Preventing Discrimination Based on Gender Identity

January 20, 2021

On his first day in office, President Biden signed Executive Order 13988 directing every federal agency to review and revise its regulations to ensure protections against discrimination on the basis of gender identity and sexual orientation, applying the Supreme Court's reasoning in Bostock v. Clayton County (2020). The order's broad scope extended to education, healthcare, housing, and employment, raising concerns about potential conflicts with religious liberty and First Amendment free exercise protections. Constitutional tensions centered on whether executive reinterpretation of existing civil rights statutes across all federal programs exceeded the scope of Bostock's Title VII holding, and whether the order adequately accommodated religious objections under the Religious Freedom Restoration Act.