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Biden takes action to combat gender identity and sexual orientation discrimination

By Pamela Wolf, J.D.

Federal agency heads must review existing orders, regulations, guidance documents, policies, programs, or other agency actions for conformity with gender identity and sexual orientation discrimination prohibitions.

The same day of his inauguration, President Biden issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” to declare it the policy of his 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.” The Biden Administration will also address overlapping forms of discrimination.

Explaining the policy. The Executive Order (EO) states that all people should be treated with respect and dignity and should be able to live without fear, without regard to who they are or whom they love:

  • Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
  • 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.
  • People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.
  • All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

Legal underpinnings. These principles are reflected in the Constitution, which promises equal protection of the laws, and are also enshrined in U.S. antidiscrimination laws, among them Title VII. In its 2020 Bostock v. Clayton County decision, the Supreme Court held in that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination based on gender identity and sexual orientation. 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, along with their respective implementing regulations, prohibit discrimination based on gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

Overlapping discrimination. Discrimination based on gender identity or sexual orientation manifests differently for different individuals; it often overlaps with other forms of prohibited discrimination, including discrimination based on race or disability. For example, transgender Black Americans face “unconscionably high” levels of workplace discrimination, homelessness, and violence, including death, according to President Biden.

Enforcing gender identity and sexual orientation discrimination prohibitions. The Executive Order directs federal agency heads, as soon as practicable and in consultation with the Attorney General, as appropriate, 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 the EO.

Agency heads must also, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act, consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination and the policy set forth in the EO.

As soon as practicable, agency heads also shall consider whether there are additional actions that the agency should take to ensure that it is fully implementing the EO’s policy. If an agency takes an action to revise, suspend, or rescind an agency action, or promulgate new actions, it shall seek to ensure that it accounts for, and take appropriate steps to combat, overlapping forms of discrimination, such as discrimination based on race or disability.

Action plan. President Biden directed that within 100 days, agency heads develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions that the agency has identified pursuant to the EO.