Yesterday, President Joe Biden issued the most substantive, wide-ranging LGBTQ executive order in U.S. history that implements the U.S. Supreme Court’s ruling in Bostock v. Clayton County. The Executive Order will have a real and practical impact on the day-to-day lives of the approximately 11 million LGBTQ adults and millions more LGBTQ youth in the United States. The Human Rights Campaign requested that the Biden administration issue an order to implement the Bostock decision after the Trump administration failed to properly enforce it across federal agencies, instead arguing LGBTQ people were not protected under federal civil rights laws. This Order, enacted on Day One, immediately begins to fulfill President Biden’s campaign promise to implement and pass protections for LGBTQ people as quickly as possible.
The Executive Order directs agencies to enforce federal laws that prohibit sex discrimination to include discrimination based on sexual orientation and gender identity, consistent with the Bostock decision. This will include, but is not limited to, employment, education, housing, health care and credit:
Importantly, the executive order also acknowledges that discrimination against LGBTQ people often overlaps with discrimination based on their other characteristics, including race and disability.
Under the executive order, existing civil rights law regarding religious exemptions still apply as the order specifically includes LGBTQ people in our nation’s existing civil rights laws and maintains all the same rules, including the same religious exemptions.
It is still vital that Congress pass the Equality Act to codify these protections and fill in gaps in existing civil rights law.
While the landmark executive order is a crucial step in addressing discrimination against LGBTQ people, it is still vital that Congress pass the Equality Act. The Equality Act would codify the Bostock decision by explicitly including sexual orientation and gender identity in our nation’s civil rights laws. This would make it much more difficult for opponents of equality in future administrations to refuse to enforce the Bostock decision and strip away LGBTQ civil rights protections in the future.
Additionally, there are two major areas of civil rights law that do not currently prohibit sex discrimination, and therefore are not covered by Bostock. The Equality Act adds prohibitions on discrimination based on sex, sexual orientation, and gender identity to the sections of the Civil Rights Act that cover federally funded programs and public accommodations. Current federal public accommodations law is also sorely outdated, and the Equality Act provides updates that strengthen protections for everyone.
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