The order will assure that the federal government doesn’t engage in such discrimination and will take action against it elsewhere.
An executive order President Joe Biden issued on his first day in office will assure that the federal government will not engage in workplace discrimination on the basis of sexual orientation and gender identity, and it is expected to stand against such discrimination in the private sector as well.
Biden signed 17 executive orders Wednesday afternoon. He reversed Donald Trump’s ban on entry of people from several majority-Muslim countries, took steps to address the COVID-19 pandemic, rejoined the Paris climate accord and the World Health Organization, added further protections against deportation for undocumented immigrants brought to the U.S. as children, restored efforts to promote diversity, initiated efforts to fight racism, disbanded Trump’s so-called 1776 Commission (which promoted a rosy view of U.S. history, downplaying the role of slavery), and much more. Biden is also expected to issue an order revoking Trump’s transgender military ban in the next few days.
The executive order on anti-LGBTQ+ discrimination “builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) and ensures that the federal government interprets Title VII of the Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity,” says a press release from the Biden transition team. “This Order will also direct agencies to take all lawful steps to make sure that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity, protecting the rights of LGBTQ+ persons.” The full text of the order will be released soon.
The Trump administration had largely ignored the Bostock decision, in which the court found that Title VII’s prohibition on sex discrimination also applied to anti-LGBTQ+ discrimination — and the administration had argued that the court should make the opposite ruling. As the Bostock decision applies only to workplace discrimination, there is still a need for the Equality Act, which would establish antidiscrimination protections in housing, public accommodations, and much more. Biden has promised to lobby Congress to pass the act in his first 100 days in office. But his administration may well take stands against discrimination in venues beyond the workplace, activists said.
Several LGBTQ+ activists praised Biden’s order. “By signing this executive order on his first day of office, President Biden is boldly demonstrating that his administration will prioritize the civil rights of all Americans,” Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights, said in a press release. “However, we recognize that there is still much work to be done in order to end the systematic discrimination that plagues LGBTQ people, communities of color, and people that hold multiple underrepresented identities in this country, and NCLR looks forward to working with this administration to help support and protect all of us.”
The order will have many practical implications, Shannon Minter, NCLR’s legal director, explained in a follow-up email to The Advocate. “In the employment arena, for example, this means that federal government employees will be protected from discrimination based on sexual orientation or gender identity,” he said. “Private employees can bring claims to the Equal Employment Opportunity Commission, which is an independent agency that, even before Bostock, already recognized that federal sex discrimination law protects LGBTQ workers. Private LGBTQ workers can also bring federal court cases, and based on this new policy, the Department of Justice could choose to file briefs supporting their claims in cases that present important legal issues.”
“The administration is usually not directly involved in private lawsuits, but it can choose to weigh in when it chooses to in cases that present new or important legal issues,” Minter continued. “The Trump administration did so repeatedly in order to urge courts to rule against LGBTQ plaintiffs, including in Bostock. We expect the Biden administration will do so in appropriate cases to support LGBTQ plaintiffs.” Minter said he expects federal agencies to stand against anti-LGBTQ+ discrimination in education, health care, housing, and other aspects of life as well.
That is what many activists hope. “We will work with the Biden administration to ensure this executive order is fully implemented and that the federal government aggressively pursues reports of discrimination against LGBTQ people — not just in the workplace, but in education, housing, health care, and taxpayer-funded programs,” said a statement from James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project. “It is such a relief to have a government that is committed to preventing discrimination as opposed to enabling it.”
Esseks was counsel for gay man Donald Zarda and transgender woman Aimee Stephens, whose discrimination cases were considered along with that of gay man Gerald Bostock in the decision bearing Bostock’s name. “While we are sad that Aimee Stephens and Don Zarda, along with countless other LGBTQ people who faced discrimination, did not live to see this moment, we know that their legacy lives on,” Esseks said.
ACLU Trans Justice Campaign Manager LaLa Zannell added that the organization wants the Biden administration to ease the process for trans people to obtain accurate gender markers on federal documents.
Additional praise for the Biden’s order came from Alphonso David, president of the Human Rights Campaign: “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. 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,” he said. “By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life. While detailed implementation across the federal government will take time, this Executive Order will begin to immediately change the lives of the millions of LGBTQ people seeking to be treated equally under the law. The full slate of Day One Executive Orders mark a welcome shift from the politics of xenophobia and discrimination to an administration that embraces our world, its people and its dreamers. We look forward to continuing to engage with the White House, Department of Justice, and other agencies to ensure that Bostock is properly implemented across the federal government.”
And from Sharon McGowan, chief strategy officer and legal director for Lambda Legal: “We applaud the Biden-Harris administration’s swift action in clarifying that LGBTQ people will be protected from discrimination wherever federal law prohibits discrimination because of sex. Today’s executive order sends a clear signal from the administration that starting on day one, they intend to return to the rule of law and are committed to enforcing the civil rights of LGBTQ people and we enthusiastically welcome it. The Supreme Court made clear last June that discrimination against someone because of their sexual orientation or gender identity is a form of sex discrimination, and with today’s announcement, LGBTQ people can now have confidence that the federal government will actually defend, rather than resist, our right to be free from discrimination. We look forward to building a better future for our communities and the Biden-Harris administration should know that they have a partner in Lambda Legal to help make that a reality.”