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New Executive Order Prohibits Discrimination Based on Sexual Orientation and Gender Identity

Last year, the US Supreme Court ruled in Bostock v. Clayton County that employees are protected against discrimination based on sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964. As one of his first acts in office, on January 20, President Joe Biden signed an executive order (EO) to ensure this ruling is applied by all federal agencies enforcing any laws that prohibit sex discrimination. Another EO signed days later lifted restrictions on transgender individuals serving in the military.

These early announcements signal that promoting diversity and inclusion and preventing discrimination and harassment  are priorities for the new administration.

The EO on gender identity and sexual orientation states:

  • 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.
  • Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.
  • All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.
  • Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination.

The EO goes on to direct federal agencies to identify all laws they enforce that prohibit sex discrimination, then review all regulations, guidance, policies, procedures and other agency actions to ensure that each clearly prohibits discrimination based on sexual orientation and gender identity.

Further, agencies should consider forms of intersectional discrimination — such as discrimination based on race or disability — that can exacerbate discrimination based on sexual orientation and gender identity.

Policy applies to a wide variety of laws

Many federal laws prohibit discrimination on the basis of sex. In addition to Title VII, the EO extends to other laws like the Affordable Care Act, the Fair Housing Act, Title IX and other parts of the Civil Rights Act. In short, this EO signals that the new administration will have a greater focus on and devote more time and resources to  investigating and prosecuting discrimination claims.

What should you do?

President Biden’s executive order on combating discrimination based on gender identity and sexual orientation sends a clear message about the administration’s commitment to protecting LGBTQ rights and advancing diversity, equity and inclusion (DEI). For HR leaders, this is an opportunity to take a fresh look at policies, practices, training and other programs to ensure they address all forms of discrimination and harassment and reinforce the organization’s DEI goals.

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