Published on January 29, 2021
Within hours of being sworn in on Jan. 20, President Joe Biden issued an executive order on “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” It was hailed by LGBTQ activists as “the most substantive, wide-ranging executive order concerning sexual orientation and gender identity ever issued by a United States president.” Conservatives, however, called it “radical” and “divisive,” and some feminists condemned it as an “unprecedented” threat to the rights and safety of females. A statement by five Catholic bishops, representing various committees from the U.S. Conference of Catholic Bishops, described the order as “misguided” and a threat to religious freedom — views echoed by evangelical leaders, as well.
The disparate reactions to Biden’s executive order represent more than America’s polarized politics; they hint at deeper conflicts over the nature of the human person and the common good — conflicts already playing out in American families and classrooms, on sports fields and in medical settings, in government offices and on social media.
What does the order do?
Although the order begins by positively affirming that “every person should be treated with respect and dignity,” it slips into a shallow narrative echoing Human Rights Campaign talking points, vaguely asserting that some Americans are mistreated, anxious and afraid because of “who they are,” “whom they love” and whether they conform to “sex-based stereotypes.” The order then revisits Bostock v. Clayton County, the 2020 Supreme Court decision that interpreted Title VII’s prohibition against employment discrimination on the basis of “sex” to prohibit employment discrimination on the basis of “sexual orientation” and “transgender status” (or “gender identity”). Although the Bostock court specifically declined to apply its interpretation beyond Title VII, Biden disregarded such constraints. His order extends Bostock’s interpretation to all federal laws and regulations that prohibit discrimination on the basis of “sex,” including Title IX (education, sports), the Fair Housing Act, certain immigration laws and more.
The net effect is that wherever federal law prohibits discrimination on the basis of sex, it now also prohibits discrimination on the basis of “sexual orientation” and “gender identity.” Federal agencies have about three months to review current regulations, guidelines, policies and programs and decide what to revise, suspend, rescind or replace in order to comply with the executive order. Some changes will happen quickly — updating websites and internal documents, for instance — while others will take months to work through the complex federal regulatory process. In the meantime, schools and other recipients of federal funding will move swiftly to comply with the order, some because they support its ideological objective and others to avoid jeopardizing their federal funding. The implicit threat of lost federal dollars is a powerful disincentive to states inclined to resist gender ideology. One week after the Biden order, for example, ACLU lobbyists warned Montana legislators that passing a bill to limit girls’ sports to biological females would jeopardize $484 million in federal education dollars.
Why should Catholics be concerned?
The executive order presents grave challenges, not only for Catholics, but also for anyone who acknowledges biological reality or believes marriage is the union of male and female. Truth is objective and unchanging, not decided by executive order. Human beings are either male or female from the moment of conception. A person’s sex is imprinted in every cell of his or her body and cannot change. Authentic sexual union, open to the possibility of new life, is only possible between a man and a woman. These are the facts of human existence. Our faith further illuminates the truth, as Scripture reveals God’s plan — “male and female he created them” (Gn 1:27) — and Church teaching exhorts “everyone, man and woman,” to “acknowledge and accept his sexual identity” as a gift from God. A person’s sexual identity has purpose: “Physical, moral, and spiritual difference and complementarity are oriented towards the goods of marriage and the flourishing of family life” (Catechism of the Catholic Church, No. 2333). These truths have been accepted for millennia.
In recent years, however, an ideological movement described by Pope Francis as “gender ideology” has emerged as a powerful global force, opposing the truth about the person and seeking to dismantle timeless institutions, such as the family. Rooted in atheism and postmodernism, gender ideology claims that the body has no intrinsic meaning or connection to one’s identity as a man or a woman. Instead, it asserts that each person’s “sexual orientation and gender identity” is “self-defined,” regardless of sex, and that “consensual sexual activity” among any persons over the age of consent is a human right. Consequently, gender ideology portrays moral or legal disapproval of self-determined identities — for example, “transgender,” “non-binary” or same-sex sexual relationships — as unjust discrimination.
Imposing a cult concept of the person
“Gender identity” is an ideological term for a person’s self-perception or identity feelings, influenced at times by cultural stereotypes. The Biden executive order treats gender identity as a protected characteristic under federal civil rights laws and regulations, even though, unlike sex (or other protected characteristics such as race or ethnicity), gender identity is neither objective nor immutable. It is not innate. No blood tests can measure it, no imaging studies can prove its existence. It cannot even be ascertained by others. Like all feelings and perceptions, gender identity is inherently subjective and may change from day to day. From a legal perspective, the contested, amorphous and evolving concept of gender identity is a poor candidate for a “protected characteristic” under anti-discrimination laws. As feminist Jo Bartosch explains, “Gender identity … is an ideological hydra that threatens to undermine everything from language to our most basic human rights.”
Nevertheless, with the stroke of a pen, Biden made gender ideology into official government policy. By embedding the cult concept of gender identity into federal civil rights laws and regulations, the order denies the significance of sex and renders categories such as “females,” “girls” and “women” meaningless. In effect, the federal government has rejected biology, common sense and the religious beliefs of millions of Americans. The bishops warn that Biden’s order “threatens to infringe the rights of people who recognize the truth of sexual difference or who uphold the institution of lifelong marriage between one man and one woman. This may manifest in mandates that, for example, erode health care conscience rights or needed and time-honored sex-specific spaces and activities.”
One consequence of the executive order — its negative impact on women and women’s sports — is generating significant backlash. Feminists rightly fear that “gender identity” provisions will threaten countless programs and hard-won rights. Under the executive order, for example, schools that receive federal funds must affirm, without question, a child, adolescent or young adult’s asserted gender identity. Males who identify as “transgender girls” will have a “right” to access girls’ private spaces, including bathrooms and locker rooms, and a “right” to compete in girls’ athletic competitions. This will “eviscerate” girls’ and women’s sports, writes Abigail Shrier in the Wall Street Journal, because “the athletic chasm between the sexes, which opens at puberty, is both permanent and unbridgeable. Once male puberty is complete, testosterone suppression doesn’t undo the biological advantages men possess: larger hearts, lungs and bones, greater bone density, more oxygenated blood, more fast-twitch muscle fiber and vastly greater muscle mass.”
Most Americans intuitively understand that ignoring biological differences in sports is unwise and unfair. This consensus provides a conversation starter to get beyond the political narrative that frames the issues at stake as questions of inclusion or exclusion, welcoming or bullying, discrimination or acceptance. These are red herrings that distract from the core issue here — the truth about the human person. We are embodied as male or female from the moment of conception, and sexual difference is the foundation of the family; these truths are under attack.
Biden’s executive order is sure to intensify the confusion among Americans, especially young people, about who they are. As Catholics, we have the truth they so desperately need. The real question is whether we have the courage to proclaim the truth about the human person in a culture — and under an administration — that seems determined to suppress it.
Mary Rice Hasson, JD, is the Kate O’Beirne Fellow at the Ethics and Public Policy Center and a co-founder of the Person and Identity Project (PersonAndIdentity.com), which promotes the Catholic vision of the person and equips parents, schools, parishes and clergy with resources to counter gender ideology.