Executive Order 13988

WDI USA Women Push Back

President Biden’s Executive Order 13988 (EO) addressing “gender identity” and sexual orientation required all federal agencies to review their policies, regulations, and guidances within 100 days (commencing 1/20/2021), to determine what revisions should be made to prevent sex discrimination. As with the Equality Act, the EO does not treat “sex,” “sexual orientation,” and “gender identity,” as distinct categories. Instead, the EO collapses all three into the category “sex.” What this means is that biological sex and gender identity are treated as the same, thereby infringing women’s sex-based rights.

The EO cites the Bostock v. Clayton County (2020) Supreme Court decision as the rationale for redefining sex to include “gender identity” throughout federal administrative law. This is a grossly misleading interpretation of that ruling. In Bostock, the Supreme Court expressly limited its application to the employment setting, stating explicitly that it was not intended to apply in other settings. Further, in its decision, the Supreme Court did not state in any way that “gender identity” is a protected characteristic, as such. Instead, it held that discrimination on the basis of “transgender status” is a form of sex discrimination, without ever defining “transgender status.”

Nevertheless, the EO attempts to extend Bostock to other areas of Civil Rights law. As damaging as this is to sex-based rights for women and girls, it is important to remember that EOs do not carry the same weight as statutes; i.e. legislation passed by the Congress. They can be overturned with the stroke of a pen by the next president, or by legislation, and are more easily challenged in court than are statutes. 

In the short term, however, federal agency policy changes resulting from the EO are already harming women and girls. As soon as the EO was issued, Board President Kara Dansky initiated a “100 Days Project,” forming a team of WDI USA women to write letters to as many federal agencies as possible. Click the images below to read selected letters, as well as one letter we received in response from the Department of Health and Human Services.

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