Five days into his administration, President Biden already signed two executive orders to benefit the LGBTQ community, demonstrating an aggressive approach to LGBTQ issues not seen even during the Obama years.
The Biden team — under internal and external pressure to make a point to demonstrate its commitment to LGBTQ people on Day One of the administration — was forced to come up with an alternative after determining it was best to hold off on the executive order ending the transgender military ban until the secretary of defense was confirmed.
One Democratic insider said Stefanie Feldman, policy director for the Biden campaign, consulted incoming Biden adviser Jake Sullivan, who helped make the executive order implementing the U.S. Supreme Court’s decision against anti-LGBTQ discrimination happen on Day One. Although Sullivan is national security adviser, he also wears a separate hat as a Biden policy adviser.
Victory, as in many cases, was a group effort. Alphonso David, president of HRC, the nation’s leading LGBTQ group, was “engaging directly” on the executive orders with Susan Rice, the Obama foreign policy alum now serving as head of Biden’s Domestic Policy Council, sources familiar with the conversations say.
“President Biden, Ambassador Rice and Secretary Austin have made clear to me their dedication to LGBTQ equality,” David told the Washington Blade in a statement. “Their actions over the last week have proven that dedication over and again. I look forward to continuing to engage with them and others in the Biden administration to advance the rights and protections our community deserves.”
David, as previously reported by the Washington Blade, also spoke with then-Defense Secretary designate Gen. Lloyd Austin on the transgender military ban in December during a phone call on the 10th anniversary of “Don’t Ask, Don’t Tell” repeal.
A senior Biden administration official told the Washington Blade the fact that both of these executive orders went very early is a reflection of the high priority that this administration places on LGBTQ rights and equality.
Both orders were the result of engagement in the months before Inauguration Day between the Biden team and LGBTQ advocates.
Sources in the conversation, who spoke to the Washington Blade on condition of anonymity for greater candor, said they articulated principles they’d like to see in the executive orders and saw those core principles in the eventual directives.
The Human Rights Campaign had identified both the order implementing the Bostock decision and reversal of the transgender military ban in its LGBTQ “blueprint” for Biden, as did the Center for American Progress in its report on potential LGBTQ executive actions weeks before the Biden administration began.
The Biden landing team was primed with talented officials, including LGBTQ people, ready to act to reverse the anti-LGBTQ policies of the Trump administration.
On the Justice Department team was Pamela Karlan, a bisexual law professor at Stanford and the attorney to argue on the sexual orientation side of the Bostock case, which led the Supreme Court to rule anti-LGBTQ discrimination is illegal under federal law. Also on the team was Chai Feldblum, a former member of the U.S. Equal Employment Opportunity Commission who had worked to implement similar policy for LGBTQ workers during the Obama administration.
Working on the defense policy team was Shawn Skelly, a transgender veteran who served on active duty in the U.S. Navy for 20 years as a naval flight officer.
One issue that remains outstanding after the executive order is enlistment by transgender civilians, which isn’t spelled out in the executive order, as well as issues around the military health care system paying for transition-related care, including gender reassignment surgery, as it would other medical procedures.
Defense Secretary Lloyd Austin, however, said in a statement after Biden signed the executive order the Pentagon would implement a policy to ensure transgender people “enter and serve” in the military and “ensure all medically necessary transition related care authorized by law is available to all service members,” signaling the outcomes would occur without offering details or a timeline.
Lisa Lawrence, a Defense Department spokesperson, had no comment in response to inquiry on details and timeline for transgender enlistments or medical care, or even whether either would happen.
“While the Department appreciates your interest and questions, it would be premature to comment on prospective policy at this time,” Lawrence said.
Coast Guard Commandant Adm. Karl Schultz, in a statement to the Blade, said the service is ready to adapt to Biden’s executive order, but didn’t offer specifics.
“The Coast Guard stands ready to work with the Secretary of Homeland Security and our Department of Defense counterparts to fully support the President’s executive order directing that all transgender individuals who wish to serve and can meet the appropriate standards shall be able to do so openly and free of discrimination,” he said in the statement.
LGBTQ advocates, however, told the Blade they’ve had assurances — both on the campaign trail and after the executive order was issued from the White House and the Pentagon — the Biden administration would move to implement policy allowing transgender people to enlist in the armed forces. It wasn’t immediately clear whether the same assurances were given for providing transition-care in the military health care system.
One LGBTQ advocate told the Blade he expects the Defense Department to resolve the enlistment piece of transgender military service “very quickly,” citing the Obama administration policy that sought to enable open service later overturned by former President Trump.
“There’s not a lot of work that we think needs to be done for that to happen since all the plans were already in place,” the advocate said. “But with the size of the armed forces and the number of recruiters and all of the pieces that have to happen. It obviously takes a little bit of time to convey all that information appropriately across the force and therefore move forward in a way that’s going to be effective and efficient. So again, no reason that that can’t happen very quickly.”
The issuing of two LGBTQ executive orders in the first five days of the Biden administration, is far and away more progress than what we saw in the entirety of the Trump administration, or even the Obama administration in the same period of time. Debates over whether Trump was the worst president on LGBTQ issues may soon give way to debate on whether Biden or Obama will be the best.
After all, the Obama administration didn’t have much to say to the LGBTQ community for the first six months. The first words to the LGBTQ community were, in fact, a legal brief dripping with anti-gay animus in favor of the Defense of Marriage Act, which was denounced as an indication the LGBTQ community had been had. Obama would reverse course shortly afterward with the first-ever Pride celebration at the White House and the U.S. Justice Department ended up dropping its defense of DOMA in court.
Tico Almeida, an attorney at the law firm WilmerHale who was among the LGBTQ advocates who campaigned for an executive order creating LGBTQ workplace protections, contrasted Obama waiting six years to issue that directive to Biden’s early action on the Bostock executive order.
“It’s tremendous to see President Biden sign an executive order advancing LGBTQ legal protections on the very first day, and it’s a very good sign of the progress to come during the Biden-Harris administration,” Almeida said.
Now the waiting game begins. The Bostock order compels federal agencies to devise and submit a plan to comply with the Supreme Court decision within 100 days, while the order reversing the transgender military ban gives 60 days for the Defense Department and the Department of Homeland Security (which oversees the Coast Guard) to report to the White House on implementation.
Within the 100-day period for the Bostock order, one LGBTQ advocate told the Blade the expectation is the Office for Civil Rights for each individual agency “fairly quickly” to begin accepting complaints from LGBTQ people and investigating those complaints. A determination would occur at a later time on whether various regulations would need updating to reflect the executive order would happen on an ad hoc basis, the advocate said.
“We wouldn’t expect all of those regulations to be completed in that 100-day timeframe,” the advocate said. “They need…to do due diligence and be thoughtful in their approach. And the executive order doesn’t mandate that they be complete. It’s just that they have to report back to the White House on their plan.”
One thing is for sure: There is no question about whether the executive order would apply to Title IX of the Education Amendments of 1972 to require schools to allow transgender kids to have access to sex-segregated spaces consistent with their gender identity.
A line was included in in the Biden executive order — at risk of inviting criticism from anti-transgender advocates — making clear “children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room or school sports.”
Sarah Warbelow, legal director for the Human Rights Campaign, said the explicit language about transgender kids makes clear to states that anti-transgender legislation would be unlawful, including in Montana where two anti-transgender bills were recently advanced.
“The executive order helped to put those legislators on notice that they will be in conflict with the Department of Education, and its application of Title IX, which is important information for them to know, as they’re contemplating taking these actions,” Warbelow said. “They should also recognize what they’re doing is unconstitutional but, as you know, that doesn’t always stop state legislators.”