President Biden issued an executive order on January 20, 2021, titled: “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”. The purpose of this order is to ensure that people who are LGBTQIA+ do not face discrimination based on who they love or who they are.
The Congressional Research Service (in a report that was released on 2014), explained what an executive order is and why a President can issue them:
Executive orders, presidential memoranda, and proclamations are used by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. Moreover, if they are based on appropriate authority, they have the force and effect of law….
A key part of Biden’s executive order states the following:
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. 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 confirm 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 would receive equal treatment under the law, no matter their gender identity or sexual orientation.
This specific executive order is based on appropriate authority – and as such, should be seen as having the force and effect of law. Here are a few of the court cases where the outcome of the case gives President Biden the authority to enforce this executive order:
Bostock v Clayton County, Georgia: Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. R.G. & R.G. Harris Funeral Homes fired Aimee Stephens, who presented as male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman”.
In October of 2019, the Supreme Court of the United States decided the case by a 6-3 vote that a key provision of the Civil Rights Act of 1964 known as Title VII bars job discrimination because of sex, among other reasons, encompasses bias against LGBT workers. The Supreme Court ruled that Title VII makes it “unlawful … for an employer to fail or refuse to hire any individual, or otherwise to discriminate against any individual… because of such individual’s race, color, religion, sex, or national origin…” The opinion of the Court was delivered by Justice Gorsuch.
Part of what Justice Gorsuch wrote was: “…An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee.
“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessary a but-for cause when an employer discriminates on these grounds inescapably intends to rely on sex in its decisionmaking…”
Grimm v. Glocester County School Board: The Gloucester County School Board refused to allow Gavin Grimm, as a transgender male, to use the boys restrooms at Gloucester County High School. Grimm changed his first name to Gavin and expressed male identity in all aspects of his life. At first, the school allowed him to use the boys bathroom. But once word got out, the Gloucester County School Board faced intense backlash from parents, and they ultimately adopted a policy under which students could only use restrooms matching their “biological gender.”
This is an appeals case that was heard in the United States Court of Appeals for the Fourth Circuit. The opinion of the court was written by Circuit Judge Floyd, who stated: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes…”
The Court concluded the following: “Grimm’s four years of high school were shaped by his fight to use the restroom that matched his consistent and persistent gender identity. In the face of adults who misgendered him and called him names, he spoke with conviction at two Board meetings. The solution was apparent: allow Grimm to use the boys restrooms, as he had been doing without incident. But instead, the Board implemented a policy that treated Grimm as “questioning” his identity and having “issues,” and it sent him to special bathrooms that might as well have said “Gavin” on the sign…
“…The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve prejudices of the past…. How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community.
“It is time to move forward. The district court’s judgement is AFFIRMED.”
There has apparently been some confusion about this executive order regarding school sports. USA TODAY provided an easy to understand explanation. The order states that discrimination against LGBTQ people “overlaps with other forms of discrimination, including discrimination on the basis of race or disability,” as spelled out in Title VII of the Civil Rights Act of 1964.
According to USA TODAY, the White House stated that the executive order does not tie an education institution’s federal funding to allow biological male athletes access to women’s sports teams and scholarships. In other words, this part of the statement means that a person who was assigned male at birth, and who identifies as male, should not play on a girl’s or women’s sports team. They should play on the boy’s or men’s team.
The executive order mandates that all students, including transgender students, be able to learn without facing sex discrimination, and as part of that, transgender women should compete on female teams.
In short, Biden’s executive order provides people who are LGBTQIA+ the same protections from discrimination that people who happen to match the gender they were assigned at birth receive. It is important to emphasize that giving people who are LGBTQIA+ these protections does not take anything away from people who are cis-gendered.
Keep in mind that presidential executive orders that are based on appropriate authority have the force and effect of law. I have clearly stated the appropriate authority that the executive order draws from. States that decide to refuse to provide LGBTQIA+ people with the appropriate protections will find themselves facing lawsuits – which they will lose – because the order prohibits discrimination based on gender identity or sexual orientation.
January 20, 2021: The White House posted “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” From the Executive Order:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Every person should be treated with respect and dignity and should be able to live without fear, no matter 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 person should receive equal treatment under the law, no matter their gender identity or sexual orientation.
These principles are reflected in the Constitution, which promises equal protection of the laws. These principles are also enshrined in our Nation’s anti-discrimination laws, among them Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et. seq.). In Bostock v. Clayton County, 590 U.S. ___(2020), the Supreme Court held that Title VII’s prohibition on discrimination “because of … sex” covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, laws that prohibit sex discrimination – including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et.seq.), the Fair Housing Act, as amended (20 U.S.C. 1681 et. seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations – prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.
Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it 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.
It is the policy of my 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. It is also the policy of my Administration to address overlapping forms of discrimination.
Sec. 2. Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation. (a) The head of each agency shall, as soon as practicable and in consultation with the Attorney General, as appropriate, review all existing orders, regulations, guidance documents, policies, programs, or other agency actions (“agency actions”) that:
(i) 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
(ii) are or may be inconsistent with the policy set forth in section 1 of this order.
(b) The head of each agency shall, as soon as practicable, and as appropriate and consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. 551 et seq.), 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 section 1 of this order.
(c) The head of each agency shall, as soon as practicable, also consider whether there are additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order. If an agency takes an action described in this subsection or subsection (b) of this section, it shall seek to ensure that it is accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.
(d) Within 100 days of the date of this order, the head of each agency shall develop, in consultation with the Attorney General, as appropriate, a plan to carry out actions that the agency has identified pursuant to subsections (b) and (c) of this section, as appropriate and consistent with applicable law.
Sec.3. Definition. “Agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
Sec. 4 General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies or entities, its officers, employees or agents or any other person.
JOSEPH R. BIDEN JR
Biden Order Prevents Discrimination of People who are LGBTQIA+ is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites.
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