Executive Order 13988: An Analysis 

What is an Executive Order and how does it work?

 

The U.S. Congress makes laws which the Executive Branch is responsible for carrying out and enforcing. The Executive Branch is comprised of the President and the federal agencies, such as the Department of Education, Housing and Urban Development, and the Department of Justice.

 

One avenue for the President to carry out the laws is to provide formal direction to federal agencies as to *how* to implement the laws. This can be done by "Executive Order." At least in theory, Presidents are not permitted to "change" the law via EO’s; they are only supposed to provide instruction where there is discretion or to provide priority or emphasis to existing law. Future presidents can rescind EO’s, although this has been challenged in court under arguments such as discriminatory animus.  

 

At first glance, it appears as though the impact of EO’s would only be on the federal government. So, for example, only on federal prisons (which houses less than 15% of the U.S.’s incarcerated population), not on state prisons or county or municipal jails. However, through funding mechanisms, EO’s can impact state and local governments as well. Many institutions run by non-federal governments, such as schools and prisons, receive federal funding. Through this funding, the federal government can enforce its rules and policies on non-federal government institutions. Meaning, those institutions risk losing federal government funding if they do not follow the rules (the rules being impacted by EO’s) imposed by federal agencies.

 

This is particularly true in the prison context as the Prison Rape Elimination Act (PREA) specifically reduces federal funding for state prisons if they do not certify compliance with “national standards.”  34 USC Ch. 303. These specific “standards” are not codified in PREA itself (which was a law passed unanimously by Congress in 2003), rather they are rules developed by the Department of Justice (of which the federal Bureau of Prisons is a part).

 

What does EO 13988 say?

 

The Biden EO 13988 on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation was issued on 20 January 2021. The EO has two main components: Policy, which is a series of aspirational statements and goals; and Enforcement, which directs federal agencies how to carry out those goals.

 

This EO is not specific to any one agency or law; it applies to all of them, which would include the federal Bureau of Prisons, a component of the Department of Justice.

 

The EO provides no definition of “gender identity.” Lacking such definition results in self-identification; anyone can identify into a “gender identity.” It should be noted: Although PREA *rules* address gender identity, there is no existing federal *statute* which provides legal protection on the basis of “gender identity.”

 

All persons should receive equal treatment under the law, no matter their gender identity.” EO 13988, Section 1.

 

Since “gender identity” is not already a legally protected category under federal law, how does this EO justify creating such a category? (Recall, EO’s cannot create new law; they can only interpret existing law.) The EO relies on the relatively narrow Supreme Court case of Bostock v. Clayton County, 590 U.S. __ (2020). This case held that, in the very specific circumstance of sex discrimination employment claims under Title VII, the phrase in the law “’because of sex’ covers discrimination on the basis of gender identity and sexual orientation.”

 

In reaching this decision, the Supreme Court itself said that its ruling was limited to this type of claim, writing “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms or anything else of the kind.”

 

Ignoring this explicit limitation, the EO proclaims that “Under Bostock’s reasoning, laws that prohibit sex discrimination -- including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.), the Fair Housing Act, as amended (42 U.S.C. 3601 et seq.), and section 412 of the Immigration and Nationality Act, as amended (8 U.S.C. 1522), along with their respective implementing regulations -- prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

 

Using this as its basis for expanding sex to include “gender identity” throughout all of federal law, in Section 2 “Enforcing Prohibitions on Sex Discrimination on the Basis of Gender Identity or Sexual Orientation,” the EO gives federal agencies 100 days (until April 30, 2021) to:

 

a.     review all their actions (existing orders, regulations, guidance, policies, programs, actions) that relate to “sex” or which might be consistent with the policy of the EO,

b.     consider whether they need to revise, suspend or rescind their actions in order to be compliant with the policy of the EO, and

c.     develop a plan to carry out new actions.

 

What does it mean to apply EO 13988 to prisons?

 

Considering undefined, undefinable, subjective “gender identify” to be the legal equivalent of “sex” results in decimation of “sex” as a protected category in law. Anyone (literally *anyone*) can opt-into the category of “woman” and be legally entitled to be treated exactly as a woman would be treated; this includes being placed in a woman’s prison.

 

Codifying such rules undermines the provision of single-sex spaces and services, leaving women in prison vulnerable to being incarcerated with male prisoners in what will effectively become mixed-sex institutions.  (Strict application of the EO to other single-sex spaces, such as college dormitories and domestic violence refuges, will result in those also becoming mixed-sex facilities. A preliminary court judgment has already determined this applies in the college dormitory setting. College of the Ozarks states "fight has just begun" after injunction, temporary restraining order denied (cofo.edu))

 

Because the “policy” portion of the EO also covers employment (“Adults should be able to earn a living and pursue a vocation”), if applied to the prison setting the EO will enable males who identify as women to obtain positions of employment that are normally and legally reserved for women, including those that involve physical contact with or visual observation of female inmates. Prison systems which do not make these positions open to anyone who identifies as a “woman” (even if they are not, in fact, a woman) will be subject to discrimination claims based on “sex” (as under the EO “sex” now includes “gender identity”). (Worth noting is that this may have been the result under Bostock even without the EO. This simply underscores the problem with reading into the law (whether by the President through EO’s or by the courts) language and meaning which is not present in legislation. These are the results when bypassing the legislative role of the Congress.)