Why the June 15 Executive Order Might Be Good News
June 16, 2022
This post is available to paid subscribers only. As always, thank you for your generous support, which helps me continue doing this work.
EDIT: This post is being updated as of June 12, 2023, to be made freely available and shareable. The current post contains some minor, non-substantive edits from the post that was originally published in June 2022.
On June 15, 2022, President Biden signed an order, the “Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals” (Order). Throughout the Order, the administration uses the acronym “LGBTQI+.”
Much ado has been made about this order. For example, Fox News said that the order “calls on the Department of Health and Human Services (HHS) to ensure minors can receive gender transition surgeries.”
Of course I understand the impulse to view the Order as necessarily bad news for the movement to protect women’s sex-based rights against the incursion of “gender identity,” and I think it’s right to oppose it. But I also think there is more going on here that is worth exploring.
I have three goals for this post:
Explain the rot at the heart of the Order.
Demonstrate that the Order does not actually do anything worse than the administration has already done, and that it’s largely toothless window-dressing.
Explore the possibility that this Order, in context, signals good news for the movement to protect the sex-based rights of women and girls and to oppose the abolition of sex.
The Rot at the Heart of the Order
What lies at the heart of the Order, and sex-denialism in general, is the forced teaming of “TQ+” with LGB. As usual, the Order does not define what it means by any of these terms. Everyone knows that lesbian means a woman who is exclusively attracted to women, gay refers to a man who is exclusively attracted to men, and bi means a person of either sex who is attracted to members of both sexes. Those terms probably do not require any definition.
Like previous administrative orders, memos, and statements, though, this Order does not define the words “transgender,” or “queer,” and it gives readers no idea what the + is supposed to mean. Veterans of the gender wars know why this is a problem. Sexual orientation is grounded in the material reality of sex, and the other words (and symbols, whatever they mean) are grounded in some sort of amorphous “identity,” even if no one knows that that identity is.
As recently as 2017, Biden was using the acronym LGBT, and one need look no further than the Human Rights Campaign to learn where the Q and the + came from.
It’s also worth noting that no agency at any level of government can meaningfully enforce an order or a rule that contains words like this, in a manner that protects women and girls on the basis of sex, or that protects lesbians and gay men on the basis of sexual orientation.
Even more sinister, numerous lesbians and gay men have pointed out that the word “queer” used to be, and still is, a homophobic slur. Examples of this critique appear here and here and here.
I recently mentioned on Twitter that the Order enshrines the word “queer” in federal administrative law, and I got this response from a gay man in the U.K.:
It’s worth asking: Why is the Biden administration including an expressly homophobic slur in its executive orders?
The words “lesbian,” “gay,” and “bisexual” appear exactly twice in the Order: once in the title, and once in the policy section, which states:
Section 1. Policy. Our Nation has made great strides in fulfilling the fundamental promises of freedom and equality for lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) Americans, owing to the leadership of generations of LGBTQI+ individuals. In spite of this historic progress, LGBTQI+ individuals and families still face systemic discrimination and barriers to full participation in our Nation’s economic and civic life. These disparities and barriers can be the greatest for transgender people and LGBTQI+ people of color. Today, unrelenting political and legislative attacks at the State level — on LGBTQI+ children and families in particular — threaten the civil rights gains of the last half century and put LGBTQI+ people at risk. These attacks defy our American values of liberty and dignity, corrode our democracy, and threaten basic personal safety. They echo the criminalization that LGBTQI+ people continue to face in some 70 countries around the world. The Federal Government must defend the rights and safety of LGBTQI+ individuals.
There is not a single substantive provision that expressly protects people on the basis of sexual orientation without also protecting people on the basis of identity.
Also worth noting: There is one single reference to “intersex” individuals (people whose chromosomal makeup varies from the typical XX or XY) in the substance of the Order, which orders HHS to “develop and issue a report, within 1 year of the date of this order, and after consultation with medical experts, medical associations, and individuals with lived expertise, on promising practices for advancing health equity for intersex individuals.” This seems like a completely reasonable thing for the administration to do, but I’m noting it here because it’s the only reference to intersex people in the entire Order, other than the gratuitous inclusion of the I in the acronym.
Everything that is problematic about this Order stems from this initial forced teaming. It is not possible to legally protect lesbians, gay men, or bisexual people on the basis of same-sex attraction, or to protect people with intersex conditions, by simultaneously erasing the material reality of sex.
There is nothing to suggest that this Order is intended to protect anyone on the basis of same-sex attraction or on the basis of having a chromosomal makeup that deviates from the norm. Instead, this is all about protecting identities that deny the material reality of sex. It is fundamentally about denying biology.
This Order Doesn’t Actually Do Anything That the Administration Isn’t Already Doing
I cannot think of any reason to think that this Order does anything worse than everything the Biden administration has already done to obliterate the sex-based rights of women and girls and to champion the abolition of sex.
The Biden administration spent the first half of 2021 quickly decimating the rights, privacy, and safety of women and girls, including lesbians, throughout federal administrative law by abolishing the material reality of sex. I wrote about it here. All of these memos and orders are the subject of federal litigation in a case called Tennessee v. Department of Education, et al., where 20 states (now 21, since Virginia joined as a plaintiff following Governor Youngkin’s election) sued the administration, alleging that the memos and orders violate the Administrative Procedure Act (among other claims). The U.S. chapter of Women’s Declaration International has filed an amicus brief in that case, arguing that in addition to all the others claims presented, the orders violate the Equal Protection Clause of the 14th Amendment as unconstitutional sex discrimination.
That litigation is moving along at a snail’s pace. If I had to speculate, I would guess that the federal judiciary is tired of this issue and doesn’t want to touch it with a 10-foot pole, but that’s a story for another post. My point here, for present purposes, is that the administration has pretty much done about all that it can do to violate women’s rights at the altar of “gender identity” and sex denialism in federal administrative law.
As far as I can tell, the Order contains a series of toothless provisions that are designed to please the administration’s overlords at the ACLU and the Human Rights Campaign without actually accomplishing much of anything. Here are a few examples of what I mean:
The order requires HHS to, “as appropriate and consistent with applicable law, use [its] authorities to protect LGBTQI+ individuals’ access to medically necessary care from harmful State and local laws and practices,” to “promote the adoption of promising policies and practices to support health equity,” and to “develop and release sample policies for States to safeguard and expand access to health care for LGBTQI+ individuals and their families.”
It requires the Secretary of Education to “as appropriate and consistent with applicable law, use the Department of Education’s authorities to support LGBTQI+ students, their families, educators, and other school personnel targeted by harmful State and local laws and practices, and shall promote the adoption of promising policies and practices to support the safety, well-being, and rights of LGBTQI+ students,” and to develop and release sample policies for supporting LGBTQI+ students’ well-being and academic success in schools and educational institutions.”
It obligates HHS to “conduct a study on the impact that current Federal statutory and regulatory eligibility standards have on the ability of LGBTQI+ and other households as determined by the Secretary to access Federal benefits and programs for families” and to “produce a public report with findings and recommendations that could increase LGBTQI+ and such other households’ participation in and eligibility for Federal benefits and programs for families.”
These are just a few examples, but the bottom line, as far as I can tell, is that the Order is filled with sample policies, assessments, and studies.
To be clear, all of these sample policies, assessments, and studies are based on the odious forced teaming of the TQ+ with the LGB discussed above, and should be opposed on that basis. None of us should want the administration to be doing any of this, because it all has sex-denialism at its core. But as far as I can tell, this order does not impose any new rules or laws that compel anyone to do anything other than conduct the sample policies, assessments, studies, etc.
If this is all the administration has, because it’s already done all of the horrible things it can do, gender abolitionists should take note. If I’m right, we may have our opposition up against a wall. Which brings me to the next section.
Why the Order Might Signal Good News for the Movement to Protect Women’s Sex-Based Rights
I have been studying Bill Moyer’s Movement Action Plan (MAP): A Strategic Framework Describing the Eight Stages of Successful Social Movements, available here. It’s literally a map for progressive social movements to use in accomplishing their objectives. In it, he describes the eight stages, highlighting movement objectives and pitfalls, and opposition strategies, for each stage. It was written in the 1980s, but it’s not obsolete. It contains a wealth of information that the movement to protect women’s sex-based rights can learn from and use.
Here is a summary of the stages:
Stage 1 “Normal times.” “In this first stage—normal times—there are many conditions that grossly violate widely held, cherished human values such as freedom, democracy, security, and justice, and the best interests of society as a whole. Moreover, these conditions are maintained by the policies of public and private powerholders, and a majority of public opinion. Yet, these violations of values, sensibilities, and self-interest of the general society are relatively unnoticed; they are neither in the public spotlight nor on society's agenda of hotly contested issues. Normal times are politically quiet times. Some past normal times were the violations of Blacks' civil rights before 1960; the Vietnam War before 1967; and U.S. intervention in Central America and support for Marcos, Duvalier, and apartheid before 1985.”
Stage 2 “Prove the failure of institutions.” “The intensity of public feeling, opinion, and upset required for social movements to occur can happen only when the public realizes that the governmental policies violate widely held beliefs and values. The public's upset becomes especially intensified when official authorities violate the public trust by using the power of office to deceive the public and govern unfairly and unlawfully. Hannah Arendt wrote that "people are more likely driven to action by the unveiling of hypocrisy than the prevailing conditions."This was clearly shown by the dramatic turnaround of the American public's opinion of President Reagan after Irangate exposed that instead of acting on his official policy of leading the world's defiant fight against terrorists, his operative policy was actually cooperating, supporting, and making deals with terrorists.”
Stage 3 “Ripening conditions.” “The ‘take-off’ of a new social movement requires preconditions that build up over many years. These conditions include broad historic developments, a growing discontented population of victims and allies, and a budding autonomous grassroots opposition, all of which encourage discontent with the present conditions, raise expectations that they can change, and provide the means to do it.”
Stage 4 “Take-off.” “New social movements surprise and shock everyone when they burst into the public spotlight on the evening TV news and in newspaper headlines. Overnight, a previously unrecognized social problem becomes a social issue that everyone is talking about. It starts with a highly publicized, shocking incident, a ‘trigger event’, followed by a nonviolent action campaign that includes large rallies and dramatic civil disobedience. Soon these are repeated in local communities around the country.”
Stage 5 “Powerlessness.” “After a year or two, the high hopes of movement take-off seems inevitably to turn into despair. Most activists lose their faith that success is just around the corner and come to believe that it is never going to happen. They perceive that the powerholders are too strong, their movement has failed, and their own efforts have been futile. Most surprising is the fact that this identity crisis of powerlessness and failure happens when the movement is outrageously successful—when the movement has just achieved all of the goals of the take-off stage within two years. This stage of feelings of self-identity crisis and powerlessness occurs simultaneously with Stage Six because the movement as a whole has progressed to the majority stage.”
Stage 6 “Majority public support.” “The movement must consciously undergo a transformation from spontaneous protest, operating in a short-term crisis, to a long-term popular struggle to achieve positive social change. It needs to win over the neutrality, sympathies, opinions, and even support of an increasingly larger majority of the populace and involve many of them in the process of opposition and change. The central agency of opposition must slowly change from the new wave activists and groups to the great majority of nonpolitical populace, the PPOs, and the mainstream political forces as they are convinced to agree with the movement's position. The majority stage is a long process of eroding the social, political, and economic supports that enable the powerholders to continue their policies. It is a slow process of social transformation that create a new social and political consensus, reversing those of normal times.”
Stage 7 “Success.” “Stage Seven begins when the long process of building opposition reaches a new plateau in which the new social consensus turns the tide of power against the powerholders and begins an endgame process leading to the movement's success. The Stage Seven process can take three forms: dramatic showdown, quiet showdown, or attrition.”
Stage 8 “Continuing the struggle.” “The success achieved in Stage Seven is not the end of the struggle but a basis for continuing that struggle and creating new beginnings.”
If I had to guess, I would say that the movement to protect women’s sex-based rights, at least in the U.S., is in Stage 3 “Ripening conditions.” If I’m right, that’s a good thing.
As discussed above, the Order is primarily smoke and mirrors, as far as I can tell. The administration is digging its heels in. The order is all about assessments and sample policies. It does nothing concrete. There’s nothing more they can do. Lauren Levey, the vice president of the U.S. chapter of Women’s Declaration International agrees: “I agree that the genie is out of the bottle, and they know it, and they are feeling panic.”
This is what Moyer says about what our opposition and the public are doing during Stage 3:
Though irritated, the powerholders remain relatively unconcerned, believing that they can continue to contain the opposition through management of mainstream social, political, and communications institutions. The official policies remain publicly believed and unchallenged, and the operative policies continue to be hidden from the general populace.
A public consensus to support the powerholders' policies, and the problem remains off society's agenda. Yet, the growing public awareness of the problem, discontent, and new wave opposition, primarily at the local level, quietly raises the public opinion opposing current powerholder policies to 30 percent, even though the issue remains off society's agenda.
This rings true for me with respect to where the movement to protect women’s sex-based rights stands today in the U.S. (the U.K. is obviously further along). Our opposition is definitely irritated at us, and they do believe that they can continue to contain us. Much of the public is still in the dark, but awareness is growing.
It remains to be seen what the triggering event will be that will get us to Stage 4. Lia Thomas competing on the women’s swimming team may have been a triggering event of sorts, but we aren’t quite in Stage 4 yet. The November midterms will likely play a role. Regardless, it will happen. And then, I predict we will be able to skip Stage 5 and go right to Stage 6. This movement is too energized to fall into despair.
While the Order itself is built on a pack of lies, sex-denial, sexism, and homophobia, and should be opposed on that basis, if my analysis here is right, then its existence is encouraging because it suggests that the movement to protect the sex-based rights of women and girls may be further along than many of us thought. When the movement is viewed on its own, it can be relatively easy to become disheartened by how much women and girls have lost at the altar of “gender identity” and sex-abolition. But when seen in the context of larger movement-building, it becomes clear that we are just getting started.
If you haven’t, please consider signing the Declaration on Women’s Sex-Based Rights. You can find the U.S. chapter of Women’s Declaration International here.
Check out my book The Abolition of Sex: How the ‘Transgender’ Agenda Harms Women and Girls, also available on Audible.
I would like to add here that Kara Dansky fully supports the concept of sexual orientations. In other words, the LGB and S for straight. I don’t like to see homophobic comments on a gender critical site.
Thank you for all that you are doing, for this terrific post, and for the invitation to participate in the conversation.
I do not have your experience or expertise in this legal arena (my legal experience is different), but like many thinking people, I have given these issues considerably time, study and thought; I hope some of my comments are both sufficiently-informed and useful.
I agree entirely with WoLF’s response to the order: the Administration’s efforts to protect people who do not conform to sex-based stereotypes have the result of inappropriately asserting medical/clinical treatment protocols that sexualize children and fail to address the mental health challenges of both adults and children.
With respect to “the rot”:
Yes, sex-denialism is a root of the problem (as well as political pandering). Yes, the meaning, and objective reality, of “gender identity” is assumed rather than defined in the order.
My concern is how we (opponents of sex-denialism) can best advocate against this. I wonder if describing “gender identity” as “amorphous” is the most persuasive we can be. The problem with “gender identity” is not that it is “without a clearly defined shape or form”, but that it does not do the work that language must do in law (describe objective, real world things), and it is not the kind of thing that the law properly reaches (real, objective things). “Gender identity” is vague for legal purposes.
Sex is objectively real (regardless of the ACLU’s current nonsense). So – if “gender identity” were defined in terms of behaviors and expectations associated with sex-stereotypes, that might be sufficiently concrete to communicate what the law would need to function properly and effectively – it would not be vague (not just objectively wrong if defined otherwise).
I am sympathetic to objections of lesbian and gay comrades that “queer” is a slur. But I don’t think calling the order homophobic is the most persuasive argument to be made against the term, at least for our purposes (especially when we want to save arguments about homophobia where they really count – medicalization of children). But I think we have to come up with a clear way of describing “queer theory” in terms of how it fails as a vehicle for law: it is not merely offensive to some, but contradicts material reality for all. “Queer theory” uses language in a way that is subjective and purposefully disruptive and unstable – precisely what law cannot do.
If we think the Administration’s order reflects its consumption of “queer theory”, then we can attack that theory directly, in terms of how it fails for law.
Yes, the language of the order repeats the conflation of sex and “gender identity”, which means sex-based protection is compromised. Would it be more persuasive to demonstrate how the Admiinistration’s arguments depend on a denial of biology and clear failure to account for how using a “gender ideology” framework to protect people vulnerable to discrimination on the basis of non-conformity to sex-stereotypes (ie. men who behave like women, or women who behave like men, or people who mix it up) would also protect the rest of us vulnerable on account of sex and sexual orientation?
I’m so glad that WDU-USA has filed it’s amicus brief in Tennessee v. Department of Education. We’ve known for decades that 14th Amendment Equal Protection Clause arguments were the right constitutional arguments to make to protect women from sex-based discrimination. I wouldn’t presume to question your assessment of the Administration’s exhaustive use of executive power and federal administrative law. Have we exhausted the ways to persuasively explain this particular issue publicly than have been used in the past? Your podcast following the disclosure of Justice Alito’s proposed opinion re: Roe v Wade was terrific. I’d love to see that worked into something bigger for wide public consumption, with clear articulation of the ways the 14th Amendment equal protection actually works.
I concur with your assessment of the Order’s recommendations for policies, assessments and studies. It’s political virtue signaling. I want to know how the Administration’s recommendations comport with well-established medical scientific research standards, including how the policies, assessments and studies take into account bad results, measurable bad results, including reports from desistors and detransitioners. I want to advocate effectively about this, from a public policy point of view. How can we communicate, and even amplify, the concerns of many medical professionals, and get those concerns to be included in the Adminisration’s process?
Thank you for sharing Bill Moyer’s MAP information. A lot of life has happened between hearing about it when it was published (the year my second son was born), and today. I’m looking forward to chewing over it all soon. Yes, I think you are right – we are in the neighborhood of Stage 3, and that is very encouraging. Thank you and Lauren for all you’ve contributed to getting the American end of the movement to where we are. Fingers crossed your assessment of how we can move forward successfully is correct. I’m outraged and unafraid. I’m a signatory, and volunteering in the PA chapter of WDI-USA. What else can I do to move us forward?