The order provides people who are LGBTQIA+ with the same protections that cis-gendered people already receive.
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.
Originally published at https://bookofjen.net on March 31, 2021.