How Biden tackled LGBTQ issues in his first 100 days — and what's next

In the fall of 2020, Joe Biden promised LGBTQ people that he would fight for equality in every area of their lives. April 29 marks 100 days since his inauguration and while the Biden administration has accomplished a lot, starting on day one, to advance LGBTQ rights, advocacy groups say there is still much work to be done.

On Jan. 20, Biden issued an executive order mandating that the Supreme Court’s landmark decision in June 2020 in the case of Bostock v. Clayton County, which established that the ban on sex-based discrimination in employment included in Title VII of the Civil Rights Act of 1964 applies to LGBTQ people, be applied to all federal agencies and that the head of each agency “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions.” .

The Trump administration had unevenly applied or sometimes altogether ignored the ruling in Bostock, which experts say has implications for nondiscrimination protections in other areas such as education, health care, and housing.

“It was such a clear statement of how the federal government was going to approach the legal and civil and human rights of LGBTQ people, but it was also really a restoration of respecting law because that was not a groundbreaking legal position to take in light of the Supreme Court’s decision,” said Sharon McGowan, chief strategy officer and legal director of Lambda Legal.

A couple weeks after the executive order, the Department of Housing and Urban Development announced it would look into claims of anti-LGBTQ discrimination in its enforcement of the Fair Housing Act, which prohibits discrimination in housing and in seeking a mortgage or rental assistance based on sex, race, color, national origin, familial status, and disability.

In April, the department withdrew a Trump-era proposed rule that would have allowed homeless shelters to discriminate against transgender women.

As GOP state lawmakers targeted transgender youth by introducing bills to stop them from playing on the sports team of their gender and prohibit them from receiving gender-affirming care, the Justice Department’s Civil Rights Division issued a memorandum in March instructing federal agencies that Title IX of the Education Amendments of 1972, which bars sex-based discrimination in federally funded schools and education programs, also includes discrimination against LGBTQ people.

In March, Biden issued an executive order mandating that LGBTQ students must be guaranteed a school environment free from discrimination and sexual harassment and directing the secretary of education to review regulations, guidance documents, and orders to ensure they meet that standard.

During Biden’s first 100 days in office, the State Department got rid of a Trump-era report that set certain human rights above others. It also allowed U.S. diplomatic missions to fly the rainbow Pride flag with the U.S. flag on one flagpole, a practice that had been blocked under Trump.

The Trump administration’s ban on transgender people serving in the military was reversed on March 31.

The Biden administration chose LGBTQ people to fill key roles at agencies and at the White House. Rachel Levine made history as the first openly transgender official to be confirmed by the Senate and is now assistant health secretary at the Department of Health and Human Services. Pete Buttigieg was the first openly LGBTQ person to be nominated for a position in a White House Cabinet and now serves as secretary of transportation.

Biden has appointed and nominated a number of other LGBTQ people to official positions, including Arlando Teller, a gay Navajo man appointed to the position of deputy assistant for tribal affairs at the Department of Transportation and Reggie Greer, named to the position of White House senior adviser on LGBTQ issues.

“He committed to having the most inclusive administration and he’s really delivering on that,” said Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights.

The administration also withdrew U.S. government support from a federal lawsuit to stop transgender people from competing on the sports team of their gender and filed a statement of interest supporting transgender equality in a case filed by a transgender woman over alleged repeated sexual assault during her incarceration in men’s prisons.

Advocates for LGBTQ rights point to what they say the Biden administration still must do to protect LGBTQ people from discrimination and violence.

Biden had said he would make passage of the Equality Act a top legislative priority in his first 100 days. The bill passed the House and had a hearing by the Senate Judiciary Committee in March, but it’s unclear when the Senate will take up the legislation for a vote.

Biden told Philadelphia Gay News in October, “During my first 100 days in office I will direct federal resources to help prevent violence against transgender women and transgender women of color.”

The American Independent Foundation asked the Biden administration’s press office whether the administration believes it has fulfilled that goal or plans to but did not receive a response by time of publication.

In November 2019, the Trump administration released a proposed rule along with a notice of nonenforcement that rolled back Obama-era protections for LGBTQ people in grant programs at the Health and Human Services Department that experts say would harm foster youth.

In response, several LGBTQ advocacy groups, including Lambda Legal and Family Equality, filed a lawsuit against the agency. LGBTQ rights advocates say that the Biden administration could help mitigate the damage by reversing the notification of nonenforcement.

“There has been no enforcement of nondiscrimination protections in child welfare for LGBTQ families and children,” said Julie Kruse, director of federal policy at Family Equality.

Rep. Mark Pocan (D-WI) asked Health Secretary Xavier Becerra during hearing whether he planned to reverse the policy soon. Becerra responded, “I can commit to you as secretary of HHS, I’m going to be on that.”

Lambda Legal’s McGowan said advocates are still waiting on news of the addition of the choice of X gender markers for nonbinary people in federal documents; policies clarifying citizenship for the children of same-sex couples; and changes to survivor’s benefits policies at the Social Security Administration to benefit gay, bisexual, and lesbian widows and widowers who are now denied those benefits.

Both McGowan and Rupert-Gordon said they also wanted to see improvement in the collection of federal data about LGBTQ people.

Jennifer Dane, executive director of the Modern Military Association, said she’s concerned about the effectiveness of the so-called Exceptional Family Member Program, through which transgender children of service members can qualify for medical care and other services.

Dane said it’s already difficult to enroll in the program, and now it’s unclear how the Biden administration will deal with state anti-trans laws also that affect military families’ ability to access health care for transgender youth.

“There are people stationed in those [states]. So what does it mean for a parent when you’re just trying to get basic health care for your child?” Dane said.

Published with permission of The American Independent Foundation.