Just hours after taking the oath of office, President Joe Biden signed 17 executive orders including one directing all federal agencies to fully implement the U.S. Supreme Court’s ruling against anti-LGBTQ discrimination under federal law.
The first paragraph of the executive order states, “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
The order instructs the head of each agency to “review all existing orders, regulations, guidance documents, policies, program or other agency actions” that prohibit sex discrimination to revise and amend such policies to include banning discrimination on the basis of sexual orientation and gender identity.
The order cites the Supreme Court ruling for Bostock v. Clayton County which was handed down on June 15, 2020. The 6-3 decision found that Title VII of the Civil Rights Act of 1964 protects employees on the basis of their gender identity or sexual orientation because such animus is a form of “sex discrimination” which is clearly prohibited under the Civil Rights Act.
In the seven months since the ruling, the Trump administration chose to not implement the ruling. That inaction was consistent with most of the Trump administration’s policies regarding LGBTQ rights and protections.
President Biden just issued an executive order protecting Americans against discrimination on the basis of sexual orientation and gender identity — a turning point in our fight for equality under the law. https://t.co/fSuxT8dF8w
— Human Rights Campaign (@HRC) January 21, 2021
Biden’s executive order is more expansive than just the Bostock ruling, however.
The order notes that, under Bostock’s reasoning, “laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”
Biden also addresses how discrimination can often overlap with other forms of prohibited discrimination including animus based on the basis of race or disability. The language specifically notes that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.”
“Biden’s Executive Order is the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president,” said Human Rights Campaign president Alphonso David in a statement. “Today, millions of Americans can breathe a sigh of relief knowing that their President and their government believe discrimination based on sexual orientation and gender identity is not only intolerable but illegal.”
These protections ensure people like Gerald Bostock, who took his case to the Supreme Court after being fired for expressing interest in an LGBTQ softball league, are able to work without fear of being fired because of who they are or whom they love. pic.twitter.com/YkFHLmQIPW
— Human Rights Campaign (@HRC) January 21, 2021
The executive order is a great start – especially seeing our new president addressing LGBTQ concerns on his first day on the job. But the order will have limitations in that some civil rights legislation doesn’t name sex as a protected class.
Biden has promised to sign the Equality Act, which would add LGBTQ protections to existing federal civil rights laws, into law within his first 100 days. But the impending second impeachment trial of Donald Trump may slow things down a bit. The Senate Judiciary committee, which would oversee the Equality Act bill, is the same committee now tasked with the impeachment proceedings.
Additionally, Senate Democrats will need ten Republican colleagues to vote in favor of the bill since there’s the 60 vote threshold required to close debate and move to a vote.
Jen Psaki, the new White House press secretary, told the Washington Blade that President Biden plans on issuing an executive order in the next few days that would reverse the Trump administration’s ban on military service by transgender Americans.
A transition official told the Blade that since the reversal will need “proper coordination” across all armed services, Biden would like to see his Defense Secretary nominee, Lloyd Austin III, confirmed and in place at the Pentagon before moving forward. The official added the delay should only be mere days.
Other executive orders signed Wednesday reversed Trump’s Muslim travel ban, stopped construction of the Mexico border wall, and rejoining the Paris climate agreement.
