Last year, the Supreme Court ruled that current federal law which prohibits discrimination based on "sex" also applies to sexual orientation and gender identity. It is illegal to fire someone just because they are gay or transgender according to the court's narrow majority opinion which explicitly said their ruling only applies to discrimination in the workplace.
It makes no linguistic sense, however, to say that "sex" includes sexual orientation and gender identity under one section of the law but not every section. Conservative Justice Neil Gorsuch, who authored the majority opinion, tried to assert otherwise but the math doesn't add up.
I expected the incoming Biden administration would see it that way as well and last night, along with a slew of other orders, President Biden signed an executive order that assumes last year's Supreme Court ruling applies to all areas of the law, not just labor law.
In a fact sheet released Wednesday, the Biden administration said the new order will “build on” the protections cemented by the Supreme Court.
“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the White House said in a statement.
The Trump administration had urged the Supreme Court to rule that gay and transgender workers were not covered by Title VII, and after the ruling came down this past summer, the Trump administration tried to limit its reach.
This order will have the most immediate consequences at the Department of Education and Department of Housing and Urban Development where Trump's appointees had spent the past six months pursing explicitly anti-transgender policies.
You may recall that Trump's Department of Education was fighting a legal battle with the state of Connecticut as part of a more wide-ranging effort to ban transgender girls from participating in youth sports. The Department of Housing and its former secretary Ben Carson also implemented a ban on transgender women at federally-funded homeless shelters for women.
Both of those policies are history now.
It's likely that we'll see some conservative legal pushback to the Biden administration's interpretation of the law in the coming months, but the administration is on sound legal footing. Lower federal courts have already made the same assumptions about the law that the Biden administration is turning into official policy.
This will head back to the Supreme Court at some point in the coming years, but the mental gymnastics required to contradict their own previous ruling from last year may be too great for the court's conservatives. I would feel less confident about that if the court's last ruling wasn't a 6 to 3 opinion authored by one of the conservatives with a concurrence from the Chief Justice.