Biden keeps promise to LGBTQ advocates as he signs order on nondiscrimination

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Civil rights organizations say the order is a 'huge deal,' but more needs to be done to ensure protections last beyond one administration.

On Wednesday, day one of his presidency, Joe Biden signed an executive order implementing last year's landmark Supreme Court decision on protections of the rights of LGBTQ people, Bostock v. Clayton County, across all federal agencies.

The order notes, "In Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court held that Title VII’s prohibition on discrimination 'because of . . . sex' covers discrimination on the basis of gender identity and sexual orientation."

Supreme Court Justice Neil Gorsuch wrote for the majority, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

Title VII of the Civil Rights Act of 1964 relates to employment, but LGBTQ policy advocates say that the court's ruling has implications for protections against discrimination in health care, education, housing, and more.

Civil rights organizations say more needs to be done to ensure these protections last beyond one administration.

The order directs the head of each agency to "review all existing orders, regulations, guidance documents, policies, programs, or other agency actions" that "were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations" and "are or may be inconsistent with the policy set forth in ... this order."

"It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation," Biden's order reads.

The Trump administration attacked LGBTQ rights across federal agencies over the past four years, rolling back Obama-era protections for members of the LGBTQ community in health care, housing, education, and labor.

The administration also refused to implement Bostock in a number of ways. The civil rights division of the Justice Department issued a memo on Sunday telling agency officials not to extend enforcement of the decision to transgender people's access to bathrooms and ability to play for athletic teams of their gender. In August, the Education Department's Office for Civil Rights recognized that Bostock affected complaints relating to discrimination based on sexual orientation but did not acknowledge its effect on complaints related to anti-transgender discrimination.

Before Biden was sworn in, LGBTQ groups said they wanted some kind of signal from the administration that Bostock would be implemented across all federal agencies.

Alphonso David, president of the Human Rights Campaign, said in response to the news, "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."

He added, "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."

The Leadership Conference on Civil and Human Rights tweeted, "A huge deal. After four years of attacks on LGBTQ equality, and in light of recent attempts by the Trump administration to limit the impact of the Bostock ruling, it's critical that on day one the new administration is prioritizing the civil rights of LGBTQ people in America."

LGBTQ groups have also stated that although the executive order is a win, they still look forward to the passage of the Equality Act. The Equality Act includes sweeping nondiscrimination protections, which advocates say are still important to pass after Bostock and the executive order signed on Wednesday.

The Washington Blade's Chris Johnson reported that, according to Rep. David Cicilline (D-RI), the Equality Act will be introduced in early February.

Rea Carey, executive director of the National LGBTQ Task Force, said, "Today’s executive order takes us a step further — building on the Bostock decision to ensure that these protections extend to all federal agencies. We look forward to the day when President Biden will sign the Equality Act, which will amend the Civil Rights Act to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, public education, federal funding, credit, and the jury system."

Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress, said after the signing on Wednesday, "There still remains important work to be done. Congress must pass the Equality Act to ensure that all individuals receive the full measure of equality guaranteed to them under the Constitution—and that the rights of LGBTQ Americans are not left up to the whims of the person who sits in the Oval Office."

Sharita Gruberg, senior director for the LGBTQ research and communications project at the Center for American Progress, said that current law on public accommodations doesn't cover sex discrimination, making the Equality Act key to protecting LGBTQ people in those spaces: "Our survey found most LGBTQ people who experienced discrimination in the past year experienced it in a public place, such as a store, public transportation, or a restroom."

Ryan Thoreson, a researcher in the LGBT rights program at Human Rights Watch, said that the interpretation of the term "sex discrimination" takes the fight for equality only so far.

"As we saw over the last four years, relying on inclusive interpretations is also vulnerable to a hostile administration or judges rolling back or chipping away at nondiscrimination guarantees," Thoreson said. "Reading between the lines of federal law doesn't give the kind of explicit protection that LGBT people need. We know nondiscrimination law is most effective when it's clear, comprehensive, and durable, and it shouldn't be up to an LGBT person to guess at what their rights are when they go to the doctor or rent an apartment."

Published with permission of The American Independent Foundation.