via Harvard Law Today
by Emily Newburger
The White House is lit up in rainbow colors to celebrate the Supreme Court’s opinion legalizing gay marriage in all fifty states
After less than a week in office, President Biden issued several executive orders providing protections for LGBTQ people. The first expands protections against discrimination on the basis of gender identity or sexual orientation in accordance with the Supreme Court’s landmark 2020 ruling in Bostock v. Clayton County. The second reverses the Trump administration ban on transgender people serving in the military.
Harvard Law Today talked to Alexander Chen ’15, founding director of the LGBTQ+ Advocacy Clinic at Harvard Law School, about the significance of these executive actions, the danger of backlash, and the work that still needs to be done.
Harvard Law Today: What was your reaction when you read these two executive orders?
Alexander Chen: Of course, I was delighted to see that the Biden administration has acted swiftly to reverse and rescind some of the most pernicious regulations and executive orders that the previous administration put forward, both of which are going to be very significant for LGBTQ Americans and for transgender people specifically.
The Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation codifies and enshrines within federal executive action the Supreme Court’s recent decision in Bostock v. Clayton County: that discrimination on the basis of sexual orientation or gender identity, constitutes sex discrimination. And, of course, the more recent order is a rescission of the Trump administration’s rescission of the Obama administration’s policy on open service to transgender military members. I think both of these get us back to square one in terms of where we were at the end of the Obama administration and allow this administration to start with a blank slate on these two areas that are of enormous consequence to LGBTQ Americans.
With the totality of the executive orders in the first week, Biden has demonstrated the strongest commitment to a civil rights agenda of any incoming president since Lyndon B. Johnson, who, of course, was instrumental in passing the 1964 Civil Rights Act. What an administration does in the first 100 days of office signals where the governing priorities are. And here, the president is signaling that the administration is fully committed to making sure that they’re advancing the civil rights agenda that was hollowed out by the previous administration.
HLT: Does the first order expand on the interpretation of the Supreme Court’s Bostock ruling?
Chen: As a legal matter, it doesn’t go further in terms of its analysis than the Bostock decision. But it does make clear the Biden administration believes it goes beyond the Title VII context [which was the focus of the Bostock decision].
You can look to the beginning of the order for some of the areas where the administration believes Bostock has potential application: It says “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.” And then it specifically says, “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room or school sports.” Those are areas that the Supreme Court did not address in Bostock.
The order also makes it clear that the administration views access to health care and housing as areas where there can be sex discrimination against LGBTQ people, and mentions in particular people who dress in ways that don’t conform with sex-based stereotypes. In both cases, I think they are signaling they will be on the correct side of these legal issues, which I think is extremely important.
The order’s enforcement provisions are also important. Agencies are directed to review all of their existing orders, regulations, guidance, documents, etc., to make sure that the way that the agencies are applying sex discrimination law is consistent with this executive order, and to address any outstanding orders from the previous administration that took the opposite view of the law. And it’s important that within 100 days, every agency is directed to develop a plan to make sure that their agency policies are consistent with this understanding of the Biden administration on Bostock.
HLT: How does this fit into the larger efforts against discrimination?
Chen: This order should be read in tandem with another order on Advancing Racial Equity and Support for Underserved Communities, which also brings up the idea of overlapping discrimination, including between gender identity, sexual orientation, and other types of discrimination, including racial and disability discrimination. The order highlights the unconscionably high levels of workplace discrimination, homelessness, violence and fatal violence against transgender black Americans.
The administration is recognizing that you can’t view forms of discrimination in a vacuum, and that these overlapping forms of discrimination do have a disproportionately bad effect on some of the most vulnerable members of our community, especially transgender people, transgender women, and transgender women of color, and especially black and Latinx trans women. I think that’s really quite important because it signals that the Biden administration is focused on an issue that a lot of people within the community are politically activated about.
HLT: How quickly do you think LGBTQ Americans can begin to benefit from these two orders?
Chen: With respect to the transgender military ban, the executive order is directing the secretary of defense and secretary of homeland security, to report within 60 days about how the order is being implemented. Before the Trump administration rescinded the open service policy, there had already been an implementation of parts of that policy and extensive study of the accessions issue under the Obama administration. So, they’re really quite well positioned to rather quickly change the previous administration’s policies and implement the new policy.
Another important aspect of the executive order is that it recognizes that a lot of transgender servicemembers have already suffered because of the ban. And it directs the secretary of defense and secretary homeland security to identify servicemembers who have been separated or discharged or denied reenlistment on the basis of gender identity and to reach out to those people and let them know they have this opportunity. I think that we’re going see a surge of people who are looking to finally enlist or reenlist, and that service members who have been waiting to come out are going to be able to do so. I think we’re going to see that happening really quickly.
HLT: How about the other order, the one against discrimination more broadly?
Chen: What this is going to mean is that the American people are going to be able to look to the federal government for enforcement of their rights again. During the Trump administration, there was very little action taken by the various agencies’ offices of civil rights and the Department of Justice on violations of federal discrimination law. And so that administrative recourse for discrimination wasn’t present for a lot of people, and that is often a route that is really important, especially for people who don’t have the resources to hire an attorney. Also, the last administration was able to get through a really unprecedented number of judicial nominees, and litigating in federal court is going to be quite challenging in some respects. So, having this federal avenue of redress open is going to be very significant.
HLT: How accepting do you think Americans will be of these orders?
Chen: These types of actions are actually very popular. The website 538 recently posted an analysis of the support for the raft of executive orders that the Biden administration has put out. Most of them command well over 50% support from the public. But the one on prohibiting workplace discrimination based on sexual orientation and gender identity that we’re talking about has the highest level of support of any of them surveyed. Eighty-three percent of all Americans supported that executive order, including 64% of people who are registered Republicans.
And notably, before Bostock was decided, over 70% of Americans believed that that these protections already existed. So broadly speaking, it was already a very popular position to not discriminate against people on the basis of your sexual orientation or gender identity. And 71% of Americans already supported transgender people serving in the U.S. military, and that included a substantial minority of Republicans and a vast majority of independents and Democrats. The idea that people in our country should be able to access opportunity without fear of discrimination is a very popular concept around which we have more consensus than virtually any other social issue. I always have some measure of confidence and optimism in our ability to continue to move our agenda forward because there is broad-based support for non-discrimination.
HLT: With that in mind, do you expect any backlash?
Chen: If we see backlash, it’s more likely going to involve the first executive order. Its reference to school sports has already been seized on by some portions of the far-right media to fearmonger around the idea that this is the destruction and end to women in sports. In fact, on the international and the national level, entities like the International Olympic Committee, and the NCAA [National Collegiate Athletic Association] have had a policy of allowing transgender female athletes to compete with women when they meet certain medical thresholds for at least half a decade. And so, although this issue is now starting to hit the public consciousness, transgender women athletes have been competing at the national and international levels for a number of years, and they have done so without “the destruction of women’s sports.”
I think there will be a lot of implementation details that need to occur. There are some complicated policy questions. But at the same time, a lot of the backlash in the sports context, reminds me of the backlash in the context of transgender people using restrooms. A lot of people are initially concerned because they don’t know very much about the issue, and they don’t have a very good understanding of the effect of medical treatment on transgender people in terms of how transgender people present themselves in real life. So, although it is a contentious issue, I’m optimistic over time that a lot of the fear and the concern will dissipate, as they see that we can craft policies that are fair and equitable, and that allow for people to equally participate in sports, regardless of whether they are cisgender or transgender.
HLT: How do these orders impact the legal work that you and the clinic might pursue?
Chen: Having been able to put some of those controversies to rest enables us to look forward and have more of an affirmative agenda. It frees up resources for the battles where state legislatures are trying to restrict rights, especially targeting transgender youth. But I think that we can look beyond that to think about, what are the other ways that LGBTQ Americans continue to suffer disproportionately to other types of Americans?
The way I like to of describe this is that the LGBTQ civil rights movement is moving from being a first-generation civil rights movement into a second-generation civil rights movement. And what I mean by that is that a first-generation civil rights movement is really focused on even just getting those protections on the books, getting the law to recognize that we shouldn’t be discriminated against. And that is a huge victory. Effectively, what it means is that, for example, in the case of Bostock, we are now considered to have the same rights under the 1964 Civil Rights Act as other Americans. But I will also note that those protections have been in place for other categories since 1964, and yet we still have this huge amount of discrimination, especially against Black and brown Americans. And that is a really systemic problem in our society that we really started to recognize and grapple with more over recent years, especially over the course of 2020. And what we’re recognizing is that equality on paper is one thing, and it’s very important, but then equality when it comes to what people are actually experiencing day to day on the ground is another thing.
And so, I think what we are going to see over the next four or five years is a focus on the ways in which there are systemic discrimination against LGBTQ people, and especially LGBTQ people who are also part of our other marginalized groups. You can see it in the rates of homelessness, of poverty, of underemployment, of violence, and of suicidality across the population. We need to think about how we can make legal guarantees real for people, and we need to educate people so that they have these protections. Of course, we should celebrate these executive orders and that there is this formal recognition from the federal government that we don’t discriminate as a societal value. But making that real is the task for the foreseeable future.
This interview has been edited for length.