President Biden Revokes Restrictions on Diversity and Inclusion Trainings, Directs Federal Agencies to Prohibit Sexual Orientation and Gender Identity Discrimination

January 26, 2021
On January 20, 2021, the day he assumed office, President Biden issued two executive orders addressing issues of discrimination and equity.  The first, the “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” rescinded two Trump administration executive orders, including one that regulated the content of certain diversity and inclusion trainings, and set in motion several federal initiatives to promote equity for “underserved” groups such as people of color and LGBTQ+ individuals.  The second, the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” directs federal agencies to ensure that regulations barring sex discrimination also prohibit discrimination on the basis of sexual orientation and gender identity.  Key provisions of both orders are outlined below.
 
Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
 
The stated purpose of Executive Order 13985 is to “pursue a comprehensive approach to advancing equity for all” in executive departments and agencies.  The order focuses on “underserved communities,” including people of color, members of religious minorities, LGBTQ+ people, people from rural areas and people with disabilities. 
 
EO 13985 revoked the Trump administration’s “Executive Order on Combating Race and Sex Stereotyping,” EO 13950, which prohibited federal contractors, federal agencies, those receiving federal funds and members of the United States Uniformed Services from promoting so-called “divisive concepts” in employee diversity trainings, including, for example, the idea that some people are inherently racist, sexist or oppressive, consciously or unconsciously.  EO 13950 attracted criticism from business and civil rights groups, including the American Hospital Association and U.S. Chamber of Commerce, for its perceived insensitivity and vague provisions.  Just one month before its rescission, a federal district court in California temporarily enjoined enforcement of EO 13950 as applied to federal contractors and recipients of federal funds.  President Biden’s EO 13985 gives federal agencies 60 days to suspend, revise or rescind any actions they took in compliance with EO 13950, including agency actions to terminate contracts or grants pursuant to EO 13950. 
 
Additional directives in EO 13985 include:
 
  • Enlisting the Domestic Policy Council. The order directs the White House Domestic Policy Council to help implement equity principles across the federal government.
  • Identifying Ways to Assess Equity. The Director of the Office of Management and Budget (“OMB”) must study whether agencies are creating barriers to equal participation and identify how best to address issues of equity. 
  • Conducting Federal Agency Equity Assessments. The order directs heads of all federal agencies, in consultation with the OMB Director, to assess the state of equity in agency programs and policies. 
  • Allocating Federal Resources to Advance Equity. To address historic inequities, the OMB Director must identify opportunities to promote equity in the federal budget and must, in consultation with the heads of agencies, study how to allocate resources in an equitable manner for underserved communities.
  • Promoting Equitable Delivery of Government Benefits. The order directs all agency heads, within one year of the order, to create a plan for addressing any barriers to equal participation in federal programs or barriers to federal contracting opportunities.
  • Establishing an Equitable Data Working Group. The order establishes an Interagency Working Group on Equitable Data to study and identify deficiencies in federal data collection programs with respect to race, gender and other key demographics. 
 
Executive Order 13988: Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
 
Executive Order 13988 issues various federal agency directives to counteract discrimination on the basis of gender identity and sexual orientation.  In its policy section, EO 13988 references the U.S. Supreme Court’s 2020 decision, Bostock v. Clayton County, Georgia, 590 U.S. __, No. 17-1618 (June 15, 2020), which holds that Title VII of the Civil Rights Act of 1964 should be construed to prohibit discrimination on the basis of sexual orientation and gender identity.  EO 13988 explains the holding of Bostock and states that, “[u]nder Bostock’s reasoning,” other laws that prohibit sex discrimination, like Title IX of the Education Amendments of 1972, also prohibit discrimination on the basis of gender identity and sexual orientation.  For more on Bostock, please refer to S&C’s publication and podcast discussing that decision.
 
EO 13988 directs all federal agencies to conduct a review of regulations, guidance and other agency actions that were promulgated under either Title VII or any other statute or regulation that prohibits sex discrimination.  The Order instructs agency heads to consider whether to revise or rescind agency actions, or promulgate new actions, as needed, to fully implement laws that prohibit discrimination on the basis of sex, sexual orientation and gender identity.

Executive Order/EO