President Biden Moves to End Female-Only Sports and Services On His First Day In Office
Image from Whitehouse.gov
The order effectively implements the most controversial aspects of the Equality Act without any legislation
One of the first acts of Joe Biden's presidency was to gut sex anti-discrimination laws and eliminate critical protections for women in the federal government. On Wednesday afternoon, only hours after being sworn into office, Biden signed an executive order that “builds on the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020) and ensures that the federal government interprets Title VII of the the [sic] Civil Rights Act of 1964 as prohibiting workplace discrimination on the basis of sexual orientation and gender identity,” according to the Biden transition team website.
The order also ensures “that federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity.” Federal civil rights offices will also be required to enforce this interpretation in any matter that comes before them, likely including siding against women’s rights in court cases.
With this action, Biden is bypassing the legislative process to implement the most controversial provisions of the Equality Act—changing the definition of sex in federal anti-discrimination regulations so that female people are no longer a discrete class with protected status under the law. As we predicted, the new administration is relying on the Bostock decision to do so.
This executive order directs federal agencies to do two things. First, federal agencies are now required to interpret “sex” as also including “sexual orientation and gender identity” in their own internal regulations and workplace policies. Second, agencies are directed to perform a comprehensive assessment of all regulations under their purview, and create a plan with 100 days to “revise, suspend, or rescind such agency actions, or promulgate [propose] new agency actions” that will impose this interpretation onto all American employers, institutions, and individuals, with no exceptions.
The Supreme Court was clear at the time of the Bostock decision that the ruling was only meant to be applied to hiring and firing discrimination under Title VII of the Civil Rights Act, in advancing their novel reasoning that “transgender status” meant that a male employee should be allowed to identify into the otherwise lawful sex-based rules for female employees. While we strongly support protections from discrimination based on sexual orientation, the Biden administration has grossly expanded the application of the decision with far-reaching implications for women’s rights in nearly every aspect of public life, including Title IX.
Potential consequences of this action
Female federal employees no longer have right to privacy, forced into compelled speech that “validates” men’s identities
The executive order states that the federal government must immediately interpret “sex” discrimination” as including sexual orientation and gender identity. In addition to protecting people who identify as transgender against hiring and firing discrimination, this will also give male employees the right to self-declare themselves to be female and be treated as female for the purpose of sex-segregated facilities. This means that in federal buildings and in workplaces run by federal contractors, the four million women who work for the federal government will be forced to share bathrooms and gym locker rooms with men who say they identify as women.
Federal employees will likely also be forced to use “preferred pronouns” (inaccurate pronouns) for men who identify as women. This should be seen as a major threat to freedom of speech and is part of a growing pattern of government bodies compelling speech from employees.
Biden has also directed agencies, including the Department of Labor, to take steps to apply this interpretation of Bostock to federal regulations, which would mean that private employers and State Governments (as employers) would also be subject to comply with “gender identity” policies just as they are with existing anti-discrimination laws.
These policies will disproportionately impact religious employees who may follow strict modesty rules around the opposite sex, which is likely a violation of the First Amendment.
Domestic violence shelters forced to house men with women
Under the new executive order, the Department of Housing and Urban Development (HUD) will be required to continue the policy of admitting men who identify as women into single-sex emergency shelters.
In 2016, the Obama-Biden administration issued guidance 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. The Trump administration attempted to reform this policy, but this executive order ends any possibility that it will be reversed.
Many of these shelters must have communal sleeping areas or communal bathing facilities so they can serve a larger number of individuals notwithstanding the physical limitations at the shelter. Shared spaces generally work in a women’s shelter, where women are unlikely to assault or violate one another.
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.
This puts women and girls in immediate physical danger and displays a callous disregard for the needs of survivors of domestic violence. There have already been examples of these policies resulting in the sexual harassment of women in shelters.
Women in federal incarceration forced to be housed with violent male offenders
The Federal Bureau of Prisons will be directed under the new executive order to house men, including violent sex offenders and domestic abusers, in women’s federal prisons, if they claim to have a “female gender identity.”
The order will likely require female prison staff to guard or conduct intimate body-searches for violent incarcerated men claiming to identify as women.
According to national polling conducted by WoLF in October, two-thirds of American voters across the country broadly disapprove of such policies. These actions are widely disapproved of, even by liberal voters, which helps explain why the Biden administration has decided to initiate these policies through executive orders rather than using the open and transparent legislative process, even though Democrats now control both houses of Congress.
Doctors forced to provide “affirmative care”
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’s executive action today will ultimately restore them. We are deeply concerned that such regulation would also 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.”
Title IX protections for women in schools revoked, girls’ sports eliminated
One of the most unconscionable parts of this executive order is the new administration’s abandonment of their Title IX legal and ethical obligations to female children and young women. By extending the Bostock decision beyond its intended limited purview, President Biden has effectively ended women and girls’ sports in educational institutions that receive federal funds. Female-only school sports, once mandated by Title IX, will become unlawful in the very near future.
The executive order will also require schools to give male students access to girls’ 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 women’s most basic rights in the United States.
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.
This order will entrench “anti-bullying” policies which threaten students with discipline or even labels of sexual harassment simply for using sex-based pronouns or asserting their belief in biology. It will embolden those who push radical curriculum changes in human growth and development classes. Formerly used to educate young people about their bodies, puberty, sex, STIs, pregnancy, and consent, such programs are now used to push quasi-religious beliefs in a gendered “soul” which render one’s biological sex irrelevant, as well as normalize abusive sex practices.
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.
Women and girls not considered for “equity”
As if this wasn’t enough, Biden’s “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” broadly promises a commitment to “advancing equity” for “underserved communities.” The order names multiple underserved communities, including:
“Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”
Women, the largest group of people adversely affected by persistent inequality, were not mentioned in the order. Further, the order also states that agencies must develop systems to advance equity “with respect to race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability." This means that agencies are prevented from considering the needs of women and girls alongside the needs of men who claim to have a “female gender identity.”
An unprecedented attack on women’s rights and liberty for everybody
The scope of this order is simply staggering, and has far-reaching implications. Non-governmental entities will immediately begin implementing policies to comply with the anticipated regulations, and even if the rules are successfully challenged, those policies will be difficult to overturn once adopted. Speech will be further chilled, in all arenas of public life. Attorneys, law firms, and bar associations will update their guidance on “pronouns” and similar matters, and women will continue to be hindered in legal battles to assert their rights.
Beyond the many practical concerns, both executive orders send a heartbreaking message to women and girls that their government does not view them as worthy of consideration and is not willing to recognize female people as a discrete class.
We see you. And we will not stand for this.
Join us in taking action by using this form to send a letter to President Biden and Vice President Harris demanding the repeal of this executive order.
Federal agencies are required to accept public feedback on new regulations. The executive order has given them 100 days to implement these new policies, and we’ll be weighing in and creating new ways for you to take action and respond each step of the way.
Together, our voices matter. Join us.
