Fighting for LGBTQ+ on Day One

In June 2020, the United States Supreme Court in Bostock v. Clayton County held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. The previous administration refused to enforce the ruling. Whether the last president was smart enough to know this little fact, he emulated his “hero,” Andrew Jackson. In 1832, the Supreme Court issued a decision on Worcester v. Georgia in which Chief Justice John Marshall laid out in the opinion that the relationship between the Indian Nations and the United States is that of nations and built the foundations of the doctrine of tribal sovereignty in the United States. Jackson disagreed with the decision and backed Georgia’s attempts to discriminate against and encroach on the Cherokee Nation's lands. In what was probably a bit of apocryphal history, Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" While our 45th president neither praised nor criticized the ruling, he stated in response to the decision that "some people were surprised" and said that the court had "ruled and we live with their decision." Yet, he did nothing to enforce it. In fact, his administration actively interpreted the decision very narrowly to decrease its effectiveness.

The inaction of the previous administration changed on Wednesday. On his first day, newly inaugurated President Joe Biden issued an executive order implementing the Supreme Court’s decision in Bostock v. Clayton County and repealing guidance from the previous administration related to nondiscrimination protections for LGBTQ+ people. The Human Rights Campaign issued the following statement emphasizing the importance of Biden’s Executive Order:

Biden’s Executive Order is the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president. Today, millions of Americans can breathe a sigh of relief knowing that their President and their government believe discrimination based on sexual orientation and gender identity is not only intolerable but illegal.

 

By fully implementing the Supreme Court’s historic ruling in Bostock, the federal government will enforce federal law to protect LGBTQ people from discrimination in employment, health care, housing, and education, and other key areas of life. While detailed implementation across the federal government will take time, this Executive Order will begin to immediately change the lives of the millions of LGBTQ people seeking to be treated equally under the law.

When I was a teacher at a private school in Alabama, I feared for my job every day of those five years. If my sexuality had become public while I was teaching there, I would have lost my job on the spot. I will always believe that suspicion about my sexuality was why after five years, my contract was suddenly not renewed. At the time, the headmaster was trying to decide between not renewing my contract or another teacher’s contract. (The other teacher was a married heterosexual woman.) The school had hired a new coach, and he needed to be assigned classes to teach. While I had overt problems with the headmaster, it became more and more apparent to me that he did not like me for some reason. He refused to support our drama club, which I served as advisor and was generating money for the school. He refused to attend any of the productions, though he was at every sporting event. I can only assume that he had a problem with my closeted sexuality though he could not prove it. I know it wasn’t my teaching that he had a problem with. Parents (and most of my students) praised my teaching and constantly remarked on how much their children learned in my class. I was told numerous times when I was teaching that students were often excited to come to my class. Many parents contacted me after discovering that I would no longer be teaching there that I would be greatly missed. In the years since, I have heard many lament that the coach they replaced me with never taught anything and only gave worksheets. He also never won a football game. He last only a year or so. With that being said, I know that some students and parents, and apparently the headmaster, were not comfortable with my unspoken sexuality.

 

Had Bostock been decided while I was there, they may have thought more about the repercussions of not renewing my contract. Luckily, I found my current job in a state whose political climate could not be more different from that of Alabama. The university I work for has a stringent nondiscrimination policy that includes sexual and gender identity. We even had a major donor and transgender woman on the Board of Trustees. However, before Bostock, this could have easily changed as a new college administration took over and new board members took their seats. It was unlikely, but without Bostock, I had no clear protections. The millions of other LGBQ+ Americans also had the same fear of losing their job because of their sexuality, especially teachers in more conservative areas of the country. Yes, some organizations and businesses had protections for LGBTQ+ individuals written in their nondiscrimination policy, but as I said, that could have easily been changed. Now, we have the Supreme Court's protections and the full protection of the federal government to enforce nondiscrimination for LGBTQ+ individuals in the workplace.

 

Biden’s executive order is significant as it extends nondiscrimination protections to millions of LGBTQ+ people concerning 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 a president’s executive orders are always vulnerable to court challenges, this one is essentially bulletproof. It merely implements the Supreme Court’s decision in Bostock, something the previous administration refused to do. Technically, Bostock involved only one statute, Title VII, but, as Justice Samuel Alito pointed out in his dissent, more than 100 other federal statutes also forbid “sex discrimination” in language nearly identical to Title VII. He was attempting to point out that those were not included in Bostock. However, under the court’s reasoning in Bostock, each of these statutes should now be read to protect LGBTQ+ people.

 

I don’t think I can stress enough how important and groundbreaking this executive order is. 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 Bostockby extending existing protections to LGBTQ+ individuals. 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 based on sexual orientation and gender identity. One landmark law 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. However, states and municipalities retain the authority to fill in this gap. Furthermore, Democrats are expected to pass the Equality Act, which would not only preserve Bostock in federal statute but amend Title II to bar anti-LGBTQ+ discrimination in public accommodations.

 

Biden showed us on day one of his administration that he will fight for LGBTQ+ individuals. It is a vital step in the right direction.