Shortly after being sworn in as the 46th president of the United States, Joe Biden signed a large number of executive orders, undoing a number of policies from the Trump administration – including the protection of LGBTQ rights under existing federal law.
The legal reasoning of the executive order is simple: make the decision of the Supreme Court last summer in Bostock v. Clayton County, which determined that LGBTQ people are protected from sex discrimination in employment decisions under Title XII of the Civil Rights Act of 1964, and applies it wherever sex is a class protected by federal law. This means that LGBTQ people can no longer be discriminated against in terms of housing, education and health, as well as employment.
“All people must be treated with respect and dignity and must be able to live without fear, no matter who they are or whom they love,” says the order. “Children must be able to learn without worrying about whether they will have access to the bathroom, changing room or school sports. Adults must be able to earn a living and pursue a vocation knowing that they will not be fired, demoted or mistreated because of who goes home or because the way they dress is not in line with sex-based stereotypes. People must have access to health care and protect a roof over their heads, without being subject to sexual discrimination. “
Advocates for LGBTQ rights welcomed the order on Wednesday, praising Biden for taking immediate steps to reverse some of Trump’s most intrusive policies. “It is a critical recognition of what the Supreme Court’s historic decision was last June,” Gillian Branstetter, a spokeswoman for the National Women’s Law Center, told Vox. However, she noted, “it is important to know that this is not a radical step. The Biden administration is merely enforcing the Supreme Court’s decision as written. “
Although Biden’s executive order reverses most of Trump’s anti-LGBTQ policies, Biden has not yet officially lifted the former president’s trans military ban. Instead, White House officials instructed military leaders to wait for him shortly after more Biden appointments to the Pentagon are confirmed.
Despite applause for Biden’s order, it didn’t take long for marginal conservatives and others to respond with the usual transphobic attacks that trans women are not women, and therefore Biden’s order will put his definition of a woman in jeopardy. The hashtag #BidenEraseWomen was trending on Twitter for most of Thursday day – partly because LGBTQ advocates resisted the transphobic message.
Most Americans support LGBTQ rights – almost 7 out of 10 Americans support protections against LGBTQ discrimination, according to a 2019 survey by the non-partisan organization Public Religion Research Institute. And Biden, by fulfilling his promise to protect queers and trans-Americans and by signing this executive order on its first day, showed his commitment to defending the LGBTQ community.
Biden’s LGBTQ executive order reverses most of Trump’s anti-queer policies
Almost immediately after Trump’s inauguration in 2017, the administration overturned an Obama era memo directing schools to protect trans students from discrimination. In July of that year, Trump announced his decision to ban trans people from serving in the armed forces. In May 2018, management I went after trans prisoners, too, decide that, in most cases, transgender people should be accommodated according to their designated sex at birth. So, last summer, the Department of Housing and Urban Development proposed a rule this would allow shelters for homeless people who receive federal funding to house trans people according to their sex assigned at birth.
Queer people are also under attack. While equality in marriage is the law of the country, the White House has taken steps to limit or undo gay rights in several important political areas, such as lobbying to give religious adoption agencies the right to refuse same-sex couples. The most critical, perhaps, was the government’s attack on Affordable Care Act LGBTQ discrimination protections in a rule released last June that would allow doctors and insurers to refuse care to LGBTQ people.
Biden’s executive order now reverses most of these Trump-specific policies, except for the military ban, which is expected to occur soon. The move was not a big surprise, as Biden has long supported LGBTQ rights and was one of the first political voices in favor of trans rights.
In 2012, Biden said that trans rights would be the “civil rights battle of our time”, a line he often repeated when questioned during the campaign. Early in the 2020 Democratic primaries, a conservative activist from Turning Point USA in Iowa asked Biden how many genders there were. Without missing a beat, Biden replied dryly, “at least three,” before saying to the woman, “Don’t play with me, child.”
The executive order itself ordered all federal agencies to review and update their enforcement rules and procedures to protect LGBTQ people from sexual discrimination. What this means practically is that the Biden administration will now regard discrimination against transgender students as a violation of Title IX, and discrimination against gays or lesbians in housing decisions as being against the law. It also protects LGBTQ people from employment discrimination by federal contractors and LGBTQ homeless people from discrimination in federally funded shelters.
However, sex is not considered a class protected by federal public housing law, so it is still possible for private entities to deny a trans person access to a bathroom that matches their gender identity or for a bus driver to deny a ride for a gay couple.
The executive order is essentially a redefinition of the legal theory that sexual orientation and gender identity are a form of sexual discrimination first introduced in the administration of former President Barack Obama, although now it is based on more solid legal bases, thanks to Bostock decision last June.
The initial commitment, especially to trans rights, puts the new administration in a clear position to oppose the continuing international reaction against trans rights. Dozens of conservative states have proposed banning puberty blockers and other trans-related care for trans children or banning trans women and girls from school sports, both of which would go against the new executive order.
It remains to be seen how committed the Biden Justice Department will be to opposing discriminatory laws at the state level, but transgender advocates mostly see Wednesday’s order as a good first step.
LGBTQ advocates are also eyeing the introduction of the Equality Act in Congress. If passed, the legislation would encode much of Biden’s executive order into federal law, along with expanding protections against LGBTQ and sex discrimination in public accommodations.
The predictable trans moral panic reaction comes to Biden
Whenever a government rule or law that suggests even improving the lives of transgender people is proposed or enacted, far-right anti-trans conservatives always react negatively, and the signing of Wednesday’s order was no exception.
Despite ordering a modest adjustment to existing civil rights laws, which still puts the United States behind other Western nations like the United Kingdom, anti-trans voices reacted angrily to trans people receiving legal protection against discrimination. For example, Ryan T. Anderson, a senior member of the anti-LGBTQ Heritage Foundation, tried to embarrass Biden for breaking his promise to seek unity by protecting trans and queer people in comments to the Washington Post.
The religious conservative was also accompanied by several Feminists “critical of the gender” in calling Biden, accusing the new president of “wiping out women” by including transgender people in the definition of sexual discrimination.
But Biden’s executive order “is not an abandonment of his request for unity by any effort of the imagination,” said Branstetter. “It’s frankly a little cliché, because it’s just enforcing the Supreme Court [decision] as is the constitutional duty of the Executive Branch. “
She also added that anti-trans activists have long “been gearing up for a broader media campaign to convince people that trans people pose a risk to cisgender women, while powerful men laugh in the corners” .
In other words, it should come as no surprise that anti-trans activists accuse the man who chose Kamala Harris, the first female vice president in US history, to eliminate women. But their attacks should not take away the trans people they receive critical protections that they deserve for a long time.