We support application of E.O. 13988 consistent with Bostock’s actual reasoning. For the first time in U.S. history, lesbians, gay men, bisexual persons, and transgender persons will receive federal antidiscrimination protection. As a result, the rights of people with same-sex sexual orientations and transgender status are protected in such important areas of life as education, housing, and health. Feminists celebrate this advancement of human rights in the U.S. However, we do not support an interpretation of E.O. 13988 that would, effectively, replace sex with gender identity by conflating the two. There is a significant risk that Agencies, in their zeal to address transgender discrimination, will err by conflating gender identity (or transgender status) and sex. There is no authority in E.O. 13988, nor in existing law, which requires or allows such conflation.
EXECUTIVE ORDER 13988
A FEMINIST ANALYSIS AND CALL TO ACTION
by
Women’s Collective on Law and Policy
April 2021
INTRODUCTION
This white paper provides an independent feminist legal analysis intended to influence federal policy makers and inform organizations and individuals at a critical time for the future of U.S. federal sex-discrimination laws. The authors support the full and equal protection of all people under the law. We offer an alternative to Focus on the Family-style paternalism[1] that proceeds from sex-stereotyped assumptions about the nature of women and men and seeks to deny equal protection to lesbian, gay, and transgender persons.[2] We further provide an alternative to a mainstream liberal position that gender is an adequate or necessary replacement for sex in civil rights statutes that women have used to challenge sex discrimination for more than half a century.
We recognize that single sex classifications are sometimes reasonably necessary to protect privacy, safety, fairness, equality, and/or bodily autonomy. Women, in particular, have vested legal interests in the continued recognition of sex in settings such as prisons, emergency shelters, locker rooms, and sports. Sex matters. Gender identity as affirmation of self-understanding and expression is widely understood as distinct from sex. Transgender status also should be understood in law as separate from sex, worthy of recognition in its own right but not displacing sex classifications where sex matters.
This woman-centered legal and social analysis can be used to educate both Democratic and Republican officials, at all levels of government, about the continuing reality of sex-based discrimination and the need to strike a legislative balance that protects all civil rights stakeholders. As we move into a new era of civil rights protections, we must not leave behind women and girls whose own rights to equality, safety, privacy, and bodily autonomy have not yet been fully realized.[3]
On January 20, 2021, President Joseph Biden issued Executive Order 13988, directing all Federal agencies to extend the reasoning of the June 2020 Supreme Court opinion in Bostock v. Clayton County, Georgia beyond its narrow judicial application to Title VII. Agencies which administer a multitude of internal rules and Federal statutes, including Title IX, the Prison Rape Elimination Act, the Fair Housing Act and other statutes which directly impact women’s and girls’ lives, have been directed to make proposals for interpretation and enforcement of these statutes consistent with Bostock’s reasoning. As these Agency reviews move forward, and as proposals for regulatory amendments are published, it is critical that Bostock be understood within, and applied consistently with, the protections against sex discrimination that are the bedrock of its holding. Bostock is clear: sex exists and any analysis, and extension, of civil rights protections to LGBT persons must start with sex. Applying a sex-based analysis ensures that protections for all groups can be harmonized.
There is, for example, no inherent contradiction between protecting a woman or a transwoman from being fired. Nor is there an inherent contradiction between protecting males, however they identify, from rape in prison or protecting women, however they identify, from rape in prison. However, contradictions and conflicts overtake good intentions and displace reasonable approaches when sex and gender identity are treated as the same thing. We address our concerns to these conflicts and the adverse effects on women and girls when an individual male’s internal gender identity (i.e. a transwoman or nonbinary individual) is treated as if it were identical to the female sex as a matter of law or fact.
We urge application of Bostock’s holding consistent with its recognition that sex matters.[4] Bostock provides no support for any interpretation or application of its holding which would disregard or undermine consideration of sex when sex matters. Federal Agencies should recognize the centrality of sex to Bostock’s holding by heeding those areas of law which recognize sex distinctions as necessary for equality, privacy, safety, or bodily autonomy. Indeed, Executive Order 13988 (“E.O. 13988”) compels such an application when it directs Agencies to extend Bostock’s reasoning only “…so long as the laws do not contain sufficient indications to the contrary.”
Some early cases applying Bostock to Title IX fail to take the measured approach required by E.O. 13988, instead misreading Bostock to effectively replace sex as a protected characteristic with gender identity.[5] This overreach, if replicated in Agency responses to E.O. 13988, will work great harm to women’s ongoing efforts to end sex discrimination and achieve equal protection under the law.
This white paper offers a feminist analysis of the Executive Order’s scope, directives, and potential impacts. To this end, we provide analysis and arguments useful for commenting to most federal agencies. If the legal and factual arguments made here are given serious consideration by Agency officials in the process of implementing E.O. 13988, then existing statutory protections against sex discrimination can not only be maintained but can be strengthened through application of Bostock and incorporation of LGBT protections. However, if the misapplication of Bostock’s holding continues, women’s rights to equality, safety, privacy, and bodily autonomy are at risk of being substantially eroded if not destroyed in many areas.
As one example, we have made a detailed analysis of the potential impact of the Executive Order on women prisoners.[6] This analysis demonstrates the severe conflicts which can be expected if E.O. 13988 is implemented without due consideration for women’s rights and the relevant differences between sex and gender identity. It illustrates the complexity and scope of the issues that will be encountered within each administering Agency. It also highlights the opportunity for implementing Agencies to notice and address gaps in protections against sex-based discrimination and violence. Our analysis shows that simply adding the new forms of discrimination to existing regulations is insufficient. Doing so displaces sex-based protections for women and is already having disastrous effects. Agencies can, and should, take this opportunity to extend civil rights protections to LGBT persons while also revising guidance and regulations to strengthen the rights of women and girls.
In order to appreciate the full scope and effect of challenges to women’s rights, it is necessary to understand the historic and ongoing sexed subordination of women. Appendix B. “Women’s Sexed Status in U.S. History, Custom, Law and Economics”, provides a historical overview of women’s subordination in the United States that situates current challenges to women’s rights within a history of gains followed by backlash.
Individuals and organizations are encouraged to use the information, arguments, and contact information in this resource to develop timely comments for submission to relevant federal agencies and officials.
This white paper is organized into the following sections:
- Explanation of Executive Order 13988
- Analysis of Bostock v. Clayton Co., Georgia
- Analysis of Agency application of E.O. 13988 consistent with existing law
- Suggestions for influencing application of E.O. 13988
- Contact Information
- Conclusion
Additionally, we provide links to supplemental documents which provide a specific analysis of E.O. 13988’s effect on female prisoners, historical and factual analysis to support our position, and a draft letter to adapt for use with relevant Federal agencies.
- Appendix A: “Implications for Female Prisoners of Executive Order 13988”
- Appendix B: “Women’s Sexed Status in U.S. History, Custom, Law and Economics”
- Appendix C: Draft Agency Letter
EXECUTIVE ORDER 13988
On January 20, 2021, President Biden issued the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” (“E.O. 13988”). Executive Order 13988 consists of four sections:
A. Declaration of Policy
President Biden declares that it is the policy of his Administration “to prevent and combat discrimination on the basis of gender identity or sexual orientation, to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation” and to “address overlapping forms of discrimination”. E.O. 13988 specifically identifies race and disability as “overlapping” sites of discrimination stating that, for example, “…transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence”.
President Biden targets education (inclusive of restrooms, locker rooms, and sports), employment, healthcare, and housing as sites for application of the policy. E.O. 13988 concludes that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation”.
B. Legal Support for the Policy Declaration
President Biden finds support for his policy declaration in the Constitution’s equal protection guarantee and in Federal anti-discrimination statutes. He locates statutory protections for LGBT persons in Title VII, 42 U.S.C. 2000e et seq., which prohibits discrimination on the basis of race, color, religion, sex, or national origin in workplaces, labor organizations, and employment agencies. But because neither transgender status nor sexual orientation is within the text of Title VII, additional authority is required to bring such persons within its scope. This authority is provided by the 2020 U.S. Supreme Court opinion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), in which, E.O. 13988 states, “the Supreme Court held that Title VII’s prohibition on discrimination ‘because of . . . sex’ covers discrimination on the basis of gender identity and sexual orientation.”[7]
E.O. 13988 goes beyond the narrow holding in Bostock, and directs extension of Bostock’s “reasoning” to other Federal statutes, directing that: “[u]nder Bostock’s reasoning, laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.” President Biden specifically identifies the following statutes “along with their respective implementing regulations” (i.e., the Code of Federal Regulations applicable to each statute):
- Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681 et seq.), which prohibits sex discrimination in educational programs, including sports and facilities, which receive Federal funding;
- The Fair Housing Act, as amended (42 U.S.C. § 3601 et seq.), which prohibits housing discrimination on the basis of “race, color, religion, sex, familial status, or national origin”; and
- Section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. § 1522), which provides programs for resettling and assisting refugees and requires that such assistance be provided “without regard to race, religion, nationality, sex, or political opinion”.
Although E.O. 13988 does not specifically identify other statutes, its direction for review and revision encompasses the implementing regulations of all statutes addressing sex discrimination. For example, it will undoubtedly be used to affect implementation of the Prison Rape Elimination Act, 34 U.S.C. § 303, which does not address sex discrimination but does direct consideration of transgender status and sexual orientation in deciding where to house prisoners.
II. Section 2. Enforcing Prohibitions On Sex Discrimination On The Basis Of Gender Identity Or Sexual Orientation
To effectuate the policy goals of E.O. 13988, the heads of Federal Agencies are directed to undertake a broad regulatory review followed by a plan of action to rewrite, amend, or rescind existing regulations, etc. that are not consistent with E.O. 13988.
A. Agency Review
The head of each Agency is directed to review, in consultation with the Attorney General, “all existing orders, regulations, guidance documents, policies, programs, or other agency actions” (“agency actions”) that are “promulgated or are administered by the agency” under any statute or regulation that prohibits sex discrimination and which “are or may be inconsistent with” E.O. 13988’s policy. Once the review is completed, the Agency head is to “consider” whether to “revise, suspend, or rescind such agency actions, or promulgate new agency actions” as “necessary to fully implement statutes that prohibit sex discrimination and the policy set forth” in E.O. 13988. The Agency head is to take such actions “consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. § 551 et seq.)”.
Each Agency head is further to “consider whether there are additional actions that the agency should take to ensure that it is fully implementing” E.O. 13988. Each Agency head is also directed to account for and take “appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability”.
B. Plan Development
By April 30, 2021, each Agency head, in consultation with the Attorney General, is to develop “a plan to carry out” the revisions, suspensions, rescissions, promulgation of new rules, or other actions identified by the Agency head which are necessary to implement E.O. 13988’s anti-discrimination policy.
E.O. 13988 defines Agency pursuant to 44 U.S.C. § 3502(1)[8], excluding independent regulatory agencies, as defined in 44 U.S.C. 3502(5)[9]. The E.O.’s definition of Agency is expansive and covers hundreds of agencies and departments. A list of government agencies and departments can be found here. For our purposes, we can assume Agencies relevant to feminist concerns are taking actions in accordance with this order, including the Equal Employment Opportunity Commission, the Department of Housing and Urban Development, Department of Education, United States Citizenship and Immigration Services, Immigration and Customs Enforcement, the Bureau of Prisons, and the Department of Health and Human Services.
IV. Section 4. General Provisions
E.O. 13988 concludes with general provisions as to the scope of its authority. It does not impair or affect Agency authority granted by law or the functions of the Director of the Office of Management and Budget regarding budgetary, administrative or legislative proposals. It directs that the E.O. shall be implemented “consistent with applicable law and subject to the availability of appropriations” and states that it does not create any legally enforceable right against the United States.
BOSTOCK v. CLAYTON COUNTY, GEORGIA
Because E.O. 13988 relies heavily on the Supreme Court’s reasoning in Bostock v. Clayton County, 140 S.Ct. 1731 (2020), for its authority, it is necessary to look closely at Bostock itself and the basis for, and the scope of, its holding. Bostock v. Clayton Co. Ga, et al., was a trio of cases that elevated the issues of gay and transgender rights to the Supreme Court. In these cases, plaintiffs alleged that they had been terminated from employment because of gender identity, one case, or sexual orientation, two cases. In a narrowly-written opinion, the Court held that firing an employee because of his or her sexual orientation or transgender status is prohibited sex discrimination within the purview of Title VII.
In reaching this decision, the Court declined to take up the position, advocated for by some, that “sex”, as used in Title VII, is synonymous with gender identity.[10] While this position was vigorously debated by litigants and amici, the Court found the debate extraneous to the question before it, stating that “nothing in our approach to these cases turns on the outcome of the parties’ debate”.[11] The Court “proceed[ed] on the assumption that ‘sex’…referr[ed] only to biological distinctions between male and female.”[12] The Court further stated its agreement “that homosexuality and transgender status are distinct concepts from sex.”[13]
Importantly for purposes of this white paper and correct implementation of E.O. 13988 across Federal statutes, Bostock relies explicitly on biological sex for its expansion of Title VII employment protections to LGBT persons. The touchstone for the Court is neither the gender identity nor the sexual orientation of the litigant: rather it is the sex of the litigant. Bostock implicitly recognizes that “biological distinctions between male and female” are necessary to the coherent construction and understanding of both sexual orientation and transgender identity. And Bostock’s reasoning explicitly holds that legal recognition of sexual orientation and transgender status under Title VII is premised on the biological sex of the litigants. Neither sexual orientation nor transgender status could be brought into coherent legal existence without first acknowledging “biological distinctions between male and female.” Federal civil rights protections for LGBT persons were created through recognition of their biological sex.
Having set the terms of the debate, the Court then held that it was impossible to fire someone for being homosexual or transgender and not refer to their sex. According to the Court, “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”[14] To discriminate against employees because of their transgender status or sexual orientation “requires an employer to intentionally treat individual employees differently because of their sex,” which Title VII explicitly prohibits.[15]
In reaching this holding, the Court compared an employer’s hypothetical treatment of two employees, one a man and one a woman, who are both attracted to men. If the employer fires the male employee because he is attracted to men, it “discriminates against him for traits or actions it tolerates in his female colleague.”[16] The Court similarly posits a situation in which a male employee with a transgender identity is terminated when a female employee is not. “[T]he employer intentionally penalizes a person identified as male at birth [who now identifies as a woman] for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”[17]
In accord with Bostock’s reasoning, transgender status and sexual orientation are “sex-plus” characteristics, i.e., when an employer discriminates against an employee because of their sex plus another factor, such as age, or having minor children. Bostock explicitly relies upon the sex-plus holding of Phillips v. Martin Marietta Corp. 400 U.S. 542 (1971). There, the Court held that an employer’s refusal to hire women with preschool-aged children, while hiring men with preschool-aged children, was sex discrimination. This was true even though a majority of applicants hired were women. The Court found that discrimination based on sex “plus” caregiving status was sex discrimination under Title VII. After Bostock, so too with transgender status and sexual orientation. The sex of the litigant neither disappears nor loses importance by the addition of caregiving status or transgender status. Rather, sex remains the relevant factor even if transgender status or sexual orientation is the employer’s claimed motivation. Just as in Phillips, “it has no significance [to Bostock] if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.”[18] Neither transgender status nor sexual orientation replaces Title VII’s sex categories, which remain undisturbed. As Bostock recognizes, LGBT persons are within Title VII’s sex classification and discrimination against them is recognized and redressed as sex discrimination. In other words, sex is not conflated with, changed by, or subsumed into, any person’s transgender status or gender identity.
Moreover, transgender status and sexual orientation are both “sex-plus” categories that can only be understood with biological sex held constant. The nouns we use to refer to sex and social gender are, perhaps unfortunately, the same. But Bostock should not be interpreted to conflate sex, a biological constant, with gender identity, an individual’s evolving expression of personal identity. While Bostock uses the term “identify” to describe both sex and gender (“identified at birth” and “identifies as” later in life), this does not mean that the later act of self-identification erases the first act of biological classification as a matter of fact. It should not do so as a matter of law, either. Because sex matters. Sex matters in a number of contexts directly because of physical differences and also matters to the social, cultural, political and legal work of undoing systemic sex-based discrimination, i.e., the relative status of advantage and disadvantage accorded to male and female persons. For this reason, transgender status as a personal affirmation of self-understanding and expression needs to be understood as separate from sex, worthy of recognition in its own right but not displacing sex classification.
Significantly, the term “gender identity” appears only once in the Bostock opinion and only to describe the arguments presented by the plaintiffs.[19] In contrast, the terms “transgender” and “transgender status” are used nearly fifty times. The Bostock holding rests entirely on “transgender status”. The Court’s failure to make liberal use of “gender identity” was plainly intentional. By relying exclusively on “transgender status” Bostock signaled a departure from a growing trend and, in doing so, refused to endorse both existing and proposed statutory schemes that allow “gender identity” to either override sex or subsume sex as a subcategory of gender identity.
Just as Bostock rejected use of the expansive term “gender identity”, it also deliberately confined its holding to the facts as presented to it: allegations that the litigants were terminated from employment because they were transgender or homosexual. The Court identified many socially and legally contentious issues surrounding transgender rights advocacy, but declined to address those issues and further declined to extend Bostock’s holding to other statutes or employment situations.
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say, sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”[20]
Many people across the political spectrum are concerned by conflicts between transgender rights advocacy and civil rights protections for women and girls. The Court clearly anticipates that such conflicts will result in further litigation: “[w]hether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”[21]
The issue at the heart of the conflicts the Bostock Court saves for a later day is whether employers, landlords, prisons, refuges, schools, gyms, or other public accommodations can treat transgender-identified persons in accordance with their biological sex when that sex is contrary to their self-identity. As the Court alludes to, there are times and situations when sex matters. Sex matters when privacy is at issue.[22] It matters in sports.[23] It matters when confining or managing individuals in prisons[24] or sheltering them in emergency or temporary housing. Sex may be a bona fide occupational qualification in employment.[25]
There is nothing in Bostock to suggest that extension of civil rights protections to LGBT persons has changed the body of sex equality law, on which Bostock depends, by replacing sex with gender identity. Rather, Bostock’s reliance on sex as the protected characteristic strongly suggests that where sex matters for purpose of sex equality law, it will still matter, transgender identity notwithstanding. Precedents which allow single-sex housing, bathrooms, changing rooms, sports, and job classifications are not implicated or affected by Bostock’s holding or its reasoning. As the Court stated, call it what you will, discrimination on the basis of transgender status is sex-based discrimination. And where the law allows distinctions to be drawn on the basis of sex, it is sex, not identity, that is, and should remain, the relevant determinant.[26] Bostock does not replace sex with gender identity. Nor should E.O. 13988.
The narrowness of Bostock’s holding, its explicit grounding in biological sex, and its refusal to consider expansion of its holding to other statutes argues for a measured approach to enforcement of E.O. 13988. In expanding the reach of Bostock, the Agencies acting at its behest are obligated to recognize that sex, and sex discrimination, are at the center of Bostock’s reasoning. They should not replace sex with gender identity, and protections for transgender persons should not be permitted to destroy or impinge upon sex-based protections for women and girls. Bostock neither replaces sex with gender identity, nor does it mandate sex-blind policies–fidelity to Bostock’s reasoning should not do so either.
AGENCY APPLICATION OF THE EXECUTIVE ORDER MUST COMPLY WITH EXISTING LAW
I. E.O. 13988 Contains Self-Limiting Language
The Executive Order explicitly recognizes that extension of Bostock’s proscription on discrimination against LGBT persons must comply with existing law. E.O. 13988 includes self-limiting language: “Under Bostock’s reasoning, laws that prohibit sex discrimination…prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.” (emphasis added) Additionally, Section 4(b) of E.O. 13988 states that it “shall be implemented consistent with applicable law”. (emphasis added) Far from being mere boilerplate, this language militates against any interpretation that Agencies can or should go beyond existing law to effectuate the policy of E.O. 13988.
Our reading of Bostock suggests that where statutory or regulatory schemes recognize and enforce sex-based classifications as important for effectuating privacy, sex equality, and/or safety interests, those statutes contain “sufficient indications” that differentiating on the basis of sex irrespective of gender identity is allowed. That is, single-sex accommodations or distinctions currently allowed by law remain “applicable law” limiting the scope and application of E.O. 13988. For example, Title VII’s bona fide occupational qualification allows employers to hire or employ people on the basis of their sex if “sex…is a bona fide occupational qualification for employment.”[27] Accordingly, prisons have been permitted to employ female guards in contact positions within female prisons in order to protect female inmates from sexual misconduct by male deputies, maintain jail security, and protect inmate privacy. These considerations are all reasonably necessary to the essence of prison administration.[28] Single-sex prisons are constitutionally allowed for security reasons,[29] which include the safety of women prisoners.[30] These allowances are based on the understanding and reality that sometimes sex matters. They are meant to ensure substantive equality for women and girls who face discrimination and violence because of their sex. E.O. 13988 disallows substituting either gender identity or transgender status in place of sex in such allowances because doing so would be inconsistent with statutory language, intent, and other applicable law.
This self-limiting language provides further support for continuing to give full effect to existing statutory provisions and long-standing regulatory schemes that provide affirmative measures to uphold the substantive equality of women and girls. Nowhere is it stated or implied in E.O. 13988 or in Bostock that the intent or necessary effect of extending civil rights protections to LGBT persons is to reduce existing sex discrimination protections for women. Application of E.O. 13988 should be mindful of both its language and the body of sex equality law that provides single-sex spaces and allowances.
II. An Overly Broad Interpretation of E.O. 13988 Risks Overreach and Legal Challenge
A broad interpretation of E.O. 13988 at odds with Bostock and existing sex equality law risks overreach and legal challenge. An Executive Order interprets but does not make law. An Executive Order which exceeds authorizing law, i.e., an Act of Congress or the Constitution, is considered to have been issued outside the scope of executive authority and is termed “ultra vires“ (“outside the powers”).[31] Agencies should use care not to extend the reach of E.O. 13988 beyond the bounds of existing law. As discussed above, the Bostock holding prohibits discrimination on the basis of transgender status, not gender identity. Yet E.O. 13988 erroneously instructs Agencies to revise rules and regulations to prohibit discrimination on the basis of “gender identity”. While the E.O. does not define “gender identity”, its use of this term signals a concerning overreach given how the term is defined elsewhere to override sex.
The Bostock Court significantly chose the term “transgender status” rather than “gender identity” to describe the protection Bostock requires. Though neither phrase is well-defined, “gender identity” is the term most commonly incorporated into state anti-discrimination statutes to protect transgender people. More than twenty states currently provide some form of anti-discrimination protection on the basis of “gender identity”.[32] These are important civil rights protections, but most states’ statutory schemes suffer a pernicious flaw: “gender identity” is positioned as a direct legal replacement for sex and must be recognized regardless of sex.[33] The hierarchy of dominance created by “gender identity” statutes is replicated in the proposed Federal Equality Act in which “gender identity” has been inserted as a required proxy for sex even when single sex classifications are legally permissible—including in Title IX’s allowance for single-sex sports, housing, and changing facilities.[34] In short, single-sex spaces and accommodations cease to exist. In line with these problematic constructions of “gender identity”, E.O. 13988 strongly and erroneously suggests that access to single-sex spaces should be governed not by sex, but by the undefined term “gender identity.” These instructions represent both a misreading and misapplication of the Bostock holding.
We support application of E.O. 13988 consistent with Bostock’s actual reasoning. For the first time in U.S. history, lesbians, gay men, bisexual persons, and transgender persons will receive federal antidiscrimination protection. As a result, the rights of people with same-sex sexual orientations and transgender status are protected in such important areas of life as education, housing, and health. Feminists celebrate this advancement of human rights in the U.S. However, we do not support an interpretation of E.O. 13988 that would, effectively, replace sex with gender identity by conflating the two. There is a significant risk that Agencies, in their zeal to address transgender discrimination, will err by conflating gender identity (or transgender status) and sex. There is no authority in E.O. 13988, nor in existing law, which requires or allows such conflation. As the Supreme Court stated in Bostock, “two causal factors may be in play — both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care.”[35] Sex remains the necessary causal factor for anti-discrimination law. Failure to recognize this fundamental precept, and acting outside the scope of sex discrimination laws, puts civil rights protections for women and protections for transgender persons in conflict.
For example, a prison administration might seek to maintain its policy of assigning female guards to contact positions in women’s prisons, and male guards in men’s prisons, as a sex-based BFOQ under Title VII.[36] The law currently allows such sex-based BFOQs for multiple reasons, including the privacy and safety of inmates, the safety of guards, and maintenance of prison security. These are sex-based considerations that do not change with an assertion of gender identity. From a feminist perspective, conflation of the guards’ sex with their gender identity fails to protect the privacy and safety interests of the female inmates. Recognition of the guards as male appropriately balances the Title VII interests of the guards under the BFOQ standard and the constitutional privacy interests of the female inmates (a balancing that has been repeatedly done and supported in case law). To accept the claim that a person’s self-stated identification requires, or even allows, redefinition of that person’s sex is to deny women—the class of female persons historically and presently oppressed because of their sex—any opportunity for adjudication of their legitimate rights and interests in bodily privacy and safety from persons whose sex is male regardless of their gender identity.
Conflation of sex with gender identity also renders sex-related data unreliable and misleading. Data collection on transgender persons as a class and women as a class that does not distinguish between the two forms of discrimination prevents distinct collection of data on women with respect to both their experience of sex-based disadvantage compared with men and their experiences and needs in contexts where their sex is directly of concern. This can be harmful in a medical context for individual transgender persons as well as for women, and result in an inability to study women’s medical problems with any degree of accuracy. It also renders unreliable statistics on matters of great concern to women, such as rape and domestic violence and the pay gap between men and women with compounding impact on women who are multiply impacted by discrimination based on race and/or disability as well as sex.
Potential conflicts arising between diverse forms of discrimination that have been brought under the umbrella of sex-based discrimination should be accounted for in all agency reviews of current law, and care must be taken to resolve them fairly in compliance with existing law. If Agencies show awareness of this likelihood and review any proposed changes with a view toward minimizing these conflicts, they can also minimize the chance of a successful legal challenge based on impingement of women’s existing rights from the outset.
III. Agencies Must Address Sex as an “Overlapping” Form of Discrimination
Other provisions of E.O. 13988 also limit its application. The E.O. states that “[i]t is also the policy of [the Biden] Administration to address overlapping forms of discrimination.” The two grounds explicitly mentioned are race and disability. Sex is not explicitly recognized as a grounds of potentially overlapping discrimination or oppression. But it should be. Sex is historically and currently a major axis of oppression for over half of the world’s population.[37] While E.O. 13998 directs Agencies to incorporate LGBT protections into sex discrimination laws, it is imperative that sex not be displaced by, or subsumed into, the new categories. Agencies must be cognizant of the intersectionality of sex when making recommendations—or not making recommendations—for policy change. Consideration of overlapping classes requires considering all the constituent overlaps: race, disability, ethnicity, sexual orientation, gender identity—and sex. These categories intersect one another without displacing any of them.
Lesbian existence, for example, is itself a site of overlapping oppressions which must be understood and navigated to realize the full promise of E.O. 13988. “It is important in particular that lesbians not be used as a wedge and that our own intersectional identity as lesbians, along with other intersectional identities we may have, remains intact. We do not need or want ‘protection’ from religious fundamentalists, we do not want to be used against transgender persons, and we do not want our identity as lesbians or our hard-won spaces where we can come together as lesbians expropriated by male persons whether they sincerely claim to identify as women and lesbians or whether they are simply taking advantage of transgender advocacy to bully and sexually harass us.”[38] Agencies must take full account of these potential conflicts within their plans.
HOW TO INFLUENCE IMPLEMENTATION OF E.O. 13988
I. Contact Agency Heads
E.O. 13988 does not itself rescind any law or rule. But its broad mandate to review and develop enforcement plans for existing programs and policies will result in updated guidance, enforcement priorities, and rules implementing laws prohibiting sex discrimination.Internal rules, hiring policies, and personnel policies can (and likely will) be changed without notice or hearing. For example, the EEOC or the Department of Education (if they have not done so) may update their non-discrimination policies to reflect non-discrimination in hiring on the basis of gender identity and sexual orientation. And they will likely start collecting and investigating complaints of discrimination on the basis of sexual orientation or gender identity.
Activists can, and should, try to influence this review process by contacting the White House, the Attorney General, the Agency heads, and representatives in Congress. It is imperative that Federal officials be educated on, and cautioned against, conflating sex and gender identity to the detriment of women’s sex-based rights.
Comments or Petitions submitted to agency heads preparing Plans should be submitted as soon as possible so that they may be considered before April 30, 2021, when the Plans must be submitted after consultation with the Attorney General.
II. Participate in Comment Periods
After the Attorney General-approved Plans have been developed, E.O. 13988 explicitly invokes the formal rule-making process of the Administrative Procedure Act (“APA”), directing Agencies to take actions “consistent with applicable law, including the Administrative Procedure Act (5 U.S.C. § 551 et seq.)”. The federal rule-making process mandated by the APA does not apply to internal policies. However, any changes to the Code of Federal Regulations (the “CFR”) must go through the APA process, which will likely take several months after the April 30th deadline in E.O. 13988. The CFR are the implementing and enforcement regulations for Federal statutes. Written by the administering Agencies, they provide direction, guidance, and instruction for enforcement of Federal statutes, including statutes which prohibit sex discrimination such as Title VII (29 C.F.R. § 1600 et seq.) and Title IX (34 C.F.R. § 100 et seq). These CFRs are the “implementing regulations” referred to in E.O. 13988. Accordingly, President Biden is instructing his Agency heads to consider and propose changes to the CFRs regarding sex discrimination.
Before such changes are made, the APA requires that notices of proposed and final rulemaking be published in the Federal Register and that the public be given the opportunity to comment on notices of proposed rulemaking. 5 U.S.C. § 553(b). Comments may be formal or informal and should be submitted as soon as possible after notice of the comment period is made public. This could occur as early as May 2021. Engaging this comment process is imperative because the CFRs control how sex-discrimination statutes are going to be enforced going forward.
For example, 29 C.F.R. § 1606.2 states that “Title VII…protects individuals against employment discrimination on the basis of race, color, religion, sex or national origin.” This language will likely be updated to reflect the addition of sexual orientation and gender identity. How such protections will be added and interpreted is the key. That is, will these new categories be added as separate bases of discrimination, as subsets of sex discrimination, or in some way displace sex as a protected characteristic? Will these new categories be defined? Will “gender identity” be distinguished from “transgender status”? These are all questions the implementing agencies, guided by consultation with the Attorney General, should be considering.
For another example, the Title IX CFRs currently permit single-sex sports teams, change rooms, housing and other accommodations. 34 C.F.R. § 106.32; 34 C.F.R. § 106.41. During President Obama’s presidency, the Office of Civil Rights issued what was known as a “Dear Colleague” letter stating that, for purposes of Title IX enforcement, sex and gender identity were to be treated as the same thing. Accordingly, schools across the country began allowing boys to play on girls’ sports teams and access girls’ locker rooms—over the objections of girls on the teams and in the locker rooms. The Obama letter was rescinded by the Trump Administration. But the terms of E.O. 13988 make clear that the Biden Administration is seeking to codify the “Dear Colleague” letter in the Title IX CFRs. While the “Dear Colleague” letter was merely advisory, a revised CFR would have the enforcement authority of the Federal Government behind it.
III. Framing comments
When submitting comments to Agencies and officials, it is helpful to show how a comment is supported by the language of either Bostock or E.O. 13988. It is important because any Agency changes must conform to the reasoning of the Bostock case, as it is the primary authority relied upon in E.O. 13988. Comments may fall generally into the following categories of arguments that can be used to support or oppose a proposed rule or other application of E.O. 13988:
- The reasoning and holding of the Bostock decision does not allow gender identity or transgender status to override sex.
- Single-sex classifications, where legally permitted by statute or regulation, are already narrowly drawn. They are well supported by women’s long established interests in privacy, safety, equality, and bodily autonomy.
- Per E.O. 13988, the existing law or regulation contains “sufficient indications to the contrary” of changes the Agency is recommending and therefore such changes are not authorized. The proposed agency implementation is overbroad and must be more narrowly drawn to minimize inconsistencies with existing law.
For example, Title IX contains legally permissible single-sex classifications that may represent “sufficient indications to the contrary” against conflating sex with gender identity. It permits schools to maintain single-sex admissions policies, 20 U.S.C. § 1681(a)(1), single sex housing, 34 C.F.R. § 106.32(b), athletic scholarships, 34 C.F.R. § 106.37(c), gym and health classes, 34 C.F.R. § 106.34(b), sports teams, 34 C.F.R. § 106.41(b), and locker rooms and bathrooms, 34 C.F.R. § 106.33. Title IX also allows schools to take account of sex when hiring employees to work in locker rooms or toilet facilities. 34 C.F.R. § 106.61.
Title VII also contains “sufficient indications to the contrary” against conflating sex with gender identity where sex is a bona fide occupational qualification for employment purposes, 42 USC § 2000e-3(b).
- Per E.O. 13988, Agency heads must take overlapping forms of discrimination into account when proposing regulatory changes to include LGBT protections. Crucially, sex is an overlapping discrimination which must be recognized and accounted for.
CONTACT INFORMATION (see pdf)
Sex matters. It has mattered in countless ways throughout the history of this country, and sex inequality continues to afflict the lives of women. This white paper is necessary to clarify and correct the now-prevalent confusion of sex and gender identity. This confusion, replicated in statutes and proposed legislation, undermines the rights of women and girls. It reinforces the deep-seated cultural bias to disregard the rights of women and the wrongs done to women because of sex. Sex is the foundational form of discrimination recognized and addressed by the Bostock decision. A misreading of Bostock or a misapplication of Executive Order 13988 conflating sex and gender identity would effectively displace sex as a category of civil rights protection. Sex matters in reality and in law. That should not be changed by Agency action.
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[1]See A Promise to America’s Children, spearheaded by The Heritage Foundation, the Family Policy Alliance, and the Alliance Defending Freedom: https://promisetoamericaschildren.org/about-us/
[2] As the Biden Administration commendably moves forward with extending civil rights protections to LGBT persons, conservative political organizations such as the Heritage Foundation and Family Policy Alliance are spending millions of dollars and resources to appeal to existing anti-LGBT sentiment with the goal of placing and expanding broad religious-belief exceptions into existing civil rights protections. As feminists, we oppose such exceptions to the law on the basis of subjective belief structures. One need only look to the holdings of the Supreme Court which have expanded the ministerial exception to Civil Rights laws Our Lady of Guadalupe School v. Morrissey-Berru, 140 S Ct. 2049 (2020), and undermined the ACA’s birth control coverage, Little Sisters of the Poor v. Pennsylvania, et al., 140 S. Ct. 2367 (2020) to see the danger of an overweening religious rights jurisprudence.
[3] See Appendix B: “Women’s Sexed Status in U.S. History, Custom, Law and Economics”.
[4] While we anticipate that some may use a narrow reading of Bostock to challenge the advancement of civil rights to LGBT persons or to expand religious exemptions to civil rights statutes, we reject those arguments. We address solely the confusion of gender identity with biological sex and the harms that flow from such confusion.
[5] Adams v. Sch. Bd. of St. Johns Cnty., 318 F. Supp. 3d 1293 (M.D. Fla. 2018); Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020). In contrast, the Sixth Circuit recently stated that “Title VII differs from Title IX in important respects: For example, under Title IX, universities must consider sex in allocating athletic scholarships, 34 C.F.R. § 106.37(c), and may take it into account in ‘maintaining separate living facilities for the different sexes.’ 20 U.S.C. § 1686. Thus, it does not follow that principles announced in the Title VII context automatically apply in the Title IX context.” Meriweather v. Hartop, et al., Case No. 20-3289, p. 20 n4 (6th Cir. Mar. 26, 2021). This is an important distinction that should not be overlooked by implementing Agencies.
[6] Appendix A, “Implications for Female Prisoners of Executive Order 13988”.
[7] This statement of Bostock’s holding is not accurate, as Bostock extends protection to “transgender status”, not “gender identity”. Bostock v. Clayton Cty., 140 S. Ct. 1731, 1741 (2020) (“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”).
[8] 44 U.S.C. § 3502(1) defines an agency as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency”. It specifically excludes the Government Accountability Office, the Federal Election Commission, “the government of the District of Columbia and of the territories and possessions of the United States”, and “Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities.”
[9] 44 U.S.C. § 3502(5) defines “independent regulatory agency“ as: “the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission[.]”
[10] Title VII states, in relevant part, that “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex”. 42 U.S.C. § 2000e-2(a)(1).
[11] 140 S.Ct. at 1739.
[12] Id.
[13] Id. at 1746-47.
[14] Id. at 1737.
[15] Id. at 1742.
[16] Id. at 1741.
[17] Id.
[18] Id. at 1744.
[19] “The employees counter by submitting that, even in 1964, the term [sex] bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation.” Id. at 1739.
[20] Id.at 1753.
[21] Id.
[22] “Inmate privacy encompasses the inmate’s ‘interest in not being viewed unclothed by members of the opposite sex’—an interest that ‘survives incarceration’ despite prisoners’ diminished privacy expectations. In the same vein, inmates have a privacy interest in having non-emergency strip and pat searches—a pervasive fact of prison life—performed by guards of the same sex.” Teamsters Local Union No. 117 v. Wash. Dep’t of Corr., 789 F.3d 979, 990 (9th Cir. 2015).
“Without question, permitting educational institutions to provide separate housing to male and female students, and separate educational instruction concerning human sexuality, was to protect students’ personal privacy, or discussion of their personal privacy, while in the presence of members of the opposite biological sex.” Texas v. United States, 201 F. Supp. 3d 810, 833 (N.D. Tex. 2016).
“When, however, a gender classification is justified by acknowledged differences, identical facilities are not necessarily mandated. Rather, the nature of the difference dictates the type of facility permissible for each gender. The point is illustrated by society’s undisputed approval of separate public rest rooms for men and women based on privacy concerns. The need for privacy justifies separation and the differences between the genders demand a facility for each gender that is different.” Faulkner v. Jones, 10 F.3d 226, 232 (4th Cir. 1993).
“Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).
[23] 34 C.F.R. § 106.41(b) schools “may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.”
10 U.S.C. § 4342 provides that academic and other standards for women admitted to the Military, Naval, and Air Force Academies “shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals”.
[24] “State prisons have long segregated prisoners by gender for legitimate and obvious security reasons. This segregation is substantially related to an important government objective, that is, the safety of the prisoners.” Fernandez v. California, No. 2:10-cv-3198 KJN P, 2012 U.S. Dist. LEXIS 52609, at *3 (E.D. Cal. Apr. 11, 2012).
“It is beyond controversy that male and female prisoners may lawfully be segregated into separate institutions within a prison system. Gender-based prisoner segregation and segregation based upon prisoners’ security levels are common and necessary practices.” Klinger v. Dep’t of Corr., 107 F.3d 609, 615 (8th Cir. 1997).
[25] Dothard v. Rawlinson, 433 U.S. 321, 335-36 (1977); Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 753 (6th Cir. 2004) (“Viewed in proper perspective, the exclusion of males from these positions is ‘reasonably necessary’ to ‘the normal operation’ of the MDOC’s female facilities. The MDOC reasonably concluded that a BFOQ would materially advance a constellation of interests related to the ‘essence’ of the MDOC’s business–the security of the prison, the safety of inmates, and the protection of the privacy rights of inmates–and reasonable alternatives to the plan have not been identified.”).
[26] Ontologically and experientially, transgender identity itself requires sex to be understood as a constant against which a person’s self-identification can be understood as transgender. As such, gender identity is already distinct from sex and should legally be understood as such. Sex should not be legally or functionally replaced with gender identity in the body of sex discrimination law.
[28] Teamsters Local Union No. 117 v. Wash. Dep’t of Corr., 789 F.3d 979, 990 (9th Cir. 2015).
[29] Jeldness v. Pearce, 30 F.3d 1220, 1228 (9th Cir. 1994) (“prisons have special security concerns that other educational institutions do not, and that the genders are segregated for security reasons”).
[30] Richards v. Snyder, No. 1:14-cv-84, 2015 U.S. Dist. LEXIS 76061, at *29 (W.D. Mich. June 12, 2015) (“Obviously, the decision to house women at different facilities than men is rationally related to the government’s interest in protecting the safety of its female prisoners”).
[31] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863 (1952).
[32] Movement Advancement Project https://www.lgbtmap.org/equality-maps/non_discrimination_laws
[33] As an example, see Iowa Code § 216.2(10), which defines “gender identity” as “a gender related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth.”
[34] The proposed Equality Act would amend Title VII’s BFOQ by equating sex and gender identity and requiring that when “sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.” H.R. 5 § 7(c)(2) – Employment (117th Cong. 2021). It would also amend multiple statutes, including Title VII and Title IX, which currently allow for single-sex accommodations, by replacing sex with gender identity: “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.” H.R. 5 § 9(2) (117th Cong. 2021).
[35] Bostock, 140 S.Ct. at 1742.
[36] Dothard v. Rawlinson, 433 U.S. 321, 335-36 (1977); Teamsters Local Union No. 117 v. Wash. Dep’t of Corr., 789 F.3d 979, 990 (9th Cir. 2015).
[37] See Appendix B: “Women’s Sexed Status in U.S. History, Custom, Law and Economics”.
[38] Tina Minkowitz, Submission to the UN Expert on Sexual Orientation and Gender Identity.
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