The right-wing majority on the Supreme Court last month upended a 40-year legal precedent that has governed how federal agencies are able to set rules, in a decision legal experts say will do sweeping damage to the regulation of everything from health care to student loan forgiveness to environmental protections and more.
The consequences for transgender Americans could also be dire. Already, the court’s decision in Loper Bright Enterprises v. Raimondo has been cited in recent rulings by federal judges involving Biden-era protections for trans people.
In the Loper decision, the Supreme Court eliminated a crucial 1984 legal precedent known as the “Chevron doctrine,” which allows federal government agencies to interpret how to enforce laws written by Congress.
This doctrine was, in part, what allowed agencies within the Biden administration to interpret laws in order to issue issue a number of rules and regulations that have strengthened protections for LGBTQ+ people.
With the Loper decision, the Supreme Court overturned decades of administrative law. Previously, lower courts had to defer to a federal agencies’ interpretation of “ambiguous” statutes passed by Congress so long as they were “reasonable.”
Now, with Chevron gone, federal agencies have been stripped of that authority, while Congress and the courts — without specific expertise — have been given enormous power to interpret government rules that affect aspects of everyday American life.
“The US Supreme Court seems very interested in turbo charging the executive power in some areas and restraining it in others depending on what better suits conservative policy preferences,” Quinn Yeargain, professor of the law of democracy at Michigan State University, told HuffPost.
Both the Department of Education and the Department of Health and Human Services released final rules earlier this year which expand definitions of “sex-based” discrimination to include gender identity, thereby ensuring LGBTQ+ students and LGBTQ+ people can’t be barred from getting state or federal health insurance based on their gender.
The Education Department rule has wider consequences too. Since “sex-based” discrimination is illegal under a federal education law known as Title IX, applying Title IX to gender identity prohibits schools from barring transgender students from using bathrooms and other facilities that correspond with their gender identities. That has spurred widespread backlash from Republicans, who have stoked fears and pushed misinformation about the supposed dangers of transgender women and girls using women’s bathrooms.
At least 22 states have sued the Department of Education over its Title IX rules. House Republicans added momentum to the fight this week with the passage of a resolution to overturn the rules, though it stands no chance of passing the Democratic-led Senate and President Joe Biden has vowed to veto it.
On Wednesday, federal district court Judge Danny Reeves in Kentucky denied a request from the Department of Education to partially suspend his earlier ruling blocking the Biden administration from enforcing its recent Title IX guidance.
Similarly, last week, federal district court Judge Louis Guirola in Mississippi issued a nationwide injunction of the Department of Health and Human Services final rule in Section 1557 of the Affordable Care Act, which extends the definition of discrimination in health programs to include gender identity.
Federal judges in Florida and Texas cited the Loper decision in similar rulings to block these Biden administration rules last week. Their logic: States should not be obligated to fund gender-affirming care in health insurance plans, as, thanks to Loper, they are now allowed to forego the rules devised by the HHS.
An underlying argument by the judges in both of these decisions is the notion that the wording of Title IX — barring discrimination “on the basis of sex” — is not so “ambiguous” it needs to be interpreted by federal agencies. In other words, the judges have decided that these agencies cannot force states to count policies targeting LGBTQ+ people as illegal “sex-based” discrimination.
This debate over “sex” has cropped up in various legal battles and on the floors of Republican-led state legislatures across the country, some of which have passed statutes narrowly defining “biological sex” in a way that erases transgender identity altogether.
As Reeves noted in Wednesday’s Title IX order, Chevron “reinforces the Court’s constitutional and statutory obligation to reject an agency interpretation at odds with the Court’s independent judgment.”
That’s a lot of legalese to essentially say that there’s now one more tool at the disposal of states and litigants to challenge the enforcement of federal rules and regulations. Experts are worried that not only will a post-Chevron future invite more frequent legal challenges regarding technical policy issues about which judges are not themselves experts, but that it will destroy any semblance of continuity around federal regulations from one administration to another.
“One of the advantages of how Chevron operated was that it made it harder for a new president coming in a new administration to totally do an about-face on what the meaning of a statute was, because the statute had been ambiguous,” Yeargain said. “Now there’s no level of deference like that. … It absolutely allows a new administration to come in and revoke regulations.”
“This is a decision that would benefit Democratic presidents and Republican presidents,” Yeargain added. “But I think in the context of the threat of Project 2025 looming over all of this, it’s safe to say that it would definitely allow some of those goals to be more easily accomplished.”
In many ways, the Supreme Court’s decisions in Loper and other cases have teed up a future in which a future president Trump would have absolute immunity from criminal prosecution and could easily upend many Biden-era agency rules that have protected LGBTQ+ people, women, people of color, and other marginalized groups.
Trump tried this already over the course of his presidency. The 45th president rarely abided by legally-required procedures for announcing new policies, and often announced executive orders, such as his ban on transgender people in the military, on social media.
Project 2025, the Heritage Foundation’s road map for a second Trump presidency, would bring enormous policy changes if implemented by Trump, including rolling back LGBTQ+ protections and abolishing the
”administrative state.” And the absence of Chevron deference could grease the wheels for a second Trump presidency to do even more damage.
In the meantime, LGBTQ+ rights hang in the balance. Nearly half the country has passed restrictions on gender-affirming care for minors, and numerous others have banned transgender students’ participation in sports and restricted their ability to use the bathroom that corresponds to their gender identity.
Last month the Supreme Court agreed to take up its first ever case involving the constitutionality of statewide bans on gender-affirming care. In United States v. Skrmetti, the court will decide whether Tennessee’s S.B. 1, the state’s ban on gender-affirming care for minors, violates the equal protection clause of the Constitution.
With a conservative majority in the court, transgender rights proponents face a difficult path. The court will hear arguments in the fall and a ruling may not come until 2025.
While the ability of the federal agencies to enforce inclusive rules in education and health care are now in limbo with the destruction of Chevron, Yeargain said he’s hopeful about the possibility for state courts to enshrine various protections in their own state constitutions in the meantime.
He pointed to how, despite the absence of a federal right to abortion after the overturning of Roe v. Wade, 10 state constitutions protect abortion rights even more strongly than Roe had.
“I remain at least vaguely optimistic in part because I think there is potential in the states to do the things the federal government won’t do or go further than the federal government does,” Yeargain said. “Even if there’s success in Skrmetti, there’s still going to be need for additional litigation and I think it’s important to take that very seriously.”
