Biden’s Anti-Discrimination Order Is Executive Vaporware

Of 14 executive orders signed by President Joe Biden during his first week in office, the most popular with the public, according to a tabulation by Five Thirty-Eight, is the one “prohibiting workplace discrimination based on sexual orientation and gender identity.” 

Which is mighty strange, because if there’s anything Biden’s Executive Order 13988 doesn’t do, it is prohibit workplace discrimination based on sexual orientation and gender identity. 

Any such attempt would arrive too late, since last summer the Supreme Court ruled 6-3 in Bostock v. Clayton County that existing federal law against sex discrimination in the workplace already prohibits discrimination based on those factors

So what if anything does the Biden order do? Good question. 

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Comments (11)
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  • Absolutely. Laws should be made by legislators after much discussion and negotiation.

    1. If we elected philosophers, yes, but until then there’s nothing more discouraging than hearing legislators discuss and negotiate the impossible. They don’t know how to discuss and negotiate. The best they can do is sniff the wind and recite their daily talking points.

      Our conflicts are irreconcilable and implacable. Socrates clarified that long ago. The best we can do is know our own minds and commit to one faction or the other.

  • Well-written, critical without being snarky, and you linked to the actual EO - great job, thank you. I appreciate The Dispatch for providing this kind of high-quality writing.

  • "Even if the executive order were to direct the Cabinet departments and agencies to take the most liberal reading—which it doesn’t in fact do—the courts will have the last word, unless Congress steps in to clarify matters."

    What language in the executive order suggests Biden does not want his agencies to give the most liberal reading? Is there even a word that suggests some moderation here?

    Don't these agencies then create their own regulations and have discretion in how these regulations are interpreted? I don't practice in that area often but that is how I understood it.

    I agree we need to wait and see how this is fleshed out. But Biden has not done a thing to suggest he wants any of these agencies to be moderate in anything they do - at least domestically.

    You say oh never mind this executive order because he doesn't give every detail of what he wants. But it is fairly clear this is a general directive to his agencies to push every envelope they can. This sort of directive to the huge executive bureaucracy is going to have a much larger effect than just about anything the courts or congress will do.

    I credit conservatives for understanding the specific wordings of things. But they never understand the impact. If they did we wouldn't have had the commerce clause in the constitution. :)

  • "Because the argument was based in textualism, it implied that the broader reading had been there within the four corners of the text all along, just not grasped until now."

    No they grasped it. Previously they just allowed the law/regulations to allow different treatment between the sexes such as different bathrooms and dress codes. To suggest this is somehow a Eureka moment for the court is just not true.

    "All of which is to say that we are going to need to wait for the courts to clarify whether the many other sex discrimination laws on the books have been broadened by Bostock, and if so how."

    So if you don't want to have your company hit with a huge lawsuit you play it safe and read it in the most restrictive way. No HR manager wants to be the person who said it was fine to do X and then find their company stuck with a huge federal lawsuit.

    So then it becomes corporate culture to say you need to do X or you are a bigot. And then all the people that work there start to think that only bigots think you don't need to do X. And that seeps into the culture at large. This is why ivory tower wonks fail to understand the impact of a ruling like Bostock.

    For a similar development you might look at religion in schools. Many people believe it is unconstitutional to pray in a public school or at a public school event. The fact that technically the law does not prevent students from praying as much as they want - and indeed the constitution almost certainly guarantees they can pray as much as they want (at least not in a disruptive way) we get these ruling with broad language and it causes cultural changes that are often more important than legal changes.

    1. Do people really think that they can’t pray in public school? Schools can’t make prayer mandatory, but of course people can pray. I wonder how people who believe this think it is enforced...Prayer Police?

      I attended public school from Kindergarten to BA, and did not hear this fallacy.

      1. According to polls people think that.

    2. And sorry about suggesting you are a "wonk" I don't mean to name call. But I am sure you understand my point.

  • Thank you. I appreciate this article for its “cut and dried”-ness but mostly that it gives a much fuller context to the order and EOs as a whole than you get in most write ups.