Update: What is Happening with Biden Executive Order 13988? 

Our first U.S. campaign was a communication push to the federal Bureau of Prisons. The goal was to highlight potential negative impacts on incarcerated women and female staff were the Executive Order to be fully implemented in prisons. Thank you to everyone who wrote letters or sent emails.

 

With the passage of the 100-day deadline (April 30, 2021) for federal agencies to develop a plan in response to the EO, this campaign has ended, but we wanted to provide an update on how agencies are responding to the EO.

 

For background on how Executive Orders work and an analysis of EO 13988 in particular, please see here.

 

As a quick reminder, EO 13988 extends the definition of “sex” in U.S. law to include “gender identity.” “Gender identity” is not defined in the EO, resulting in it being an open category, available for anyone to opt into.

 

Now that we’re past the 100 day deadline, there is information from some agencies as to their approaches:

 

HUD

 

The Department of Housing and Urban Development (HUD) took less than one month to produce a memo (available here) determining that sex discrimination in the Fair Housing Act should be interpreted to include “gender identity.”

 

HUD also announced that this determination would apply to state and local agencies which enter into agreements with HUD. Meaning, “the state or local law either must explicitly prohibit discrimination because of gender identity and sexual orientation or must include prohibitions on sex discrimination that are interpreted and applied to include discrimination because of gender identity and sexual orientation.” This is a perfect example of how EO’s can be expanded beyond the confines of the federal government and permeate into other levels of government over which, theoretically, the federal government does not have control.

 

Further, HUD also extended the requirement to interpret “sex” to include “gender identity” to grant recipients. These include, according to HUD, public and private not-for-profit entities, demonstrating how EO’s can be expanded to control non-governmental organizations.

 

HUD’s realm extends beyond home-buying and typical apartment rentals. HUD’s determination also covers, for example, domestic violence shelters and college dormitories. Already the HUD memorandum has meant that a private university cannot ensure that its dormitories are single sex. This spring the College of the Ozarks, a Christian college, sued the administration over EO 13988, concerned it would be required to place males into female dormitories with female roommates. The Judge (an Obama appointee) denied the College’s preliminary request not to be subject to the EO, which the College intends to appeal

 

So, to be very clear: EO 13988, as applied to laws administered by HUD, means that women seeking a female-only refuge, such as a domestic violence shelter, cannot be assured that they will not have to share a space (including sleeping and showering quarters) with men. It means that no college student (which includes 18 year olds away from home for the first time) can be assured or guaranteed that they will not be forced to share a dorm room with someone of the opposite sex.

 

HHS

 

Health and Human Services (HHS) also adopted inclusion of “gender identity” into its administration of laws. These include being “subjected to discrimination under any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity available under this title.” 42 USC Sec. 18116(a).

 

This covers virtually every health care provider: a hospital which accepts Medicare patients (all of them), a teaching hospital where student doctors receive federal student aid (all of them), a small solo doctor’s office with any Medicare/Medicaid patients (almost all of them).

 

What can now be considered “discrimination” based on “gender identity”?

  • Honoring a patient’s request to see only a female doctor may be considered “discrimination” if a male doctor has self-identified as a “woman.”

  • A female doctor who refuses to book or conduct a gynecological exam for a male patient may be engaging in “discrimination.”

  • Men who have taken female hormones are eligible for breast cancer screenings under a CDC Early Detection Program. If a female technician (perhaps someone who went into this line of work particularly so she would not have to perform examinations on men) is uncomfortable conducting such an exam, she may be engaging in “discrimination.”

  • A hospital with a women-only wing will be engaging in “discrimination” if it does not accept male patients who “identify as women” in the wing.

 

DOJ – Title IX of Education Amendments

 

Approximately one month after issuance of the EO, the Department of Justice (DOJ) issued a memo to all federal agencies regarding their administration of Title IX. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” DOJ determined that the EO’s use of “gender identity” would be applied to Title IX.

 

This means that every educational entity or program which receives any federal funding is subjected to this determination. This includes almost every university and college (both public and private as they are bound by Title IX rules if they have students who receive federally backed student loans, which virtually all of them do), public elementary and secondary schools and prison systems which run educational programs. It would cover sports teams, locker rooms, bathrooms, scholarships. None could operate to exclude based on sex if someone’s proclaimed “gender identity” differs from their sex. This is how “gender identity” trumps “sex.” The “sex” class becomes meaningless if anyone can opt into it.

 

DOJ/BOP

 

The federal Bureau of Prisons and state prison systems can be impacted by determinations regarding Title IX, as most prison systems operate some educational programs bringing them under its coverage. But, thus far, BOP has not made a public determination on this.

 

Also, not a BOP determination, but relevant to DOJ’s application of EO 13988 in the prison context: Post issuance of the EO, DOJ submitted a Statement of Interest in a case involving a medical diagnosis of gender dysphoria of an incarcerated individual in a Georgia state prison. Interestingly, the Statement does not lean heavily on the EO (which, arguably, could result in default decisions being to house prisoners based solely on “gender identity”). Rather, DOJ’s submission is grounded in requirements under PREA standards, which provide for “individualized” and “case-by-case” housing assessments based on gender identity. (Note: These “standards” are rules developed by DOJ; they are referenced, but not articulated in the Act itself.) It does cite EO 13988 (once), only to say that “the President has issued an Executive Order that recognizes the right of all persons to be ‘treated with respect and dignity’ and to ‘be able to live without fear’ regardless of their gender identity or sexual orientation.”

 

It is unclear how much should be read into this largely status-quo DOJ statement, submitted before expiration of the EO’s 100 day review period. It may be that DOJ simply had not completed its review or had not yet made a determination about how to incorporate the EO into policies regarding housing prisoners. It could be that decisions were made but were not yet finalized on paper in a manner which could be submitted to the court. It’s possible that DOJ will simply rely on existing PREA standards (which allow for consideration of “gender identity” but permit an individualized assessment by prison officials) and will never make a public announcement that there is not a requirement to accept self-id gender identity without (any or limited) regard to other considerations.

 

So, as of this writing, the breadth of implementation of EO 13988 to prison systems in terms of housing or searches based on “gender identity” remains unclear. (Reminder: some use of “gender identity” already exists due to PREA rules.

Our next steps

 

BOP has placed Freedom of Information Act (FOIA) requests seeking its plans to incorporate the EO into policies into a queue which they say may take months to receive a response. We will update when we know more.

 

In partnership with WHRC-USA we have participated in filing FOIA (or the state equivalent) requests to every state prison system in the U.S. This will provide a snapshot of how the state prisons handled housing based on “gender identity” prior to any implementation of EO 13988. Important to note here that states have their own laws and policies (which exist alongside federal rules), so some states (like California) have laws which default to providing housing based on “gender identity” while others have no policies other than what is required under PREA.

 

 *** We are on the lookout for federal agency information on implementing EO 13988.

If you are aware of something not on this website, please email us. ***


How does EO 13988 relate to the so-called Equality Act, which has passed the House but remains pending before the Senate?

 

Recall that EO’s can (and often are) rescinded by subsequent administrations. In contrast, it is extremely rare that subsequent Congresses rescind legislation. The so-called “Equality Act,” which would enshrine “gender identity” into law, passed the House on February 25, 2021. It remains pending before the Senate.

 

Despite furious lobbying by the Act’s proponents, Senate Majority Leader Chuck Schumer has yet to bring the Equality Act for a vote. While Democratic party politicians publicly express the belief that the only opponents to the “Equality Act” are religious conservatives, it has become clear that there is an awareness that women - including progressive, liberal, Democratic-party voting women – have concerns with the Act and that the Democratic party may fear a backlash by voters should it be brought for a vote and pass.

 

It also appears unlikely that votes for the Act are there or that it would survive a filibuster. There are news reports citing anonymous sources that the constituent campaigns have worked. To that end, please contact your Senator to encourage them to vote “no.” (While you’re at it, please also contact Senators Schumer, Manchin, Sinema, Murkowski and Collins as their perspective on the Act and its chance of passage are critical.)

 

In the meantime, through EO 13988, those pushing for “gender identity” to be recognized in the law are, essentially, getting what they want: The EO is largely functioning as the “Equality Act” without Congress having to dirty their hands with it.