One of the first acts of Joe Biden’s presidency was to gut sex anti-discrimination laws and eliminate critical protections for women in the federal government. On Wednesday afternoon, only hours after being sworn into office, Biden signed an executive order that “builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) and ensures that the federal government interprets Title VII of the the [sic] Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity,” according to the Biden transition team website.
The order also ensures “that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity.” Federal civil rights offices will also be required to enforce this interpretation in any matter that comes before them, likely including siding against women’s rights in court cases.
With this action, Biden is bypassing the legislative process to implement the most controversial provisions of the Equality Act—changing the definition of sex in federal anti-discrimination regulations so that female people are no longer a discrete class with protected status under the law. As we predicted, the new administration is relying on the Bostock decision to do so.
This executive order directs federal agencies to do two things. First, federal agencies are now required to interpret “sex” as also including “sexual orientation and gender identity” in their own internal regulations and workplace policies. Second, agencies are directed to perform a comprehensive assessment of all regulations under their purview, and create a plan with 100 days to “revise, suspend, or rescind such agency actions, or promulgate [propose] new agency actions” that will impose this interpretation onto all American employers, institutions, and individuals, with no exceptions.
The Supreme Court was clear at the time of the Bostock decision that the ruling was only meant to be applied to hiring and firing discrimination under Title VII of the Civil Rights Act, in advancing their novel reasoning that “transgender status” meant that a male employee should be allowed to identify into the otherwise lawful sex-based rules for female employees. While we strongly support protections from discrimination based on sexual orientation, the Biden administration has grossly expanded the application of the decision with far-reaching implications for women’s rights in nearly every aspect of public life, including Title IX.