January 20, 2021 at 5:00 am EST | by Chris Johnson
Biden signs EO implementing Supreme Court ruling for LGBTQ rights
Biden will sign on Day One an executive order implementing the Supreme Court decision for LGBTQ rights.

President-elect Joe Biden, on his first day in office Wednesday after taking the Oath of Office, is set to sign an executive order directing federal agencies across the board to implement the U.S. Supreme Court’s historic ruling against anti-LGBTQ discrimination under federal law.

UPDATE: The White House confirmed late Wednesday Biden signed the order, which can be found here on the White House website.

The Biden transition team listed the executive order in a fact sheet Wednesday detailing each of the 17 administrative actions Biden was set to take on Inauguration Day. Among them are orders that end the travel ban on Muslim countries, launch the “100-day mask challenge” and re-engage with the World Health Organization after the U.S. withdrew during the Trump administration.

The executive order implementing the decision in Bostock v. Clayton County comes nearly six months after the Supreme Court issued the ruling, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act of 1964. The ruling has wide-ranging implications and affects all laws against sex discrimination, including those in education, housing, credit and jury service.

“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the fact sheet says. “The Biden-Harris Administration will prevent and combat discrimination on the basis of gender identity and sexual orientation.”

The fact sheet says the Biden executive order “will also direct agencies to take all lawful steps to make sure that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity, protecting the rights of LGBTQ+ persons.”

Neither the text of the executive order, nor the text of the other administrative actions listed in the Biden transition team fact sheet, were immediately available.

After Biden’s election, LGBTQ rights advocates had begun calling for the executive order to implement the Bostock decision, which had gone by the wayside under the Trump administration. Instead of implementing the ruling, the Trump administration ignored it and sought to engage in legal maneuverings to limit its scope.

But the Biden executive order will have its limitations because certain civil rights laws, including those against discrimination in federal programs and public accommodations, don’t name sex as a protected category. It would take a change in law to expand the prohibition on anti-LGBTQ discrimination in those areas.

LGBTQ advocates have also been calling for passage of the Equality Act to expand the prohibition on anti-LGBTQ discrimination in federal law and round out LGBTQ protections the Bostock ruling won’t reach. Biden had pledged during his campaign to sign the law within 100 days.

It remains to be seen whether he’ll be able to make that commitment with a shrunken Democratic majority in the House and a 50-50 party split in the U.S. Senate. A Biden campaign spokesperson indicated Biden would unveil his legislative priorities in the coming days in response to a Blade inquiry about the Equality Act.

Sources had told the Washington Blade the transition team told LGBTQ leaders Biden would direct the Defense Department on Day One to reverse the transgender military ban, which was implemented by President Trump. A directive that would reverse the policy wasn’t listed on the fact sheet of administrative actions.

Jen Psaki, the incoming White House press secretary, said in a statement to reporters after the call the administrative actions that are listed in the fact sheet aren’t the entirety of the forthcoming orders.

“In the coming days and weeks we will be announcing additional executive actions that confront these challenges and deliver on the president-elect’s promises to the American people, including revoking the ban on military service by transgender Americans, and reversing the Mexico City policy,” Psaki said.

A transition official, who spoke to the Washington Blade on condition on anonymity, went into more detail specifically about the delay in the order reversing the transgender military ban, saying the wait would be mere days.

“The President-elect remains committed to immediately lifting the ban on transgender service in the military,” the official said. “And as Secretary-designate Austin said today, he fully supports that reversal. Because the effective implementation of such a reversal requires proper coordination across the armed services, the President-elect believes it would be prudent to ensure more of his leadership team is in place at the Pentagon before moving forward, a matter of only a few days.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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