President Joe Biden signed a sweeping executive order yesterday, instructing executive agencies to interpret federal civil rights legislation as already banning discrimination against LGBTQ people in many areas of the law.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the executive order states in the introduction.
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Biden’s order tells the heads of all executive agencies to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” in order to ensure that they are interpreting bans on sex discrimination in federal law to also ban discrimination “prohibit discrimination on the basis of gender identity or sexual orientation.”
The executive order cites the Supreme Court’s 2020 Bostock v. Clayton Co. decision, which found that the ban on job discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 also bans discrimination against LGBTQ people, since anti-LGBTQ discrimination is inherently based on sex.
But the order goes beyond Title VII and says that the same reasoning could apply to other federal anti-discrimination laws, like Title IX of the Education Amendments of 1972, the Fair Housing Act, and section 412 of the Immigration and Nationality Act.
The order could have far-reaching effects. Under the Obama administration, executive departments started using an interpretation of discrimination because of sex that included LGBTQ people based on legal arguments that were being accepted by federal courts.
But as soon as Trump came to power, his administration started to roll back these protections, based on the idea that discrimination against LGBTQ people has nothing to do with sex. This conservative legal doctrine was behind the Department of Education’s rollback of protections for transgender students, the Department of Health and Human Services’ rule changes that allowed doctors, medical professionals, and the recipients of federal grants for adoption and fostering services to claim a religious exemption to working with LGBTQ people; the Department of Housing and Urban Development moves to allow homeless shelters that get federal money to discriminate against transgender people; as well as other attacks on LGBTQ equality.
“Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability,” reads Biden’s executive order. “For example, 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 HRC President Alphonso David. “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.”
“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.”
Biden’s executive order also mentions Black transgender people specifically: “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.” It says that it is “the policy of my Administration to address overlapping forms of discrimination.”