President Joe Biden had a message in his first address to a joint session of Congress. “To all transgender Americans watching at home, especially the young people, you are so brave,” he said. “I want you to know your president has your back.”
The context is a spate of bills in predominantly Republican states that seek to prevent either transgender athletes from competing against biological girls in girls sports or that restrict gender-transitioning treatments for minors. The Biden administration would like to reverse this trend, but its legal options are limited.
The cleanest way to curtail these state measures would be through federal legislation. The House passed the Equality Act back in February. It would, among other things, amend the Civil Rights Act of 1964 to include sexual orientation and gender identity as protected categories alongside race, sex, and national origin, which would entitle transgender people to sweeping anti-discrimination protections under federal law.
Since clearing the Democrat-controlled House, however, the Equality Act has been stalled in the Senate. “In order to sign legislation, it needs to come to his desk,” White House press secretary Jen Psaki said in response to a reporter’s question about Biden’s intention to sign the bill. Sen. Joe Manchin, a centrist Democrat from West Virginia, has signaled he has reservations about the legislation, which would complicate its passage in a 50-50 Senate.
The Equality Act would be subject to a filibuster, therefore meaning its threshold for passing the Senate is effectively 60 votes. Manchin, who represents a socially conservative state former President Donald Trump won twice by more than 40 points, makes that less likely, to the consternation of liberal activists.
Yet this Senate math doesn’t entirely leave the White House without ammunition in its quiver. On Biden’s first day in office, he signed an executive order instructing federal agencies to interpret civil rights law according to the Supreme Court’s 2020 Bostock v. Clayton County decision. This held, in effect, that Title VII of the 1964 Civil Rights Act already prohibits workplace discrimination on the basis of gender identity and sexual orientation because it bars such discrimination “because of sex.”
The majority opinion was written by Justice Neil Gorsuch, a conservative who was Trump’s first nominee to the court, succeeding the iconic conservative Justice Antonin Scalia in 2017. Gorsuch argued that a textualist reading of the Civil Rights Act supported this interpretation, while many other conservatives argued it was divorced from the context of what these terms were widely understood to mean when the law was written and enacted in the 1960s.
“If textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach an outcome that fundamentally changes the scope and meaning of statutory law, then all of those phrases don’t mean much at all,” Sen. Josh Hawley, a Missouri Republican, protested on the Senate floor at the time.
Biden’s executive order only applies to the federal government. But Bostock could conceivably figure into a legal strategy for challenging the bills that have become law in Alabama, South Dakota, Mississippi, Arkansas, Tennessee, and Manchin’s West Virginia this year.
Threats of business boycotts have held back such legislation in the past, but Republican governors who have cited them as a reason to veto or modify these bills have faced a strong conservative backlash. “If the NCAA and Amazon are threatening you, you need to modify your position and find a middle ground,” said a veteran Republican operative.
Conservatives maintain that they are mobilizing against a dubious separation of gender and biological sex that will have uncertain implications for how traditional sex distinctions are treated under the law and may not serve the interests of some of these minors over the long term. There are also questions about the conflicts that arise when both religion and gender identity or sexual orientation are treated as protected categories under civil rights law, given that many religious institutions have workplace policies that could potentially run afoul of Bostock.
Democratic operatives and the Biden administration largely view Republican legislation on transgender issues as an attempt to seek a wedge issue in next year’s midterm elections. Democrats will be defending narrow majorities in both houses of Congress, and such cultural flashpoints have aided GOP comebacks against past Democratic presidents in 1994 and 2010.
