Biden Administration Issues Order on Gender Identity and Sexual Orientation

Morgan Lewis
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Morgan Lewis

As one of his first actions in office, President Joe Biden has issued an executive order ensuring that last year’s US Supreme Court decision in Bostock v. Clayton County is applied immediately and efficiently by all federal agencies that enforce any laws that prohibit sex discrimination. In Bostock, the Court ruled that employees are protected against discrimination based on sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964.

EO REQUIRES ENFORCEMENT AND REVIEW BY FEDERAL AGENCIES

The executive order (EO) requires federal agencies to identify all laws prohibiting sex discrimination that they enforce, and then to review all regulations, guidance, policies, and procedures that the agencies have issued pursuant to those laws, to ensure that each of those documents clearly lays out the prohibition against discrimination based on sexual orientation and gender identity. The agencies also must review all programs they administer to be sure there is no discrimination against LGBTQ people.

The EO specifically instructs agencies to consider forms of intersectional discrimination, such as discrimination based on race or disability that can exacerbate discrimination based on sexual orientation and gender identity. The agencies also must consider any “additional actions” they may take to carry out the policy of the EO, beyond the revisions of regulations, guidance, policies, and procedures.

Hundreds of federal laws prohibit discrimination on the basis of sex. Some significant laws include Title IX of the Education Amendments (prohibiting sex discrimination by educational institutions that receive federal funds); the Fair Housing Act (prohibiting sex discrimination by those who sell or rent housing in the private sector); and the Affordable Care Act (prohibiting sex discrimination by healthcare providers and health insurers). In an appendix to his dissent in the Bostock decision, Justice Alito listed all federal laws that prohibit sex discrimination.

Within 100 days, each agency, in consultation with the US attorney general, must adopt a plan to implement the EO consistent with all procedural requirements, including those of the Administrative Procedure Act. Requiring consultation with the attorney general may help ensure action by every relevant agency if the US Department of Justice (DOJ) contacts agencies that have not submitted a plan for review.

IMPACT FOR EMPLOYERS INCLUDES GUIDANCE ON HEALTH INSURANCE PROVISIONS

Because Bostock directly interpreted Title VII, and because the Equal Employment Opportunity Commission (EEOC) during the Trump administration never changed its guidance to say that discrimination based on sexual orientation and gender identity was not a form of sex discrimination, the EO does not change anything for employers with regard to their treatment of employees. However, the EO should help employers in providing nondiscriminatory health insurance to their employees.

Under Bostock, as enforced by the EEOC, it is a violation of Title VII for an employer to offer a health insurance policy covering certain healthcare treatments, such as hormone therapy or mastectomies, for some purposes but not for gender transition purposes. With this EO, there will be guidance, and then regulations, from the US Department of Health and Human Services (HHS) reinstating the regulations from the Obama administration that health insurance companies must not discriminate in this manner in any health insurance policy that they offer in the first place. As a practical matter, this will help employers since most health insurance plans will not be discriminatory. Of course, employers still need to ensure that they are contracting for a nondiscriminatory plan.

Employers sponsoring self-insured group health plans that receive federal funding, and that may have rolled back any compliance based upon the Trump administration’s actions, will need to ensure compliance with these nondiscrimination requirements once again as HHS reinstates regulations from the Obama administration.

Beyond that, every employer is also a business or organization involved in providing some goods or services, many of which are regulated by federal law and regulations. To the extent that such laws or regulations prohibit discrimination based on sex, the agencies will now enforce those laws to prohibit discrimination based on sexual orientation and gender identity. Thus, all businesses and organizations should immediately review their policies against discrimination regarding customers, clients, and others to ensure that discrimination based on sexual orientation and gender identity is not occurring. There should be no reason to wait for federal agency enforcement that will be forthcoming.

The fact that agencies are to consider whether there are any “additional actions” they can take to carry out the policy of the EO, beyond revising regulations and guidance, is important. This sends a clear message that the Biden administration wants agencies to be proactive in ensuring that discrimination against LGBTQ people is stopped.

For example, the Centers for Medicaid and Medicare Services within HHS may issue a letter to state Medicaid directors informing them that state Medicaid programs may not discriminate on the basis of sexual orientation or gender identity. But an “additional action” may be to offer a webinar on what that means in practice and to offer ongoing technical assistance. Similar actions could be taken with regard to educating health insurance companies and employers with regard to health insurance policies. This type of webinar could be jointly sponsored by HHS, the US Department of Labor (DOL), and the EEOC.

CONCLUSION

The EO does not create any new law, as that would be beyond the scope of an EO. But it ensures that existing law, as set forth by the Supreme Court in Bostock, becomes a high priority for agencies to implement across the board—without waiting for individual court decisions to apply the Bostock reasoning to laws prohibiting sex discrimination in areas beyond employment.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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