This is the second part of a two-episode series on Biden and LGBTQ+ issues. The first was last week’s interview with John-Paul Hayworth. This week we are focusing more on Biden’s career.
When Biden won the primary there were a lot of people on the left who were very disappointed. He was probably the most moderate candidate of the group, and many had been hoping for a more progressive Democratic contender like Sanders or Warren. And there are still many critics who feel that Biden is just a “status quo” president or that he will spend so much energy trying to make peace with Republicans that progressive goals will get lost in process.
But there is one area where Biden has always been ahead of the curve.
As a senator his record on LGTBQ+ issues is complicated. According to Amanda Becker and Trevor Hunnicutt, Biden backed “don’t ask, don’t tell” as part of a larger defense bill after voting to remove the amendment. As vice president, he supported its 2010 repeal. Though Biden also voted for the Defense of Marriage Act, he had previously opposed denying same-sex couples benefits.
But as VP Biden’s views on gender and sexuality took a decidedly progressive turn.
In 2012 Barack Obama announced his support for gay marriage. It was part of his “evolving” position on the issue, and he was the first president to openly support the rights of gay people to get married. But he might not have so quickly done so if Joe Biden hadn’t forced his hand.
On May 5th, in 2012 in an interview with Joe Biden, the then VP, Biden was asked, “You know, the president has said that his views on gay marriage, on same-sex marriage, have evolved. But he’s opposed to it. You’re opposed to it. Have your views … evolved?”
And Biden answered, “Look, I am vice president of the United States of America. The president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men and women marrying another are entitled to the same exact rights, all the civil rights, all the civil liberties. And quite frankly, I don’t see much of a distinction beyond that.”
Behind the scenes Obama’s campaign team exploded. Biden had gone off-script and endorsed and sensitive issue before the president was ready to, putting Obama in a very tenuous situation. Obama could either catch up to Biden or be seen as having a split in the ticket and being less progressive than his older, white campaign partner.
Obama had waffled on the issue over the years. In 1996 he had told a gay newspaper that he supported gay marriage. In 2004 he stated that marriage was just between a man and a woman. In 2008, when he was campaigning, he still took a position against gay marriage, but adopted the language of an “evolving” understanding of the issue. Many people saw this inconsistency as typical political pandering and progressives grumbled that Obama lacked courage in this particular area. Obama, like Biden, was in many ways a moderate president.
So when Joe Biden announced his support for gay marriage it was a huge political moment. Up until Biden the most supportive person in the White House of gay rights had been, of all people, Dick Cheney, whose daughter shaped his ideas and put distance between his and Bush’s positions on gay rights. But not even Cheney, whose family was directly impacted by the issue, had been as forthrightly supportive of the issue of gay marriage as Biden was.
And so, when Biden made his proclamation of support Obama was forced to choose a side. And he chose the right side of history. Biden’s impulsive honesty was a huge win, and in many ways a giant leap forward, for gay rights in the United States.
And that could have been the end of it. Because support for gay rights does not necessarily translate into support for other people. But Biden has consistently been at the forefront of supporting the rights of people to be safe with their own sexuality or gender identity or expression.
So in 2012, when some were just coming around to the idea of gay marriage and Biden called trans rights “the civil rights issue of our time,” he was signaling a pattern of support for trans people for years to come.
In 2014 Biden criticized Congress’ failure to pass the Employment Non-Discrimination Act (ENDA) which would have provided nationwide employment protections for people based upon their sexual orientation and gender identity. He stated: “It’s close to barbaric” to still being legal to fire someone for these issues. “Pass ENDA now” he demanded, calling it “outrageous we’re even debating this. . . .The single most basic of all human rights is the right to decide who you love, it is the single basic building block…Hate can never never be defended because it’s a so-called ‘cultural norm.’ I’ve had it up to here with cultural norms.”
2021 has been a banner year for the LGBTQ+ community so far. The Biden administration has been working constantly to heighten the position of the LGTBQ+ community since day one. For a comprehensive timeline, you can go to HRC’s President Biden’s Pro-LGBTQ timeline, but I wanted to hit some of the highlights, here.
Biden issued an executive order implementing the Bostock decision (which we have discussed previously). On his first day in office he affirmed the Supreme Court’s decision in Bostock vs. Clayton County, which secured workplace protections, and applied the holding of the Court to laws prohibiting discrimination in housing, education, health care and credit. Soon after he repealed the ban on transgender military service. Then, in February, Pete Buttigieg was the first openly gay cabinet member confirmed by the Senate. Days after, President Biden issued a memorandum aimed at protecting the rights of LGBTQI people worldwide. This memorandum comes at a time when same-sex relations are still criminalized in 69 countries, with same-sex conduct punishable by death in nine of them.
On February 9th, Press Secretary Jen Psaki affirmed that trans rights are human rights. The next day The Biden-Harris administration announced it would halt implementation of a discriminatory Trump-era rule under the Department of Health and Human Services (HHS). The rule would have permitted discrimination against LGBTQ+ people, religious minorities and women in programs related to foster care, adoption, HIV and STI prevention, youth homelessness, refugee resettlement, elder care programs and more. The day after that The Department of Housing and Urban Development announced it would enforce the Fair Housing Act to prohibit discrimination against LGBTQ+ people.
On February 23rd the Department of Veteran Affairs expanded support for trans veterans. On March 9th the Consumer Financial Protection Bureau (CFPB) released an interpretive rule enforcing the Equal Credit Opportunity Act to prohibit discrimination on the basis of sexual orientation and gender identity. The rule will ensure LGBTQ+ people do not face discrimination when accessing financial services such as loans or credit.
On March 24th Rachel Levine became the first openly trans federal official confirmed by the Senate.
On April 5th the Department of Justice issued a memo on Title IX protecting LGBTQ+ students. On April 22nd the Department of Housing and Urban Development withdrew a Trump-Era Proposal to Gut Equal Access Rule. The Obama administration’s policy ensures non-discrimination protections in HUD-funded housing and programs based on both sexual orientation and gender identity. It also protects LGBTQ families and ensures people seeking emergency housing are housed safely in accordance with their gender identity.
On April 23rd The Biden-Harris administration announced plans to nominate two LGBTQ officials within the Department of Defense. Shawn Skelly will be nominated for Assistant Secretary of Defense for Readiness, and previously made history as the first trans veteran appointed by a U.S. president under President Obama. Brenda Sue Fulton, a lesbian West Point graduate and former Army officer, will be nominated for Assistant Secretary of Defense for Manpower and Reserve Affairs.
Then, on April 23rd The Department of Justice announced in a statement of interest in litigation that under the 8th Amendment, incarcerated trans people must be housed according to their gender identity and provided gender-affirming care.
Biden also issued the first presidential proclamation of Trans Day of Visibility. Biden recognized the years of activism and work by transgender and nonbinary advocates that had led to this historical moment. He acknowledged the struggles of transgender people, such as high rates of violence and homelessness. He mentioned policies his administration had already enacted that would protect trans and nonbinary people and lauded Rachel Levine. Biden’s acknowledgement of trans issues and the importance of trans rights is singular and unique among American presidents. He is on the cusp of this issue in comparison to other politicians.
In Biden’s Address to Congress on April 28th Biden said, “”To all transgender Americans watching at home, especially the young people. You’re so brave. I want you to know your president has your back.” No president has ever been so openly supportive of transgender people or transgender rights before. Biden’s open support of transgender people at this time is incredibly important because of the numerous anti-transgender laws that states are trying to pass at this very moment.
More than 117 anti-transgender laws have been introduced in the current legislative session, mostly affecting minors. These laws are mostly bans on transgender youth participating in sports, bans on youth receiving gender affirming health care, bans on curriculum that deal with gender identity and sexuality, laws that require educators to only refer to students by names and pronouns that correspond to their biological sex, and restricting ID cards for gender non-conforming people.
So far there has been no major backlash for this kind of legislation as there was over the “bathroom bills” of a few years ago, even though fewer than 3 in 10 people support some of these laws. Americans overwhelmingly oppose laws that criminalize treatment for transgender youth. They are more divided on the sports issue. 63% of Americans support the Equality Act, which Biden has promised to sign, which would protect people from discrimination based on sexual orientation and gender identity. That support is starkly divided along party and age lines, however. 90% of Democrats support the bill, while just 32 % of Republicans say the same. And nearly eight in ten adults under the age of 40 support the Equality Act. Less than half of Americans aged 75 and older do.
The Equality Act is a major piece of legislation that Biden has promised to sign as soon as Congress gets it to him. This is important legislation because according to the HRC,
“The patchwork nature of state non-discrimination laws and the lack of permanent, comprehensive federal non-discrimination laws leaves millions of people subject to uncertainty and potential discrimination that impacts their safety, their families, and their day-to-day lives.
Our nation’s civil rights laws protect people on the basis of race, color, national origin, and in most cases, sex, disability, and religion. But federal law does not explicitly provide non-discrimination protections based on sexual orientation or gender identity. The need for these protections is clear—nearly two-thirds of LGBTQ Americans report having experienced discrimination in their personal lives.”
The Equality Act would amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity.
According to Danielle Kurtzelben, ‘The Civil Rights Act covered discrimination in certain areas, like employment and housing. The Equality Act would expand that to cover federally funded programs, as well as “public accommodations” — a broad category including retail stores and stadiums, for example.
(“Public accommodations” is also a category that the bill broadens, to include online retailers and transportation providers, for example. Because of that, many types of discrimination the Civil Rights Act currently prohibits — like racial or religious discrimination — would now also be explicitly covered at those types of establishments.)”
Kurtzelben continues, “One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn’t want to provide a cake for a same-sex wedding.”
It may seem all of this is unnecessary because of the Bostock decision, but as the HRC explains,
“President Biden issued an executive order directing agencies to appropriately interpret the Bostock ruling to apply not just to employment discrimination, but to other areas of law where sex discrimination is prohibited, including education, housing, and health care. However, a future administration may refuse to interpret the law this way, leaving these protections vulnerable. Congress must codify the Bostock decision by passing the Equality Act to ensure future administrations fully enforce non-discrimination laws.
Additionally, there are two areas of civil rights law that do not currently prohibit sex discrimination, and therefore are not covered by Bostock–federally funded programs and public spaces and services. The Equality Act adds sex, sexual orientation, and gender identity to these sections of the Civil Rights Act. The law covering public spaces and services is also sorely outdated, and the Equality Act updates that law to strengthen protections for everyone.”
For some people, Biden’s support of LGBTQ+ rights comes as a surprise because Biden is a devout Catholic, and the Roman Catholic church does not have a good record of supporting the rights of that community. But Biden understands his faith as a deeply personal thing, and it shapes his understanding of how to treat people, but not how to legislate. For example, when asked about abortion in the VP debate against Paul Ryan in 2012, Biden explained, “My religion defines who I am. And I’ve been a practicing Catholic my whole life. And it has particularly informed my social doctrine. Catholic social doctrine talks about taking care of those who — who can’t take care of themselves, people who need help.
With regard to — with regard to abortion, I accept my church’s position on abortion as a — what we call de fide (doctrine ?). Life begins at conception. That’s the church’s judgment. I accept it in my personal life.
But I refuse to impose it on equally devout Christians and Muslims and Jews and — I just refuse to impose that on others, unlike my friend here, the congressman.
I,” Biden continued, — “I do not believe that — that we have a right to tell other people that women, they — they can’t control their body. It’s a decision between them and their doctor, in my view. And the Supreme Court — I’m not going to interfere with that.”
In Biden’s view the church has taught him to stand up for people who need help. Like many Christians, Biden has come to the conclusion that Christ’s compassion extends to all people.
Joe Biden has always been ahead of his party when it comes to LGBTQ+ rights. He has led his party in the right direction for years.
There are a lot of reasons to criticize Biden. His military spending is out of control. He seems more concerned with making nice with the GOP than making progress sometimes. But in this area, he deserves some credit.
The question is, will Biden continue to fight for LGBTQ+ rights, or will his desire to make amends with Republicans lead to compromises? So far, he seems to be taking these issues very seriously and leading the charge for change. Might the LGBTQ+ community finally have a friend in the White House? It is possible that this year will be the one that will tell.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.