Joe Biden’s new administration began with a bang on Wednesday. Among the 17 executive orders signed on his first day in office, the 46th president issued an order instructing federal agencies to fully implement the Supreme Court’s historic June 2020 ruling on discrimination against LGBTQ+ people in the workplace. In Bostock v. Clayton County, the nation’s highest court found in a decisive 6-3 ruling that queer and transgender employees are protected from workplace bias under 1964 civil rights laws banning sex-based discrimination.
But while the order would appear to merely reaffirm what was already the law of the land, the directive’s implications are far more expansive in their scope. Shortly after news broke that Biden had signed the order, the Human Rights Campaign called it the “most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president.”
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What makes the order so unprecedented, according to Lambda Legal Chief Strategy Officer Sharon McGowan, is that it doesn’t merely apply to workplace settings. In a phone call with them., McGowan claimed that the president’s statement signaled that the new administration intends to apply the Supreme Court’s analysis to “all federal laws that prohibit sex discrimination,” including statutes concerning areas like education, housing, and health care.
“This is exactly the kind of clear statement that we hoped to get from the Biden administration,” she said. “And that absolutely is the right approach, because there's nothing about the Supreme Court's explanation for why sexual orientation or gender identity discrimination as an aspect of sex discrimination should be limited just to the employment context.”
The text of the order specifies that the Biden White House believes that the Supreme Court’s ruling extends to laws like the Fair Housing Act, Title IX of the Education Amendments of 1972, and the Immigration and Nationality Act. As a practical matter, that declaration would guarantee equal access for trans students who request to use the bathroom that most closely corresponds with their gender identity at school, people with HIV seeking affirming health care, and homeless trans people who wish to be housed in alignment with their gender at federally funded shelters.
Furthermore, the executive order directs all agencies housed within the federal government to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” to ensure that they are in compliance with the Supreme Court ruling.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the order concludes.
While more pro-LGBTQ+ executive orders are expected from the Biden administration over the next few weeks, including the repeal of Trump’s trans military ban, McGowan predicted that these initial steps would have a major impact on the lives of queer and trans people across the country. With the Trump administration largely refusing to investigate claims of anti-LGBTQ+ discrimination over the past four years, she said the order reminds people that they have rights and protections under the law — and that the federal government is on their side.
“It will be giving a cause of action for somebody who loses their job because their employer doesn't like the fact that they have transitioned or has learned that they are in a same-sex relationship,” she said. “It means that somebody who is getting a different mortgage rate because they’re a same-sex couple, as opposed to a different-sex couple, will now have that clear path forward to enforce the rights under federal law.”
The Biden administration’s stated commitment to LGBTQ+ equality is a major about face from the prior administration, which directed government agencies to allow hospitals to turn away patients if treating those individuals would conflict with a provider’s sincerely held religious beliefs. The Trump White House also worked to gut protections on the basis of gender identity from the Affordable Care Act, rewrote the federal definition of gender to exclude trans people, and filed amicus briefs to the Supreme Court opposing LGBTQ+ nondiscrimination protections.
While SCOTUS ignored the request by Trump’s Department of Justice to permit the firing of LGBTQ+ employees on the basis of their identities, the administration responded to the landmark court ruling by simply ignoring it. According to a report published last year in the The 19th, the DOJ declined to inform employers of their new rights and obligations under the law, and many simply didn’t know about it.
Human Rights Campaign President Alphonso David said the executive branch’s long-overdue embrace of Bostock represents a “sea change in implementation and in enforcement for LGBTQ+ people” but affirmed that greater work must be done to ensure the community is equal under the law. For instance, there are many areas of federal law where sex is not a protected characteristic, such as in public accommodations like bathrooms and city parks.
“There's no federal law for transportation hubs to protect LGBTQ+ people,” he told them. in an interview. “There's no federal law for retail stores to protect LGBTQ+ people. Let’s just use me as an example: I get on a plane from New York and I travel to another state for an event. I get off the plane, and I get into an Uber or into a Lyft. And let’s also assume that at this point, I have a boyfriend, and we’re having a conversation. The driver realizes that I’m gay. In many parts of this country, that driver could throw me out of his car, and I would have no protections.”
According to David, the most direct solution to this problem is the passage of the Equality Act, which would extend protections to LGBTQ+ people in virtually all areas of public life, including everything from loan applications to jury duty. During the 2020 presidential election, Biden promised to enact the landmark civil rights bill within his first 100 days in office.
While some have speculated that Trump’s impeachment trial could delay the Equality Act’s passage, David said HRC is working with the Biden administration to make sure its LGBTQ+ rights commitments remain on track. “We believe that you can walk and chew gum at the same time,” he said.
But even as LGBTQ+ advocacy groups look to the fights that remain ahead, many believe this week’s milestones are a testament to the generations of activism that got us here. “I have been doing this work for my entire professional life,” McGowan said. “It's one of those rainbow and sunshine moments that you don't get a lot, but you hold on to them when you have them because it’s the work of many, many unsung heroes, as well as the folks who are more known to the movement that brought us to this day.”
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