This dynamic is starkest in programs that serve the public, using public funds. VAWA’s long-standing programs were created and funded to serve all those who need counseling, support, and advocacy. For grantees to cut off eligible victims from these services because of bias defeats the goal of the program. As Sen. Patrick Leahy (D-Vt.) the lead author of VAWA, often said, “A victim is a victim is a victim.” That is why Congress wisely wrote into VAWA an explicit ban on discrimination.
But this ban did not need to come from Congress – it could have come from the Department of Justice (DOJ). Like most laws governing federal grants, VAWA already authorized DOJ to adopt “such rules, regulations, guidelines, and procedures as are necessary” to carry out the program. Under this authority, the department could have adopted explicit, LGBT-inclusive nondiscrimination requirements for grantees, without waiting for Congress. More importantly, DOJ has the authority to do the same now for other programs it manages, such as those that serve victims of other crimes.
The Obama administration has done this before. In 2010, the Department of Health and Human Services (HHS) adopted regulations prohibiting hospitals receiving federal funds from discriminating in visitation. They didn’t have to stop there – it could, and should, prohibit all forms of anti-LGBT discrimination by hospitals that take federal funds. And in early 2012, the Department of Housing and Urban Development issued a rule banning anti-LGBT discrimination in all federal housing programs. Advocates have long urged President Obama to apply the same principle to job discrimination by federal contractors via an executive order.
Mandating nondiscrimination through rulemaking has its limits, and there is still an undeniable need for new civil rights legislation. Most obviously, without new legislation agencies can’t ban discrimination by private entities – like most employers – that don’t receive federal funds. Legislative protections send a stronger message, and create stronger remedies for victims of discrimination. Nevertheless, regulatory protections have real legal and social force.
Let’s celebrate the passage of an explicitly LGBT-inclusive VAWA as a milestone that creates real protections. But let’s not wait years for further protections from a gridlocked Congress. The administration can adopt real protections now for critical programs that impact millions of people.
Nondiscrimination can be included in regular updates to existing rules– but we shouldn’t stop there. Whether in grants or contracts or healthcare payments, federal funds should be used responsibly to implement federal programs, employ the best talent, and serve all people in need – not to irrationally discriminate.
Tobin director of Policy at the National Center for Transgender Equality.