Post submitted by Lucas Acosta (he/him), former Deputy Director of Communications, Politics

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:

• Prohibit discrimination in employment under Title VII of the Civil Rights Act of 1964, including hiring, termination, promotion, conditions of employment, and benefits as well as preventing harassment.
  • For example: a bisexual woman cannot be fired from her job just because her employer learned of her sexual orientation, and a transgender man cannot be forced to wear a women’s uniform at his place of employment.

• Prohibit discrimination in education under Title IX of the Education Amendments of 1972, which applies to all federally funded educational programs including K-12, vocational programs and higher education programs.
  • For example: a gay student can’t be prohibited from going to his public high school’s prom just because his date is also a boy, and a transgender girl cannot be harassed by a teacher who refuses to use her correct name because it is a feminine name.

• Prohibit discrimination in housing under the Fair Housing Act, which includes home purchases, rentals, public housing programs and homeless shelters.
  • For example: a married same-sex couple applying for public housing would need to be treated exactly the same as any other married couple, and a transgender woman could not be refused a rental apartment because the owner disapproves of her transition.

• Prohibit discrimination in health care under the Affordable Care Act, which applies to federally funded health care programs and activities including hospitals and insurance providers.
  • For example: a hospital cannot refuse to treat a broken ankle just because they learn that the patient is a transgender man, and an obstetrics clinic cannot refuse to deliver a woman’s baby just because she is married to another woman.

• Prohibit discrimination in credit under the Equal Credit Opportunity Act, which applies to a range of credit including credit cards, store credit, and loans.
  • For example: a non-binary person cannot be denied a credit card just because the financial institution sees their history of name change, and a bank can’t deny a loan just because the applicant is gay.

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.