In far-reaching executive order, Biden redefines ‘sex’

Denver Newsroom, Jan 21, 2021 / 06:01 pm (CNA).- In one of his first acts in office, President Joe Biden has signed an executive order to interpret sex discrimination in federal law to include sexual orientation and gender identity. The move could impact high school sports, the privacy of single-sex bathrooms, faith-based organizations that are government grantees or contractors, and whether employees may face retaliation for voicing “discriminatory” religious beliefs.

“This executive order is a massive overreach,” John Bursch, senior counsel at the Alliance Defending Freedom legal group, told CNA Jan. 21. “It essentially has the effect of taking the word ‘sex’ and ‘sex discrimination’, anywhere those words appear in federal law, and converting them to include sexual orientation and gender identity.”

He warned that the executive order’s redefinition of sex will result in “a destructive effort to re-invent reality and destroy long-standing protections for women and girls,” even if this is not immediately evident.

“Redefining ‘sex’ to mean ‘sexual orientation and gender identity’ isn’t equality, and it isn’t progress,” he said. “The reason for that is that biology is not bigotry. When the law does not respect biological differences between men and women, it creates chaos and it hurts women and girls.”

Saying the Catholic Church has recognized such differences for millennia, Bursch added, “it’s unfortunate that the government is now choosing this to be the very first act it is going to engage in to ‘unify the country’.

The executive order, titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” declares Biden administration policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”

The order, which Biden signed on the day of inauguration, discusses children’s access to restrooms, locker rooms, and school sports; access to health care; and workers whose dress “does not conform to sex-based stereotypes,” among other topics.

The order drew comment on social media, where some critics used the hashtag #BidenErasedWomen.

Ryan Anderson, a fellow at the Heritage Foundation, told CNA the order means, “Boys who identify as girls must be allowed to compete in the girls’ athletic competitions, men who identify as women must be allowed in women-only spaces, healthcare plans must pay for gender-transition procedures, and doctors and hospitals must perform them.”

“It spells the end of girls’ and women’s sports as we know them,” he said. “And, of course, no child should be told the lie that they’re ‘trapped in the wrong body,’ and adults should not pump them full of puberty-blocking drugs and cross-sex hormones,” said Anderson, author of the 2018 book When Harry Became Sally: Responding to the Transgender Moment.

Bursch said that the executive order would also redefine “sex” in Title IX, which governs education and sports. One client of Alliance Defending Freedom was affected by a similar effort to redefine gender, allowing biological boys to compete against girls in girls’ sports.

“This isn’t something theoretical, it’s already happened,” he said. In Connecticut, two males who identify as females have won 15 girls state track and field titles since 2017.

“One of our clients, Chelsea Mitchell, has lost four state championships to one of those males competing in the girls’ division,” he said. “In that respect, this is not equality, this is not progress, this is anti-women.”

That case led to vigorous protests and a successful legal injunction.

The redefinition of sex has also led to problems for women’s shelters.

“In Alaska, the City of Anchorage insisted that a women’s overnight shelter, allow a man identifying as a woman to sleep mere feet away from women who had been raped, trafficked and abused,” Bursch said. “We had to go to court to protect the overnight shelter’s ability to not have biological men in the space with those abused women.”

Biden’s executive order claims to build on the 2020 U.S. Supreme Court decision Bostock v. Clayton County, which held that the Civil Rights Act of 1964 Title VII’s ban on sex discrimination in employment also includes discrimination on the basis of sexual orientation or gender identity.

The ruling, authored by Justice Neil Gorsuch, was deliberately narrow in scope, but Biden’s executive order adds: “Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended, the Fair Housing Act, as amended, and section 412 of the Immigration and Nationality Act, as amended,  along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

Bursch said that the Bostock decision was narrowly phrased to hold that an employee could not be fired solely on the basis of sexual orientation or gender identity. It deliberately avoided questions about dress codes, privacy in restrooms, and women’s sports.

In his view, however, Biden’s executive order “dramatically expands it” by “applying it in all kinds of areas where the court never said (to), where the court said the exact opposite.”

Describing the consequences, he said “a ‘tidal wave’ is the phrase that comes to mind.”

Anderson said the executive order was “radically divisive transgender policy.” He characterized Gorsuch’s decision as showing “simplistic logic.”

“Privacy and safety at a shelter, equality on an athletic field, and good medicine are at stake for everyone,” said Anderson. “We can—and should—defend commonsense policies that take seriously the bodily differences that provide valid bases in some areas of life (locker and shower rooms, athletics, women’s shelters, healthcare) for treating males and females differently (yet still equally).”

Biden’s executive order said “all persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“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,” said the order. “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.”

Bursch said the rule change could affect religious organizations that are government contractors or grant recipients.

“For a Catholic charity that does human development work and has a contract with the government to do that, it’s entirely possible that the government will require the Catholic charity, in the government’s view, not to discriminate on the basis of sexual orientation or gender identity,” he said. This means “forcing Catholic and other religious entities to give up their most deeply held beliefs about marriage and the human body.”

While the Religious Freedom Restoration Act could provide some protections, “it’s not going to be a one-sized-fits-all solution to the enormous problems that this executive order creates,” Bursch said.

The rule could also cause problems for employees in government or the private sector. A Catholic worker’s statement supporting the Catholic view of marriage as a union of one man or one woman could be considered discriminatory or harassment, he said.

“It essentially says to religious employees: ‘You’re not welcome to express your views in public anymore,” said Bursch. He considered this a twofold First Amendment violation, affecting both free speech and free exercise of religion.

At the same time, he noted that objectors like women high school athletes might not have a religious objection to competing against men who identify as women. Rather, their objections are sex-based or based on a desire for fair competition.

CNA sought comment from the U.S. Conference of Bishops but did not receive a response by deadline. Archbishop Jose Gomez of Los Angeles, in his role as the bishops’ conference president, issued a prepared statement on Biden’s inauguration.

The archbishop said he finds hope and inspiration in Biden’s personal witness of relying on faith in difficult times and commitment to the poor. He stressed the wide variety of issues on which the U.S. bishops advocate in ways that do not “align neatly” with political party platforms. He added: “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.”

“Our commitments on issues of human sexuality and the family, as with our commitments in every other area,” he said, are “guided by Christ’s great commandment to love and to stand in solidarity with our brothers and sisters, especially the most vulnerable.”

Mary Rice Hasson, a fellow at the Ethics & Public Policy Center, criticized the executive order ahead of its release, focusing on how it equates sex discrimination with discrimination on the basis of gender identity or sexual orientation.

The text of the order is “based on a lie,” Hasson said, “that ‘gender identity’ enables a male person to ‘be’ a woman.”

She contrasted this with Biden’s comments in his inaugural address, in which he emphasized the need for truth and quoted St. Augustine to underline the need for unity in truth.

In January 2017, the U.S. bishops had voiced criticism of the Trump administration’s decision to maintain what they said was a “troubling” Obama-era executive order that could demand federal contractors violate their religious beliefs on marriage and gender ideology.

Signed by President Barack Obama in 2014, the order prohibited federal government contractors from sexual orientation and gender identity discrimination, and forbids gender identity discrimination in the employment of federal employees.

That executive order immediately drew criticism for its lack of religious exemptions.

A different Biden executive order on “Advancing racial equity and support for underserved communities in the federal government” indicated that “LGBTQ+ Americans” would be included in the underserved categories alongside people of color, Americans with disabilities, religious minorities, and “rural and urban communities facing persistent poverty.”

This executive order aims to embed this vision of equity “across federal policymaking and rooting out systemic racism and other barriers to opportunity from federal programs and institutions,” the Biden-Harris Transition Team said.