President Joe Biden is reportedly planning to sign a sweeping executive order later today to implement LGBTQ discrimination protections across the executive branch.
In the first hours of his presidency, Biden is expected to sign numerous executive orders to start to turn back many of the changes implemented by former President Donald Trump. And one of the executive orders will tell federal agencies to interpret bans on discrimination “because of sex” in federal law to also include discrimination against LGBTQ people.
“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,” reads a memo from Biden’s transition team.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” it continues. “The Biden-Harris Administration will prevent and combat discrimination on the basis of gender identity and sexual orientation.”
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.
The Obama administration’s interpretation of federal law was that discrimination against LGBTQ people is inherently a form of discrimination because of sex, since one cannot discriminate against an LGBTQ person without taking their sex into account.
For example, if an employer fires a transgender man when he announces his transition, then they are discriminating against him because he was assigned female at birth. Or if a female teacher is fired when her school district finds out that she’s married to another woman – but they wouldn’t fire a man married to a woman – then they are discriminating against her because she is a woman.
The reasoning was used in the Supreme Court’s landmark 2020 Bostock v. Clayton Co. decision, which agreed that it’s impossible to discriminate against LGBTQ people without also discriminating on the basis of sex, at least when it comes to job discrimination.
But the Trump administration fought tooth and nail not to implement the Supreme Court’s reasoning. Just last week, former Secretary of Education Betsy DeVos issued an internal memo telling the Department of Education that they should continue to refuse to protect transgender students because transphobic discrimination is not, in her opinion, discrimination “because of sex.”
She even told staff members in a farewell address to be the “resistance” in the Biden administration.
Biden is expected to sign a number of other executive orders this afternoon, including one to rejoin the Paris Climate Agreement, an international accord to lower greenhouse gas emissions. Another executive order will strengthen the Deferred Action for Childhood Arrivals (DACA) program, which shields undocumented immigrants who came to the U.S. as children from deportation.
He is also planning to issue a “100 Days Masking Challenge… asking the American people to do their part — their patriotic duty — and mask up for 100 days” in an effort to fight the coronavirus pandemic.
Biden is also expected to rescind the “1776 Commission,” which was set up by the Trump administration to rewrite U.S. history to take the focus away from slavery, racism, and sexism. The commission issued a report on Martin Luther King Jr. Day this year criticizing the civil rights movement for creating “identity politics,” which are “the opposite of King’s hope that his children would ‘live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Biden has promised to start action to reverse the transgender military ban today as well, although it may take a year for transgender people to be able to serve openly in the military.