One Order, Two Views



One Comment for “One Order, Two Views”

  1. posted by Tom Scharbach on

    Today’s post stands in juxtaposition with “Trans Activists Are Calling the Shots; Disagree, and YOU’RE A TRANSPHOBE BIGOT WHO WILL BE CANCELED” (Stephen H. Miller on January 21), a thread that bordered on hysteria, complete with a link to a Twitter account pushing “transgenders will molest your daughter” (“A transgender woman threatened to stab a 10-year-old girl’s mother during a terrifying sexual assault in the female toilets of a Morrison’s supermarket.“) memes. The theme of today’s post is “the Executive Order doesn’t do anything other than implement Bostock, so it doesn’t do anything …”

    So which is it? Is it Chicken Little or is it “meh? I think that it is neither.

    To repeat a comment from the earlier “Trans Activists Are Calling the Shots; Disagree, and YOU’RE A TRANSPHOBE BIGOT WHO WILL BE CANCELED” thread:

    (1) The Executive Order, in and of itself, makes no changes to government rules or regulations. The Executive Order requires all federal departments and agencies to review, in consultation with the Attorney General, “all existing orders, regulations, guidance documents, policies, programs, or other agency actions” to ensure compliance with Bostock, and, within 100 days, to prepare a plan to bring department and agency regulations into compliance.

    (2) Based on the plan(s) submitted rules and regulations will be promulgated after department/agency plans have been submitted. The federal rule-making process requires hearings, opportunities to comment and challenge, and other safeguards. Although the rule-making process was frequently ignored during the Trump Fiat-by-Tweet era, the Biden administration is likely to adhere to the law in this respect. The process is likely to take a six months to a year in most instances before rules and regulations take effect.

    (3) Promulgation will not be the end of the process, of course. Rules and regulations promulgated as a result of the Executive Order will, undoubtedly, be challenged in the courts. Conservative Christians will almost certainly raise free exercise claims, and the courts will have to consider, once again, the constitutional boundaries of free exercise with respect to laws of general application, and the role of RFRA in going over and above constitutional requirements with respect to protection of free exercise in that context.

    The Executive Order begins a process, with a plan to implement Bostock to be developed within 100 days, in consultation with the Attorney General, followed on by a rule making process, and court review of the end result. The rule-making process will be complicated because the underlying statutes and the CFR are complicated. The result won’t be perfect, and the result will be much litigated, taking years to sort out entirely.

    On the one hand, it seems, a careful, measured approach to governance does not satisfy conservative homosexuals because that approach is not instant, and at the same time, a careful, measured approach is certain to result in changes to “existing orders, regulations, guidance documents, policies, programs, or other agency actions” that won’t satisfy conservative homosexuals, either, because the changes are almost certain to offend conservative Christians and other constituencies of the Trump base.

    That’s nothing new. President Obama’s approach to DADT repeal (in which the military was ordered to study the feasibility of DADT repeal and given time to prepare for and implement repeal) was harshly criticized by conservative homosexuals because that approach did not instantly repeal DADT, while at the same time conservative homosexuals were painting dark memes (on IGF and elsewhere) about the safety of combat-ready soldiers in the showers and a mass exit of conservative Christian military personnel if forced to serve with gays and lesbians. The split-screen approach of conservative homosexuals was absurd then and is absurd now.

    The Executive Order has had one tangible result at this point. A last-minute Department of Justice memo promulgated by former acting Assistant Attorney General John Daukas has been rescinded. The Daukas memo was closely aligned with Justice Alito’s dissent in Bostock and outlined the basis for a narrow, case-by-case, drag-your-heels implementation of Bostock along the lines of the “massive resistance” approach to Brown v. Board. The Daukas memo provided a glimpse into the likely Trump administration approach to Bostock.

    The Daukas memo is now dust, although we can, I think, expect that the Daukas memo will live on as a roadmap to litigation over each and every change to “existing orders, regulations, guidance documents, policies, programs, or other agency actions” that result from the Executive Order and rule-making process put in place by the Executive Order. The difference is that now the government will weigh in on the side of implementing Bostock rather than on the side of limiting Bostock as much as possible. I think that we can expect the Biden administration to make an honest effort to implement Bostock, and that is a sea change from the Trump administration’s approach.

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