Shortly after Joe Biden was sworn in as the 46th President of the United States, he signed a thick stack of executive orders and overturned a number of Trump administration policies – including the protection of LGBTQ rights under existing federal law.
The legal determination of the executive order is simple: take the ruling of the Supreme Court last summer Bostock teen Clayton County, which has ruled 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 in federal law is a protected class. This means that LGBTQ people can no longer be discriminated against in housing, education and health care as well as work.
“Every person must be treated with respect and dignity and must be able to live without fear, no matter who he is or whom he loves,” the order reads. ‘Children should be able to learn without worrying about being denied access to the toilet, locker room or school sports. Adults need to be able to make money and appeal, knowing that they will not be fired, degraded or abused because of who they go home with, or because the dress does not conform to sex-based stereotypes. People need to be able to access health care and secure a roof over their heads without being subjected to sex discrimination. ”
Advocates for LGBTQ rights praised the order Wednesday and praised Biden for taking immediate action to return Trump’s most personally intrusive policy. “This is a critical acknowledgment 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 government of Biden only upholds the ruling of the Supreme Court as it is written. ”
While Biden’s executive order reflects most of Trump’s anti-LGBTQ policies, Biden has not yet officially revoked the former military ban on the former president. Instead, White House officials instructed military leaders to expect it shortly after more of Biden’s appointments to the Pentagon were confirmed.
Despite the applause for Biden’s command, it did not take long for conservatives and other people to respond with the usual transphobic attacks that trans women are not women, and thus Biden’s command will damage their definition of women. The hashtag #BidenEraseWomen has been trending on Twitter most of the day on Thursday – in part because LGBTQ advocates pushed back the transphobic message.
Most Americans support LGBTQ rights – Nearly 7 in 10 Americans support LGBTQ protection against non-discrimination, according to a 2019 poll by the non-partisan organization Public Religion Research Institute. And Biden, by sticking to his promise to protect queer and trans-Americans and sign this executive order on his first day, shows his commitment to standing up for the LGBTQ community.
Biden’s LGBTQ executive orders back most of Trump’s anti-queer policies
Almost immediately after Trump took office in 2017, the administration a memo from the Obama era turned back instruct schools to protect trans students from discrimination. In July, Trump announced his decision to transgender people banned from serving in the army. In May 2018, the administration went after trans prisoners, also, decides that transgender people should mostly be born according to their assigned gender. Last summer, the Department of Housing and Urban Development a rule suggested it will allow homeless shelters receiving federal funding to house transgender people according to their birth-assigned gender.
Queer people were also attacked. Although marital equality is the law of the land, the White House has taken steps to restrict or undo gay rights in several key policy areas, such as lobbying to give religious adoption agencies the right to deny married couples. The most important, perhaps, was the government’s attack on the LGBTQ protection against discrimination against affordable care in a rule released in June last year that allows doctors and insurance companies to care for LGBTQ people.
Biden’s executive order now leaves behind most of this particular Trump-era policy, except for the military ban, which is expected to come soon. The move was not much of a surprise, as Biden had long been a proponent of LGBTQ rights and an early political voice in favor of trans rights.
In 2012, Biden said that trans rights would be the ‘civil rights struggle of our time’, a line he often repeated when asked on the campaign trail. Early in the Democratic primary in 2020, a Conservative activist at Turning Point USA in Iowa asked Biden how many generations there were. Without missing a mate, Biden replies dryly, “at least three,” before telling the woman, “Don’t play games with me, child.”
The executive order itself has ordered all federal agencies to review and update their rules and enforcement procedures to protect LGBTQ people from gender discrimination. What this means in practice is that the administration of Biden will now regard discrimination against transgender students as a violation of Title IX, and that discrimination against gay or lesbian people in housing decisions is against the law. It also protects LGBTQ people from job discrimination by federal contractors and LGBTQ homeless from discrimination at shelters funded by federal funds.
However, according to federal public accommodation law, sex is not considered a protected class, so it is still possible for private entities to deny a transgender person access to a bathroom that matches their gender identity or that a bus driver ‘ can refuse a ride to a gay couple.
The executive order is essentially a rebuttal to the legal theory that sexual orientation and gender identity is a form of gender discrimination that was first promoted under former President Barack Obama, although it is now based on a firmer legal basis thanks to the Bostock decided last June.
The early commitment, especially with regard to trans rights, puts the new administration in a clear position to oppose the ongoing international fight against trans rights. Dozens of conservative states have proposed that puberty blockers and other care-related care to minors be banned or that women and girls be banned from school sports, both of which would be contrary to the new executive order.
It remains to be seen how committed Biden’s Department of Justice will be to resisting discriminatory laws at the state level, but trans advocates mostly view Wednesday’s order as a good first step.
Advocates of LGBTQ also keep their eye on the introduction of the Equality Act in Congress. If passed, the legislation would codify much of Biden’s executive order in federal law, along with the extension of LGBTQ and sex discrimination protection to public accommodation.
The predictable relapse of trans moral panic comes for Biden
When a government rule or law is proposed or enacted that even suggests improving the lives of transgender people, anti-trans-right-wing conservatives always react negatively, and Wednesday’s signing of the order was no exception.
Despite the order of a modest adaptation to the existing civil rights law, which still places the US behind other Western countries such as the United Kingdom, anti-trans voices reacted angrily to transgender people who had received legal protection against discrimination. Ryan T. Anderson, a senior fellow at the anti-LGBTQ Heritage Foundation, for example, tried to embarrass Biden for his promise to bring about unity, by protecting trans and queer people in comments to the Washington Post.
The religious conservatives were also joined by several “Gender-critical” feminists by exclaiming Biden and accusing the new president of ‘exterminating women’ by including transgender people under the definition of gender discrimination.
But Biden’s executive order “is no distance from his call for unity in any degree of imagination,” Branstetter said. ‘It’s honestly a small picture, because it simply forces the Supreme Court [decision] just like the constitutional duty of the executive. ”
She also added that anti-trans activists have long “prepared for a broader media campaign aimed at convincing people that transgender people pose a risk to cisgender women while powerful men laugh in the corner.”
In other words, it should come as no surprise that anti-trans activists are accusing the man who elected Kamala Harris, the first female vice president in American history, of eradicating women. But their attacks should not take away from transgender people who critical protection they have long deserved.