An executive order is an instrument available to the US President seeking to direct the actions and manage the operations of the federal government. It is not a means of making law, which is the role of the US congress, nor can it countermand or contravene an existing law. Since congress also controls the public purse, no president can appropriate or easily divert funds to implement an executive order. Donald Trump learned this when seeking to pay for a border wall. It is explicitly stated in every executive order, which concludes with a set of standard “general provisions”, including the clause that “this order shall be implemented consistent with applicable law and subject to the availability of appropriations”.
Joe Biden has issued more executive orders in his first days in office than any modern president
All recent presidents have employed executive orders to fulfil campaign promises and send signals to their supporters. Joe Biden has issued more executive orders in his first days in office than any modern president, and many of his orders have been employed to signal to those on the left of his party that he is listening to their concerns. Chief among them is his “Executive order on preventing and combating discrimination on the basis of gender identity or sexual orientation”, which set off a Twitter firestorm with the hashtag #BidenErasedWomen. Organisations of the left committed to women’s rights have joined prominent voices on the right to condemn the new president’s move “to gut sex anti-discrimination laws and eliminate critical protections for women in the federal government”.
The order’s policy statement begins with pabulum – “every person should be treated with dignity and respect and be able to live without fear, no matter who they are or whom they love” – and concludes with intersectional virtue signalling – “discrimination on the basis of gender identity … often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability”. It is unclear, and certainly not clarified, how frequently transgendered disabled individuals have suffered discrimination, but the true concern of this “race or disability” statement is revealed in another sentence: “For example, transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence”.
It is clearly the case that any level of violence, including fatal violence, inflicted because of gender identity or sexual orientation is unacceptable and should be subject to criminal prosecution, which it is. It is now also clear, following a ruling of the Supreme Court of the United States (SCOTUS) issued on 15 June 2020, that workplace discrimination on the same basis is illegal. That case, known as Bostock v. Clayton County, did not concern transgender Black Americans or violence of any kind. Gerald Bostock is a white cis male, a gay man who was fired from his local government job after joining the Hotlanta Softball League. Two other cases were folded into the Bostock ruling. One involved Donald Zarda, a white gay man fired for revealing his sexual orientation, and the other Aimee Stephens, “who presented as male when she was hired”, and was fired when later she informed her employer, a funeral home, that she intended to live as a woman. Aimee, who died a month before the court opinion was published, was also white.
The executive order makes explicit reference to Bostock v. Clayton County, claiming that the reasoning behind the SCOTUS opinion would “prohibit discrimination on the basis of gender identity or sexual orientation”. In fact, the writer of the opinion, Justice Neil Gorsuch, explicitly rejects the opportunity to make gender identity or sexual orientation protected categories, relying entirely on biological sex as a protected category. Citing the Civil Rights Act of 1964, Gorsuch observes that:
There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, colour, religion, sex, or national origin. Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An 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.
The court’s reasoning, therefore, is that because the plaintiffs, all biological men, were fired for “traits or actions” that would not have been questioned if they were biological women, their employers violated Title VII. Gorsuch later offered an example of the type of trait or action he has in mind: “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague”.
The best way to protect Americans from harm would be to enact meaningful gun control legislation
SCOTUS did not state that biological sex and gender identity are equivalents and equally protected. It held quite the opposite opinion, as is made explicit in section II of Gorsuch’s opinion. Here he explains that the “court normally interprets a statue in accord with the ordinary public meaning of its terms at the time of its enactment”, in this case 1964. Therefore, “the only statutorily protected characteristic at issue in today’s case is ‘sex’ … referring only to biological distinctions between man and woman”. And: “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual [biological] men or women in part because of [biological] sex”. A great deal of time is taken explaining the words I have italicised, precisely in order to avoid adding “gender identity and sexual orientation” to the list of protected categories.
Let us return to transgender Black Americans, who feature in the executive order’s policy statement as an especially vulnerable group deserving of protection. The sentence is clearly inspired by A National Epidemic: Fatal Anti-Transgender Violence in America, an annual report published since 2015 by the powerful lobbying group, the Human Rights Campaign.
Does their data support the claim that there is an epidemic of fatal anti-transgender violence? The annual number of victims is consistently very low and not rising. The 2015 report record 21 victims in that year, noting it was more than the 13 recorded for 2014. In 2016 (21), 2017 (29), and 2018 (28, revised up in the 2019 report) the number of victims remained between 20 and 30. The 2019 report, in line with others, offers brief records of a further 22 deaths, with photographs of the victims. Again, consistent with earlier years, most of the victims (21) were black transgender women (that is to say, people who identified and lived as women), and one was a white transgender man.
The transgender man, Jordan Cofer, was killed by a sibling and was one of nine victims of a mass shooting at a bar in Dayton, Ohio, on 4 August 2019. Clearly, Jordan was not targeted because of his gender identification and was not, therefore, a victim of “Fatal Anti-Transgender Violence”.
Biden’s recent actions do not suggest the new president has the ability to bring left and right together
To qualify as “Fatal Anti-Transgender Violence” against people of colour, the deaths recorded in the HRC reports should meet a basic legal standard: that they were in part because of the gender identity, and in part because of race or ethnicity of the victim. However, most of the deaths collated by the HRC are the results of violent crimes that had quite different – or unknown – motivations. Like most murders, many were committed by a partner or relative. Like most murders in the USA, they were committed using a gun. The most recent complete annual data on deaths, for 2018, record 13,958 firearm homicides, being 74 per cent of all murders.
There were almost twice as many suicides by firearm as homicides in the USA, which brings us to a real epidemic of fatal violence. Death by suicide, which has become the second leading cause of death for Americans aged 10-34. Between 1999 and 2018, deaths by suicide increased overall by 35 per cent, and by more than 2 per cent each year since 2006. In 2018, there were 48,344 suicides in the USA, and half of them involved guns.
The best way to protect many Americans from self-harm, victims of domestic abuse – mostly women – from violent death, and black transgender people from fatal violence, would be to enact meaningful gun control legislation. Joe Biden has a plan for that, but it would take amazing dexterity to steer this through congress. His alienation, on his first day in office, of a large number of his supporters – women and centrists – to appease a vocal minority with a fringe concern does not suggest the new president has full command of his brief or the ability to bring left and right together.
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