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"When targeting LGBTQ people is a priority for our enemies, it's all the more critical that defending LGBTQ people remain a priority for our friends," said one ACLU official.
The American Civil Liberties Union released a detailed policy memo Tuesday outlining how Vice President Kamala Harris can and should work to protect LGBTQ+ people should she win the presidency in November.
The ACLU noted that Harris' record serving in the Biden-Harris administration provides the organization with "a strong basis for optimism that a Harris administration would continue to fight for LGBTQ people," but said it was driven to release the memo because of attacks on the community in recent years by Republican presidential nominee Donald Trump and lawmakers at the local, state, and federal level.
"When targeting LGBTQ people is a priority for our enemies, it's all the more critical that defending LGBTQ people remain a priority for our friends," said Mike Zamore, national director for policy and government affairs at the ACLU.
"The Biden-Harris administration has worked hard to earn the trust of LGBTQ people and our families through concerted efforts to protect transgender kids in our schools, defend the right to marriage equality, and ensure medical decisions stay between trans people and their doctors," added Zamore. "We're hopeful a Harris-Walz administration would build on this legacy, and we will bring all of our resources to bear to help them do so."
In the memo, titled Harris on LGBTQ Rights: Building on a Legacy of Undoing Harm, Expanding Protections, and Serving as a Bulwark Against State Attacks, the ACLU said one key action would be to issue an executive order directing federal agencies to examine how they can enhance access to gender-affirming healthcare in federally funded programs.
"This would send a powerful message about how a future-President Harris is prioritizing the healthcare needs of trans people, and it would strengthen coverage and access to gender-affirming care under federal policies and programs," reads the memo, which said protections could include mandatory coverage determinations and increased clarity for patients and providers.
"The Biden-Harris administration has worked hard to earn the trust of LGBTQ people and our families... We're hopeful a Harris-Walz administration would build on this legacy, and we will bring all of our resources to bear to help them do so."
The memo was released as the U.S. Supreme Court is expected to hear a challenge brought by the federal government and families in Tennessee against a state law banning gender-affirming care for transgender youths. Tennessee is one of 24 states that ban medication and surgical care for transgender youths—care that is supported by the American Academy of Pediatrics, the American Medical Association, and other health authorities. Six states have passed laws making it a felony to provide certain kinds of gender-affirming care.
In addition to appealing a lower court's decision to uphold Tennessee's ban, the Biden-Harris administration has sued several other state's over similar laws; ordered federal agencies to protect LGBTQ+ people from discrimination in employment, housing, healthcare, and credit lending; reversed a ban on transgender servicemembers in the military; and expanded access to gender-affirming care in government healthcare programs, including in prisons.
The ACLU also wants passage of the Equality Act—a bill introduced in 2019 that would amend the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation and gender identity. The group says it is "prepared to harness the public pressure necessary to push the Senate to restore its ability to deliver full equality under the law for LGBTQ individuals."
The ACLU—which also plans to publish memos this month outlining steps Harris should take to promote abortion rights, voting rights, immigrants, and other issues—also outlined how federal agencies can strengthen protections for LGBTQ people under a Harris administration.
The Department of Education should unveil "more robust enforcement of nondiscrimination rules and more vigorous investigation and resolutions of Education Office of Civil Rights complaints based on sex discrimination," reads the memo. "It is worth noting that the most recent department regulations clarifying how Title IX can be used to protect LGBTQ students are enjoined in certain states, so the administration must continue to fight in the courts to lift that injunction."
The ACLU also called on the Department of Health and Human Services' Office of Civil Rights to provide more robust enforcement of nondiscrimination rules, proactively ensuring public and private insurance policies don't exclude case for transgender patients and "rigorously investigating all complaints of discrimination."
A potential Harris administration, said the group, could work with states to ensure they have the resources needed to expand pro-equality protections, as nearly half of U.S. states work to erode LGBTQ+ rights.
"State employees and state-funded programs should be fully trained on LGBTQ competency, and state budgets must provide dedicated funding streams for LGBTQ-specific programs," reads the memo. "State medical facilities and insurance programs can ensure trans and gender-expansive people have access to the care that is medically necessary to live their lives. State housing programs must have policies in place to ensure they are affirming and accessible to LGBTQ people."
In the face of attacks from GOP-controlled state legislatures and with "a landmark Supreme Court case on the horizon," said James Esseks, co-director of the ACLU's LGBTQ & HIV Project, the ACLU recognizes the Biden-Harris administration's "strong record of protecting and expanding the freedom of LGBTQ people."
"We would encourage a Harris-Walz administration to continue this commitment and do everything in its power to protect our rights, our healthcare," said Esseks, "and our freedom to be ourselves without fear."
When they have the political power to do so, progressives must immediately expand the court to reflect the diverse backgrounds, experiences, and viewpoints of the nation, and impose term limits on justices.
As the dust continues to settle on the Supreme Court’s 2023-2024 term, the conservative majority’s existential threat to our democracy (and, in particular, our multiracial democracy) could not be clearer. But progressives have also enabled this threat by refusing to embrace the democratic reforms necessary to bring the court to heel.
Beyond the widely panned decision granting former U.S. President Donald Trump unprecedented immunity from prosecution, the court’s decisions have followed a clear trend of expanding power for the rich and connected (who will have new tools to challenge environmental and consumer protections), and diminishing it for people of color (who will have fewer tools to challenge racist gerrymanders), and the poor (who can now be incarcerated for sleeping outside even when no shelter is available).
Even in supposed bright spots, such as Rahimi, in which the court declined to overrule a federal law that bars anyone under a domestic violence restraining order from having a gun, its rulings have reified white supremacy. The court did not refrain from imposing its “history and tradition” test for gun laws, which Justice Sonia Sotomayor acknowledged privileges an era “predating the inclusion of women and people of color as full members of the polity.” The court also conspicuously declined to address whether its vision of originalism includes the history of Reconstruction, which fundamentally transformed race relations and laid the foundation for multiracial democracy in the United States.
Lasting protections for the most vulnerable must be won and defended through power building at all levels of society—not in the courts alone.
In the face of the court’s sustained attack on multiracial democracy, progressive responses have so far been ineffective. Progressives arguing before the court have relied on precedent only to see those precedents tossed away in cases ending the right to abortion and outlawing affirmative action. They have grounded their arguments in history only to see the court cherry-pick research to achieve its desired results in cases diminishing the power of federal agencies. And, outside the courtroom, progressives have shone spotlights on Justices Samuel Alito’s and Clarence Thomas’ numerous conflicts of interest, only to have calls for the pair’s recusal fall on deaf ears in cases related to the January 6 insurrection.
Yet in the wake of another devastating term, President Joe Biden has announced no plan for Supreme Court reform. Instead, he seems content to patiently await a vacancy that may never arise to make his next appointment.
Let’s be honest with ourselves—efforts to influence or reshape the court short of structural reform are doomed to fail. Because justices currently have lifetime tenure, and experience has demonstrated that they will time their departures to coincide with ideologically sympathetic presidential administrations, there is no guarantee that another progressive presidency will result in any shift in the court’s ideology.
Meanwhile, as the Court places its thumb on the scale in elections, whether directly, as in Bush v. Gore, or more indirectly by diluting the Voting Rights Act, and unleashing unlimited corporate spending in campaigns, democracy may continue to erode.
When they have the political power to do so, progressives must immediately expand the court to reflect the diverse backgrounds, experiences, and viewpoints of the nation, and impose term limits on justices (in line with other Western democracies).
Opposition to these straightforward ways to restore democratic accountability have laid bare progressive ambivalences about democracy itself. Some progressive elites, and particularly legal elites, who are wary of reigning in the court point to (supposedly) counter-majoritarian decisions like Brown, Roe, and Obergefell,which expanded rights for people of color, women, and LGBT people, as reasons to preserve the court’s power.
But an overly romantic view of the court risks breezing past the Supreme Court’s efforts to disempower vulnerable groups throughout its history in cases like Dred Scott, which held that Black people were not and could not be citizens, Plessy, which enshrined “separate but equal” for more than half a century, and Korematsu, which denied the constitutional rights of Japanese Americans interned during World War II, and throughout the anti-regulatory Lochner era. And it risks empowering a handful of unaccountable decision-makers above the true levers of social change—the people.
While the Supreme Court was a sometime ally to the movements of the 1950s, 60s, and 70s, the true heroes of change were civil rights organizers and feminist activists who dared to imagine a brighter future. They pushed the nation (kicking and screaming) closer toward equity as reflected in the enactment of landmark legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Meanwhile, as the demise of Roe and its aftermath has made clear, victories that rely on the Supreme Court alone are fragile. Lasting protections for the most vulnerable must be won and defended through power building at all levels of society—not in the courts alone. Continued progress is possible, but only if we restrain a court that is all too happy to defang or dismantle popularly enacted legislation.
We must continue to call out the court’s insidious efforts to undermine democracy. We must also hold progressive leaders, and especially the progressive bar, accountable for their role in enabling this erosion. And we must demand that the president and Congress take action to expand the court and impose term limits. If they do not, it’s difficult to see how the court’s future terms won’t be darker mirrors of this one.
More than 150 bills seeking to undermine academic freedom and intervene in university governance were introduced in state legislatures across the country during 2021-2023.
A recent white paper by Isaac Kamola, director of the Center for the Defense of Academic Freedom, details the ongoing culture-war backlash against higher education in America, largely in response to the grassroots activism of Black Lives Matter in 2020 and increasing LGBTQ+ visibility.
More than 150 bills seeking to undermine academic freedom and intervene in university governance were introduced in state legislatures across the country during 2021-2023. While these bills are typically interpreted as an “organic” consequence of increasing polarization among Americans, the current wave of legislation targeting higher education is a coordinated effort between wealthy elites, a network of right-wing and libertarian think tanks, and Republican politicians at the state level.
The paper published by the American Association of University Professors (AAUP) identifies 11 right-wing and libertarian think tanks responsible for manufacturing the cultural backlash against both K-12 and higher education. A steady stream of papers, op-eds, talking points, public events, and media appearances emanating from these groups have conveyed a false impression of intellectual legitimacy behind their arguments, which conservatives have leveraged for political capital. As a result, the inflammatory narrative that all college and university faculty are “liberal,” biased, “woke,” socialist or Marxist, and hostile to free speech and conservative values has taken hold in the mainstream.
The catalyst for the backlash against educational institutions and the accompanying wave of legislation can be traced back to an executive order signed by former President Trump in September 2020 as well as to the right-wing operative who set it into motion.
Unsurprisingly, the think tanks behind these attacks are prominent, influential, and well-connected operatives in the right-wing ecosphere. Seven of the 11 are members of the State Policy Network (SPN), a web of 167 far-right nonprofit organizations in 48 states, Washington, D.C., Puerto Rico, and the United Kingdom. SPN members play an integral role in ensuring the passage of legislation in state houses by providing academic legitimacy when called on to testify at hearings, producing “studies” or model legislation, and attracting media attention.
In addition, 8 of the 11 highlighted think tanks sit on the advisory board of Project 2025, a series of policy proposals from The Heritage Foundation outlining the sweeping authoritarian and Christian nationalist reforms conservatives expect to see if former President Donald Trump is reelected this year. While proposals promising to severely curtail reproductive rights and environmental protections have received the majority of public scrutiny, the 900+-page document also outlines a plan to radically alter how America’s educational system is funded and administered. Proposals include dramatically cutting federal funding for education, “rejecting gender ideology and critical race theory,” weakening accreditation standards, ending student loan forgiveness, strictly focusing higher education on job training and economic growth, and expanding “parental rights” and school choice, among other reform measures.
AAUP also identifies the top 25 donors to the 11 think tanks and SPN between 2020 and 2022, which include prominent right-wing 501(c)(3) nonprofits like the Roe Foundation, the Lynde and Harry Bradley Foundation, the Searle Freedom Trust, the Sarah Scaife Foundation, Leonard Leo’s 85 Fund, the Walton Family Foundation, Stand Together Fellowships (formerly the Charles Koch Institute), the Diana Davis Spencer Foundation, the Bradley Impact Fund, and the John William Pope Foundation.
However, a majority of funding for SPN and the think tanks comes from donor-advised funds, which means that the origin of the funds—the actual donor—is completely obscured. DonorsTrust, the preferred donor-advised funding conduit of right-wing billionaire families, is by far the biggest donor. Between 2020 and 2022, it contributed more than $37 million to 10 of the 11 think tanks and SPN. Other donor-advised funds in the top 25 list include the Fidelity Investments Charitable Gift Fund, the National Christian Charitable Foundation, the Vanguard Charitable Endowment Program, the New Venture Fund, the Servant Foundation, and the Morgan Stanley Global Impact Funding Trust.
The catalyst for the backlash against educational institutions and the accompanying wave of legislation can be traced back to an executive order signed by former President Trump in September 2020 as well as to the right-wing operative who set it into motion. Executive Order 13950 made it illegal for federal agencies to incorporate “divisive concepts,” “race or sex stereotyping,” and “race or sex scapegoating” into their training protocols. Notably, Trump issued the executive order three weeks after right-wing activist Christopher Rufo, a senior fellow at multiple conservative think tanks, appeared on Tucker Carlson Tonight to disparage the concept of critical race theory (CRT) and call for an executive order banning professors from teaching it. The day after that appearance, Trump called Rufo to discuss the specifics of the executive order.
Though less well-known to the mainstream at the time, Rufo was already a relatively established figure on the right who has held (or currently holds) positions at the Claremont Institute, Heritage, the Pacific Research Institute, The Federalist Society, and the Manhattan Institute. A recent investigation by the Center for Media and Democracy (CMD) and Important Context revealed the handful of right-wing billionaires and major foundations funding these think tanks. Rufo’s existing ties to both these groups and the donors behind them presaged the key players at the center of the full-fledged assault on higher education.
With millions of dollars in financial backing, right-wing and libertarian think tanks mobilized around promoting a reactionary legislative response to the “liberal excesses” of higher education. The legislative backlash began with “academic gag orders,” or bills seeking to ban CRT and other so-called “divisive concepts.” The AAUP white paper found that all but 19 of the 99 academic gag orders introduced in state houses between 2021 and 2023 drew on language taken directly from EO 13950, or from two model bills: the “Model School Board Language to Prohibit Critical Race Theory” drafted by the Center for Renewing America (CRA) and Heritage’s “Protecting K-2 Students from Discrimination.” This includes Florida’s infamous “Stop WOKE Act” (HB 7), which was signed into law in April 2022 and includes the definition of “divisive concepts” outlined in the Trump executive order and the CRA model bill.
Academic gag orders and anti-DEI bills have undoubtedly been the centerpieces of the right’s manufactured backlash against higher education.
Despite enthusiastic support from Republican politicians for these academic gag orders, only 10 of the 99 initially introduced passed between 2021 and 2023. As a result, conservative activists refocused their efforts and shifted their framing. During the 2023 legislative session alone, anti-diversity, equity, and inclusion (DEI) bills were introduced in various states 40 separate times, and all of them addressed a combination of the same four objectives: ending mandatory DEI training, preventing the use of diversity statements in job applications and promotion materials, prohibiting hiring practices designed to increase diversity, and ending state funding for DEI offices and personnel altogether.
One example is Texas SB 17, which made it illegal for colleges and universities to “establish or maintain a diversity, equity, and inclusion office” or to “hire or assign an employee of the institution or contract with a third party to perform the[se] duties,” among other measures. The bill drew from model legislation produced by the Manhattan Institute and co-written by Rufo, Ilya Shapiro of the Manhattan Institute, and Matt Berenberg of the Goldwater Institute. Texas Public Policy Foundation (TPPF) Senior Fellow Sherry Sylvester, TPPF’s Richard Johnson, Heritage’s Adam Kissel, and prominent Black conservative academic and politician Ben Carson testified in favor of the bill before the state Senate Subcommittee on Higher Education. TPPF’s Daniel Bonevack and a University of Texas professor who regularly works with TPPF testified in support of the same bill before the House Committee on Higher Education. Despite more than 100 witnesses who testified against the bill in either the Senate or House committee hearings, the small number of think tank employees proved to be sufficiently persuasive that SB 17 passed along party lines.
Florida Gov. Ron DeSantis and other Republican politicians in the state proved to be just as receptive. There HB 931 redefined “loyalty tests” as including a commitment to “diversity, equity, and inclusion,” which effectively ended general consideration of diversity during the hiring process. Sections of the bill were taken directly from the model legislation known as “End Political Litmus Tests in Education Act,” which was co-written by Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center, along with fellows from the Martin Center and the Goldwater Institute. In March 2023, a month after HB 931 was introduced in the state legislature, DeSantis held a roundtable discussion titled “Exposing the Diversity, Equity, and Inclusion Scam.” Speakers at the event included Rufo, Claremont’s Scott Yenor, and Carrie Scheffield from the Independent Women’s Forum.
Academic gag orders and anti-DEI bills have undoubtedly been the centerpieces of the right’s manufactured backlash against higher education. However, other types of bills have also been promoted and introduced in state legislatures, including ones that weaken tenure and accreditation standards, and others that undermine existing academic governance. Between 2021 and 2023, bills attacking tenure for faculty were introduced 20 times in various state legislatures, with three of them passing. The original version of one of those bills, Texas SB 18, would have eradicated tenure for faculty members hired after September 1, 2023. Although this version didn’t pass, 2 of the 3 advocates to testify in favor of it were Thomas Lindsay of TPPF and Adam Kissel of Heritage.
The aforementioned Florida HB 931 includes provisions to institutionalize “intellectual diversity” by establishing an Office of Public Policy at each of Florida’s public colleges and universities, which undermines academic governance. This section comes directly from a model bill published by the National Association of Scholars and written by Kurtz. Similarly, Ohio’s SB 117 appropriated $24 million over two years to create “intellectual diversity” centers at the state’s public universities. Representatives from the American Council of Trustees and Alumni, the National Association of Scholars, Speech First, the Jack Miller Center, and Heritage all spoke in favor of the bill, which was ultimately passed during the 2023 legislative session.
“It is important to follow the money when examining the culture war attacks on higher education,” Kamola told CMD. “The goal of plutocrats and billionaires has been to paint all higher education as threatening to American values because the end goal is defunding all public goods. Attacking higher education not only scores short-term political points but also paves the road for delegitimizing all public institutions.”