Thank you, President Biden!
Yesterday, President Joe Biden issued what the Human Rights Campaign hails as the “most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president.”
The text of the order is sweeping in reach and technical detail, elegant as an appeal to decency and justice. Alphonso David of the Human Rights Campaign says the order “will begin to immediately change the lives of the millions of LGBTQ people seeking to be treated equally under the law.”
But many LGBTQ people and allies are celebrating the order as if it represents a definitive legal end to anti-LGBTQ discrimination in the United States. Sadly, it does not. The president’s order is important, powerful, and welcome — but like all executive orders can only go so far. Let’s talk about what it accomplishes, what it can’t, and what the next steps are.
What exactly is the Biden LGBTQ executive order?
The order is policy instruction to employees of the federal government. It is not a law, and it applies only indirectly (though significantly) to non-government workers.
Specifically, the order holds that last June’s Bostock v. Clayton County Supreme Court decision binds the federal government to the principle that “discrimination ‘because of . . . sex’ covers discrimination on the basis of gender identity and sexual orientation.”
President Biden ordered all agency and department heads to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” within 100 days to ensure they protect people on the basis of sexual orientation and/or gender identity in any circumstance where laws require protections based on sex.
The president further recognized (perhaps for the first time in presidential history) that oppression is intersectional. He ordered all heads to take “appropriate steps to combat overlapping forms of discrimination, such as discrimination on the basis of race or disability.”
The order attempts to extend Bostock beyond employment protection
The Bostock decision last June applied to Title VII of the the Civil Rights Act, which protects people from discrimination in the workplace. The decision states plainly that discrimination because of sexual orientation or gender identity IS discrimination because of sex, which Title VII prohibits.
Other federal statues prohibit discrimination because of sex, so once the Bostock dust settles, those laws should also protect LGBTQ people. The president’s order will speed up that process, overturning discriminatory orders the Trump administration issued as late as last month.
LGBTQ people have won a powerful ally, and we can rest assured our government will stop opposing our equal treatment lawsuits. We can rest assured our government will take proactive steps; the weight of the federal government will work for us rather than against us.
The president’s order is not, however, binding on parties to lawsuits. The federal government cannot stop people from challenging the Bostock extension in court and cannot ensure any ultimate legal outcome. Civil rights lawyers I queried on this matter say federal courts will probably extend the Bostock definition to the Fair Housing Act and other laws but that litigation will take years to nail down — and that no outcome is guaranteed.
Federal laws most impacted by Bostock and the president’s order
The following are the most important federal laws that prohibit discrimination because of sex, the laws most amenable to protecting LGBTQ people based on the Bostock extension.
- Title VII — While the Supreme Court already ruled in Bostock that employers may not discriminate against LGBTQ people, the president’s order should strengthen enforcement and give LGBTQ people a strong ally in the Equal Employment Opportunity Commission.
- Title IX — This 1972 amendment to the Civil Rights Act prohibits sex discrimination in any education program or activity receiving federal funds. The president’s order will be very impactful here as the federal government enforces regulations while presuming discrimination against LGBTQ people is sex discrimination. However, nothing will stop institutions from appealing to the courts, where the matter is still an open question.
- Fair Housing Act —This 1968 law protects people from discrimination when renting or buying a home, getting a mortgage, or seeking housing assistance. The Act prohibits discrimination because of race, color, national origin, religion, sex, familial status, and disability. HUD and the DOJ enforce the this law, and will now act as an allies to LGBTQ people, presuming federal courts go along.
- Equal Credit Opportunity Act — This 1974 law bars creditors from discriminating on the basis of race, color, religion, national origin, sex, marital status, or age. The FTC, HUD, and the DOJ enforce this law, and will now presume that it protects LGBTQ people unless instructed otherwise by the courts.
Civil rights laws the president’s order cannot impact
- Title II of the Civil Rights Act — prohibits discrimination in public accommodations, but does not prohibit discrimination on the basis of sex. Therefore, it cannot be extended by executive order or by federal courts to protect LGBTQ people. More below.
- Title VI of the Civil Rights Act — prohibits discrimination in federally assisted programs on the basis of race, color, and national origin, but not on the basis of sex, so cannot be extended via the Bostock decision. Title VI is much less celebrated than other civil rights laws, but it does a lot of heavy lifting as a catch-all, prohibiting discrimination by any organization that accepts federal funds — even when they don’t run afoul of more specific laws.
What are public accommodations and how are women impacted?
Title II prohibits discrimination in places of public accommodation like restaurants, shops, hotels, and theaters. It does not apply to clubs with private memberships or to churches.
Title II has never protected people from discrimination based on sex, because in 1964 Congress believed some businesses should be permitted to exclude women or treat them differently from men.
Even with President Biden’s executive order, Title II cannot protect LGBTQ people from being turned away from businesses, something that happens regularly in the United States, mostly due to business owners with religious objections to LGBTQ people.
The proposed Equality Act, besides adding LGBTQ people to Title II protections, would also add women.
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The next step forward is the Equality Act
The Equality Act, which has been introduced in Congress every year since 2015, first passed the House in 2019. The Act, which President Biden has vowed to support, would go much further than any executive order. It would cut off lawsuits and add LGBTQ protections to existing civil rights laws, including Title II and VI, which cannot otherwise be extended. Critically, it would short circuit many religious exemption lawsuits.
Title II and public accommodation
The proposed Equality Act adds protections against discrimination because of sex, sexual orientation, and gender identity to Title II. The implications for LGBTQ people are obvious, but protections for women would be very significant.
- Breastfeeding and pregnant women would gain protections
Pregnant and breastfeeding women experience discrimination and harassment while accessing public accommodations all the time, and whether they’re denied service or experience unfair treatment or harassment, they often have no legal recourse. The Equality Act would finally change that.
- Updates to public accommodation definitions
The Equality Act updates Title II to include venues like stores, accountants, banks and transportation providers like trains, taxis, and airlines. The law has long been in need of an update to reflect how people live and do business today, and the Act does that as it includes women and LGBTQ people.
The Equality Act would short circuit certain religious exemptions
The Religious Freedom Restoration Act (RFRA) has sometimes been interpreted by the courts to allow for-profit businesses to discriminate against LGBTQ people and other members of protected classes in non-religious spaces.
The Supreme Court famously advanced this principle in Burwell v. Hobby Lobby Stores, in which two private businesses won the right under RFRA to except themselves from the Affordable Care Act’s mandate to include contraception in employee health care plans.
The Equality Act specifies explicitly that for-profit businesses covered by federal civil rights laws cannot use RFRA and religious arguments to discriminate against members of protected classes. Passing the Act would close what remains today a significant open question for the courts.
The Equality Act respects religious liberty
A lot of myths circulate about the Equality Act. Just this morning a progressive Christian minister emailed me to express his alarm over rumors that the Equality Act would “shut down homophobic churches.” I’d never heard that particular fear before, but I’ve seen plenty of other unfounded myths.
To address fears of discrimination against people and institutions of faith, the Equality Act does not end the “ministerial exception” to Title VII, which the Supreme Court says is a bedrock constitutional liberty. The exception ensures churches and other religious institutions are free to make employment decisions for clergy and other ministers without government interference.
The Equality Act does not and could not require any church to hire or retain an LGBTQ person in a ministerial position. Which positions qualify as ministerial is an open question for the courts, especially with respect to religious schools and universities.
As to Title II, the Equality Act does not attempt to define religious institutions as public accommodations. Such an attempt would be unconstitutional on religious liberty grounds and never make it past court scrutiny in the first place.
It’s time for the Equality Act
President Biden has made an important statement and taken important, impactful action with yesterday’s executive order. LGBTQ people and allies are celebrating with good cause. But we must understand that the president’s order cannot accomplish what legislation can.
We need the Equality Act to short circuit legal challenges, to ensure that LGBTQ protections extend to the state level, to add LGBTQ protections to public accommodations laws, and to clarify that certain religious objections do not justify discrimination.
Passing the Equality Act won’t be easy with a 50/50 Senate, but Speaker Nancy Pelosi has committed to pass it in the House very soon. At that point, we need all hands on deck to get it passed in the Senate. Times are tough with the pandemic bearing down on all of us, and nobody knows where Congress will stand in two years.
Full civil rights for LGBTQ people are long overdue, and the time to act is now.
James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to email@example.com.