Biden Just Began the Biggest Expansion of LGBTQ Equality in American History
By Mark Joseph Stern
On the first day of his presidency, Joe Biden commenced the most sweeping expansion of LGBTQ rights in American history. In a historic executive order, Biden ordered every federal agency to clarify that civil rights laws prohibiting sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity. This move will extend nondiscrimination protections to millions of LGBTQ people with regard to housing, education, immigration, credit, health care, military service, Peace Corps service, family and medical leave, welfare, criminal justice, law enforcement, transportation, federal grants, and so much more.
While some of Biden’s executive orders may be vulnerable to court challenges, this one is essentially bulletproof. It merely implements the Supreme Court’s decision in Bostock v. Clayton County, something the Trump administration refused to do. In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964 bars employment discrimination against LGBTQ people. Title VII does not explicitly mention sexual orientation or gender identity; rather, it bars workplace discrimination “because of sex.” But the court held that it is impossible to discriminate against LGBTQ workers without taking their sex into account.
Technically, Bostock involved only one statute, Title VII. But, as Justice Samuel Alito pointed out in his dissent, there are more than 100 other federal statutes that also forbid “sex discrimination” in language nearly identical to Title VII. (Alito helpfully listed these laws in a lengthy appendix.) Under the court’s reasoning in Bostock, each of these statutes should now be read to protect LGBTQ people.
Biden’s order directs agencies across the federal government to bring their rules and regulations in line with Bostock. It instructs agency heads to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that involve statutes prohibiting sex discrimination. And it compels these officials to revise each rule and regulation in light of Bostock by extending existing protections to LGBTQ people. In some instances, this process will simply entail updating language to note that anti-LGBTQ discrimination is unlawful. In others, it will require the agency to write a new rule expressly disallowing discrimination on the basis of sexual orientation and gender identity.
There is precedent for this cross-agency revision. In 2013’s U.S. v. Windsor, the Supreme Court struck down the law forbidding federal recognition of same-sex marriages. The Obama administration promptly passed a slew of new rules extending federal marriage benefits to same-sex couples. For instance, the Department of Labor declared that employees could use the Family and Medical Leave Act to care for a same-sex spouse. While Windsor opened the door to full marriage equality at the federal level, it was the Obama administration that made Windsor’s promise a reality by revising federal rules and regulations to reflect its holding.
The Biden administration is pursuing the same path after Bostock, but its actions will affect far more people than the Obama administration’s post-Windsor work. Bostock did not only protect same-sex couples, but all individuals who face discrimination because of their sexual orientation or gender identity. Moreover, the vast majority of federal nondiscrimination laws bar sex discrimination; the administration will ultimately expand more than 100 statutes to cover LGBTQ people. A few examples illustrate the extraordinary breadth of Biden’s order:
• The Affordable Care Act bars sex discrimination in health care. Biden’s Department of Health and Human Services will soon clarify that providers cannot discriminate against gay and transgender patients — and that insurance companies cannot refuse to cover gender transition care.
• The Fair Housing Act bars sex discrimination in housing. Biden’s Department of Housing and Urban Development will soon clarify that homeowners and landlords cannot refuse to sell or rent a home to LGBTQ people, and that brokers and lenders cannot discriminate against LGBTQ homebuyers.
• Title IX bars sex discrimination at federally funded educational institutions. Biden’s Department of Education will soon clarify that these institutions cannot discriminate against LGBTQ students. The executive order notes that transgender students may not be denied access to bathrooms or school sports.
• The Immigration and Nationality Act bars sex discrimination in the domestic resettlement of refugees. Biden’s Department of Homeland Security will soon clarify that neither the government nor contractors may discriminate against LGBTQ refugees in the U.S.
These examples are the tip of the iceberg. As Alito explained in Bostock, federal law is littered with prohibitions on sex discrimination in nearly every walk of life. LGBTQ individuals seeking access to credit will soon be protected by federal law. So will LGBTQ individuals who participate in a broad range of federal programs, including student loans, family violence prevention, food stamps, public broadcasting, public health initiatives, veterans groups, youth services, juvenile justice, foreign service, the Peace Corps, and the armed forces. LGBTQ Americans may no longer be excluded from federal jury duty because of their identities. There are several different ways the government can enforce these new protections. In some cases, the agency itself can punish discriminators and seek restitution for victims; in others, agencies or victims can ask courts to enforce the new rules.
There is one landmark law that does not forbid sex discrimination: Title II of the Civil Rights Act of 1964, which outlaws discrimination in public accommodations — but only on the basis of “race, color, religion, or national origin.” So businesses will not be compelled to serve LGBTQ people. But states and municipalities retain authority to fill in this gap. And Democrats are expected to pass the Equality Act, which would not only enshrine Bostock in federal statute but amend Title II to bar anti-LGBTQ discrimination in public accommodations.
It’s highly unlikely that the Supreme Court will block the implementation of Biden’s order. Bostock was decided by a 6–3 vote, and five justices in the majority remain on the court. Unless one of these justices has a dramatic change of heart and completely flips, sex discrimination will continue to encompass anti-LGBTQ discrimination. The Bostock opinion held that it is the text of the law that matters, not legislative history or congressional intent; since the text (“sex discrimination”) is the same across statutes, its meaning should be the same, too. There is, of course, a strong possibility that this Supreme Court will carve exemptions into civil rights law for discrimination based on sincere religious belief. (The Equality Act would limit, though not eradicate, religious objections to civil rights claims.) But even if the court creates exemptions, it will not overturn the baseline rule that anti-LGBTQ discrimination in presumptively unlawful.
One of the Trump administration’s final acts was an effort to roll back Bostock, which it had opposed in court, by interpreting it extremely narrowly. It’s telling that one of Biden’s first acts constitutes a complete repudiation of Trump’s approach. There is a stark difference between the two presidents when it comes to civil rights. Trump did everything he could to stymie LGBTQ rights. Now Biden is acting as quickly as he can to make complete LGBTQ equality the law of the land.