An executive order on LGBT rights signed by President Joe Biden on Wednesday signals the start of a bitter cultural clash that will loom large over his presidency.
Biden’s directive broaches almost every aspect of domestic policy, from housing to refugee resettlement to transgender student athletes. The order requires every federal agency to make clear that civil rights laws banning sex discrimination also ban discrimination based on sexual orientation or gender identity, citing the Supreme Court’s landmark gay rights ruling in June 2020.
Many changes resulting from Biden’s order, like a ban on anti-gay discrimination in renting, are unlikely to cause controversy. Other mandates will accelerate long-simmering cultural disputes, like those allowing trans students to participate in women’s sports or use the bathrooms and locker rooms of their choice. While Biden says his focus is fixed on the coronavirus pandemic and economic stimulus, cultural conflict is poised to play a defining role in the coming years of his presidency.
The Supreme Court decision in Bostock v. Clayton County is the basis for Biden’s directive. Title VII of the Civil Rights Act bans discrimination “because of sex” in employment. The question for the justices was whether that sex discrimination ban also covers sexual orientation and gender identity. A six-justice majority led by Justice Neil Gorsuch said it does. Gorsuch wrote that it is “impossible” to discriminate against LGBT workers without discriminating in some way “because of sex.”
Biden’s order says the logic of Bostock—that discrimination against LGBT people is necessarily discrimination “because of sex”—should apply to every other federal law and regulation that bans sex-based discrimination. The order thus requires any agency that enforces statutes banning sex discrimination to likewise prohibit bias against LGBT people.
For example, the Department of Housing and Urban Development administers a sex non-discrimination law called the Fair Housing Act. Under Biden’s order, HUD will enforce that law to ban LGBT bias when selling homes or renting apartments. The Immigration and Nationality Act likewise promises assistance to refugees regardless of sex, meaning Biden’s order also guarantees protections for gay and transgender migrants.
All told, the list of forthcoming changes is a long one.
“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,” said Alphonso David, president of the Human Rights Campaign. “By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life.”
While many new policies will likely enjoy broad support, some may inflame the hottest cultural disputes. Biden’s Education Department will be a flashpoint.
The Education Department administers Title IX, which bans sex discrimination in federally-funded schools. The department, consistent with Biden’s order, will make rules requiring any school that takes federal dollars to allow trans students access to their preferred bathrooms and locker rooms. Another rule granting trans-women access to women’s sports will almost certainly be promulgated. The order expressly contemplates those steps.
“Every person should be treated with respect and dignity and should be able to live without fear, no matter 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,” the order reads.
Critics say those moves are tantamount to repealing Title IX, which was passed to put women on equal-footing with men in athletics.
“This isn’t equality, and it isn’t progress. President Biden’s call for ‘unity’ falls flat when he seeks to hold those receiving federal funds hostage if they don’t do tremendous damage to the rights, opportunities, and dignity of women and girls,” said Alliance Defending Freedom lawyer Christiana Holcomb.
The Trump administration took the same view, arguing Bostock shouldn’t apply to Title IX because Title IX serves a different and unique purpose—protecting girls and ensuring equal athletic opportunities for women. Forcing women’s athletic leagues to accept transgender competitors would defeat the law’s purpose, the Trump Education Department argued in a 2020 memorandum.
In the months following Bostock, two federal appeals courts sided with transgender students challenging bathroom access policies, an early indication that many courts are ready to apply the case to education.
Implementing Biden’s order will take time. In the short term, agencies will issue advisory notices to forewarn employees or industry leaders about the new enforcement practices. That will give schools, banks, and employers time to implement changes on their own without formal government action.
Agencies will then move to enshrine the new policy in an official rule. Crafting rules is time-consuming. Agencies must give adequate notice of a change and allow a public comment period. Settling the finer points is likewise slow work, often involving officials from different parts of the government. For example, former education secretary Betsy DeVos rescinded an Obama-era “Dear Colleague” letter on campus sexual assault in 2017, but a long-promised rule setting due-process requirements for campus tribunals wasn’t finalized until 2020.
And whatever changes are achieved may be stymied in court. Advocacy groups and Republican attorneys general are sure to file legal challenges to the new rules. It’s not clear if they’ll ask judges to halt Biden’s policies on a national basis. Conservatives castigated so-called nationwide injunctions during the Trump administration, though with Biden in the White House they may be back in style.
Justice Samuel Alito foresaw a long slog in his wide-ranging 54-page dissent in Bostock.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito wrote. “The entire federal judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”