President Joe Biden differs sharply from his predecessor when it comes to how the federal government should treat Americans who identify as transgender.
Biden is a progressive leveler. He embraces the transgender ideology unreservedly, demanding that society accept and normalize transgender people, whereas former President Donald Trump was more restrained, respecting the right of transgender people to exist without rearranging society to accommodate them or supporting the radical socially transformative goals of the left-wing transgender movement.
Trump banned some transgender individuals from military service; Biden welcomes them. Trump opposed letting transgender persons use school bathrooms corresponding to their gender identity; Biden does not. Trump opposed expanding civil-rights protections for transgender people in employment; Biden favors expanding such protections, not just in employment, but also in other realms. Biden supports sex-change operations for 8-year-olds; Trump did not. Biden has nominated the first transgender person for a post requiring U.S. Senate confirmation. Trump sought to protect religious freedom against possible claims made on behalf of newly recognized gender rights.
Biden’s quest for radical egalitarianism is aided by a changing legal environment.
He signed Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which builds on last year’s 6-3 Supreme Court decision in Bostock v. Clayton County. That decision read transgender people into the Civil Rights Act of 1964, holding they are protected from employment discrimination even though the statute doesn’t mention gender specifically. Biden ordered several agencies to review policies on gender identity and report back with recommendations for potential action.
That court ruling was a defeat for the Trump administration. During oral arguments, then-Solicitor General Noel Francisco said about the consolidated case, which also dealt with sexual orientation, “Sex means whether you’re male or female, not whether you’re gay or straight.”
This landmark judicial foray into the culturally contentious realm of sex versus sex roles brought an expanded meaning to the phrase “on the basis of sex” that appears in the Civil Rights Act.
Decision author Justice Neil Gorsuch wrote the ruling dealt with employment alone and did not apply to “sex-segregated bathrooms, locker rooms, and dress codes,” all of which are regulated under another law that was not at issue in the court case, Title IX of the Education Amendments Act of 1972.
But Biden’s sweeping order declares: “Children should be able to learn without worrying about whether they will be denied access to the rest room, the locker room, or school sports. …All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
The ACLU celebrated the executive order, writing that it was “a salve after four years of relentless attacks by the Trump administration on LGBTQ people in all aspects of life.”
“This administration is prepared to vigorously defend and enforce the legal protections that LGBTQ people enjoy under federal law,” the ACLU wrote.
At the 2016 Republican nominating convention, Trump presented himself as a defender of LGBTQ rights, saying, “As your president, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology.” The ideology referenced was Islamism, which does not tolerate the LGBTQ movement.
The Biden order applies the court’s reasoning in Bostock on gender identity to laws that already forbid sex discrimination: the Education Amendments Act of 1972, Fair Housing Act, and the Immigration and Nationality Act. This means, among other things, that any schools, including public high schools, that accept federal funding have to allow biological boys who self-identify as girls onto girls’ sports teams or be penalized.
If such a policy were widely enforced girls’ and women’s sports would be in jeopardy, Olympic track-and-field coach Linda Blade told the Wall Street Journal.
“Finished. Done,” Blade said. “The leadership skills, all the benefits society gets from letting girls have their protected category so that competition can be fair, all the advances of women’s rights—that’s going to be diminished.”
Pro-transgender policies hurt women, said James Shupe, who after serving as an icon of transgender activism denounced the movement and the idea that one can change one’s sex as a fraud. Shupe was the first individual in Oregon to receive legal recognition for his “non-binary” sex designation, only to ask after his epiphany to have the status rescinded and his “male” sex restored on his birth certificate.
“Females bear the brunt of the suffering in all of it and President Biden and the Democrats don’t care, all for the sake of politics,” he told The Epoch Times in an e-mail interview.
“Even worse, a lot of females are perpetuating harm against other women and girls while believing they’re doing the right thing to support these transgender policies because they think it’s the right thing to do because they’ve been led to believe that.”
“And it’s sad,” Shupe added. “If only everyone would spend more time learning about the sordid history of gender identity. If they did, they wouldn’t be so quick to celebrate having men like me in their female bathrooms.”
Biden changed military policy on transgender people, accomplishing change with the stroke of a pen.
In Executive Order 14004, Biden revoked Trump’s rule that prevented some transgender individuals from serving in the armed forces.
Stating that “an inclusive military strengthens our national security,” Biden said it was his “conviction as Commander in Chief of the Armed Forces that gender identity should not be a bar to military service.”
Biden took a shot at Trump, writing that “the previous administration chose to alter” an Obama-era policy “to bar transgender persons, in almost all circumstances, from joining the Armed Forces and from being able to take steps to transition gender while serving.”
Instead of “relying on the comprehensive study by a nonpartisan federally funded research center, the previous administration relied on a review that resulted in a policy that set unnecessary barriers to military service.”
Shupe said, “President Trump really had a fairer and more balanced policy concerning the gender dysphoria ban,” which was “often and unfairly called the ‘transgender ban’ for effect by media outlets and to garner public support, but in reality it was a ban on gender dysphoria: a serious mental illness, something I’m all too familiar with because I suffered from it while I served and still do.”
Trump’s policy allowed gender-dysphoric individuals to serve “if you remain mentally fit, can abstain from hormones and surgeries, and can serve in your birth sex” without embracing “a false reality” such as changing your sex on your personal identification, Shupe said.
“What you dressed up as or who you slept with off-duty was your business.”
Biden endorsed sex-change operations for 8-year-olds during an October 2020 townhall meeting. Trump never endorsed such a radical position.
Peter Sprigg of Family Research Council Action said at the time Biden was “wrong to encourage gender transitions for 8-year-old children. The implementation of invasive physiological gender transition procedures … upon minors raises grave concerns.”
Biden has nominated Dr. Rachel Levine, until recently Pennsylvania’s health secretary, to be Assistant Secretary of Health, the first transgender individual to be nominated for a Senate-confirmed position.
Levine favors administering puberty-blocking drugs to children under the age of 18 if they identify as the opposite sex and reportedly is open to surgical sex-reassignment being performed on such children without parental consent.
Critics fear the Biden-backed proposed “Equality Act,” which they characterize as a radical assault on constitutionally protected religious freedoms, and that passed the Democratic-controlled U.S. House of Representatives on Feb. 25, will be used to force the transgender ideology on society.
His comments have not reassured critics.
“Full equality has been denied to LGBTQ+ Americans and their families for far too long,” Biden said Feb. 19 on the introduction of the Equality Act.
Despite extraordinary progress by that community, “discrimination is still rampant in many areas of our society,” Biden said. “The Equality Act provides long overdue federal civil rights protections on the basis of sexual orientation and gender identity, locking in critical safeguards in our housing, education, public services, and lending systems — and codifying the courage and resilience of the LGBTQ+ movement into enduring law.”
Former President Trump slammed the proposed Equality Act during a speech at the Conservative Political Action Conference (CPAC) Feb. 28, saying its requirement that men who identify as women be allowed to participate in women’s sports would destroy female athletic competition.
“Young girls and women are incensed that they are now being forced to compete against those who are biological males,” Trump said. “It’s not good for women, it’s not good for women’s sports, which worked so long and so hard to get where they are.”
“The records that stood for years, even decades, are now being smashed with ease,” he said. “If this is not changed women’s sports as we know it will die.” For years in weightlifting, “every ounce is like a big deal for many years,” Trump said. “All of a sudden somebody comes along and beats it by 100 pounds.”
The Trump administration took a stand against the principles articulated in the Bostock decision days before it was handed down.
In an effort to protect religious freedoms, in June 2020 Trump’s Department of Health and Human Services (HHS) finalized a rule that followed federal court rulings finding the Obama administration overreached when it issued a rule prohibiting discrimination in health care and health insurance on the basis of patients’ “internal sense of gender.”
The rule dealt with Section 1557 of the Affordable Care Act, which made it unlawful to discriminate on the basis of “race, color, national origin, sex, age, or disability in certain health programs and activities.”
Biden is widely expected to reverse the rule.
Several Democratic state attorneys general sued Trump’s HHS to block the rule in a legal action filed July 20, 2020, claiming it “arbitrarily and unlawfully strips health care rights statutorily guaranteed by Section 1557 from transgender people, women and other individuals seeking reproductive health care or with pregnancy-related conditions, LEP [i.e., limited English proficiency] individuals, individuals with disabilities, and other individuals experiencing discrimination.”
HHS asked federal district Judge Alvin Hellerstein of New York to stay the proceedings to give the department time to review the case in light of Biden’s executive actions. The litigants consented and the lawsuit will be held in abeyance until May 14.