President Biden on Wednesday announced an executive order confirming religious conservatives’ fears that he will undo Trump-era exemptions to gender identity nondiscrimination laws.
The order, released in a blast of 17 directives aimed at undoing former President Donald Trump’s policies, requires all entities under federal control to forgo discrimination on the basis of sexual orientation and gender identity. Referencing the landmark Supreme Court decision Bostock v. Clayton County, which interpreted Title VII of the Civil Rights Act to protect gay and transgender people in the workplace, Biden’s team said his executive order would enforce that ruling on the government.
Biden’s announcement came after he voiced support for the Equality Act, a bill that has circulated through Congress for several years, which, if passed, would apply much of the content of his order more broadly. Several states have already passed their own versions of the Equality Act, most recently in Virginia, where the requirements have already drawn a challenge from religious liberty advocates.
Biden’s decision to extend Bostock’s findings into the federal government has the potential to create a drama between the government and religious groups that do not agree with popular understandings of sexuality and gender identity.
“It’s going to create massive amounts of litigation, where we’re going to have to come in and protect religious groups or religious individuals or religious conscience,” said Kelly Shackelford, president of First Liberty Institute, of Biden’s support for gender equality regulations.
Biden’s new executive orders earned censure from the United States Catholic Conference of Catholic Bishops, who, in a Wednesday morning statement, criticized some of his opening actions as president for transgressing the teaching of his own church.
“I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender,” wrote Los Angeles Archbishop Jose Gomez.
In the years since the Supreme Court legalized gay marriage in its Obergefell v. Hodges decision, the high court has heard a number of cases involving clashes between religious groups and government nondiscrimination policies. Justice Neil Gorsuch, in his majority opinion for Bostock, wrote that he expected that case to stir up a significant amount of litigation pitting religious liberty against gay and transgender rights.
The court has already heard a sequel of sorts to Bostock, in Fulton v. Philadelphia, which weighs the interests of a Catholic foster care agency against Philadelphia’s laws requiring the group to work with gay and transgender couples.
The court, which is dominated by a firm conservative majority, is expected to decide on the case this spring. Commenting on the case’s merits in November, Justice Brett Kavanaugh said that in this particular instance, it looked like Philadelphia was “looking for a fight.”
But speaking more broadly, Kavanaugh identified the struggle between religious groups and government nondiscrimination policy as one of the top issues the court will face in the coming years.
“It seems like we should be looking, where possible, for win-win answers,” he said of the debate. “And it seems like neither side is going to win entirely, given the First Amendment on the one hand and given Obergefell on the other.”
