: Photo from Wikimedia Commons / Author of Photo: Senate Democrats / Source of Photo: https://www.flickr.com/photos/sdmc/29543691120/

Kristen Clarke

  • Wrote that melanin makes blacks racially superior to whites
  • Worked for the Department of Justice, the NAACP Legal Defense and Education Fund, and the Civil Rights Bureau of New York State
  • Demanded that the Boy Scouts permit the hiring of openly gay adults
  • Became president of the Lawyers’ Committee for Civil Rights Under Law in 2016
  • Alleged that “trans women of color” are being victimized by increased violence
  • Supports affirmative action in order to increase “diversity”
  • Pressured social media companies to censor “hate speech” by “white supremacists”
  • Embraces Critical Race Theory and the "Defund the Police" movement
  • Supports teaching children that whites are oppressors
  • Compared Trump supporters to Klansmen
  • Became Assistant Attorney General for Civil Rights in May 2021
Additional Resources

Background

Kristen Clarke was born to Jamaican parents in Brooklyn, New York in 1975. She earned an A.B. from Harvard University in 1997, and a J.D. from Columbia Law School in 2000.

Belief That Melanin Makes Blacks Racially Superior

When Clarke was the president of Harvard University’s Black Students Association (BSA) in 1994, she co-authored a letter to the Harvard Crimson asserting that the skin pigment known as melanin “endows blacks with greater mental, physical and spiritual abilities” than white people. A longer excerpt:

“One: Dr. Richard King reveals that at the core of the human brain is the ‘locus coeruleus,’ which is a structure that is Black, because it contains large amounts of neuro-melanin which is essential for its operation. Two: Black infants sit, stand, crawl and walk sooner than whites. Three: Carol Barnes notes that human mental processes are controlled by melanin – that same chemical which gives Blacks their superior physical and mental abilities. […] Melanin endows Blacks with greater mental, physical and spiritual abilities — something which cannot be measured based on Eurocentric standards.”

Praising an Anti-Semitic Professor

In 1994 as well, Clarke invited Wellesley College Professor Anthony Martin to speak at a BSA-sponsored event where he condemned the “Jewish monopoly over Blacks being cursed” – i.e., a Jewish monopoly over the notion that blacks are inherently inferior to whites. Clarke subsequently praised Martin as “an intelligent, well-versed Black intellectual who bases his information on indisputable fact.”

Working for the DOJ

From September 2000 through April 2006, Clarke served as a prosecutor in the Criminal Section of the U.S. Justice Department’s Civil Rights Division. There, she prosecuted cases involving alleged police misconduct, hate crimes, and human trafficking. She later worked as a trial attorney for the Voting Section of the Civil Rights Division.

Working for the NAACP Legal Defense and Education Fund

From August 2006 through August 2011, Clarke worked for the NAACP Legal Defense and Education Fund, where she helped lead the organization’s work in the areas of voting rights and election law.

Opposing the Use of Federal Prosecutors As Election Observers

Each year on Election Day, the Department of Justice’s (DOJ’s) Federal Election Observer Program traditionally deployed approximately 1,000 federal officials, including criminal prosecutors, to polling places across the United States, to watch for any signs of problems, irregularities, or corruption. Clarke, during her tenure with the NAACP Legal Defense and Education Fund, argued that federal prosecutors should no longer be permitted to serve as election observers — on the premise that nonwhite voters might be disproportionately inclined to avoid going to polling places if prosecutors were present. During the 2008 election season, Clarke and her allies successfully lobbied the Bush DOJ to bar federal prosecutors from election-observer assignments.

Supporting the Dismissal of Voting-Rights Violation Charges Against the New Black Panther Party

On Election Day 2008, the New Black Panther Party (NBPP) was involved in controversy outside an open polling station in Philadelphia, where Jerry Jackson (an elected member of Philadelphia’s 14th Ward Democratic Committee and an official Democratic Party polling observer) and Minister King Samir Shabazz (chairman of NBPP’s Philadelphia chapter) intimidated white voters with racial slurs (e.g., “white devils”) and threats of violence. “You are about to be ruled by the black man [a reference to Barack Obama], Cracker!” they shouted. Samir Shabazz, who brandished a police-style nightstick, was eventually led away by police.

On January 7, 2009, the Justice Department under President Bush filed criminal charges against Jerry Jackson, Samir Shabazz, and NBPP chairman Malik Zulu Shabazz for having violated the 1965 Voting Rights Act by their actions. The failure of all three men to appear in court, led to an order by U.S. District Judge Stewart Dalzell to seek judgments or sanctions against them.

As of May 5, 2009, the Justice Department (which was now under the direction of President Barack Obama and Attorney General Eric Holder) was still considering its case against the NBPP and those who had participated in the Philadelphia voter-intimidation. But Clarke, for her part, sought to have the lawsuit dismissed. And indeed, in mid May the DOJ filed a notice of voluntary dismissal. It asked for a default judgment against King Samir Shabazz, but limited the punishment to an order that he not exhibit a “weapon within 100 feet of any open polling location on any election day in the city of Philadelphia” until November 15, 2012.

Co-Editing Books with Manning Marable

Clarke and Manning Marable co-edited a 2008 book of essays titled Seeking Higher Ground: The Hurricane Katrina Crisis, Race, and Public Policy Reader. According to the publisher, this book examines “the racial impact of the disaster and the failure of governmental, corporate and private agencies to respond to the plight of the New Orleans black community.” Clarke and Marable also co-edited a 2009 book of essays titled Barack Obama and African American Empowerment: The Rise of Black America’s New Leadership.

Favoring the Continuation of Section 4(b) and Section 5 of the 1965 Voting Rights Act

In 2011 Clarke led the legal argument in Shelby County Alabama v. Holder, a U.S. District Court for D.C. case which eventually made its way to the United States Supreme Court. In this case, Shelby County sued the U.S. Attorney General, seeking: (a) a declaratory judgment that sections 4(b) and 5 of the 1965 Voting Rights Act were unconstitutional, and (b) a permanent injunction against the enforcement of those sections.

  • Section 5 relegated a number of mostly Southern states and localities to second-class status by presuming that they were too corrupt and racist to administer elections fairly, and thus requiring their governments to get approval (called “pre-clearance”) from the Justice Department or a federal court before making any changes to their voting procedures. Changes to voting procedures could include such things as relocating a polling place, reconfiguring district lines in a county, or instituting Voter ID laws. To obtain pre-clearance, a state, county, or local government entity was required to demonstrate to federal authorities that the voting change in question did not have a racially discriminatory intent, and would not have a disparate impact on nonwhites.
  • Section 4(b), meanwhile, laid down the criteria that determined which states and localities should be covered by Section 5, based on their histories of discrimination in past elections.

While Clarke argued that Congress should “stay the course” in renewing Section 5, the attorney for Shelby County argued that Section 5 was anachronistic and no longer necessary because the racial environment in the country was “totally different” than when Section 5 had first been enacted. In September 2011, the District Court judge ruled that it was reasonable and proper to reauthorize Section 5 while continuing to abide by the criteria of Section 4(b). In June 2013, however, the U.S. Supreme Court struck down Section 4(b) as unconstitutional, though the Court did not comment on whether Section 5 was constitutional. But because the Section 5 pre-clearance requirement applied only to jurisdictions covered by the coverage formula spelled out in Section 4(b), Supreme Court’s decision rendered Section 5 inoperable.

Working for the Civil Rights Bureau of New York State A.G. Eric Schneiderman

From August 2011 through November 2015, Clarke worked for the Civil Rights Bureau of New York State’s Democratic Attorney General Eric Schneiderman, where she led oversight and enforcement efforts on matters related to criminal justice, education, housing discrimination, fair lending, voting rights, immigration matters, gender equality, disability rights, and LGBT issues. Says Clarke’s LCCR profile: “Under her leadership, the Bureau secured landmark agreements with banks to address unlawful redlining, [with] employers to address barriers to reentry for people with criminal backgrounds, [with] police departments on reforms to policies and practices, [with] major retailers on racial profiling of consumers, and [with] one of the country’s largest school districts concerning issues relating to the school-to-prison pipeline.”

Supporting the First Illegal Alien in NYS to Obtain a Law License

In 2015 Clarke backed a legal effort in support of Cesar Vargas, who became the first illegal alien to carry a law license in New York State.

Demanding That Boy Scouts Permit the Hiring of Openly Gay Adults

In 2015 as well, Clarke, in her role as Civil Rights Bureau Chief for Eric Schneiderman, opened an investigation into the Boy Scouts of America’s (BSA) national organization, which prohibited the hiring of openly gay adults as scoutmasters but stipulated that no child could be denied membership because of sexual orientation. In light of the fact that the BSA’s New York City chapter had recently hired the nation’s first openly gay Eagle Scout in defiance of the national policy, Clarke wrote a letter to Wayne Brock, then-Chief Scout Executive of the BSA, warning against the BSA’s continued discrimination against homosexuals. “New York Attorney General Eric Schneiderman is committed to ensuring equal protection under the law for all New Yorkers, including lesbian, gay, bisexual and transgender individuals who live and work in New York,” said the letter. “Entities that operate in or are registered to do business in the state of New York must comply with these anti-discrimination requirements.” On July 27, 2015, a press release from the New York State Attorney General’s office said: “Eric T. Schneiderman today announced a settlement with the Boy Scouts of America (BSA) to end its policy of excluding openly gay adults from serving as leaders in the organization. As part of the settlement, the BSA has agreed to eliminate the standard nationally, develop guidelines for implementing its new leadership standard, and ensure compliance with anti-discrimination laws going forward.”

Clarke Becomes President of the Lawyers’ Committee for Civil Rights Under Law

In 2016 Clarke became president and executive director of the Lawyers’ Committee for Civil Rights Under Law, a post she continues to hold.

Accusing Airbnb of Discrimination

In 2016, Clarke alleged that Airbnb – a San Francisco-based company that operates an online marketplace for vacation lodging rentals and tourism activities — was enabling racial discrimination against African Americans. She called for the company to audit hosts whom it suspected of discriminating against black renters, and to ban those hosts if they were found guilty of bias. She also exhorted the company to discontinue its practice of requiring potential renters to display their name and photo when booking a stay, so as to minimize opportunities for anti-black discrimination.

Fighting Georgia’s Efforts to Ensure Election Integrity

In September 2016, LCCR and other allied organizations filed a federal lawsuit on behalf of the Georgia State Conference of the NAACP, Asian Americans Advancing Justice-Atlanta, and the Georgia Coalition for the People’s Agenda, alleging that Georgia’s voter-registration process, which had been instituted in 2010, violated the Voting Rights Act of 1965. At issue was the fact that tens of thousands of residents, mostly nonwhites, had been prevented from registering to vote because the identifying information on their registration applications did not exactly match information in databases maintained by the Georgia Department of Driver Services or the Social Security Administration. “What Georgia is doing is denying people the ability to make it onto the registration rolls at the outset, which is what’s so problematic about this matching program,” said Clarke in her role as LCCR president.

In October 2018, Clarke’s LCCR and its partners filed a lawsuit against Georgia’s Republican Secretary of State, Brian Kemp, alleging that an “exact match” state law which flagged voter registrations where a registrant’s name, address, signature, citizenship status, or other identifying information was inconsistent with data on file in government databases, was nothing more than a “discriminatory and unlawful” “voter suppression scheme.” This law became a major issue when Kemp ran for governor in Georgia against Democrat Stacey Abrams in November.  U.S. District Judge Eleanor Ross ruled that the “exact match” requirement raised “grave concerns … about the differential treatment inflicted on a group of individuals who are predominantly minorities,” and she issued an injunction allowing the 3,000+ people whose voter registrations had been put on hold because of possible citizenship issues, to vote if they could show proof of citizenship at the polls. “[W]e deem this a total victory in our fight against Secretary of State Brian Kemp’s exact match scheme,” said Clarke. “Our goal in filing this lawsuit was to ensure that no eligible voter was unfairly denied the right to vote because of this discriminatory voter suppression effort.”

Honoring Rep. John Lewis

In 2017, Clarke honored Rep. John Lewis with its Robert F. Kennedy Justice Prize.

Praising Anti-Semites Linda Sarsour & Tamika Mallory

On April 20, 2017, Clarke’s LCCR tweeted a picture where Linda Sarsour and Tamika Mallory – both renowned for their deep hostility toward Israel — were prominently featured below a caption that read: “Proud to see leaders and advocates committed to racial justice and social justice on #Time100.”

Condemning Trump for Pulling U.S. out of UNESCO Because of Its Anti-Israel Bias

In an October 12, 2017 tweet, Clarke condemned the Trump administration’s decision to terminate America’s membership in the United Nations Education, Science and Culture Organization (UNESCO) because of UNESCO’s long history of anti-Israel bias. In defense of UNESCO, Clarke wrote: “The growing isolationism of the U.S. is dangerous and polarizing.”

Alleging That “Trans Women of Color” Are Being Victimized by Increased Violence

In February 2018, Clarke co-authored an op-ed that called for policymakers and the American public to “treat the recent wave of hate-motivated violence toward trans women of color as the national crisis it is.” Added the piece: “Recently released data from the Federal Bureau of Investigation shows that 2016 saw a 9 percent increase in violent crimes targeting the transgender community. The National Coalition of Anti-Violence Programs reported an 86 percent increase in individual anti-LGBTQ homicides between 2016 and 2017. Additionally, a recent report by the Human Rights Campaign Foundation documented the escalating violence faced by transgender people, particularly transgender women of color.”

Condemning Israel for Denying Entry to BDS Supporters

In 2018 as well, Clarke said she was “incredibly disturbed” by Israel’s decision to deny entry to Center for Constitutional Rights (CCR) executive director Vincent Warren and CCR board member Katherine Franke, because of their organization’s support for the Hamas-inspired Boycott, Divestment, and Sanctions (BDS) movement dedicated to the economic destruction of the Jewish state.  Warren and Franke had been scheduled to meet with, and promote the activities of: (a) nongovernmental organizations like Addameer and Al-Haq, front groups for the terrorist Popular Front for the Liberation of Palestine; (b) Hamas front groups like the Palestine Center for Human Rights; and (c) other self-described “human rights” organizations committed to demonizing and undermining the state of Israel by means of lawfare and BDS.

Supporting Affirmative Action in Order to Increase “Diversity”

On March 30, 2018, Clarke and Fox News’ Tucker Carlson had a discussion about whether decisions regarding college admissions and worker hires should be based chiefly on merit rather than on a desire to promote forced racial diversity. Clarke, for her part, stated that federal agencies and employers “need to reflect the growing diversity of our country” and thus should place a “premium” on nonwhites.

  • In November 2020, Clarke said that affirmative action policies by which colleges admit black students under far lower academic standards than white and Asian students, are “critical for promoting diversity … in an increasingly multi-ethnic society.”
  • On January 13, 2021, Clarke’s LCCR issued a press release affirming its “robust” commitment to supporting “race-conscious admissions” while opposing “colorblind” policies. (Emphasis added)

Pressuring Social Media Companies to Censor “Hate Speech” by “White Supremacists”

In her work with LCCR, Clarke has pressured social media companies like Facebook and Twitter to block so-called “hate speech.” When testifying on this topic before the House Judiciary Committee in April 2019, she claimed that such censorship was necessary in light of the purportedly ubiquitous “white supremacy” pervading the United States:

“At the Lawyers’ Committee, we believe it is important to acknowledge that hate crimes are not new, and white nationalism is white supremacy. White supremacy has been a persistent threat to the democratic ideals that our country has strived for since its founding. African Americans in particular have experienced generations of racial terror, from the moment that the first slaves were brought to our shores 400 years ago through the post-Reconstruction Era, and from Jim Crow through the Civil Rights Movement. For generations, African Americans have experienced hate-based violence at alarming rates and are among the most frequent victims of hate crimes…. In today’s national climate, which often fosters discrimination and emboldens hate, not only have we seen an increase in reported hate crimes, but also white supremacist movements that have continued to proliferate and now use new tools on the internet to mobilize and spread their message of hate….

“We advocated for Facebook to abandon its ill-conceived policy under which they permitted ‘white nationalist’ and ‘white separatist’ content on its platform while banning ‘white supremacist content’ only. Our experience makes clear that white nationalism and white separatism are all forms of white supremacy, and that these categories are indistinguishable. Under Facebook’s new policy, all such content will be prohibited…. Through the newly-formed Change the Terms Coalition, we have called for online platforms such as Facebook, Google, Twitter, PayPal, Microsoft, Apple, and Amazon to review their policies and ensure that they are not places where hateful activities can fester…. We call on all online platforms to fully and fairly enforce their terms of service, and terminate purveyors of hate who violate those terms by promoting and inciting violence.”

In April 2019 as well, Clarke told PBS: “I believe deeply in the First Amendment. It’s a bedrock principle in our democracy. But, at the end of the day, we’re talking about conduct and activity that is not First Amendment protected speech. When you’re out issuing threats to communities of color, when you’re inciting violence, when you’re using the Web to organize hateful rallies, at some point, we are far outside the First Amendment zone.”

Appearing on Documentary About Alleged Voter Suppression

Clarke appeared with Stacey Abrams in the 2020 documentary, All In: The Fight for Democracy, which charged that black Americans were the victims of widespread voter suppression. Also appearing in the film were such notables as Eric Holder, Marcia Fudge, Eric Foner, Debo Adegbile, Frances Fox Piven, and Andrew Young.

Embracing Critical Race Theory

Clarke embraces the doctrine of critical race theory, which contends that because America is permanently and irredeemably racist to its core, the nation’s various institutions and traditions are, by definition, invalid. When President Trump in 2020 issued a directive to remove this noxious doctrine from federal government training programs, Clarke condemned him for allegedly turning a blind eye to “our nation’s history of white supremacy.” “Our nation stands at an inflection point as communities are grappling with the ongoing threat of racism, white supremacy and police violence,” Clarke said in a statement. “President Trump’s latest federal directive is an attempt to discredit, condemn and silence important conversations happening in communities and workplaces about anti-racism and about our nation’s history of white supremacy. By banning government support for these discussions, he sends a dangerous message to the country that racism is a fallacy.”

In 2020 as well, Clarke denounced the “systemic racism that pervades every aspect of our lives, especially when it comes to policing and the operation of the criminal justice system of our country.” This position was consistent with Clarke’s call – in a Newsweek op-ed entitled “Defund the Police, But Be Strategic” — for “defunding policing operations that have made African Americans more vulnerable to police violence and contributed to mass incarceration.” Failing to address the likelihood that such defunding would render inner-city blacks ever-more vulnerable to the ravages of violent crime, Clarke’s op-ed included the following statements:

  • “We must invest less in police and more in social supports in our schools.”
  • “We must invest less in police and more in mental health aid.”
  • “We must invest less in police and more in social workers.”

“Defund the Police”

While the George Floyd riots were shaking the foundations of cities across the United States in June 2020, Clarke wrote in the same Newsweek piece: “The nationwide protests against racism and police brutality have opened up space for transformative policy discussions that would have seemed unimaginable even a few weeks ago. Into that space has surged a unifying call from the Black Lives Matter movement: ‘Defund the police.’ Born of decades of oppression and racial violence, this call speaks to the urgency of reform for African Americans and other people of color who continue to experience harsh and overly punitive policing that drives mass incarceration.”

In a June 2020 interview with Amy Goodman of Democracy Now!, Clarke lamented that “police departments … abuse the civil rights of unarmed African Americans far too often.”

Clarke Supports Teaching Children That Whites Are Oppressors

During a televised interview on C-SPAN on December 28, 2020, Clarke was asked to comment on a Nevada lawsuit brought by a black  mother objecting to the fact that her bi-racial child was being forced to take a required course about “inherent white privilege,” which portrayed whites as “oppressors” and claimed that racism was an exclusively white trait. In response, Clarke attacked President Trump’s “Executive Order on Combating Race and Sex Stereotyping,” and stated: “I think the school is a great setting for us to begin having these critical conversations.”

Supporting the John Lewis Voting Rights Advancement Act

Clarke has advocated for passage of the John Lewis Voting Rights Advancement Act, which was introduced by Senator Patrick Leahy in July 2020. As Heritage Foundation scholar Hans A. von Spakovsky explains:

“The real aim [of this legislation] is to reverse the 2013 Supreme Court decision in Shelby County v. Holder and to give the political allies of Democrats—the radicals who inhabit the career ranks of the Civil Rights Division of the U.S. Justice Department […], and advocacy groups such as the ACLU—control over state election rules…. [T]he Leahy bill would reimpose the Section 5 preclearance based on a new coverage formula even more onerous than the prior one and keep the D.C.-court requirement as if it were still 1965. States would be covered in their entirety for ten years if the attorney general determined that ten ‘voting-rights violations’ occurred during a 25-year period, even if the state was responsible for only one of them and the rest were committed by city or county governments over which the state had no authority. Voting-rights violations would in­clude objections made by the attorney general, which don’t require any finding of intentional discrimination. A claimed discriminatory effect based purely on a statistical disparity would count as a violation…. Consent decrees and lawsuit settlements would also count as voting-rights violations…. In addition, the Leahy bill would make it almost impossible for any state or local jurisdiction to defend itself against a lawsuit filed by the Justice Department or an advocacy group such as the ACLU.”

Supporting the Felonious Dispensation of Food to Voters Standing in Line on Election Day

Early on the morning of January 5, 2021 — the day when Democrats Raphael Warnock and Jon Osoff were running in two enormously important Senate runoff races against Republican opponents in Georgia — Clarke re-tweeted a large, brightly colored, “Pizza to the Polls” ad indicating that free pizza and other food would be provided to people waiting in line to vote in metro Atlanta, a mostly Democrat area that heavily favored Warnock and Ossoff. According to the office of Georgia Secretary of State Brad Raffensperger, Georgia law specifically stated that it was a felony to give any such “gifts” — edible or not — as a means of persuading voters to go to the polls.

Comparing Trump Supporters to Klansmen

In a tweet which she posted at 9:32 a.m. on the morning of January 6, 2021 – several hours before the start of the infamous incursion at the U.S. Capitol by supporters of President Trump that afternoon — Clarke referred to the scores of thousands of people who had gathered in D.C. to peacefully support Trump, and who would have nothing to do with the later mayhem, as “white supremacists and extremists.” She also posted a photo of a Ku Klux Klan march in her tweet, and she likened the Trump rally to a KKK event that had taken place in D.C. 96 years earlier.

Head the U.S. Justice Department’s Civil Rights Division

On January 7, 2021, President Joe Biden named Clarke as his choice to head the U.S. Justice Department’s Civil Rights Division. Clarke was confirmed by the Senate in a 51-48 vote on May 25, 2021.  Senator Susan Collins of Maine was the only Republican to support her nomination.

Clarke Heads DOJ Lawsuit Against Georgia Regarding a Republican Voting-Rights Law in That State

On June 22, 2021, Senate Republicans used a filibuster to kill the For The People Act, a radical “election reform” bill supported by nearly every Democrat in both the House and Senate. Three days after that, on June 25, President Biden’s Attorney General, Merrick Garland, announced that the Justice Department was suing Georgia over the state’s Election Integrity Act of 2001 (SB 202), which had been signed into law in late March. Kristen Clarke was put in charge of advancing the suit on behalf of DOJ.

The aim of Clarke and the Democrats was to use the DOJ lawsuit to achieve the same objectives as they had sought, but failed, to gain via the legislative process with the For The People Act. Said Clarke regarding the suit: “The Department of Justice will use all the tools it has available to ensure that each eligible citizen can register, cast a ballot, and have that ballot counted free from racial discrimination.”

But in fact, SB 202 simply sought to restore some of the same election-integrity measures — e.g., voter ID requirements — that had been in place prior to the changes that were made to the state’s election laws as a result of the 2020 COVID-19 pandemic. In fact, the provisions of SB 202 actually made it easier to vote in Georgia, than had been the case prior to 2020.

Clarke Warns States’ AGs to Defend “Gender-Affirming Care” Rights for “Transgender” Children

In a letter dated March 31, 2022, Clarke warned all states’ Attorneys General that the DOJ would punish instances of what it viewed as discrimination by which “transgender youth” were denied “gender-affirming care,” including medical and drug treatments (e.g., puberty blockers, hormones, and surgeries). Said the letter, in part:

“State laws and policies that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment. […]

“The U.S. Department of Justice (the Department) is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal law. This includes ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care. We write to remind you of several important federal constitutional and statutory obligations that flow from these fundamental principles.

“People who are transgender are frequently vulnerable to discrimination in many aspects of their lives, and are often victims of targeted threats, legal restrictions, and anti-transgender violence. The Department and the federal government more generally have a strong interest in protecting the constitutional rights of individuals who are lesbian, gay, bisexual, transgender, queer, intersex, nonbinary, or otherwise gender-nonconforming and in ensuring compliance with federal civil rights statutes. The Department is also charged with the coordination and enforcement of federal laws that protect individuals from discrimination in a wide range of federally-funded programs and activities.

“A law or policy need not specifically single out persons who are transgender to be subject to heightened scrutiny. When a state or recipient of federal funds criminalizes or even restricts a type of medical care predominantly sought by transgender persons, an intent to disfavor that class can ‘readily be presumed.’ For instance, a ban on gender-affirming procedures, therapy, or medication may be a form of discrimination against transgender persons, which is impermissible unless it is ‘substantially related’ to a sufficiently important governmental interest. This burden of justification is ‘demanding.’ Such a law or policy will not withstand heightened scrutiny when ‘the alleged objective’ differs from the ‘actual purpose’ underlying the classification. In addition, the Due Process Clause protects the right of parents ‘to seek and follow medical advice’ to safeguard the health of their children. A state or local government must meet the heavy burden of justifying interference with that right since it is well established within the medical community that gender-affirming care for transgender youth is not only appropriate but often necessary for their physical and mental health.”

Clarke’s letter then listed a number of laws that the DOJ believed were to the new Biden Administration policies:

• “Section 1557 of the Affordable Care Act protects the civil rights of people—including transgender youth—seeking nondiscriminatory access to healthcare in a range of health programs and activities. Categorically refusing to provide treatment to a person based on their gender identity, for example, may constitute prohibited discrimination under Section 1557. As the U.S. Department of Health and Human Services has stated, restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care providers solely on the basis of their sex assigned at birth or their gender identity may also violate Section 1557.”

• “Title IX of the Education Amendments of 1972 prohibits sex discrimination, including sex-based harassment by recipients of federal financial assistance that operate education programs and activities. Policies and practices that deny, limit, or interfere with access to the recipient’s education program or activity because students are transgender minors receiving gender-affirming care may constitute discrimination on the basis of sex in violation of Title IX.”

• “The Omnibus Crime Control and Safe Streets Act of 1968 prohibits sex discrimination in certain law enforcement programs and activities receiving federal financial assistance. If a law enforcement agency takes a transgender minor who is receiving gender-affirming care into custody or arrests the child’s parents on suspicion of child abuse because the parents permitted such medical care, that agency may be violating the statute’s nondiscrimination provision.”

• “Section 504 of the Rehabilitation Act of 1973 protects people with disabilities, which can include individuals who experience gender dysphoria. Restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate Section 504.”

Further Reading: “Kristen Clarke” (LawyersCommittee.org, Linkedin.com)


Additional Resources