Joe Biden vowed on the campaign trail to pass a law protecting LGBT+ Americans from discrimination, within his first 100 days in office. But with the Senate’s backing for the Equality Act seen as unlikely, he may already have opted for Plan B.
Biden covered key parts of the civil rights bill – which faces an uphill struggle in a Senate split 50-50 between Republicans and Democrats – with an executive order, signed on his first day in the White House.
By extending equal rights safeguards to sexual minorities in health, housing, education, and credit in the order, Biden showed his commitment to the act, while placing the onus on Congress to go the whole hog, political analysts said.
“It’s an honest signal from the administration that if more is going to be done, it has to be done through Congress,” said John Hudak, a senior fellow at the Washington-based Brookings Institution think-tank.
“What the executive order does is tells the federal agencies to do everything that they can to advance the cause of equality,” Hudak told the Thomson Reuters Foundation.
“It’s about as far as an administration can go on its own.”
The Equality Act amends the 1964 Civil Rights Act, to include sexual orientation and gender identity for protection, alongside race, religion, sex, and national origin.
It passed the Democratic-controlled House of Representatives on February 25, and has unanimous backing from Democratic senators.
But several prominent Republicans have voiced opposition already, including moderates such as Sen. Mitt Romney of Utah, who said he would oppose the act, unless it added a provision giving “strong religious liberty protections”.
Asked to comment on the bill’s progress in Congress, a White House spokeswoman referred to remarks by Biden in February, when he said it was “time for Congress to secure these protections once and for all”.
In the meantime, federal government agencies have been adjusting their guidelines to meet the terms of Biden’s January 21 order, which directed them to include sexual orientation and gender identity, when prohibiting sex discrimination.
The Consumer Financial Protection Bureau in March and the Department of Housing and Urban Development in February said they would ensure equal treatment for LGBT+ Americans in banking, or when buying or renting a home.
Both entities cited a 2020 Supreme Court ruling that extended workplace protections to gay and transgender people – the biggest moment for LGBT+ rights in [America] since same-sex marriage was legalised in 2015.
Biden’s executive action also protects gay and trans students from discrimination in school, which the Department of Justice reiterated in a memo to federal agencies on April 5.
Bias against LGBT+ students has been a contentious point among lawmakers debating the Equality Act. Critics argue that the legislation would allow trans competitors to take part in girls’ and women’s school sports, which they say is unfair.
Ian Thompson, a legislative representative at the American Civil Liberties Union, said, however, that the argument is flawed, because the executive order already prohibits discrimination in school, including sports.
“This is the new bathroom argument,” said Thompson, referring to a debate in recent years over whether trans women should be allowed to use [so-called] women-only spaces such as public bathrooms.
But while Biden’s executive action anticipated many of the Equality Act’s provisions to tackle discrimination, it could easily be reversed by future presidents.
“It’s a short-term fix,” Hudak said.
Additionally, the 2020 Supreme Court ruling, on which Biden’s order is based, does not contemplate discrimination against LGBT+ people in public spaces and services, in addition to taxpayer-funded programs.
That means the protections do not extend to places including restaurants, shops, and public transport, as well as government-aided homeless shelters, and adoption agencies.
And beyond extending the scope of anti-discrimination safeguards, passing the Equality Act would be a symbolic victory for the LGBT+ community, said Gabriele Magni, a professor at Loyola Marymount University, who researches LGBT+ representation in US politics.
“It is appropriate to say that it is saving lives because it is sending a message that we value people for who they are and we believe that they belong in this society,” Magni said.
Numerous studies show LGBT+ Americans are more likely to suffer from mental health issues, and gay and bisexual youth are almost five times more likely to attempt suicide, according to the US Centers for Disease Control and Prevention.
At present, only 22 states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity, despite broad public backing for such measures.
An estimated 83% of Americans favour laws that would protect LGBT+ people against discrimination, in jobs, public accommodation and housing, including 68% of Republicans, according to a poll by the Public Religion Research Institute.
Lawmakers clashed over the bill in a Senate Judiciary Committee hearing on March 17, with Democrats and Republicans split. Senators are expected to vote on it in the coming weeks.
But with the Equality Act facing Republican resistance, the legislation looks set to join a list of other Democratic-led initiatives – including separate bills on police bias and women’s rights – that are likely to fail.
“Over the next four years, there’s going to be a lot of complaints over whether President Biden is doing all that he can in certain issue areas,” Hudak said, adding that lawmakers should face scrutiny if the act stalls in Congress.
“Criticism around this needs to end up at the other end of Pennsylvania Avenue.”
-Matthew Lavietes – Thomson Reuters Foundation