Biden offers LGBTQ protections, an ideological departure from Trump-era policy

Nelson Antoine/AP/file

President Biden’s orders expanding LGBTQ antidiscrimination protections and allowing transgender people to serve in the military mark a sharp ideological departure from his predecessor and deliver powerful legal and symbolic wins to a community often marginalized by the former president.

“Finally, the sun is shining again on LGBTQ people,” said Arline Isaacson, cochair of the Massachusetts Gay and Lesbian Political Caucus. “It’s hard to imagine that, in 2021, we have to laud an elected leader because they take the bold step of treating us equally.”

On Monday, Biden signed an executive order allowing transgender people to serve in the military. President Obama had done the same in 2016 when Biden was vice president. However, Trump began taking steps to reverse the policy soon after it went into effect the following year.

“Trans people belong everywhere,” said Tre’Andre Valentine, executive director of the Massachusetts Transgender Political Coalition. “This is really about inclusion and belonging.”

Meanwhile, a sweeping executive order Biden signed on his first day in office directs federal agencies to interpret existing laws prohibiting sex discrimination as also covering sexual orientation and gender identity.

Last summer, the Supreme Court came to the same conclusion in an employment case, Bostock v. Clayton County. But specialists said that ruling did not necessarily extend to other areas, such as housing and education.

“This is an incredibly important order from the president that not only will implement what the US Supreme Court has said is the law — which is that you can’t fire gay and transgender employees for who they are — but then ensures that other areas of law comport with that understanding,” said Janson Wu, GLAD executive director. “This is a big deal.”

The Trump administration often fought in court alongside those seeking religious exemptions to antidiscrimination laws. Last summer, Trump’s Department of Justice called on the Supreme Court to let Catholic Social Services in Philadelphia refuse child adoptions to LGBTQ families.

Biden’s order signals that the new Department of Justice will fight alongside legal advocates against discrimination, instead of helping to carve out legal exemptions, Wu said. And it will likely have a far-reaching ripple effect since states — and even individual school districts — take their guidance from the federal government, he noted. One of Trump’s earliest acts as president was ending the Obama-era policy allowing transgender students to use bathrooms corresponding to their gender identity.

“Now, under the executive order, we expect them to reinstate that guidance in school,” Wu said. “The reach is deep and the reach is broad.”

That’s exactly what conservatives fear, however, and Biden’s actions immediately drew backlash from opponents. They said the antidiscrimination order would dictate an erasure of boundaries between genders in places where they are appropriate, including shelters and athletic competitions.

“We all agree that everyone should be treated with dignity and respect. However, this is changing federal policy in a way that really undermines both fairness and freedom,” said Massachusetts Family Institute president Andrew Beckwith.

The Family Institute led a 2018 ballot question that aimed to revoke a state law protecting transgender people from discrimination in public places, arguing that without clear gender lines, men could prey upon women and children in bathrooms. Massachusetts voters rejected the argument, and voted 2-1 to uphold the law.

Legal challenges continue on many fronts, however, including charges that women can be disenfranchised by government mandates to accommodate trans women. In Connecticut, cisgender female track athletes filed suit, arguing that an antidiscrimination policy gives unfair physical advantage to transgender female runners.

“It should be lawful to act on the conviction that we are created male and female, and that institutions shouldn’t have to let males compete against females in sports, or let men into women’s areas in shelters,” Beckwith said.

With his order, Biden declared the government intends to side with those who have historically faced discrimination, rather than those made uncomfortable by inclusion.

“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the policy states.

His order also notes that LGBTQ discrimination often overlaps with other types of discrimination, and that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.”

In a separate executive order promoting equity, Biden listed LGBTQ people among disadvantaged communities who might face systemic barriers to government policies and programs; the order calls for a review of all federal agencies in his administration’s first 200 days, along with proposals for dismantling barriers and promoting equity.

Biden also appointed several LGBTQ officials to high-profile roles in his new administration — including his Transportation secretary nominee, Pete Buttigieg. His pick for assistant Health secretary, Dr. Rachel Levine, would be the first transgender official confirmed by the US Senate, if approved.

The doctor immediately faced attack from critics who said her gender identity made her unfit for the job.

Beckwith, for instance, said the doctor’s nomination “undermines the credibility” of the new administration because Levine is “in a constant denial of objective biological reality.”

“If you’re trying to reinstill confidence in our institutions, putting someone in charge of a major medical and health agency who denies basic scientific fact of human biology is going to cause people to question everything that they say,” Beckwith said.

Pointing to the opposition in the volatile political climate, Valentine, of the Transgender Political Coalition, said, “you have to stay ready for anything at this point.”

“With visibility comes more potential for backlash and more potential for transphobia,” Valentine added. But he noted that Levine will bring a unique perspective — along with medical expertise — to the new administration. “That is a thing, I think, to be celebrated.”