There is no question that the 2020 election has been a historic one in many ways, not the least of which is the impact it will have on women’s ongoing fight for equal rights and liberation. Though the winners of  of the Presidential race have not yet been formally certified, we wanted to take a look at what a Biden administration may hold for women’s rights, and lay the groundwork for the next four years of feminist activism and lobbying in light of those possibilities. 

An election of historic wins for women

Senator from California and former prosecutor, Kamala Harris, has become the first woman in the United States to ever win an election on a Presidential ticket. For every little girl who has ever dreamed of holding the highest office in the land, those dreams are now one step closer to becoming a reality. As Vice President, Harris is also the presumptive heir to Biden’s position, since the 77-year-old has implied that he will not seek a second term and views his role as a “transitional” President. Of course, a lot can change in four years, but with Harris only a heartbeat away from the Presidency, women have never been entrusted with more formal authority in the United States. 

Harris has a strong record of supporting women’s rights when it comes to abortion (she has a 100% rating from NARAL), fighting the sex trade (she sponsored SESTA/FOSTA in the Senate), and defending gay marriage in her home state of California. However, Harris’s stated position on prostitution is ambiguous, and it is unclear whether she would support something akin to the Nordic Model, or something closer to the full-decriminalization policies pushed by many so-called “sex work” activists. She has also signed on to the Equality Act, which would undo many of the protections currently afforded to women (more on this later). 

Harris wasn’t the only woman making election history in 2020. More women were elected to congress this year than any other before. Lesbian and feminist Ana Irma Rivera Lassén became the first out elected lawmaker in Puerto Rico’s history. Cori Bush became the first black woman elected to represent the State of Missouri in Congress. Marilyn Strickland became the first Korean-American woman ever elected to Congress, and the entire House delegation from New Mexico will be composed of women of color. Cynthia Lummis will be the first woman to ever join the Senate from Wyoming, and the House Republican caucus has doubled their number of women. 

Even on a local level, women are overcoming discrimination. Charmaine McGuffey, who was fired for being a lesbian from the Hamilton County Sheriff’s Office in Ohio in 2017, went on to win her campaign for Sheriff. Together, these women have helped break barriers for women in politics.

Protecting reproductive rights in the courts

One of the greatest setbacks to women’s reproductive rights in the last decade has been the appointment of over 220 judges to the federal judiciary, most or all of those presumably anti-choice judges determined to restrict women’s rights to bodily autonomy should relevant cases come before their benches. With the new six/three conservative majority on the Supreme Court, protecting women’s rights in our judiciary system has never been more important. Although Biden will likely mostly appoint pro-choice justices who would preserve abortion rights, it is unclear whether he will successfully get them confirmed by the Senate, which may retain its Republican majority.

Biden’s progressive agenda

Compared to Donald Trump, Joe Biden’s platform is certainly more progressive on nearly every issue. From climate change to healthcare to immigration, Biden supports policies that will help address the domestic issues that disproportionately impact women. Women, for example, are less likely to get health insurance through their workplace. This means that a public option is important to making sure all women have access to affordable coverage. 

Poverty, in general, disproportionately impacts women in the United States. Women in the US are more likely to live in poverty, with 1 in 5 women ages 18 - 25 living in poverty. Elderly women in the United States are twice as likely to be living in poverty than their male counterparts. Biden’s plans to protect working families and expand access to high-quality affordable childcare will help women out of poverty. Biden’s ”Plan for Older Americans,” would provide more long-term care solutions for those with chronic care needs, including a tax benefit that will ease women’s home caring burden and help elderly women, especially.

Joe Biden has promised to make reauthorizing the Violence Against Women Act (VAWA) (currently held up in the Senate), a priority in his first 100 days. He has also promised to create a White House Council on Gender Equality “tasked solely with guiding and coordinating government policy that impacts women and girls.” Overall, Biden’s progressive agenda is likely to help women—if it’s able to pass a divided Congress. At the same time, the effects of his policies may vary, depending on how they treat the definition of “sex” and whether they include “gender identity” as a part of that definition. 

For example, VAWA as it currently stands (and has passed the House of Representatives) changes reporting requirements so that state grantees would now have to report crime and victim statistics to Congress by “gender identity,” including statistics on incarcerated women. This would likely mean that statistics about victims will be falsely reported as violence against men, when in fact it was violence against women self-identifying as “trans men,” and some instances of male violence against women or men will be falsely reported and understood as acts of female violence.  

Of particular concern, the most current version of the VAWA legislation is written in a way that’s likely to end single-sex correctional facilities in the United States, by the inclusion of the phrase, “a transgender prisoner’s sex is determined according to the sex with which they identify.”

The policies put forth by a potential Biden administration are likely to help women and girls when they aren't primarily aimed at women and girls. Meanwhile, the policies that actually address women’s rights are likely to cause harm.

The transgender plan to eliminate sex-based rights

Despite all his progressive policies, Biden’s contradictory support for the current version of the Equality Act and other “gender-identity” laws will actually undermine women’s sex-based rights.

Joe Biden has promised that on his first day in office he would restore Obama-era guidance that will give male students access to girls’ sports, bathrooms, and locker rooms “in accordance with their gender identity.” This is a major backslide for the rights of girls in education, and should be understood as a threat to Title IX, the groundbreaking legislation which guaranteed equal education access to girls and women in federally-funded schools.

International development experts and human rights bodies advocate for single-sex washing, changing, and toileting facilities for girls, as a crucial factor in creating equal access to education for girls. This is important at all ages, but becomes critical past menarche. Girls don’t only “just need to pee,” as gender extremists have said to trivialize the question, when they use a restroom.

With these policies, Biden is promising to throw girls in the US back decades in terms of human rights protections deemed essential for the advancement of girls and women in developing nations without such facilities. This seems like a narrow, western chauvinist perspective that seems to presume much better behavior on the part of boys and men in the US, as compared to the behavior of boys and men in less wealthy nations.

Biden has also committed to make passing the Equality Act a top legislative priority in his first 100 days. While much of the Equality Act holds good potential for many groups of women, such as prohibiting employment and housing discrimination against lesbian and bisexual Americans, it also enshrines the undefined concept of “gender identity” into law as a protected characteristic—effectively providing unlimited access for men into women’s sports and spaces such as prisons, shelters, and domestic violence services. 

Biden and Harris support these polices despite a large body of social science research over decades, that single-sex spaces are important to women and girls’ full participation on public life, and the fact that a majority of Americans disagree with such policies. The erasure of women as a defined and meaningful class will harm women’s ability to organize, fund, and protect single-sex spaces.

All of the funding and support of the Violence Against Women Act is undermined if men are allowed to enter women’s domestic violence shelters, and if stats on male violence are falsified to validate the identity claims of violent men. If boys are able to steal scholarships from female athletes, attempts to increase economic opportunities for women and girls could be nullified. If violent male sex offenders and convicted domestic abusers are allowed in female prisons where they will continue to rape and assault women, progressive justice system reform will perversely worsen some conditions for the most vulnerable women. 

Through such promises to eliminate single-sex accommodations and women’s sex class recognition in the law, Biden’s stance on gender identity undercuts all of his other progressive policy stances on women’s issues.

Likely Biden-led executive actions would endanger the most vulnerable women and girls in society

While the Equality Act is a serious concern on the legislative front, presidential administrations hold far more direct influence over the daily lives of Americans via their ability to adopt legally-enforceable regulations. This requires no new legislation or even a cooperative Congress, since many pre-existing laws already delegate significant power to scores of executive branch agencies that hold tremendous power over women’s lives. 

Under the direction of the Obama-Biden White House, the agencies used these powers to impose “gender identity” mandates in programs for vulnerable women. Some of those regulations have been repealed under Trump, while others are under pending proposals for repeal by the Trump-led agencies. But the same agencies under Biden leadership will almost certainly reverse course and bring in a flood of harmful “gender identity” policies through administrative regulations. 

For example, in 2016, the Obama-Biden Department of Housing and Urban Development (HUD) issued regulations requiring that all HUD-funded shelters designed for women only, or women and their minor children, begin housing men who assert some sort of feminine “gender identity.” Women escaping male violence were terrified at the prospect of being made to sleep or shower with men, and in several instances (likely the tip of the iceberg) they managed to file challenges in court. 

Under Trump, HUD recently proposed to rescind the 2016 regulation, but it may be difficult for the agency to complete that action before inauguration. Should HUD complete its proposed rescission of the 2016 regulation, it’s almost certain Biden would swiftly move to restore the 2016 “gender identity” mandate on homeless and domestic violence shelters. If HUD should fail to complete the rescission and Biden is certified as the election winner, the agency under Biden will likely sweep the proposed repeal under the rug and simply leave the 2016 regulation in place, with all its cruel and callous disregard for vulnerable homeless women and children. Women’s shelters operating on shoestring budgets, and their homeless clients, would struggle to find resources to challenge the policy, and would risk losing their funding by speaking out against gender ideology. 

Also in 2016, the Obama-Biden Department of Health and Human Services (HHS) adopted regulations under the Affordable Care Act that included a breathtakingly broad application of the "gender identity." It mandated that, if a healthcare provider performed or an insurance plan paid for a mastectomy or hysterectomy to save a woman from a life-threatening condition, but denied mastectomies or hysterectomies motivated solely by a quest for “gender transition,” the provider could be found guilty of unlawful sex discrimination. Proponents of that regulation, such as the prominent National Center for Transgender Equality, confirmed it would force healthcare providers and insurers to provide and pay for “transition-related” cross-sex hormones, hysterectomies, orchiectomies, and other surgeries if they also provide or pay for such procedures when they are actually medically necessary. 

Though Donald Trump rescinded the “gender identity” aspects of the HHS regulations, Biden would very likely direct the agency to restore them. We are deeply concerned that such regulation would be interpreted to mandate “transition-related” hormones and surgeries for minors as well as adults, since nothing in the original regulations made a distinction between adult and minor “gender transition.” 

In 2014 the Federal Bureau of Prisons adopted an anti-discrimination policy that prohibits discrimination on the basis of “gender identity,” among other things. We are concerned that the Bureau under Biden will adopt policies for housing men in federally-run women’s prisons. The BOP could also interpret their existing policy broadly, including by forcing female prison staff to guard or conduct intimate body-searches for violent incarcerated men claiming to identify as women. 

Though the so-called “transgender military ban” has been grossly exaggerated and mischaracterized, as it only required people to serve under the regulations for their physical sex, Biden has promised to repeal it his first day in office. Among other things, this would have a serious impact on the safety and privacy of enlisted women forced to share close, intimate spaces with enlisted males who claim to identify as women—despite the fact that the military is already known for elevated risk of sexual violence against women. 

Finally, we mustn’t forget the nearly 4 million women employed by the United States federal government itself. Under a Biden administration, it is safe to assume these women will be forced to honor “preferred pronouns” and share bathrooms and gym locker rooms with men who claim to be women based on “gender identity.” 

The path ahead

With Biden promising to take action on day one, feminists need to be ready to mobilize January 20 to lobby the new administration against the dissolution of women and girls’ sex-based rights. A potentially divided Congress will provide some buffer to passing an extreme “gender identity” agenda, but also means that important judicial confirmations to protect abortion could also be stonewalled. Women need to be ready to take action on these issues. 

The easiest way to get involved is to join WoLF as a member or donor. WoLF is building a volunteer civic engagement network, ready to lobby their legislators to protect women’s rights from attacks on all sides. As a member, you will receive important updates about attempts on a Federal and State level to enshrine “gender identity” into law and learn how you can get involved through a variety of volunteer opportunities. 

Don’t have the time to volunteer? Donating to support our legislative lobbying efforts and capacity-building is vital for creating a sustained women’s movement in the US. There has never been a more important time to fund this work, and your donations will be doubled through the end of the year thanks to a generous donor who has offered to match donations up to $50,000.

Apply to become a WoLF member: https://www.womensliberationfront.org/join-us

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