Biden issues executive order expanding LGBTQ nondiscrimination protections

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Jo Yurcaba
·6 min read
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President Joe Biden issued an executive order Wednesday night that will extend existing federal nondiscrimination protections to LGBTQ people.

Alphonso David, president of the Human Rights Campaign, the country’s largest LGBTQ advocacy group, called it “the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president.”

The order directs all federal agencies to implement the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County, Georgia, which established that LGBTQ people are protected from employment discrimination under Title VII of the Civil Rights Act of 1964.

The order also builds on the high court’s decision, directing any federal agency with protections against discrimination based on sex to interpret those statutes to also protect against discrimination based on sexual orientation, gender identity and gender expression.

Biden’s order states, “under Bostock’s reasoning,” laws that prohibit sex discrimination, including Title IX of the Education Amendments of 1972, the Fair Housing Act and Section 412 of the Immigration and Nationality Act, “prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the executive order states. “Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.”

Biden also acknowledged how discrimination against LGBTQ people “often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability.”

“For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence,” the order states.

It then directs the head of each federal agency to work in consultation with the attorney general to develop a plan within 100 days to carry out the order.

‘A sigh of relief’

Advocacy groups said the move is a huge step forward after four years of Trump administration policies that rolled back — or attempted to roll back — protections for LGBTQ people, including rules from the Department of Health and Human Services that would’ve allowed discrimination against transgender people.

“I think it's important for the government and for our country to be able to take advantage of the incredible contributions that people in the community have to give,” Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates and Defenders, or GLAD, told NBC News. “I'm excited about the fact that the incoming administration wants to ensure full inclusion, but also take advantage of all that the community has to offer.”

David of the Human Rights Campaign said the order will provide much-needed relief for lesbian, gay, bisexual, transgender and queer people.

“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 in a statement. “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.”

Mara Keisling, executive director of the National Center for Transgender Equality, said the order “moves us another step toward a day when transgender people can openly live as who they are without being targeted for discrimination.” With it, she said, the legacy of Aimee Stephens, Don Zarda and Gerald Bostock — the LGBTQ plaintiffs in the landmark Bostock case — “grows larger.”

“They stood up against discrimination, and with its actions today the Biden administration is recognizing the righteousness of their cause and their bravery in the face of injustice,” Keisling said in a statement. Biden’s actions on the first day of his administration, she continued, “will help to improve the lives of millions of people.”

‘A comprehensive, intersectional approach’

Biden issued more than a dozen other executive orders Wednesday, many of which advocates said will also positively affect LGBTQ Americans.

An executive order aimed at “advancing racial equality and support for underserved communities” will establish the Interagency Working Group on Equitable Data to gather better data to “measure and advance equity,” among other actions. Sam Brinton, vice president of advocacy and government affairs at The Trevor Project, an LGBTQ youth suicide prevention organization, said data collection is key to better supporting queer youth.

“It is a true breath of fresh air to see President Biden prioritize LGBTQ non-discrimination protections and inclusive data collection on day one, along with several other key policy changes that will protect marginalized communities,” Brinton said in a statement. “At The Trevor Project, we know that ending LGBTQ youth suicide will require a comprehensive, intersectional approach, including new policies and programs aimed at eradicating risk factors for suicide like LGBTQ-based discrimination, mental health care disparities, and conversion therapy. We look forward to working with the Biden Administration and both parties in Congress to tackle these issues and save young LGBTQ lives.”

An order to begin a coordinated Covid-19 response will also be “hugely important” to LGBTQ students, according to Eliza Byard, executive director of GLSEN, a nonprofit that advocates for LGBTQ youth.

“The fact is that the most vulnerable and marginalized students always take it the hardest when a system is not working,” Byard said. “Our schools are not serving our children right now effectively; they don't have the resources they need to do so, and so the most vulnerable youth are suffering the most — LGBTQ+, immigrant, Black and brown students, students with disabilities.”

Byard said the Covid-19 order, along with several others, including the order preserving Deferred Action for Childhood Arrivals, a program for young people who were brought to the country as children and who lack legal status, “are forms of relief that get at the heart of the pain at those intersections, and that's hugely important.”

Some of Biden’s orders are reversals of previous Trump administration policies. For instance, the order to advance racial equity also reverses Trump’s Executive Order 13950, which prohibited diversity and inclusion training that promotes “divisive concepts” about race and sex. A federal court recently placed an injunction on enforcement of Trump’s order.

The Bostock order will also undo policies the Trump administration issued in its final days, such as a Health and Human Services Department rule that would have allowed federally contracted social services providers, such as adoption agencies, to discriminate against LGBTQ people. It will also prevent enforcement of a Justice Department memo issued Sunday that would have limited the scope of the Bostock decision so that it did not affect sports teams or bathrooms, according to The Wall Street Journal. The memo has since been removed from the department’s website.

Some advocates, in addition to applauding the Biden administration, are calling for further actions. The American Civil Liberties Union urged the administration to “take action to more fully recognize transgender and non-binary people” with an executive order that would allow transgender people to receive accurate IDs.

“Trans and non-binary people belong, and we need IDs that accurately reflect who we are so we can travel, apply for jobs, and enter public establishments without risk of harassment or harm,” LaLa Zannell, Trans Justice Campaign manager for the ACLU, said in a statement. “We know who we are, and we need the federal government to recognize who we are.”

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