Updated Dec. 1 at 2:45 p.m. PT.
With two months left in office, Trump is attempting to hobble the next administration by making it difficult for Biden and Harris to reverse some of Trump’s most harmful policies.
After their historic and groundbreaking victory last week, President-Elect Joe Biden and Vice President-Elect Kamala Harris have pledged to enact a transformative platform for women’s rights.
But with two months left in office, Trump is attempting to hobble the next administration by making it difficult for Biden and Harris to reverse some of Trump’s most harmful policies.
The Trump administration is rushing through last-minute regulations and signing contracts with Republican governors designed to prevent the incoming administration from restoring civil rights protections and expanding health care access.
Campus Sexual Harassment and Assault
“Rape is rape is rape,” declared Vice President Joe Biden in an impassioned speech to a packed auditorium at the University of New Hampshire in April of 2011. “We are the first administration to make it clear that sexual assault is not just a crime, it can be a violation of a woman’s civil rights.”
Biden recounted the harrowing story of a young woman who reported a rape in her freshman year, only to be quizzed by campus police on what she was wearing and how she was dancing. Because she had been drinking, her case was dismissed.
Biden’s speech launched a comprehensive Obama administration federal initiative to end widespread sexual violence on college campuses and administrative coverups. That same day the Department of Education issued a “Dear Colleague Letter” urging schools to aggressively investigate and address sexual harassment and assault of students.
“If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”
The federal guidance explicitly stated that schools must use “a preponderance of the evidence” as the standard for determining guilt in sexual misconduct proceedings, meaning the behavior “more likely than not” occurred. And the guidelines discouraged allowing the two sides to cross-examine each other, as it may be “traumatic or intimidating” for the alleged survivor.
Under these Obama administration guidelines, schools began to finally take sexual harassment and assault seriously. And the Justice Department began investigating schools that didn’t.
In 2014, the administration issued further guidance to ensure that schools treated sexual violence seriously. The Obama administration created the White House Task Force to Protect Students Against Sexual Violence providing resources on campus public safety and trauma-informed practices, including resources for changing campus culture and 1 is 2 Many public service announcements. By the summer of 2016, the Department of Justice was investigating 195 colleges and universities across the United States.
All of this came to a screeching halt when the Trump administration took over the federal government in 2017, with the appointment of Betsy DeVos. Since her appointment, DeVos has been on a relentless crusade to erode Title IX protections for survivors of sexual harassment and assault.
Under the Obama administration, the Department of Education (DOE) issued Title IX guidelines that encouraged schools to take sexual assault allegations seriously. Once DeVos took control, she adopted a new Title IX rule, rolling back protections from campus sexual violence, raising the burden of proof for disciplinary action, and forcing survivors to undergo traumatic live cross-examinations.
Biden describes the DeVos rule as giving colleges a “green light to ignore sexual violence and strip survivors of their rights.” Both Biden and Harris have spoken out against the DeVos policies, and both promised to change them.
But now the Trump administration is attempting to erect barriers to any changes. A DOE rule that went into effect on Nov. 4 requires future administrations to demonstrate a “compelling operational need” in order to change any regulations. The rule also requires DOE staff to use “enhanced procedures,” such as hearings, and discourages issuing new guidance, which clarifies how a rule will be enforced. The Biden administration will have to challenge these policies in court, which may delay revoking the harmful DeVos policies.
“The new rule makes it easier for Trump and DeVos to accelerate their cruel agenda and harder for future administrations to reverse the past four years of damage,” wrote the National Women’s Law Center’s Elizabeth Tang and Sabrina Bernadel.
Global Gag Rule
On the international stage, the Trump administration is trying to block Biden from reversing its global gag rule, which prohibits foreign nongovernmental organizations receiving U.S. global health assistance from providing information, referrals or services for legal abortions, or advocating for abortion law reform, even with their own non-U.S. funds. The global gag rule has traditionally only applied to grants and cooperative agreements, so new presidents could immediately revoke the rule by executive order, as Presidents Clinton and Obama did on their first day of taking office in 1993 and 2009.
But the Trump administration recently published a new proposed rule to extend the global gag rule to global health contracts, potentially impacting a whole new set of organizations and programs overseas.
“Even with the seismic shift coming to the White House in January, access to contraception and abortion care remain vulnerable,” said Nancy Northup, president of the Center for Reproductive Rights.
By applying the gag rule to contracts, Biden would be blocked from fully reversing the global gag rule through executive order. Trump’s global gag rule has already been tremendously damaging to women around the world. These regulations would extend that damage into the Biden presidency.
Affordable Care Act
At the same time as the Trump administration is openly challenging the Affordable Care Act before the Supreme Court, they are also trying to quietly block the Biden administration from improving health care access under the Affordable Care Act in the future.
In early November, the Trump administration signed a waiver agreement with the Republican Governor of Georgia, Brian Kemp, allowing the state to block Georgians from shopping for insurance on the ACA’s healthcare.gov website—a change that would benefit private insurance companies and disadvantage middle and lower-income Georgians. Unlike previous waiver agreements, however, the contract is impossible to break, say experts.
“They’re rushing to put this in place to tie the hands of a future administration,” said Katie Keith, who teaches health law at Georgetown University.
Sex Discrimination in the Workplace
The Trump administration is also rushing to approve new regulations that will impede the Equal Employment Opportunity Commission (EEOC) from effectively resolving employment discrimination cases through conciliation, a process of settling cases fairly outside of the judicial system.
“The proposed changes would impose additional requirements on the EEOC which would undermine its mission to prevent and remedy workplace discrimination, and disadvantage working people in the conciliation process by tipping the scales in favor of employers,” said Maya Raghu, director of workplace equality at the National Women’s Law Center.
Activists are organizing to block these new regulations, and if they are adopted they will surely be challenged in court. But legal challenges would take time, and with Trump’s appointment of over two hundred federal judges and one-third of the current Supreme Court justices, the outcome is uncertain.
Abuse of Migrant Women
In addition to securing the harmful policies that will be at risk under a new president, the Trump administration is trying to end investigations of abuse at immigration detention facilities by deporting people alleging violations.
In a whistleblower complaint filed in September, a nurse named Dawn Wooten detailed reports of how a Georgia gynecologist named Dr. Mahendra Amin performed hysterectomies on detained women without their knowledge or consent at the Irwin County Detention Center, a privately-run Immigration and Customs Enforcement (ICE) facility in Ocilla, Georgia. The Trump administration is now deporting several of the women who alleged they were mistreated by Amin.
“ICE is destroying the evidence needed for this investigation,” said Elora Mukherjee, a Columbia University law professor who is working with several of the women. For many of those affected, Trump is just as dangerous in a lame duck session as he was before losing re-election.
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