Five actions Biden can take to protect civil liberties before Trump’s presidency

1. LGBTQ+ rights: fulfill executive order initiatives and confirm judges

Among Trump’s collection of anti-LGBTQ+ initiatives, his administration’s plans to redefine sex are of particular concern, said Elana Redfield, the federal policy director at the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy.  

Sex would be redefined “in such a manner that actually eradicates trans people”, said Redfield, and would not allow for “self identification”. “The definition of sex that they would propose is that sex is defined based on anatomical characteristics at birth and is unchangeable.” 

The definition of sex is “at the core of some of the biggest civil rights conversations we’re having in the LGBTQ+ context,” said Redfield. The Biden administration has interpreted the definition of “sex” to include sexual orientation and gender identity. 

But with Trump, redefining sex could rollback protections and cause issues for transgender people attempting to access federal programs such as social security benefits, especially as many programs ask for participants to enroll with a gender identification. A redefinition of sex could also result in people being investigated for fraud if their gender doesn’t match across all federal identification documents, said Redfield. 

Many of these questions around the federal government’s ability to define sex will face legal challenges. So Biden, in tandem with Democrats, should continue to confirm federal judges who will probably hear legal cases about gender, Redfield said. Congressional Democrats have managed to confirm several and are only 15 short of the 234 judicial confirmations needed to match the record set by Trump during his first term. 

Biden should also complete everything outlined in his Executive Order 14075, including checking in with federal agencies to make sure they are well equipped to handle increased needs from LGBTQ+ people amid Trump’s presidency. 

“For example,” Redfield said, “if everyone’s changing their passports right now, they need to make sure they have enough staffing for that.”

2. Police reform: make sure data on policing is publicly available

Through executive orders, Biden largely increased data collection on patterns and practices of police departments, said Patrice Willoughby, the chief of policy and legislative affairs at the NAACP. But such data, which tracks police actions including traffic stops, arrests, and use of force, will probably come to a “complete stop” under Trump’s administration, likely to boost “the narrative of Black violence” cited by conservatives. 

Willoughby added that Trump will not provide an opportunity to continue reform efforts seen under Biden, especially given past comments supporting a “violent day” of policing to end perceived increases in crime. 

With his remaining term, Biden must make sure that data on policing is “available publicly for advocacy organizations, state and local governments” and disseminated so it does not “disappear during a second Trump presidency”. 

Additionally, the Biden administration should ensure that the “methodology of collecting data” is available to state and local municipalities so it can be “replicated across different ecosystems”, said Willoughby. “States and localities that are interested in police reform [can] have the path forward in order to continue to collect data and apply it in their individual communities.”

It’s also important for Biden to direct federal agencies to use funding that has already been earmarked by Congress to address police reform, especially, she said, as conservatives will probably “claw back” funding allocated towards equity and communities of color.

3. Immigration: close detention centers and slow rate of detainments

Biden should close the estimated 200 US detention sites that will be used by Trump to carry out mass deportation and slow down the current rate of detainment for undocumented people, said Naureen Shah, deputy director of government affairs at the ACLU.

“When I think about the Trump presidency, I’m anticipating an avalanche of anti-immigrant action from day one, from within hours of inauguration,” said Shah. She added that Ice will probably conduct raids using state and local law enforcement, targeting of undocumented students and attacks on birthright citizenship. 

The biggest issue is that the Biden administration has left “intact the infrastructure for abuse”, Shah said, including the US detention sites that will be used during Trump’s mass deportation. 

“We urged the Biden administration early on to close detention facilities across the country,” she said. “We argued that they needed to close the facilities so that another administration couldn’t come in and fill them up.”

But instead, the amount of detentions has increased throughout the Biden administration, now reaching approximately 37,000 a day, said Shah, with Trump planning to increase that amount. Shah warned that Trump would now have “the empty beds to fill” because “the Biden administration left it all there”. 

Biden also left in place 287(g) agreements, which allow Ice to tap local law enforcement to identify and place immigrants in the deportation pipeline. Requests for the Biden administration to end said agreements have gone unfufilled, said Shah.

“At this point, we’re calling on the Biden administration to at least slow down the expansion that is planned of Ice detention and to close facilities run by abusive sheriffs and private prison companies,” Shah said, naming the Baker county detention center as a site that advocates have been flagging for years.

4. Gaza: end arms sales to Israel

Biden could withdraw US military assistance and arms sales as well as allowing for an “honest assessment of Israel’s conduct”, said Kenneth Roth, the former executive director of Human Rights Watch. 

“It’s not too late for Biden to invoke that leverage as US law requires and even in recognizing that Trump would probably reverse it, it still would be an extremely important statement,” Roth said. Allowing for a review of Israel’s actions, including the restriction of humanitarian aid and bombing shelters housing civilians, would make clear that such conduct “[are] war crimes”. 

“It would be more than just an important rebuke of how the Israeli government is fighting this war. It would help to lay the groundwork for potential international criminal charges,” Roth said, adding that Trump could later face charges for “aiding and abetting war crimes” if the war is still conducted in this manner. 

5. Education: broadly expand DEI efforts

Trump’s plans to rescind diversity, inclusion and equity (DEI) efforts from the Biden administration could embolden states that are already targeting such initiatives in education, through anti-CRT (critical race theory) laws, which often restrict classroom material and curriculum on topics including race, sexual orientation and gender-identity, said Jordan Nellums, a higher education senior policy associate at the Century Foundation, a progressive thinktank. 

“The problem that we’ve seen in some states like Texas is that now faculty are looking at their syllabi for classes and realizing that they can’t even use the word ‘race’ or any type of word that may indicate that there’s going to be a discussion on race in certain classes,” he said.

With the Department of Education potentially being dismantled, it could also pause its work at making sure that students facing discrimination have a means of reporting it, specifically through the Office of Civil Rights within the education department. 

Education is largely a “state issue”, said Nellums, but the Biden administration could sign executive actions to mandate that agencies protect DEI efforts more broadly. 

In terms of student debt, an issue disproportionately impacting people of color and low-income people, Biden could also make sure that those who are eligible for student loan forgiveness, specifically with public servant loan forgiveness and individuals who were defrauded by their college, said Aissa Canchola-Bañez, policy director for the Student Borrower Protection Center. 

“The Biden-Harris administration has done so much great work in trying to  fix some of the programs that were broken under the last Trump administration, fixing the Public Service Loan Forgiveness Program and fixing Income Driven Repayment program,” said Canchola-Bañez. 

But many people are still waiting to get debt relief due to bureaucratic backlogs, said Canchola-Bañez. “The Biden administration can also work to make sure that all those folks who were promised relief actually see it happen.”