Erica Bilkis, an Associate at the Federal Practice Group, drafts a column for the Washington Blade
Posted By fedpractice || 2-Apr-2021
April 2, 2021 at 12:04 pm EDT | by Erica Bilkis
Fed’l agencies must comply with order prohibiting LGBTQ discrimination
Equality Act, gay news, Washington Blade
President Joe Biden and his administration have been forthright in their support for LGBTQ rights. He campaigned on the promise to pass the Equality Act, which would provide explicit anti-discrimination protections for LGBTQ people in employment, housing, credit, education, among other areas. Although the Equality Act, passed by the House on Feb. 25, may languish in the Senate, on his first day in office, President Biden signed Executive Order 13988 – Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
President Biden’s Executive Order reinforces the Supreme Court’s June 2020 decision in Bostock v. Clayton County, 140 S.Ct. 1731, holding that Title VII of the Civil Rights Act of 1964 protects lesbian, gay, bisexual or transgender employees from employment discrimination, making it illegal for employers to fire someone based on their sexual orientation or gender identity. Prior to this ruling, more than half of the states in the U.S. offered no workplace protections for employees based on sexual orientation and/or gender identity.
While the Bostock decision gave legal recourse to LGBTQ employees who experience discrimination in the workplace, President Biden’s Executive Order explicitly prohibits discrimination based on gender identity or sexual orientation stating, “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. . . All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
Section 2 of the Executive Order, Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation, calls on the heads of each federal agency to act and review existing orders, guidance, policies, programs or any other agency actions that are administered under Title VII, or any other statute or regulation that prohibits sex discrimination or agency actions that may be inconsistent with the policies in the Executive Order.
President Biden instructs the heads of each agency to “consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination,” and to consider any “additional actions that the agency should take to ensure that it is fully implementing the policy set forth in section 1 of this order.” Notably, President Biden requires that within 100 days of this order, the agency heads must develop a plan to carry out the actions to comply with this executive order.
May 3, 2021, is the 100 day mark for the agencies to comply with this order. As of today, only the U.S. Department of Housing and Urban Development has issued a memorandum outlining how it will comply with the executive order as it relates to the Fair Housing Act. The remaining federal agencies have yet to announce their plans for compliance with the executive order. Federal agencies must quickly take this opportunity to formalize protections and detail concrete policies to address LGBTQ discrimination in the federal government, or risk falling out of compliance.
Erica Bilkis is an associate with the Federal Practice Group and is part of the law firm’s federal employment team. Prior to being named an Associate, Bilkis was a law clerk at FPG who researched and drafted briefs on employment issues, including gender discrimination and other EEO issues, on the cases before the EEOC and the U.S. Merit Systems Protection Board.
BIDEN ADMINISTRATIONBOSTOCK V. CLAYTON COUNTYEQUALITY ACTJOE BIDENTITLE VII OF THE CIVIL RIGHTS ACT OF 1964