Biden Administration Actions Promoting LGBTQ Equality | Baker Donelson – JDSupra – JD Supra
Political Appointments
Before taking office, then-President-Elect Biden pledged to make his cabinet “look like the country.” Since then, he has nominated, and the Senate has confirmed, two LGBTQ individuals to serve in high-level positions in the administration, including one at the Cabinet level. On February 2, 2021, the Senate confirmed Pete Buttigieg, a former mayor of South Bend Indiana, as Secretary of Transportation. Secretary Buttigieg is the first openly-gay man to be confirmed by the Senate as a Cabinet member. On March 24, 2021, the Senate confirmed Dr. Rachel Levine as Assistant Secretary of Health for the Department of Health and Human Services (HHS). Dr. Levine, a former Pennsylvania Health Secretary, is the first openly transgender federal official to be confirmed by the Senate.
White House Executive Orders
On January 20, 2021, President Biden’s first day in office, he issued an executive order (EO) on preventing and combating discrimination on the basis of gender identify or sexual orientation. The EO set the tone for the new administration’s position on LGBTQ issues and included a policy that “every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” The EO outlined the administration’s intent to fully enforce Title VII of the Civil Rights Act of 1964 and other laws that prohibit discrimination on the basis of gender identify or sexual orientation. This policy recognized the 2020 U.S. Supreme Court decision in Bostock v. Clayton, in which the Court ruled that the prohibition against discrimination on the basis of sex under Title VII includes protections against discrimination on the basis of gender identity and sexual orientation. The EO also directed federal agencies to enforce prohibitions on discrimination under federal laws consistent with the Bostock decision.
On January 25, 2021, President Biden issued an executive order repealinga Presidential memorandum issued under the prior administration that banned military service by transgender individuals. The EO outlined a new policy to “ensure that all transgender individuals who wish to serve in the United States military and can meet the appropriate standards shall be able to do so openly and free from discrimination.”
Agency Actions Banning Discrimination Based on Sexual Orientation or Gender Identity
Since the White House issued the EO directing agencies to implement prohibitions on discrimination consistent with the Bostock decision, several agencies have moved forward with updated policies. On February 11, 2021, the Department of Housing and Urban Development (HUD) issued a memo outliningHUD’s interpretation of the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity.
On March 26, 2021, the Department of Justice’s (DOJ’s) Civil Rights Division issued a memo clarifyingthat the prohibition on discrimination in federally-funded education institutions under Title IX of the Education Amendments of 1972 includes a ban on discrimination on the basis of gender identity or sexual orientation.
On May 10, 2021, HHS issued a notice announcingthat its Office for Civil Rights will implement the prohibition on discrimination under Section 1557 of the Affordable Care Act (ACA) to include discrimination on the basis of gender identify and sexual orientation.
Congressional Activity
Congress is once again considering legislation previously advanced by lawmakers, but never enacted into law that would affirmatively add a ban on discrimination based on sexual orientation and gender identity into federal civil rights laws. On February 25, 2021, the U.S. House passed the Equality Act by a vote of 224-206. The House passed a similar version of the bill in 2019, but the Senate did not advance the legislation.
This year, attention has now turned to the Senate to see whether the Equality Act will move forward. On March 17, 2021, the Senate Judiciary Committee held a hearing to consider the legislation. Although several Democratic Senators expressed strong support for the bill, including Tammy Baldwin (D-WI), the first openly-lesbian member of Congress, several Republican senators expressed opposition and highlighted concerns related to infringement of religious beliefs. Current Senate rules require 60 votes for the legislation to advance. With Democrats controlling 50 seats in the Senate, proponents of the Equality Act would need Republican support to enact the bill into law.