By Stuart Gaffney and John Lewis–
Now that the Biden-Harris administration has taken office, there’s no time to waste to reverse the last four years of backsliding and to make up for lost time with an aggressive LGBTIQ federal agenda.
We were heartened that President Biden issued an important executive order to combat LGBTIQ discrimination immediately upon entering the Oval Office. It proclaimed: “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Further, “every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.” The order also emphasized that “children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports” and underscored the particular burden that LGBTIQ people of color and LGBTIQ people with disabilities face.
The order was not mere rhetoric; it dictated action. Over the next 100 days, every federal agency must review its regulations, orders, and programs to identify any policies that fail to comply with the order’s intent and create a plan to bring those policies into compliance. We are also encouraged by the new administration’s commitment to ending discrimination against transgender and gender nonbinary people in many areas including the military and identification documents.
Enacting the Equality Act should also be a priority in the first 100 days. Last year, the U.S. Supreme Court held that employment discrimination against LGBTIQ people constitutes unlawful sex discrimination in violation of Title VII of the federal Civil Rights Act of 1964. The Court’s reasoning would logically apply to federal civil rights statutes barring sex discrimination in myriad other areas of life: housing, finance, health care, immigration, education and school sports, public accommodations (such as hotels and restaurants), and juries.
The Equality Act cements these protections into law by explicitly amending the federal civil rights statutes to include sexual orientation and gender identity. Federal civil rights protections for LGBTIQ people would no longer depend on the Court.
An October 2020 PRRI poll showed that a whopping 83% of Americans favored laws ending such discrimination. The poll, which focused on people’s religious affiliations, revealed that even 59% of Evangelical Christians supported such laws, while over 80% of every other major religious classification and 92% of religiously unaffiliated people supported them.
The House passed the Equality Act last session and can quickly do so again. Last session, 46 senators co-sponsored the legislation. The addition of two pro-LGBTIQ senators from Georgia and Vice President Harris’ ability to break ties mean the Act could become law if Biden and Harris are able to use their political capital to persuade the few additional senators needed for passage. When overwhelming majorities of the public favor such a law, the administration and Senate leadership should be able to prevent opposition senators from blocking it for the narrow political interests of their polarized political base.
Another particularly urgent priority is reversing the Trump administration’s eleventh-hour Health and Human Services Department rule allowing social service providers who receive federal funding to discriminate against LGBTIQ people. The Trump administration claimed that Obama-era rules forbidding such discrimination violated the so-called Religious Freedom Restoration Act (RFRA). Opponents of LGBTIQ rights and women’s rights have weaponized the RFRA to enable discrimination under the guise of free exercise of religion.
We call on the Biden administration to reverse this rule and on Congress to amend the RFRA itself to prevent the statute from being used to justify any type of discrimination, including that based on sex, sexual orientation, and gender identity. The RFRA invalidates all federal laws and actions of the federal government that “substantially burden” a person’s religious exercise, unless they further a “compelling governmental interest.” Congress must amend the RFRA to make clear that eliminating discrimination on the basis of sex, sexual orientation, gender identity, and other protected classifications is such a compelling interest.
The U.S. Supreme Court will soon decide a parallel constitutional issue pertaining to the efforts of a conservative religious foster-care provider that receives local government funding to discriminate against LGBTIQ couples. Congress needs to send the Court a clear message about the importance of ending any vestige of such discrimination.
Indeed, reform of the Supreme Court is perhaps the most important matter the Biden-Harris administration must ultimately address when it comes to LGBTIQ equality and to women’s rights, racial justice, campaign finance, gun control, and myriad other issues that profoundly affect millions of people’s lives. Realistically, actual legislation to reform the Court will not come soon given current political obstacles, but the groundwork can begin to be laid immediately. And when it comes to marriage equality, Congress can forthwith repeal the discriminatory “Defense of Marriage Act” that the Court ruled unconstitutional in 2013, to ensure that it could not come back into effect if the Supreme Court were to take the unconscionable step of reversing its prior decision.
Vice President Harris said that she and President Biden were ready to “multi-task” as soon as they took office. They have a lot to do. We and our communities stand ready to help them make lasting LGBTIQ equality under the law, as well as many other important priorities, a reality.
Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
Published on January 28, 2021
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