Commerce once, though Justice Sotomayor does.)
As in that case, technically the case is remanded back to the agency and it can have a do-over. In the Census case, the decision’s timing made it essentially impossible for the agency to actually follow through on that do-over. It’s less clear if they’ll have time for a do-over here – there’s an election in a few months, agency actions can take months, and protecting Dreamers is politically popular. But Trump has already said they’re going to try— after all, xenophobia and never admitting defeat are core to the Trump platform. I’m no immigration expert, so you should probably follow folks who’ve been at the center of this fight on that.
Could the DACA and Census rulings be deployed to undermine other Trump policies? And also against the next President’s agenda?
The Court’s core holding here is that the way in which the Trump Administration went about rescinding DACA was “arbitrary and capirious” under the APA, for two main reasons: (1) even if the government now thought DACA was not legally authorized, and indeed even if it were right, it still must justify how it decides to change the program, and (2) the government must seriously consider how people could be harmed because they relied on an existing program, even if they had no legal right to it.
To think about how this might apply in other contexts, consider the HHS rule implementing the Health Care Rights Law (Section 1557 of the Affordable Care Act). HHS adopted one rule in 2016. Under Trump, HHS then decided that the ACA no longer protected trans people from discrimination, and that a ruling from a Texas district court that vacated parts of the rule required them to change it. Even if the Trump Administration were right that the ACA didn’t protect trans patients, it still had to consider exactly how to change the numerous provisions of the rule relating to sex discrimination. HHS explained that it chose to repeal all the provisions relating to gender identity, gender transition, transgender status, and even the much broader issue of sex stereotyping from the 2016 rule. HHS said there was no real harm and no real cost in doing this, because trans people had no legal right to expect these protections, and they certainly couldn’t have expected them after the Texas court ruling.
Of course, those HHS rule changes are almost certainly meaningless after Monday’s Bostock/Zarda/Stephens ruling, and the two situations aren’t exactly the same. Still, the DACA ruling’s reasoning makes clear that even if SCOTUS had not fully reached the sex discrimination issue, or even if the Trump Administration were right about it, that wouldn’t justify their choice to fully repeal a whole bunch of sex discrimination provisions, without explaining clearly how each change was justified and considering their effects on trans patients who were protected under the 2016 rule. These APA issues may now take a backseat in challenges to these parts of the HHS rule change because HHS was completely wrong about the law—but otherwise, they might still have found themselves in a similar spot to DHS here.
Although the specific points of APA analysis are slightly different, the Chief Justice’s opinions in DHS v. Regents of UC and New York v. Department of Commerce both rely on, and arguably breathe some new life into, the Court’s landmark ruling in Motor Vehicle Mfrs. Assn. v. State Farm, 463 U. S. 29, 43 (1983). State Farm holds that when an agency reverses its own established policy, it must clearly explain why it did so, and why it now rejects it own prior reasoning; the government cannot just say, “We just changed our mind.”
While not unique to the Trump Administration, agencies just not doing their homework and showing their work is—to put it mildly—more common these last few years. (While I haven’t researched the matter, it would also be interesting to see whether such APA arbitrary-and-capricious challenges have overall become more frequent during the Trump years or were even increasing before that.)
These principles could be used to attacked other questionable Trump Administration policies, where the government is seeking to make broad changes to policies and programs based on a changed interpretation of the law. One could imagine this case being cited in the current litigation over the 2019 HHS “Conscience” rule, for example.
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As a side note, the Court also held that the government can’t keeping adding new justifications for its decisions once it makes them—in this case, by supplementing the DACA rescission announcement with a new DHS memo further justifying it after an initial court ruling against them. SCOTUS notes that DHS could have gone back and issued a new rule or memo rescinding DACA in a different way, but chose instead to simply issue a memo adding new reasons for the same policy. This makes for an interesting comparison with Doe v. Trump, where the D.C. Circuit held that the Administration did in fact issue a new policy with new rationales with respect to the trans military ban.
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Of course, all administrations reverse some prior policy decisions, and the same APA standards will be applied to the next Administration. Indeed, while the APA and similar statutes have long been wielded by consumer and environmental advocates, and with growing frequency by immigration, LGBTQ, and other civil rights advocates, they will surely be asserted against more progressive policies in the future. After all, conservative justices and conservative legal groups alike are seeking to ramp up an all-out assault on federal agencies’ ability to protect patients, workers, consumers, and the climate.
Yet it’s interesting that justices like Kavanaugh, who were appointed in part to dismantle the “administrative state,” are advocating for a very expansive view of agency discretion in these cases. While one should never estimate some people’s capacity for intellectual inconsistency plain and simple, you don’t have to be an admin law geek (I am maybe a bit of a geek, not quite an expert) to suspect that these APA doctrines are not the main tools Kavanaugh and others have in mind for that dismantling. After all, the APA does more to govern agency discretion than to limit it, and progressive policies should usually prevail if there is a colorable grant of authority from Congress and the agency does its homework to show a policy will benefit the public. Enemies of progressive regulation have their eye on much bigger ordnance, like a revived nondelegation doctrine, to put huge areas of policymaking off-limits.
Still, advocates should remember that administrative law doctrines can potentially cut both ways. Advocates pushing federal agencies to take bold progressive actions in the future will be well served to make sure those agencies show their work so it will stand up in increasingly conservative federal courts.
On Equal Protection, “animus” is often in the eye of the beholder
The role of “animus” in Equal Protection cases has been hotly contested for decades - think of Romer v. Evans (1996), when SCOTUS ruled that a Colorado ballot initiative was unconstitutional because it was motivated by nothing more than antipathy toward queer people, over a fiery Scalia dissent.
That argument echoes in daily debates today, with conservatives arguing that progressives are improperly attempting to remove a wide swath of policymaking and political opinion from the realm of politically and constitutionally permissible debate by calling anyone who disagrees with them bigots. As many smarter people than me have explained, this has a way of changing the subject from systemic oppression and tangible harms to marginalized communities to questions of individual character, moral virtue, and honor.
This has long been a consistent feature of the Supreme Court’s jurisprudence on race and voting rights, race and affirmative action, race and everything, as well as LGBTQ equality and—especially recently—immigration. The Muslim ban and Census cases, as well as the marriage equality and Masterpiece Cakeshop cases, all featured in one way or another a debate about whether policies were motivated by animus, and whether it was proper to accuse political leaders and their constituents of being prejudiced. I don’t really care whether every Colorado voter in the Romer case should be called words like homophobic or bigot—it doesn’t matter, because they clearly chose to single out queer people for disfavored treatment, with no other apparent reason.
Again, smarter people than me have argued this is just one symptom of how our U.S. Equal Protection and civil rights jurisprudence has focused too narrowly on questions of discriminatory intent (and the moral virtue questions accompanying it) rather than on a principle such as antisubordination. At the same time, in cases where the Executive branch does have broad discretion—as in the DACA and Muslim ban cases—using that discretion with an intent to harm a stigmatized group has got to violate Equal Protection, and these debates become hard to avoid, forcing those pressing such claims to try to somehow get past these distractions to the core matter of whether that group was targeted and other reasons are pretexts.
Here we go again. Fortunately, the DACA ruling rises and falls on the APA, with no majority opinion on the Equal Protection question. But sadly, eight justices don’t seem to take the Equal Protection claim seriously, with Justice Sotomayor the lone holdout. As with the Muslim ban case, Roberts’s opinion (for himself, Ginsburg, Breyer, and Kagan!) splits hairs about who said what and when (which you can almost always do in this type of case). Sotomayor said there was enough smoke here—a sudden reversal after saying they wouldn’t do it, a policy disproportionately harming the same group of people the President made repeated derogatory statements about in the preceding months—to let the plaintiffs go to discovery and try to get more facts to show intent and pretext.
The DACA plaintiffs have happily won on the APA even if they never got the chance to prove their Equal Protection case. In the still-pending trans military ban cases—and some other challenges to Trump policies—the parties have been in pitched discovery battles partly trying to prove pretext and discriminatory intent. None of the justices’ statements on Equal Protection in the DACA case commanded a majority, but they are sure to be cited in those ongoing battles.
SCOTUS just undid years of Trump anti-LGBTQ actions, and other thoughts
In a historic ruling today, the Supreme Court ruled 6-3 that discrimination based on sexual orientation and gender identity or transgender status are sex discrimination.
I wanted to offer some very tentative thoughts about the implications of this ruling across several areas of federal and state policy - but first, a summary of what the Court did.
What did the Supreme Court actually say?
There is a lot of textual analysis and deconstructing of arguments packed into Justice Gorsuch’s opinion for the Court, but here are the key takeaways:
Page 9: “An individual’s homosexuality or transgender status is not relevant to employment decisions.That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Page 10: “[H]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
Page 19, with respect to anti-transgender bias: “By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”
Page 33: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
To get there, the Court sets forth three principles from prior Title VII cases:
“First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”
“Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.”
“Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”
Applying these well-established principles, the Court concludes that anti-LGBTQ bias is necessarily “on the basis of sex,” and that to argue otherwise one “must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status.”
Importantly the Court said that regardless of how you define “sex,” anti-LGBTQ discrimination is sex discrimination.The Court assumed for purposes of argument but did not decide that “sex” in Title VII means something like “biological sex” or sex assigned at birth. It made clear that “nothing in our approach to these cases turns on the outcome of the parties’ debate” about the definition of the word “sex.” Even if it made any difference, this assumption is not binding on future cases.
Notably, some are suggesting Gorsuch planted some landmines here that could subtly help future cases seeking to roll back the administrative state. Certainly, this is a much different opinion than we would have seen from, say, Justice Ginsburg or Justice Sotomayor if they had written it.
What the dissenters said
Justices Alito, Thomas, and Kavanaugh dissented.
Alito’s long dissent, joined by Thomas, essentially walks through each point in the majority opinion and says, “Nuh-uh!”
Alito included four appendices to his dissent:
Appendix A: Dictionary entries from the 1960s
Appendix B: Dictionary entries since 2000
Appendix C: List of federal sex discrimination laws
Appendix D: Forms documenting that the military banned queer people at the time Title VII was passed.
He also scaremongered about the downstream effects, a la Scalia in Lawrence v. Texas. Alito trotted out the usual fear arguments about bathrooms and locker rooms, shelters, school sports, professional sports, teaching at religious schools, health insurance coverage, misgendering in schools and the workplace, and prisoner rights.
Kavanaugh’s shorter dissent, joined by no one, focused on an argument that anti-LGBTQ bias may be sex discrimination in a literal sense, but not an ordinary sense, because, well, common sense! “Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.”
Kavanaugh wrote his dissent only about sexual orientation because some of the claims he makes in his opinion are indisputably wrong as it relates to gender identity.
For example, he points to OPM regulations as defining SO and sex separately, but they actually do define GI within sex discrimination!
He makes the same claim about state laws, but the first one he cites, California, originally defined gender identity within sex and only later separated it out.
And most tellingly of all, he emphasizes that federal courts had overwhelmingly rejected SO claims until just a few recent exceptions - that’s an exaggerated claim for SO, but completely untrue for GI.
Kavanaugh claims that “this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity,” which is simply not true. Of course, his analysis is wrong regardless, but his framing choice is particularly dishonest.
More from Kavanaugh:
“In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.”
“Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”
The implications of this ruling are huge, though contested.
Opponents of equality will make three basic arguments to try to limit the impact of this ruling. None of these arguments have merit, but they will be hammered relentlessly by anti-LGBTQ organizations and likely the Trump Administration. Don’t be fooled.
Does this apply outside of employment? Almost certainly YES. Opponents will argue that this decision doesn’t apply to other federal sex discrimination laws. Justice Alito’s dissent included a list of dozens of federal sex discrimination laws, including those broadly covering education, housing, and health care. While SCOTUS technically didn’t speak to these other laws, there is no serious argument to distinguish them based on what the Court has said today.
Does this apply to all forms of anti-trans discrimination? Likely YES. Opponents will argue that most forms of anti-trans discrimination aren’t really discrimination. In other words, opponents will argue that today’s decision only applies to a “transgender need not apply” policy, not to anything else. So, you can kick trans people out of work, housing, school, or health care, if you say the reason is because of concerns about bathrooms, locker rooms, sports, or insurance coverage. Courts have rejected this logic again and again, and nothing in today’s decision supports it.
Does this apply to people who discriminate based on religious beliefs? Likely YES, at least when it comes to employment. Opponents will argue that religious exemptions provide a pass to ignore the law when it comes to LGBTQ people. As Justice Gorsuch points out, Harris Funeral Homes made this argument in the court below, lost, and abandoned. Title VII has a religious exemption, and it’s only for religious organizations hiring based on religion - not based on sex. US public opinion and decades of case law clearly reject the idea that personal beliefs give you a pass to fire or evict someone because of who they are. Religious exemptions in other contexts will continue to be a hard-fought issue, with SCOTUS set to hear arguments this fall on whether religious groups can defy state and local nondiscrimination laws by refusing to work with prospective foster parents based on their being LGBTQ or of a different religion.
Technically, the Supreme Court did not decide any of these questions today, but opponents’ arguments on them are very weak and would create huge anomalies in the law.
What does this mean for the Trump Administration’s actions in this area?
Here’s my tentative prognosis:
Because of this ruling, the rule put out by HHS last week is now meaningless with regard to anti-LGBTQ bias in health care. The HHS rule sought to make several other harmful changes to protections for marginalized communities in health care, which are currently being challenged in court.
Because of this ruling, the Trump Administration’s position on Title IX and trans students is now meaningless, and schools should ignore it and protect trans students.
Because of this ruling, Connecticut leaders in particular should reject empty threats to their federal funding that seek to force them to kick students out of school sports for being transgender.
Because of this ruling, the proposed rule expected soon from HUD is largely meaningless, but will still spread fear and confusion and must be stopped.
Because of this ruling, HHS and ED must immediately resume accepting and investigating complaints of discrimination against transgender people. Legal organizations should resume filing complaints with these agencies, though never to the exclusion of pursuing other remedies on behalf of their clients.
Because of this ruling, HHS, ED, DOJ, DOL, HUD, or other agencies may be tempted to put out rules or guidance attempting to narrowly define anti-LGBTQ discrimination. We will need to watch them as closely as ever.
Because of this ruling, the Trump Justice Department is sure to double down on filing briefs seeking extremely broad religious exemptions from civil rights laws. Likewise, the Labor Department will likely forge ahead with its attempt to broaden EEO exemptions for federal contractors.
Because of this ruling, the Trump trans military ban is on shakier ground, as the Supreme Court has made clear that it must be subject to heightened scrutiny. Administration officials will still seek to lean on the doctrine of military deference, but that just got harder.
Because of this ruling, the Veterans Health Administration trans surgery exclusion is also on shaky ground, as the Supreme Court has made clear that it must be subject to heightened scrutiny. This regulation isn’t currently subject to legal challenge, but it could well be in the year to come if there is no action to change it.
Because of this ruling, the State Department’s binary-only passport policy is also on shakier ground as it considers whether it wants to continue denying Dana Zzyym’s passport and fighting their case.
Despite this ruling, some anti-LGBTQ Trump actions won’t be directly affected, such as rollbacks to federal data collection in areas like the National Crime Victimization Survey and the Adoption and Foster Care Analysis and Reporting System.
What does this mean for the Equality Act?
Today’s ruling makes clear that anti-LGBTQ discrimination is illegal nationwide when it comes to employment, and probably also when it comes to education, housing, health care, and some federal programs. But that protection isn’t comprehensive, and without further action it may continue not to be well-understood.
We still need Congress to pass the Equality Act because it:
Would make crystal clear that anti-LGBTQ bias in employment, education, housing, and health care are illegal nationwide.
Would extent protections against sex discrimination in public spaces and services and all federal programs for the first time.
Would expand protections for everyone, including from race discrimination, for the first time to cover retail, transportation, and other businesses.
Would put to bed the pretext of “bathroom concerns” as a cover for a policy of “trans people need not apply.”
Neither today’s ruling nor the Equality Act are the ultimate brass ring - there is a lot more to do in the face of disproportionate unemployment, poverty, homelessness, incarceration, HIV, poor health, suicidality, and violent victimization among transgender people. The history of all civil rights laws shows those problems don’t melt away when we make it illegal to discriminate in jobs or schools - that’s just the beginning.
Curing these grave disparities will require much more, including making proactive investments in economic opportunities for marginalized transgender people - and reimagining public safety as we know it.
What does this mean for anti-transgender state laws and policies?
Because of this ruling, state Medicaid and employee health plan exclusions will likely continue to fall under the ACA and Equal Protection Clause.
Because of this ruling, Idaho HB500 and HB509 are on very shaky ground under the Equal Protection Clause and Title IX.
Because of this ruling, other states’ restrictions on ID documents are also more likely to fall under the Equal Protection Clause.
Because of this ruling, advocacy have a powerful new argument against future anti-trans legislation.
What does this mean for the fight for Black LGBTQ lives and against police terror?
Today’s SCOTUS decision provides new tools in combating police and prison violence and abuse against LGBTQ people.
Constitutional claims against any police or prison practice that discriminates against LGBTQ people just got a big boost.
Federal grants under laws like VAWA, JJDPA, and the Safe Streets Act also now prohibit anti-LGBTQ bias, although those laws don’t allow individual lawsuits. Instead, they have to be enforced by DOJ, or grantees have to be persuaded to do the right thing.
Obviously, anti-discrimination claims are just a small piece of the larger conversation about defunding/divesting from policing and ending police violence and mass incarceration. Still, it’s important to recognize that they have a modest but important role to play.
How the Court discussed Aimee Stephens and her gender
Sadly, Aimee died on May 12, 2020, just a month before the Supreme Court would rule on her case. It’s notable that despite invitations in some of the briefs, none of the Justices were willing to disrespect Aimee’s memory by misgendering her.
From the Court’s opinion:
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”
Notably, all the opinions referred to Aimee using female terms, without comment.
This was not at all a foregone conclusion, given the very different and cruel approach taken by some of Trumps nominee’s to the federal bunch.
Some examples of areas where anti-LGBTQ discrimination is now very likely prohibited by statute
Justice Alito notes that “Over 100 federal statutes prohibit discrimination because of sex,” and even includes a whole appendix listing them. Some may try to distinguish these other laws, but these arguments would be very weak - they could persuade a very hard-right leaning judge here and there, but ultimately aren’t likely to prevail.
Federal laws prohibit sex discrimination in several commercial contexts and many federally funded grant programs, including in the following areas. Many of these protections only apply where an entity takes federal funds, but often that includes most or all relevant entities.
Health care, including insurance, mental health, and substance abuse
Public schools and any schools that take federal student aid
Housing, including most shelters
Domestic violence and victims’ services programs
Police, corrections, and juvenile justice programs
Disaster relief
TANF, heating assistance
Airline and airport services
Head Start and many child care and child development programs
Public transportation
Public works projects
Here’s a selection of key statutes from Justice Alito’s Appendix C.
Probably due to the search terms used by his clerks, he left out a few, importantly: 42 U.S.C. § 18116(a) (Nondiscrimination in health programs and activities).
34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans)
34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program)
34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women)
34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)
34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance)
40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)
42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness)
42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants)
42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)
42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)
42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions)
42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination)
42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families)
42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions)
42 U. S. C. §3123 (Public Works: Discrimination on Basis of Sex Prohibited in Federally Assisted Programs)
42 U. S. C. §3604 et seq. (Fair Housing Act)
42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)
42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities)
42 U. S. C. §6709 et seq. (Public Works Employment; Sex Discrimination; Prohibition; Enforcement)
42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions)
42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)
42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)
42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds)
42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States)
42 U. S. C. §12635(a)(1) (National and Community Service S2635(a)(1) (National and Community Service State Grant Program)
49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination)
49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination)
49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination)
WY high court allows birth certificate gender changes to continue. A victory, but why list it at all?
This case had been pending for a long time, leaving great uncertainty for Wyomingites. Yesterday’s ruling preserves the status quo, in which 48 states permit gender changes on birth certificates in at least some circumstances, while an Idaho law that would ban all such changes faces an uncertain fate amid ongoing litigation.
The ruling in MH v. First Judicial District Court is an important victory for trans Wyomingites. Nevertheless, Wyoming’s rules remain restrictive, and it’s not clear why short-form birth certificates should list gender at all. Like several other states, Wyoming’s Vital Records Act does not list what data fields should be included in either confidential birth records or short-form birth certificates, and instead states that they “shall include as a minimum the items recommended by the federal agency responsible for national vital statistics subject to approval of and modification by the department of health.” The current Model Vital Statistics Act, developed by the CDC in 2011, recommends a sex field. But that could change, and in any event Wyoming law allows its Department of Health to modify that list.
But back to the case. Wyoming’s Vital Records Act allows corrections on birth certificates generally, and authorizes the Department of Health to make rules and procedures for corrections. WDOH has done just that, stating that any item on a birth certificate may be changed based on a court order, and that to change the sex marker there should be a “an affidavit and a statement from a physician.”
Petitions for birth certificate changes, like name changes, are not adversarial proceedings. Yet in this case, where a trans woman brought a petition in the district court, that court - on its own - decided that Wyoming law didn’t grant it jurisdiction to hear such petitions, regardless of the WDOH rules. That was over a year ago, and the case has sat with the Wyoming Supreme Court for an unusually long time. But this week the five-member state high court unanimously ruled that Wyoming courts have jurisdiction to hear gender change petitions:
The Wyoming Constitution and our precedent require a presumption in favor of district court subject matter jurisdiction. The Vital Records Act does not limit district court jurisdiction over amendments to vital records, it establishes a class of cases which includes M.H.’s petition, and the district court therefore has subject matter jurisdiction.
The high court ruled only on this narrow issue of jurisdiction, but it did imply that the WDOH regulations allowing gender changes are also proper:
Contrary to the district court’s assertion, the WDOH regulations providing for amendment of “any item” (including sex) on a birth certificate do not constitute an attempt by the WDOH “to create subject matter jurisdiction in the district courts.” Rather, they are a proper exercise of the WDOH’s legislatively delegated authority under section 35-1-424(a), which charges the WDOH with maintaining “the integrity and accuracy of vital records.” If a person’s sex—or any other information on a vital record—is incorrect, inability to amend that information would undermine the accuracy of her vital records. Amendment of inaccurate information falls squarely within the legislative intent to “protect the integrity and accuracy of vital records.”
One member of the court, Justice Katz, wrote at length to take issue with what he characterized as unnecessary and questionable dicta. Justice Katz speculated that the WDOH regulations may be improper because allowing changes based on circumstances subsequent to a person’s birth “undermines the integrity and accuracy of her birth certificate as it would no longer reflect the facts of [a person’s] birth.” Katz suggests that a person’s gender identity and gender transition might not change "the facts of the birth” regarding their sex, and therefore any such change is unauthorized, and the WDOH rules would be void. Katz acknowledged that this was not before the state high court, but the opinion reads as an invitation to the district court to deny the petition on new grounds and set up another appeal.
For now, this is an important victory. But either the WDOH or state lawmakers could avoid further fights about gender changes by simply removing the gender field from short-form birth certificates. The state would then still collect vital statistics at birth, but the certificate that individuals must use for everyday purposes would no longer disclose this sensitive and contentious piece of information.
On the trans agenda: a post-policing world
You’ve probably read by now that nine of the thirteen members of the Minneapolis City Council - including its two Black transgender members, Vice President Andrea Jenkins and Ward 4 Councilmember Philippe Cunningham - issued this statement yesterday.
Decades of police reform efforts have proved that the Minneapolis Police Department cannot be reformed and will never be accountable for its actions.
We are here today to begin the process of ending the Minneapolis Police Department and creating a new, transformative model for cultivating safety in Minneapolis.
We recognize that we don’t have all the answers about what a police-free future looks like, but our community does.
We’re committed to engaging with every willing community member in the City of Minneapolis over the next year to identify what safety looks like for everyone.
We’ll be taking intermediate steps towards ending the MPD through the budget process and other policy and budget decisions over the coming weeks and months.
Councilmember Cunningham also posted this thoughtful statement:
Many are asking right now: What does that mean?
This vision for a future that does not need police is centered around people having their needs met: stable housing, healthy food, high quality jobs and education, connection to community. We know that when people do not have their basic needs met, this often results in getting caught up in a cycle of crime, violence, and the criminal justice system. When we envision a future without police, we must work backward from that vision to where we are today. For those who still choose that path, there will be a system of accountability. THAT is the work ahead of us as a city. We must work together to get to where we need to go.
It should be evident by now that our current system is not working, or else we would have achieved that vision already.
Since day one, I have been a champion for the public health approach to public safety. We know that it works, and now more than ever we must properly fund it. Those who follow my work know that I led the charge to create the Office of Violence Prevention as a pathway to building new alternative systems, and our work is based on models other cities have found successful. The work is just beginning at the City level, and our own community has led this work for decades without being paid fairly or at all for it. We have seen in the past two weeks how a community can come together and keep our neighborhoods safe. It is now time to institutionalize that work and properly fund our commitment to a city where ALL residents are safe.
Folks ask what’s the plan... There isn’t one yet and there’s a reason for that. The City has to work ALONGSIDE community to build something new. I have heard loud and clear Northsiders don’t want the government working in a bubble and to just tell them what’s going to happen. Further, I just want to reiterate today’s commitment does NOT mean the police department will suddenly disappear tomorrow. There will be a thoughtful, intentional, iterative process to transition us into new systems to keep our community safe. YOU must be a part of this process. I commit to you today to work alongside you as we explore these new systems that are rooted in justice and community. I believe in Chief Arradondo and his vision for what is possible for public safety; I don’t, however, believe one man, even someone as amazing as he is, has the power to change a broken system. I look forward to working with him and every single Ward 4 resident to bring the vision of a community that is safe for ALL of us and one in which we can ALL thrive.
He also strongly recommended reading “Contagion of Violence,” the report from the Institute of Medicine’s 2013 Forum on Global Violence Prevention.
It’s noteworthy that this vision of defunding and dismantling policing as we know it in favor of health and social services and other investments in marginalized communities goes far beyond what has so far been embraced by national civil rights organizations. Before this month, it was hard to imagine such a seismic shift in the Overton window - that is, in what seems possible in public policy. It’s in large part the job of grassroots activists to be out ahead of professionalized lobbying groups moving that Overton window.
In moments like this, the professionalized advocates need to hurry to catch up and seize the moment. For some of us, that means adapting how we think and talk about these issues quickly, and being able to hold simultaneously in our minds and our dockets both the kinds of “intermediate steps” the Councilmembers referred to (like, perhaps, shifting budget resources from policing to health and human services and fast fixes like the Campaign Zero “8 Can’t Wait” planks) and drawing on the work of activists and scholars over decades to flesh out that vision of a world without policing as we know it.