Report

Comparing the LGBTQ+ Records of Administrative Agencies Under Presidents Biden and Trump

HRC, July 2024 | 40 Minute Read

Comparing the LGBTQ+ Records of Administrative Agencies Under Presidents Biden and Trump

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Executive Summary

Across the country, Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) people are living through an unprecedented state of emergency. In recent years, anti-LGBTQ+ legislators took direct marching orders from extremist groups that urged them to tell their LGBTQ+ constituents that they should not be seen nor heard—nor even exist. As these efforts only continue to build and spread, it is critical that the federal government step up to protect LGBTQ+ people, including through enforcing existing federal laws that can counter these devastating laws and policies.

This November, Americans will be able to make their voices heard regarding the future of our country, and indeed, the future of LGBTQ+ rights. With the end of President Joe Biden’s first term in office quickly approaching, we can now more fully assess the impact of his administration on LGBTQ+ people—as well as compare that record to the record of the same federal agencies while under the leadership of Donald Trump. As we approach this inflection point in our history, it is critical that voters understand the vastly different ways in which a second Biden or Trump Administration could affect the lives and well-being of LGBTQ+ people.

Indeed, the records of both administrations vary significantly with respect to their treatment of LGBTQ+ people and their rights.

While federal agencies under both presidents engaged in a wide variety of actions impacting virtually every aspect of LGBTQ+ lives, one administration had a clear positive impact—and the other a consistently negative impact. As presidents appoint the heads of these agencies and set their policy agendas, a review of their records provides valuable insight on the plans of each administration regarding LGBTQ+ rights. Here, we summarize the actions focused on LGBTQ+ people across both administrations into four categories:

Nondiscrimination Protections for LGBTQ+ People

While a limited number of federal laws currently contain express protections against discrimination based on sexual orientation and gender identity, LGBTQ+ people have increasingly succeeded in bringing claims under laws that prohibit sex discrimination. We have long called for federal agencies to issue regulations making it clear federal agencies will enforce these sex nondiscrimination laws to be inclusive of LGBTQ+ people and so ensure equal access and treatment in areas like employment, housing, health care, and education.

Under the Trump Administration… Under the Biden Administration…
Agencies rescinded many existing rules and guidance that affirmed legal protections for LGBTQ+ people. Often, these agencies made clear that they would no longer accept civil rights complaints based on sexual orientation or gender identity. Agencies across the government worked to implement a recent Supreme Court decision finding that LGBTQ+ people are protected from sexual orientation and gender identity discrimination under existing protections against sex discrimination, doing so across dozens of federal civil rights laws.
Notably, some of the regulations the Trump Administration issued to replace older, more inclusive rules were successfully challenged in court and enjoined from being enforced. Notably, some of these efforts have yet to be finalized, while others that were finalized are currently being challenged in court—including by the same groups and individuals that informed, supported, and implemented the Trump Administration’s policies.
A second Trump Administration is expected to try implementing similar rules once again, and to not defend lawsuits against efforts by the Biden Administration to replace their rules with more inclusive protections for LGBTQ+ people. A second Biden Administration is expected to defend their efforts to protect LGBTQ+ people in court.

Data Collection on LGBTQ+ People

Using various vehicles like surveys and administrative forms, the federal government is empowered to collect comprehensive data on various aspects of our lives and well-being. That information is often used to determine whether regulated entities, such as housing providers, federally funded schools, and certain employers, are complying with civil rights laws and other important government policies, and where and how trillions of dollars in federal funding will be used each year. LGBTQ+ people have long been advocating to be included within these collections of data.

Under the Trump Administration… Under the Biden Administration…
Agencies consistently worked to stop any LGBTQ+ data collection that had begun during the Obama Administration. Agencies restored questions allowing data to be collected from LGBTQ+ people across various surveys and forms in ways that would generate useful information but also protect respondents’ privacy and confidentiality.
They likewise worked to stop ongoing efforts to finally begin collecting information on LGBTQ+ people through other collections, like beginning the process for their inclusion on the decennial U.S. Census. They likewise worked to newly add those types of questions onto other collections of data and to initiate research to empower future efforts to better include LGBTQ+ people within some of our nation’s most rigorous surveys.

Providing Services and Resources to LGBTQ+ People

The federal government has a wide array of funding and other resources available to help improve the lives of people across the country, including and especially people belonging to marginalized communities. However, LGBTQ+ people and members of other marginalized groups have long reported being excluded from many of these government-funded programs and services.

Under the Trump Administration… Under the Biden Administration…
Agencies worked to erase all possible references to the existence and needs of transgender people, alongside cutting off LGBTQ+ people’s ability to access certain government-funded programs and services. These included family planning services and even the ability of transgender people and people living with HIV to serve openly as part of the U.S. Armed Forces. Agencies expanded the availability of certain programs and services, like the Title X family planning program, to explicitly include LGBTQ+ people.

However, certain federal resources still remain unavailable to LGBTQ+ people, such as consistent access to PrEP and other HIV prevention tools for incarcerated people and surgical benefits for transgender veterans seeking gender-affirming care.

Promoting Inclusive Policies

Federal agencies have long used their grantmaking processes and other policies and practices to encourage other entities to implement protections for marginalized people and ensure they can be included in and receive the full benefits of programs and services. These entities include state and local government agencies like school districts, as well as private organizations and businesses, that often receive federal money to provide programs and services in the federal government’s stead. These programs and services include food and housing assistance programs, health-related services including connecting low-income people to Medicaid, and even running agencies that facilitate foster care placements and adoptions. Unfortunately, the federal government’s informational and other resources meant to help guide those entities have not always consistently included LGBTQ+ people.

Under the Trump Administration… Under the Biden Administration…
Agencies eliminated existing references to LGBTQ+ people within their guidance and other informational resources so that covered entities would no longer be required to acknowledge LGBTQ+ people or adopt their own inclusive nondiscrimination policies. Likewise, these agencies often failed to fill positions meant to advocate for and provide information on LGBTQ+ people. Agencies consistently worked to restore and expand references to transgender and other LGBTQ+ communities within their guidance and informational resources, with the intent of directing covered entities to promote inclusion for LGBTQ+ people. Likewise, these agencies filled several government positions intended to help advocate for LGBTQ+ people.

Introduction

This report compares the records of various federal administrative agencies under the leadership of Presidents Joe Biden and Donald Trump as they relate to Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) communities and their rights.

Rulemaking and the Experiences of the American People

Regulations issued by federal agencies can powerfully impact the lives of everyday people, including by implementing and enforcing nondiscrimination protections. This function is particularly important when considering anti-LGBTQ+ discrimination, which can take many forms and persists through this day across every setting imaginable—but which remains expressly covered by only a limited number of federal laws.

Under the law, the public can share their lived experiences with agencies as they develop their regulations through the public comment process. Below, we share excerpts from such comments illustrating the need for agencies to promote inclusivity and justice, and the different roles these comments can play when received by different administrations.

For example, the following comments were shared with the Trump Administration as it considered amending regulations implementing the Affordable Care Act’s prohibition of discrimination in health care:

“I am the father of an adult transgender daughter, an ordained deacon in the Catholic Church, a retired environmental engineer, and a resident of Tampa FL. . . . Every time my daughter has had a need for health care, or even worse a medical emergency, we have had to confront the issue of possibly being denied care or of being provided substandard care for no other reason than she is transgender.”iii
“im a lesbian. i was recently denied an STD test b/c the doctor knew i was a lesbian & didnt think i needed one. that kind of medical malpractice could kill us.”iv

The Trump Administration ultimately moved forward with its proposal to remove express protections against sexual orientation and gender identity discrimination implemented by the Obama Administration, despite receiving thousands of comments like this one.

In another example, an individual shared the following with the Biden Administration as it considered amending regulations to implement LGBTQ+-inclusive nondiscrimination protections in schools:

“My students need this because about 20% of them identify as LGBTQIA+. They know who the accepting and unaccepting teachers are within a week of setting foot on campus because for some of them, it can be a matter of life and death. They tell each other who they can be open around, and they find me fast, because as the only openly queer and non-gender-conforming teacher on campus, I stand out. That's on purpose. We're in an isolated semi-rural desert district with a huge number of staff belonging to the local evangelical megachurch. I might be the only safe adult they see.”v

The Biden Administration ultimately moved forward with implementing these protections at all federally funded schools nationwide.

Department of Agriculture (USDA)


USDA is responsible for guiding the government on issues related to food, agriculture, the protection of natural resources, livestock food production and farming, rural development, and nutrition—with a goal of ending hunger across the United Stated and worldwide.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Pressured 4-H to rescind its policy welcoming LGBTQ+ participants, leading to the firing of an official who protested this change.

4-H is the largest youth organization in the United States for children ages 5 to 19. 		Issued guidance confirming it would interpret existing legal protections to protect LGBTQ+ people from discrimination within programs and services that receive assistance from USDA, including the Supplemental Nutrition Assistance Program (SNAP).

SNAP, commonly known as “food stamps,” provides food benefits to low-income families across the United States.
Issued a rule clarifying that LGBTQ+ people are protected from discrimination within its summer meal programs by existing federal laws.

Department of Commerce


The Department of Commerce is charged with fostering conditions for economic growth and opportunity for all communities within the United States. The Census Bureau, a part of the Department of Commerce, is a principal agency of the U.S. Federal Statistical System charged with collecting and reporting on data about the economy and lives of people across the country.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Issued a statement that it had “inadvertently” included sexual orientation and gender identity as a proposed topic within a Census Bureau report on the then-upcoming 2020 Census.

In the U.S., the Census Bureau operates the two largest demographic data collection efforts: the yearly American Community Survey and the decennial U.S. Census. Currently, neither currently contains questions regarding sexual orientation or gender identity. Data from these two collections are used to help distribute hundreds of billions in federal funding annually, including to fund programs and services meant to assist marginalized communities. 		Worked to initiate a test in 2024 of sexual orientation and gender identity questions that could be added to the American Community Survey and in turn allow LGBTQ+ respondents to be identified.



The American Community Survey replaces the “long form” survey previously issued as part of the decennial U.S. Census. This testing is therefore expected to contribute toward ongoing efforts to include questions measuring sexual orientation and gender identity on the decennial census itself.
Began collecting data on sexual orientation and gender identity through the Household Pulse Survey.

The Household Pulse Survey was established by the Census Bureau to measure the impact of the COVID-19 pandemic; data collected after this change was made have been used to show the outsized impact of the pandemic on LGBTQ+ communities.
Moved to exclude sexual orientation and gender identity from their Equal Employment Opportunity statement.

This statement is meant to inform workers and applicants about applicable legal protections. Under the Civil Service Reform Act and the Executive Orders signed by Presidents Clinton and Obama, sexual orientation and gender identity discrimination is prohibited in federal employment.

Department of Defense


The Department of Defense is the nation’s largest agency, responsible for the United States Armed Forces and the coordination and supervision of all agencies and functions related to our national security.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Reinstituted the U.S. military’s ban on transgender people being allowed to openly serve.

During the final year of the Obama administration, a policy was issued that would have allowed transgender people to serve in the military consistent with their gender identity after transitioning once finalized. This would have been the first time in U.S. history that such individuals would have been allowed to serve openly as their true selves. 		Issued a new policy that restored and finalized Obama-era policies to allow transgender people to openly serve in the U.S. military and to allow individuals to access transition-related care while serving.

Under the ban issued under the Trump Administration, a medically designated need to transition gender was a basis for discharge and denial of accession even if the servicemember could still meet general standards for readiness and deployment.
Instituted a “Deploy or Get Out” policy requiring that any personnel deemed undeployable for over a year receive an immediate discharge from the military.

Under existing Pentagon policies, servicemembers living with HIV have long been considered non-deployable. 		Issued a memorandum stating that people living with HIV would no longer be automatically banned from joining the U.S. military. This memorandum also provides guidance on how people living with HIV could enlist and be deployed in the future.

A longstanding Department directive previously prohibited any person living with HIV from enlistment, appointment, or deployment in the military, based on medically inaccurate information that does not reflect the current standard of care utilized by the medical community.
Instituted a policy banning the use of Department funds to provide medical treatment regimens for transgender people already serving in the military. Issued a policy to make Department resources available for transgender people wishing to transition while serving in the military.
Issued a policy that would prevent drag events from being hosted at U.S. military installations or from being paid for using Department funds.

Department of Education


The Department of Education is responsible for guiding schools, including colleges and universities, across the country with a goal of promoting educational attainment and achievement for all students nationwide.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Officially rescinded guidance stating that transgender students are protected under Title IX.

Title IX is a civil rights law that prohibits sex discrimination in federally funded education programs. It was interpreted by the Obama Administration to include sexual orientation and gender identity discrimination under that existing prohibition. 		Issued a Notice of Interpretation confirming that it would enforce Title IX inclusive of protections against sexual orientation and gender identity discrimination.
Withdrew its finding that an Ohio school district had discriminated against a transgender girl.

The Department later stated it would no longer investigate civil rights complaints filed by transgender students banned from using restrooms corresponding with their gender identity. 

Originally, the Department found that barring this student from the girls’ bathroom and failing to address ongoing misgendering by her classmates and teachers constituted unlawful discrimination under Title IX. 		Negotiated settlements to resolve sex-based harassment complaints involving transgender students within both school districts and colleges and universities.

The Department also recently announced an investigation into the death of Nex Benedict, a non-binary high school student who died after experiencing relentless bullying at school.
Finalized regulations allowing religious colleges and universities to ignore nondiscrimination standards set by relevant accrediting agencies. 

Language regarding accreditation of religious institutions of higher education within the Higher Education Opportunity Act could be interpreted to require these accrediting bodies to accredit religious institutions that discriminate or that do not meet science-based curricula standards. 		Announced plans to revise the final rule issued by the Trump Administration regarding accreditation of religious colleges and universities.


The Department should issue a regulation clarifying that relevant portions of federal law, which require accreditation agencies to “respect the stated mission” of religious institutions, do not require the accreditation of religious institutions that do not meet neutral accreditation standards including nondiscrimination policies and scientific curriculum requirements.
Sent a letter threatening enforcement action against the Connecticut Interscholastic Athletic Conference, as well as six school districts, arguing that Title IX requires schools to ban transgender students from competing in school sports consistent with their gender identity.

This was followed by a threat to withhold federal funding from some Connecticut school districts due to their trans-inclusive policies. 		Issued a policy letter confirming that policies requiring the exclusion of transgender students could lead to the withholding of federal funds, including those policies prohibiting those students from being treated consistent with their gender identity.
Issued a memorandum arguing that it did not need to apply Supreme Court precedent to formally prohibit sexual orientation and gender identity discrimination under Title IX.

In 2020, the Supreme Court decided in Bostock v. Clayton County that the prohibition on sex discrimination within Title VII, an employment discrimination law, should be read to prohibit sexual orientation and gender identity discrimination. Notably, the scope of Title IX’s sex discrimination provisions have traditionally been interpreted in accordance with Title VII. 		Issued new regulations to firmly establish that, consistent with the Bostock case, sexual orientation and gender identity discrimination, as well as other forms of sex discrimination like pregnancy status, are prohibited under Title IX.

As of this writing, the Department’s general Title IX rule has been finalized, while a proposed rule specific to athletics was issued but has yet to be finalized.
Finalized revisions to the Civil Rights Data Collection to no longer collect data on incidents of bullying motivated by someone’s gender identity, gender expression, or nonconformity with gender stereotypes.

The Civil Rights Data Collection is used to collect information from school districts across the country to confirm their compliance with laws like Title IX and ensure all students are being provided with equal educational opportunity. Data from this collection prior to this change showed that transgender youth experience bullying at higher rates than their cisgender peers.		 Finalized revisions to the Civil Rights Data Collection to restore and expand on its past collection of data related to gender identity, including incidents of bullying against transgender and non-binary students.

Department of Health and Human Services (HHS)

HHS is responsible for providing essential human services and programs that help protect and enhance the health and well-being of people across the country. HHS contains various sub-agencies responsible for American health policy and regulation, including the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC). HHS oversees a wide range of programs from the Low Income Home Energy Assistance Program to the Public Health Preparedness and Response Program.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Proposed ending the collection of data on LGBTQ+ individuals with disabilities, removing questions on LGBTQ+ demographics from the National Survey of Older Americans Act Participants and the Annual Program Performance Report survey for Centers for Independent Living.

After backlash, HHS restored the question on the National Survey of Older Americans Act Participants on sexual orientation, but ultimately continued to omit a question that yielded information on gender identity.

These collections of data are intended to gather information on participants of the nation's leading programs for aging people. 		Restored the collection of data on gender identity on the National Survey of Older Americans Act Participants.

Proposed adding a question on discrimination based on LGBT status to the National Survey of Family Growth.

This survey gathers information on pregnancy and births, marriage and cohabitation, infertility, use of contraception, family life, and general and reproductive health to guide relevant HHS programs and funding. While the survey contains questions on sexual orientation, it continues to exclude questions on gender identity.
Officially abandoned data collection on the sexual orientation of youth in foster care, as well as foster and adoptive parents and guardians, in the Adoption and Foster Care Analysis and Reporting System.

Data from this system provides states, the Children’s Bureau, and foster care and adoption providers with valuable information to ensure safety and security to children in need of homes and families who will care for them.

Issued a final rule undermining the Title X family planning program’s ability to serve all patients and provide care. In part, it did this by excluding transgender men from its provisions allowing women to be considered low-income if their employer-provided insurance would not cover contraceptives due to religious objections, and by restricting funding to clinics providing abortion-related care or referrals.

Family planning clinics funded under Title X ensure that individuals have access to a broad range of family planning and preventative health services across thousands of service sites. 		Issued a new final rule restoring inclusive access to resources for all clinics and individuals under Title X.
Secured a donation from Gilead Sciences of pre-exposure prophylaxis (PrEP) medication for HIV prevention for up to 200,000 individuals each year for up to 11 years.

PrEP is an FDA-approved prescription medication that is taken once a day and can help prevent the spread of HIV. 		Issued finalized guidance through the CDC on the use of Doxycycline Postexposure Prophylaxis (DoxyPEP) for bacterial STI prevention among gay and bisexual men.

While the guidance does not affirmatively recommend the use of DoxyPEP among other populations due to a lack of research supporting that conclusion, the guidance does authorize individual providers to do so if they feel it is appropriate for other patients.
Issued a temporary amendment to the FDA’s blood donation guidance to reduce the deferral for gay and bisexual men from one-year to three months, largely in response to shortages caused by the COVID-19 pandemic.

Notably, the amended policy continued to effectively bar the vast majority of gay and bisexual men from becoming blood donors, irrespective of their risk for HIV and without regard for our current scientific understanding of HIV and advances in fighting the epidemic.		 Officially amended the FDA’s blood donation guidance to remove consideration of sexual orientation and implement an individualized risk assessment approach.
Launched the “Division of Conscience and Religious Freedom.”

The Department also finalized rules creating sweeping religious exemptions for anyone working in a health care setting from providing a range of medical services.

This new division and the accompanying regulation raised serious concerns regarding access to critical care for some of the most vulnerable patients—including those who are LGBTQ+. 		Finalized new regulations reversing the religious exemptions issued under the Trump Administration.
Granted a waiver from federal nondiscrimination requirements to South Carolina’s Foster Care Program.

This program sought the waiver after contracting with a child welfare provider seeking permission to refuse to serve prospective parents who do not share their religious beliefs, specifically Jewish families, and set a model for asserting similar refusals to serve LGBTQ+ parents. 		Rescinded the waiver previously granted to South Carolina’s Foster Care Program.
Finalized rules removing all explicit protections in health care for LGBTQ+ people under Section 1557 of the Affordable Care Act.

Section 1557 and the original 2016 implementing regulations for that law issued by the Obama Administration were a sea change for LGBTQ+ patients accessing healthcare services and insurance coverage. 		Finalized new rules reversing the Trump Administration’s Section 1557 regulation and firmly establishing nondiscrimination protections for LGBTQ+ people in health care.
Finalized a rule allowing social service providers that receive government funding to discriminate based on sexual orientation and gender identity. Finalized a rule prohibiting recipients of HHS grants from engaging in sexual orientation and gender identity discrimination.
Finalized a rule requiring that state and tribal agencies maintain sufficient placements for LGBTQI+ youth that will be free from discrimination and harmful practices like conversion therapy.

LGBTQ+ youth are overrepresented in the foster care system and are particularly vulnerable to discrimination and mistreatment.

Department of Homeland Security (DHS)


DHS is responsible for managing the country’s system of immigration, customs, and asylum, as well as issues related to border security, cybersecurity, anti-terrorism, and disaster prevention, management, and response.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Finalized various regulations that restrict access to asylum and make it easier for judges to reject asylum claims filed by LGBTQ+ people, returning them to the persecution that they were trying to escape in their home countries.

A number of these regulations were successfully enjoined in federal court.

LGBTQ+ people in many parts of the world have been forced to flee violence targeting them and their families. The majority of LGBTQ+ people seeking asylum in the United States come from the Northern Triangle, and due to economic disparities, often make the dangerous trip through Mexico, where they are at continued risk of violence during displacement. 		Issued several rules intended to restrict access to asylum, including requirements that asylees be forced to apply for asylum in countries that they know to be unsafe, wait for appointments in potentially dangerous locations, and allowing bars to asylum to be determined and applied significantly earlier than what has been allowed in the past.

While some of these rules have been finalized, others remain in the proposed rule stage as of this writing.

Department of Housing and Urban Development (HUD)


HUD is responsible for administering programs that provide housing and urban and community development assistance, in particular to low-income people through its management of the nation’s emergency shelters and other services for people experiencing housing insecurity and homelessness.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Admitted to delaying important resources protecting LGBTQ+ people in homeless shelters during a budget hearing before the House Appropriations Subcommittee on Transportation, HUD, and related agencies.

LGBTQ+ people, and in particular youth, are overrepresented among populations of people experiencing homelessness and housing insecurity.
Proposed withdrawing a developing survey intended to assess its Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) Youth Homelessness Prevention Initiative.

However, it is reported that HUD maintained the survey following backlash.
Released a new mission statement that removed several key phrases from the existing mission statement that prioritized fighting discrimination in housing and supporting access and inclusivity in all communities. Restored its mission statement’s previous language on discrimination and inclusivity.
Officially withdrew the 2015 Affirmatively Furthering Fair Housing rule implementing a section of the Fair Housing Act that directs jurisdictions accepting federal funds to take significant actions to promote equality and to “affirmatively further fair housing.”

These provisions were a critical step towards ensuring that everyone has access to homes in communities that provide opportunities and resources for themselves and their families—including for LGBTQ+ people. 		Issued a proposed rule to officially restore the 2015 Affirmatively Furthering Fair Housing rule.
Proposed amending its Equal Participation of Faith-Based Organizations rule to remove discrimination safeguards.
Proposed revisions to the Equal Access Rule to specifically target transgender people seeking critical emergency shelter.

The Equal Access Rule is a landmark housing protection that prohibits discrimination in all HUD funded programs including rental assistance, emergency shelters, and Federal Housing Administration loan programs. 		Officially withdrew the proposed weakening of the Equal Access Rule.

These proposed revisions would have allowed shelters receiving taxpayer dollars to turn transgender people away entirely or provide them with unsafe housing.
Officially rescinded the 2013 Rule that implemented and formalized the discriminatory effects standard and the burden-shifting test used by HUD to determine liability for discriminatory housing providers under the Fair Housing Act.

In practice, this regulation protected individuals from discrimination emerging from facially neutral policies and practices with disparate effects. The existing rule protected individuals against particularly pernicious aspects of discrimination that may be overlooked at first by nondiscrimination efforts due to the lack of—at least visible—discriminatory intent. Regardless of intent, policies and practices with a disparate effect further limit housing access for historically marginalized people, including LGBTQ+ individuals. 		Officially restored the 2013 rule, allowing people in classes protected under the Fair Housing Act to assert disparate impact claims once again.
Officially announced that it would begin investigating sexual orientation and gender identity-based complaints of discrimination under the Fair Housing Act.

Department of the Interior


The Department of the Interior is responsible for managing and conserving the country’s natural resources and most federal lands, including issues related to tribal communities.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Officially deleted “sexual orientation” from its anti-discrimination guidelines. Restored the sexual orientation references previously contained within the agency’s internal anti-discrimination guidelines, and also added references to protections against gender identity discrimination.

Department of Justice


The Department of Justice is responsible for enforcing the nation’s federal laws, including by prosecuting individuals and entities who have violated those laws and defending the United States in litigation.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Filing numerous statements of interest and friend of the court (amicus) briefs in defense of states and businesses seeking to discriminate against LGBTQ+ people.

These actions included:

Withdrawing a motion for a preliminary injunction against North Carolina’s anti-transgender HB2 and later voluntarily dismissing their lawsuit against that law;

Filing a brief in a Supreme Court case arguing that businesses have a right to discriminate against LGBTQ+ people;

Filing a brief in a Supreme Court case arguing that religiously affiliated adoption agencies should be allowed to refuse placing children with LGBTQ+ people;

Filing a brief in a Supreme Court case arguing in favor of discrimination against LGBTQ+ people under Title VII;

Filing a Statement of Interest opposing a policy by the Connecticut Interscholastic Athletic Conference that would allow transgender athletes to compete consistent with their gender identity;

Filing a Statement of Interest in support of a Kentucky wedding photographer challenging a city nondiscrimination ordinance due to a desire to not serve gay customers; and

Filing a Statement of Interest “in support of the Archdiocese of Indianapolis in its ongoing dispute with a former Catholic school teacher who alleges he was wrongfully terminated because he was in a same-sex marriage.”

Filing a Statement of Interest “in support of the Archdiocese of Indianapolis in its ongoing dispute with a former Catholic school teacher who alleges he was wrongfully terminated because he was in a same-sex marriage.” 		Obtaining settlements and filing lawsuits, statements of interest, and friend of the court (amicus) briefs in defense of LGBTQ+ people and their right to be free from discrimination.

These actions included:

Suing to stop Tennessee and Alabama’s laws banning gender-affirming care for youth.

Suing the owners and managers of a rental property in Wisconsin for harassing a tenant because of his sexual orientation.

Reaching a landmark $4.5 million settlement in a lawsuit against a New Jersey landlord who sexually harassed both female tenants and tenants who were gay or bisexual men.

Resolving allegations of harassment and a hostile environment based in part on sexual orientation in a Vermont school district;

Securing a settlement via consent decree with the American Samoa Government to resolve an employment discrimination case involving a transgender woman;

Filing Statements of interest in Georgia cases regarding coverage of gender dysphoria for incarcerated people and state employees;

Filing Statements of interest challenging transgender student-athlete sports bans in Arkansas and West Virginia;

Supporting a school’s decision to require employees to use the names and pronouns that match transgender students’ gender identities in Indiana;

Supporting a transgender boy’s right to use the boys’ restroom at his school in Florida;

Filing a brief in a Supreme Court case supporting the right of LGBTQI+ people to access public accommodations; and

Withdrawing a Statement of Interest in support of a lawsuit filed by three high school students challenging state rules banning the inclusion of transgender student-athletes in sports consistent with their gender identity.
Deprioritized prosecuting anti-LGBTQ+ hate crimes. Established combatting hate crimes, including anti-LGBTQ+ hate crimes, as a top enforcement priority for the Department.

This included securing the conviction of a man accused of “attempting to violently eliminate the entire LGBTQ community in a small Montana town.”

The Federal Bureau of Investigation recently released its annual crime report for 2022, showing that anti-LGBTQ+ hate crimes were up sharply from the prior year with a 13.8% increase in reports based on sexual orientation and a 32.9% increase in reported hate crimes based on gender identity.
Officially abandoned data collection on LGBTQ youth experiencing violence, raising the age of respondents to those questions on the National Crime Victimization Survey (NCVS) from 16 to 18.

The NCVS is the nation’s leading data collection on violent victimization; the increase in minimum age for respondents to 18 resulted in the loss of critical data on the prevalence of violence, bullying, and harassment experienced by LGBTQ+ youth. 		Officially restored data collection on LGBTQ+ youth experiencing violence through the National Crime Victimization Survey.
Issued sweeping religious liberty guidance that empowered faith-based organizations to engage in discrimination and without concern for how their actions could impact actual or prospective beneficiaries, including LGBTQ+ people.

Issued a memorandum reversing a Justice Department policy which clarified that transgender workers are protected from discrimination under Title VII of the Civil Rights Act of 1964.

Similarly, officially rescinded guidance on protections for transgender students under Title IX alongside the Department of Education.

As head of the Department of Justice, the Attorney General is charged with coordinating the full implementation of the nation’s civil rights laws across agencies, including judicial decisions impacting the interpretation of same. 		Led a coalition of nine agencies in issuing a final rule to clarify protections for beneficiaries and prospective beneficiaries of federally funded social services and the rights and obligations of faith-based and neighborhood organizations providing such services.

Issued new guidance outlining how agencies can enforce civil rights laws like Title VII and Title IX inclusive of sexual orientation and gender identity discrimination.
Created a religious liberty task force as part of their ongoing campaign to license discrimination against LGBTQ+ people in the public square.
Officially rolled back a policy by the federal Bureau of Prisons that allowed incarcerated transgender people to be housed consistent with their gender identity.

Transgender people report experiencing sexual assault at dramatically higher rates than average. LGBTQ+ people more broadly are particularly vulnerable to abuse when they enter institutionalized settings. 		Reissued a Transgender Offender Manual by the federal Bureau of Prisons that instructs federal prisons to grant protections to trans people such as using their correct name and pronouns and reversing the policy that people must be housed according to sex assigned at birth.

The Department later issued a finding that Utah state corrections department imposed “unnecessary barriers” to block incarcerated trans woman from receiving treatment for intense gender dysphoria.

Past Bureau policies denied proper medical treatment to incarcerated transgender people who wish to begin or to continue medical treatment in the course of their gender transition process by prohibiting them from initiating any new treatment.

Department of Labor


The Department of Labor is responsible for administering federal labor laws that guarantee workers' rights to fair, safe, and healthy working conditions. These include provisions related to the federal minimum wage, overtime pay, protections against employment discrimination, and unemployment insurance.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Finalized a rule incorporating an expansive religious exemption for businesses and organizations contracting with the federal government through its Office of Federal Contract Compliance Programs (OFCCP).

These businesses and organizations are covered under Executive Order 11,246—which explicitly prohibits discrimination based on race, creed, color, religion, sex, national origin, sexual orientation, and gender identity. 		Officially rescinded the Trump Administration’s creating an expansive religious exemption for businesses and organizations contracting with the federal government.
Finalized regulations removing the OFCCP’s existing authority to enforce nondiscrimination and affirmative action requirements under numerous statues including the Vietnam Era Veterans' Readjustment Assistance Act, the Rehabilitation Act of 1973, and Executive Order 11,246 as applied to TRICARE providers.

The exclusion of TRICARE providers from the OFCCP’s employment discrimination rules applicable to federal contractors not only has a detrimental impact on the workforces affected, but sends a disturbing message that ensuring fair treatment for women, people of color, LGBTQ people, veterans, and people with disabilities is unnecessary and inconsequential and sets a precedent for future carve-outs.
Issued guidance stating that employees qualifying for leave under the Family and Medical Leave Act (FMLA) may be entitled to take medical leave to receive gender-affirming care.

The previous lack of guidance in defining “serious medical conditions” under the FMLA may result in the unfair denial of leave for transgender individuals undergoing medical or psychological treatments associated with gender transition.
Issued guidance stating that all federal health programs must cover PrEP for HIV prevention without cost sharing.

Department of State


The Department of State is responsible for managing our foreign policy and relations to advance our values and priorities around the globe.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Led an effort to decriminalize homosexuality in countries across the world where it remains illegal. Worked to advance a presidential memorandum calling for agencies to work to decriminalize sexual orientation, gender identity, and variations in sex characteristics across the globe.

Consistent with this memorandum, the Department has issued annual reports on its efforts and to report on human rights abuses experienced by LGBTQI+ people around the world.

As of this writing, being LGBTQ+ is criminalized in 63 countries and jurisdictions around the world—and is punishable by death in 12 of them.
Declined to name a new Special Envoy for the Human Rights of LGBTI Persons throughout the entirety of the administration and removed references to that position on the Department’s website.

This position was created in 2015 to coordinate the Department of State programs and policies regarding global LGBTI rights. 		Officially appointed Jessica Stern as the new Special Envoy to Advance the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI+) Persons.
Denied requests by U.S. embassies across the world to fly the LGBTQ Pride Flag during Pride Month. Allowed both Department buildings and individual embassies to fly Pride flags during Pride Month.

Provisions from a 2024 appropriations bill now prevent embassies from flying any flag other than the American flag over the exterior of their buildings. However, embassies remain able to display Pride flags in other ways, including in front of and throughout their buildings or at individual employees’ workspaces, and they continue to be able to host LGBTQ+ events.
Instituted a new policy of denying visas to same-sex partners of U.N. employees and foreign diplomats. It also required those currently in the U.S. to get married by the end of 2018 or be forced to leave the country.

Since 2009, the United States had previously granted diplomatic visas to domestic partners of foreign diplomats and U.N. employees.
Maintained a policy finding that the children of same-sex couples born abroad via surrogate were "born out of wedlock" and so would encounter additional obstacles to obtaining U.S. citizenship. not experienced by similarly situated children of different-sex couples.
Removed former Secretary of State John Kerry's apology for the infamous "Lavender Scare" witch hunt in the 1950s and 1960s from its website, as well as other content LGBTQ+ content like information on pride month observances. Instituted a new policy to issue out passports and other documentation with the gender marker "X" and eliminating medical requirements to change one's gender on their passport.

The previous policy only allowed passport applicants to choose between gender marker designations of either “male” or “female.” This prevented non-binary citizens, or those who identify as neither male nor female, from obtaining a passport that accurately reflects their gender. Research shows that an incongruence of identity documents increases non-binary individuals’ risk of discrimination, harassment, and violence.
Engaged with the UN to help secure the renewal of the three-year mandate of the UN Independent Expert for Sexual Orientation and Gender Identity.

State also worked to pass a resolution that expanded UN language on the intersectional dimensions and impact of discrimination and expand membership within a coalition of UN member countries dedicated to advancing respect for the human rights of LGBTQI+ persons.
Proposed rules prohibiting sexual orientation and gender identity discrimination by recipients of the Department’s foreign assistance contracts, grants, and cooperative agreements.

Department of Veterans Affairs

The Department of Veterans Affairs is responsible for providing lifelong healthcare coverage and services earned by veterans of the United States Armed Forces, including access to education subsidies, home and mortgage loans, and other benefits.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Issued guidance to reinstate benefits to LGBTQ+ veterans discharged under the previous “Don’t Ask, Don’t Tell” policy, including mental health care, disability benefits, college money, and home loans.

Spotlight on Other Agencies

Equal Employment Opportunity Commission (EEOC)

The EEOC is responsible for enforcing federal workplace discrimination laws. Importantly, active employees, former employees, and prospective applicants—for full-time, part-time, seasonal, and temporary work—can all file a job discrimination complaint with the EEOC.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Was led by individuals who refused to commit to the EEOC’s previous position that Title VII protects gay and lesbian employees against workplace discrimination based on their sexual orientation.

This occurred as the EEOC was set to defend that position in the employment discrimination cases that ultimately went before the Supreme Court in 2020. 		Issued guidance confirming it would accept complaints alleging sexual orientation and gender identity discrimination as a violation of Title VII’s sex discrimination prohibition pursuant to recent Supreme Court precedent. 

The EEOC then applied that precedent in several recent decisions, including those alleging sexual orientation and gender identity discrimination by the Departments of the Interior, Defense, Homeland Security, and Health and Human Services. 
Finalized the first update to its harassment guidance in decades, clarifying that harassment and discrimination based on LGBTQ+ status—including intentional misgendering, repeated use of incorrect pronouns, or denial of access to the bathroom consistent with one’s gender identity—are cognizable federal workplace harassment claims.


Office of Personnel Management (OPM)

OPM is responsible for managing the civil service of the federal government.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Rescinded guidance that helped federal agency managers understand how to support transgender federal workers and respect their rights, replacing it with vaguely worded guidance hostile to transgender working people. Issued guidance stating federal employers must use a person's preferred name and pronouns without any additional documentation, and providing streamlined procedures for changing gender markers for federal employer records.


United States Agency for International Development (USAID)

USAID is responsible for administering our international development assistance and foreign aid programs and grants.

Under the Trump Administration, this Department… Under the Biden Administration, this Department…
Released an updated draft policy on gender and women’s empowerment that eliminated all references to transgender people. Issued its first-ever LGBTQI+ Inclusive Development Policy.
Appointed Jay Gilliam to fill its new position of Agency Senior LGBTQI+ Coordinator.

This position is the successor to a previous office intended to ensure there is ongoing U.S. government engagement with foreign governments, citizens, civil society, and the private sector to build respect for the human rights and development of LGBTQ+ persons.
Proposed a rule extending its internal employment nondiscrimination protections inclusive of sexual orientation and gender identity to the employees and applicants of its contractors.

Looking Back: Legal Challenges to Agency Actions

As discussed throughout this report, agencies’ actions do not exist in a vacuum: they can be used to direct the policies and practices of state and local governments, as well as private and other organizations, which in turn has led to increasing numbers of legal challenges against their efforts. Indeed, many of the policies mentioned in this report have been challenged by both pro- and anti-LGBTQ+ advocates. 

Under the Trump Administration, the majority of legal challenges brought against agency actions (including those not discussed throughout this report) were successful in either obtaining rulings against agencies or providing sufficient pressure to have them change course and not implement their original plans.vii These successful challenges include cases fighting against the administration’s ban on transgender military service and efforts to pare back protections against discrimination under civil rights laws like Section 1557 of the Affordable Care Act. Challenges were brought by a variety of different stakeholders, including 138 cases brought by state Attorneys General—nearly double the number of cases brought under the Bush and Obama Administrations.viii

As we have discussed elsewhere,ix the Trump Administration often opened the door to such challenges by ignoring the longstanding policies and customs that call for sufficient periods of time to solicit public comment. Instead, these agencies often released series of complex, high-impact rules with excessively brief public comment periods—many consisting of mere weeks or even days.

Additionally, challenges were often brought with references to the fact that many agencies under the Trump Administration were seemingly working to comply with orders delivered by the president through social media posts—and not the deliberative process required under law to determine and then implement the government’s policies.

Under the Biden Administration, many challenges to agency actions were similarly brought by state Attorneys General—though often by Republicans working in concert with anti-LGBTQ+ extremist groups.x The Biden Administration has also often been involved in litigation intended to resolve issues stemming from regulations and other actions undertaken by agencies under the Trump Administration, with those cases often taking time to resolve due to the lengthy process required to establish replacement policies and regulations.xi The Biden Administration has leveraged the power of executive orders to direct agency actions while simultaneously giving individual agencies the latitude to figure out their final policy goals and plans on their own, which in many cases has contributed to agency actions under this administration withstanding legal challenge. That being said, the use by some agencies of more informal ways of establishing policy, such as through guidance rather than a full rulemaking, has seen successful legal challenges through the courts and other administrative processes.xii

Looking Forward: The 2024 Election and Project 2025

The records of the Trump and Biden Administrations make it clear that LGBTQ+ people across the United States—and the world—will be impacted in vastly different ways, depending on who wins the 2024 presidential election. This upcoming election is not just about two candidates: it is about two fundamentally different versions of our country that we could be looking at and living in within just a few months.

Even by merely comparing these records, it is clear how devastating a second Trump term would be compared to a second Biden term for LGBTQ+ people. Additionally, however, both candidates have made statements over the past year that provide even greater clarity as to their plans for our communities and families.

For example, while referencing recently implemented protections for transgender students through the Department of Education’s rulemaking on Title IX under the Biden Administration, Donald Trump recently said:

“We’re gonna end it on day one . . . . Don’t forget, that was done as an order from the president. That came down as an executive order. And we’re gonna change it — on day one it’s gonna be changed.”xiii

In contrast, President Biden recently noted in his proclamation declaring June as National Lesbian, Gay, Bisexual, Transgender, Queer and Intersex Pride Month that:

“Advancing equality for the LGBTQI+ community is a top priority for my Administration.”xiv

Another important look into the agenda underlying a possible second Trump Administration is Project 2025, which is an authoritarian blueprint developed by anti-equality groups—and including two former Trump Administration staff members—for dismantling the rights of LGBTQ+ people and other marginalized communities.xv This document clearly states that if allowed to return to power next year, Donald Trump will be coming after LGBTQ+ rights and working to roll back the hard-fought victories we have earned not only over the last 20 or 40 years, but over the last 100.

Project 2025 calls for the repeal of most anti-discrimination protections and all laws that pursue equity for members of the LGBTQ+ community. It would replace these regulations and policies with others that instead encourage “marriage, work, motherhood, fatherhood, and nuclear families.” Priorities of Project 2025 include reinstating bans implemented by the Trump Administration and undone by the Biden Administration—like on transgender people being allowed to openly serve in the military—and even creating new bans—such as on LGBTQ+ people being allowed to adopt children and grow their families.

Conclusion

Our analysis here shows that most of the administrative agency activity under the Trump Administration focused on further marginalizing LGBTQ+ people, removing their access to resources, and isolating them from protections and equality under the law. This was a sharp departure from the approach taken by the Obama Administration, and in many cases directly reversed or undid those efforts. While some initiatives pushed by Trump Administration agencies helped, for example, provide resources for people living with HIV, these were ultimately vastly outnumbered by efforts seeking to stigmatize and ostracize LGBTQ+ people.

Conversely, agencies under the Biden Administration largely engaged in various activities to restore protections, data collections, programs, and services to once again be inclusive of LGBTQ+ people. Many of these agencies’ efforts necessarily had to focus on reversing changes made by the Trump Administration, which in turn slowed their ability to fully implement final rules and/or move certain initiatives further than what had been accomplished under the Obama Administration. Indeed, some policies and issues continue to be governed by rules established under the Trump Administration despite the intention of the Biden Administration to change those provisions and ensure LGBTQ+ people are being supported by the whole of our government. 

Acknowledgments

About the Author

Luis A. Vasquez, Senior Legal Writer
he/him/his

Luis A. Vasquez serves as the Senior Legal Writer for the Human Rights Campaign. His work focuses on federal and state laws, policies, regulations, and initiatives impacting LGBTQ+ people, with a particular focus on advancing LGBTQ+ equality and equity on issues related to discrimination, criminalization, housing, education, health including specifically on HIV and gender-affirming care, and data collection.

Prior to joining HRC in 2022, Vasquez worked as a legal scholar and staff attorney with the Williams Institute at the UCLA School of Law. Vasquez is the former Editor-in-Chief of the Dukeminier Awards Journal of Sexual Orientation and Gender Identity Law and served as advisor to its student board of editors for three volumes. He is also a contributor to the second edition of the SAGE Encyclopedia of LGBTQ Studies. He received his J.D. from the UCLA School of Law and his B.A. in Sociology from the University of Nevada, Las Vegas. Vasquez is a member of the State Bar of California.

Special Thanks

Thank you to my HRC Policy and Political Affairs (PPA) colleagues for their legal and policy guidance.

A special thank you to Sarah Warbelow, Vice President of Legal, David Stacy, Vice President of Government Affairs, and JoDee Winterhof, Senior Vice President of PPA, for their stewardship of PPA and of this report.

Thank you to Cathryn Oakley, Senior Director of Legal Policy, for her previous analyses of anti-LGBTQ+ efforts across the United States that helped inform the development of this report.

Thank you to Samantha Griffith, Legal Coordinator, for her always-impeccable assistance with this and other projects for the HRC Legal Department.

Thank you to HRC staff Brandon Wolf, Sam Lau, Delphine Luneau, and Brendon Nerenberg for their invaluable communication, press, and media guidance.

Thank you to HRC staff Robert Villaflor and Carly Fox for their outstanding editorial and design guidance.

Cover Photo Credit: Olivier Douliery/Sipa USA (Sipa via AP Images)