President Joe Biden issued an Executive Order on his first day as President, ordering every federal agency to interpret federal civil rights laws prohibiting sex discrimination to also prohibit discrimination on the basis of sexual orientation and gender identity.
The Order implements the United States Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 bars employment discrimination against LGBTQ employees. In reaching that holding, the Supreme Court found that Title VII's bar on discrimination "because of sex," encompassed discrimination against LGBTQ employees. While Bostock involved only the interpretation of Title VII, many other federal statutes also prohibit discrimination "because of sex," and Biden's executive order clarifies that these other statutes also should be read in line with Bostock's holding to cover protections for LGBTQ individuals.
Specifically, the Biden Executive Order instructs all federal government agencies to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that involve statutes prohibiting sex discrimination, and to clarify and revise them as needed by extending existing protections to LGBTQ individuals. Anticipated areas of impact include the Affordable Care Act (which bars sex discrimination in health care), the Fair Housing Act (which bars sex discrimination in housing), and Title IX (which bars sex discrimination at federally funded educational institutions).
During his campaign, candidate Biden stated his objection to several recent pronouncements by the Trump administration to the effect that government agencies and private employers alike could use religious grounds as a reason to lawfully discriminate against gay, lesbian and transsexual persons. The Executive Order is a strong signal that the Biden administration will not allow these important protections to be skirted based upon a claim of religious freedom. Indeed, in response to the Executive Order, the acting head of the Justice Department’s civil rights division has already issued a memo revoking a Trump administration directive that had attempted to narrow the reach of Bostock and suggested that employers could cite religious beliefs as justification for discrimination against LGBTQ employees. Revised guidance is anticipated.
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Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP