Years ago, when it looked like the fight for marriage equality was winding down, there was some concern among LGBTQ activists that victory on that one issue — as deeply important as it is — would obscure the myriad ways in which LGBTQ people continue to face discrimination. They were right. In the years since the Supreme Court made marriage equality the law of the land, polling has suggested that the wider American public assumes the federal government equally protects LGBTQ people from discrimination.
In fact, it’s not even most.
These critical victories must not allow us to lose sight of all the work left to be done, particularly for transgender Americans.
Other than marriage equality and employment rights (ruled on by the Supreme Court only this past June), there are no nationwide nondiscrimination protections for LGBTQ people. As a proud transgender woman and military veteran, I am certainly grateful that President Joe Biden has acted quickly, as promised, with executive orders this week that banned discrimination in the federal government on the basis of gender identity and sexual orientation and overturned former President Donald Trump’s trans military ban. However, these critical victories must not allow us to lose sight of all the work left to be done, particularly for transgender Americans.
This past summer, the Supreme Court handed down a surprise 6-3 majority ruling in Bostock v. Clayton County, holding that both gender identity and sexual orientation fall under “sex” as a protected class in regard to employment rights for LGBTQ people. The executive order issued by Biden on his first day in office simply expands this legal reasoning to include all areas of public policy within the jurisdiction of the federal government.
But while it’s a landmark moment for trans rights, even Biden’s order does not cover state and local jurisdictions. In most of the United States, LGBTQ people — particularly trans people — are still vulnerable to discrimination in housing, credit, public accommodations, jury selection and other aspects of the public square. For example, there are trans people who live in states in which they cannot be fired for their gender identity but lack even basic protections against discrimination for things such as using a public restroom that aligns with their gender identity or renting an apartment.
The solution to this problem lies in the Equality Act, proposed legislation that would ban all forms of discrimination on the basis of gender identity or sexual orientation throughout the United States. Although highly popular — nearly 70 percent of Americans consistently support it in polling — the legislation failed in the last congressional session because then-Senate Majority Leader Mitch McConnell refused to bring it to the floor for consideration. This was despite bipartisan passage in the House and widespread support from clergy, business leaders and other constituency groups. The Equality Act is expected to pass the House again, and we need to ensure that when Senate Majority Leader Chuck Schumer brings it to the Senate floor, we’re putting pressure on our senators to finally do the right thing.
And there are areas of policy, particularly for trans and nonbinary people, that can be addressed even without congressional action. Biden needs to ensure that the federal government immediately reinstates policies that allow incarcerated trans individuals to be housed in facilities that align with their gender identity. This was the policy under Presidents Barack Obama and George W. Bush. He can order that transgender asylum-seekers and people living with HIV and AIDS, among other groups, are immediately released from the custody of Immigration and Customs Enforcement (ICE). He should announce an aggressive plan to finally end the HIV and AIDS epidemic. He should also create an LGBTQ equity advisory council to lead his administration’s efforts to address the broad obstacles faced by LGBTQ people.
Perhaps, most urgently, Biden needs to implement a comprehensive plan to address the ongoing epidemic of violence against trans and nonbinary people. Last year, at least 44 trans and nonbinary were killed in the United States, the deadliest year on record. Overwhelmingly, the victims were Black and brown trans women. Only four weeks into the new year, two trans people have already been slain: Tyianna Alexander, a 28-year-old Black trans woman in Chicago, and Samuel Edmund Damián Valentín, a trans man in Puerto Rico. In Puerto Rico, a state of emergency was declared this week in response to recent, horrific violence against women and trans people.
The movement for equality is an ongoing effort. LGBTQ inequality did not end when homosexuality was decriminalized in the United States nearly two decades ago or when same-same marriage was declared the law of the land by the Supreme Court nearly six years ago. Despite an amazing first week for LGBTQ rights in the Biden administration, there is still so much work left to ensure all people are able to live, work and love in our country. I am confident that this new administration is committed to that fight, but the clock starts now. Let’s get to work.