June 27, 2022

Biden expands LGTBQIA+ rights in sweeping executive order

The White House South facade. Wikicommons

President Joe Biden signed an executive order earlier this month to expand equality for LGBTQIA+ individuals.

The order is sweeping and involves several different federal agencies. It says that while the U.S. has advanced LGBTQIA+ rights in significant ways, much still needs to be done, particularly for transgender individuals and LGBTQIA+ individuals of color.

Marshall Martinez, executive director of Equality New Mexico, said this is the “first time a sitting president has made such clear statements about queer and trans people.”

“It’s definitely a refreshing break from what we’ve been hearing and seeing so much of,” Martinez said.

There has been an uptick of anti-trans bills introduced into state legislatures in recent years, according to LGTBQIA+ advocates. One such bill, called the Women’s Sports Protection Act and supported by some Republicans, was defeated in the New Mexico Legislature in 2021 in the bill’s first committee hearing after an emotional debate held virtually.

Biden’s executive order requires that several federal agencies, including the U.S. Department of Health and Human Services, the U.S. Department of Education and the U.S. Department of Housing and Urban Development, work together to consider policy to better protect LGBTQIA+ in a diverse array of situations, including mental health, health equity, discriminatory and harmful legislation, foster care, academic success and raising awareness among the general public to the dangers of so-called conversion therapy.

Martinez said that one aspect of the order that got his attention was the president’s instruction to form a federal subcommittee to consider data collection on sexual orientation, gender identity and sex characteristics in federal agencies. Gov. Michelle Lujan Grisham issued an executive order last year to direct state agencies to collect voluntary self-identification information on sexual orientation and gender identity.

Martinez has said that the historic lack of data collection on sexual orientation and gender identity, both at the federal and state level, has a negative impact on the LGBTQIA+ community. Without concrete information on issues affecting the LGBTQIA+ community, advocates and policy makers face hurdles in addressing gaps in services.

Voluntary data collection is also about representation, state Sen. Carrie Hamblen, D-Las Cruces, has said. Hamblen sponsored a bill in the 2021 New Mexico Legislature that would have mandated voluntary data collection by the state on sexual orientation and gender identity that, despite support, died before reaching a House vote.

Related: New executive order to direct demographic information on the LGBTQ+ community

“That is something we’ve been working on in New Mexico but it was both shocking and not when I found out that no other state is collecting data on LGBTQIA+ people systematically in a robust way. On the one hand, this will encourage other states to catch up with New Mexico. We will be able to, as those federal agencies work on this together, we’ll be able to work with them and other states will start to match data collection in other places,” Martinez said.

He said that while the move will not have an immediate impact on the LGBTQIA+ community, it will in the longer term enable policy makers and advocates to identify trends and seek solutions for problems.

Martinez said another aspect of Biden’s order that stood out for him was the guidance to combat misinformation and to inform the public on the significant harm caused by so-called conversion therapy, which is a widely discredited practice of trying to change a person’s sexual orientation or gender identity.

New Mexico banned it in 2017 under Gov. Susana Martinez’s administration. But Marshall Martinez said that the average 14-year-old queer or trans child could see news on the Internet about Texas passing conversion therapy laws and not know that “what’s happening in Texas isn’t happening here [in New Mexico].”

He said LGBTQIA+ children are seeing themselves vilified in the news “every single day now” due to legislative attacks in some states and that promotes fear and isolation for the children.

He said violence against LGBTQIA+ individuals increases, as do suicide rates, when there are “horrendous, sweeping attacks,” by policy makers.

Last week the U.S. Supreme Court released its decision on Dobbs v. Jackson Women’s Healthcare, the Mississippi 15-week gestational ban that overturned Roe v. Wade. Supreme Court Justice Samuel Alito’s majority opinion has caused the LGBTQIA+ community to fear that their rights around marriage equality and other constitutional rights could be quickly eroded because of Alito’s argument that the 14th Amendment does not safeguard the right to abortion. 

That interpretation of the Constitution is what Roe v. Wade and a host of other court decisions involving bodily autonomy over the past almost 60 years have rested on, going back to 1965 when the court decided Griswold v. Connecticut, which struck down state bans on contraception use among married couples. Justice Clarence Thomas said in a concurring opinion that all previous decisions based on due process rights, going back to 1965 to the Griswold decision, should be revisited. He specifically included marriage equality and Lawrence v. Texas, which banned state sodomy laws.

Now that the court has eroded women’s right to bodily autonomy, LGBTQIA+ individuals fear that their hard-fought rights could soon be at stake as well.

Related: What the court’s overturning of Roe v. Wade could mean to New Mexico’s LGBTQIA+ community

One gap in protections for LGBTQIA+ individuals in New Mexico is parentage protections. Martinez said that because of that gap, same sex parents are vulnerable to homophobic or transphobic accusations.

But, Biden’s order instructs the federal government to consider federal policy on the issue and federal recommendations on same-sex parenting rights could lead to state legislators adopting those policies to protect those families.

Another area of federal policy arising from Biden’s executive order that could encourage New Mexico legislators to adopt further protections is expanding the scope of the New Mexico Human Rights Act to include public bodies and state agencies. Efforts to pass such a bill have not made it through the full Legislature in the past.

Related: Bill to amend the New Mexico Human Rights Act passes House

 “That’s another piece of the executive order where the power of federal agencies and the federal budget could have a huge impact,” Martinez said.

Presidential executive orders can be rescinded by the next sitting president and that has happened in the past, most notably around U.S. aid to foreign governments that support abortion care. But, Martinez said that since much of the order is about requiring various federal agencies to collaborate and begin thinking about policy changes, a future president who might use homophobic or transphobic policy as a wedge issue would have a harder time halting the collaborations that had already begun.

But, despite the diverse ways in which the order could positively affect the LGBTQIA+ community going forward, Martinez said one glaring gap in the policy is that Biden omitted any reference to LGBTQIA+ immigrants.

“There’s literally not a prison or jail where queer and trans people are safe and that includes ICE [U.S. Immigration and Customs Enforcement] detention centers. It flat out ignores that many immigrants are coming from places where their life is in danger because they are queer and trans. I’m really disappointed that if you are queer and trans and born in this country, the U.S. is interested in protecting you. It’s a blind spot to talk about sweeping, robust policy but ignore immigrants. It’s pretty inexcusable,” Martinez said.