Yesterday, as part of a slate of executive orders signed by President Biden on his first day in office, he issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” It is now the policy of this administration that “[e]very person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.”

These opening lines were a salve after four years of relentless attacks by the Trump administration on LGBTQ people in all aspects of life. This new administration is willing to recognize and work to combat the sobering reality that “transgender Black Americans face unconscionably high levels of workplace discrimination, homelessness, and violence, including fatal violence.” And we now have a president who is planning to follow the Supreme Court’s landmark decision in Bostock v. Clayton County and who has instructed the applicable federal agencies to do the same.

Contrary to a trending hashtag on social media and the polemics of a few loud voices, President Biden most certainly did not “erase women” — whatever that means. By stating the administration’s intention to follow Supreme Court precedent and federal law, at core all the newly-elected president did was lay out what the law is and agree, unlike his predecessor, to follow it. That includes, as the order makes clear, ensuring that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.” If only we lived in a world where this would go without saying; a world where it would be uncontroversial to merely affirm that every young person deserves a chance to learn and thrive and participate in school.

Sadly, that is not the world we live in.

Predictably, powerful individuals and organizations immediately objected to the idea that trans people might actually be protected in schools and began circulating the insidious lie that trans people are inherently a threat to non-transgender women. This is not true in the context of restrooms and locker rooms and it is likewise untrue in the context of sports, where opponents of trans existence have focused their efforts over the last two years.

But whatever opposition anti-trans individuals, organizations, and lawmakers have to trans existence, federal law already prohibits discrimination on the basis of sex in employment, education, housing, health care, and credit. And since the Supreme Court’s decision in Bostock recognized that it is impossible to discriminate against someone for being LGBTQ without discriminating on the basis of sex, our federal statutes are the source of legal protections for LGBTQ people — not yesterday’s executive order. Those who claim to be victims of Biden’s affirmation of these legal protections are really angry about legal rules that were drafted by Congress decades ago and affirmed by the Supreme Court in June.

What yesterday’s order does mean, though, is that this administration is prepared to vigorously defend and enforce the legal protections that LGBTQ people enjoy under federal law. Every state considering anti-trans bills barring trans people from sports must now consider that they will face a U.S. government that is not facilitating anti-trans discrimination but actually enforcing Title IX’s protections to stop it. Every employer, every landlord, every health care provider that is considering firing or evicting or denying health care to a transgender person must now think about the fact that all three branches of the federal government have made clear that anti-LGBTQ discrimination is illegal.

Now on to the work of ensuring that the Biden administration lives up to this promise, that states end their attacks on trans youth, and that we can build a movement for gender justice that works to eradicate the stereotypes and assumptions about who we are and must be based solely on the sex we are assigned at birth.

Last updated 1/20/2021Lesbian, gay, bisexual, and transgender people in America continue to face discrimination in their daily lives. While more states every year work to pass laws to protect LGBTQ people, we continue to see state legislatures advancing bills that target transgender people, limit local protections, and allow the use of religion to discriminate.

Living in New York City, there are some things you just know. You know that if you see a gigantic rat in the subway station you look the other way and pretend it doesn’t exist. And you know that if you see a gigantic inflatable rat in front of a business it means that workers are protesting unfair employer practices.

Scabby the Rat, a 12-foot inflatable rat balloon, is a familiar sight not just in New York but around the country. But the government is now trying to deflate him. Luckily for Scabby, the First Amendment is on his side.

Under existing precedent, unions have a legal right to display Scabby. They cannot be held liable under the National Labor Relations Act (NLRA), the law that governs most private sector employees’ collective bargaining rights, for simply standing with Scabby on a public street. But Peter Robb, the now-fired general counsel of the National Labor Relations Board (NLRB), a government agency, has been on an anti-Scabby mission for years. He has succeeded in bringing the question of whether Scabby is protected by the First Amendment back before the NLRB, prompting the board to invite the public to weigh in. Specifically, the NLRB asked whether it could find that displaying Scabby violates the NLRA without also violating the First Amendment.

It cannot. Since speech about labor disputes is constitutionally protected, particularly when it occurs in public spaces, we filed a brief explaining why the First Amendment protects the giant rat balloon.

Scabby is fully protected symbolic speech. We use symbols all the time to express ourselves, from gestures to black armbands, and Scabby is no different. His presence communicates a clear message to workers, labor unions, and the public: worker dissatisfaction and protest against unfair labor practices.

The government argues that unions and workers have diminished speech rights, and that their criticism of businesses is inherently less protected, because unions advocate the economic interests of workers. But the labor movement and the working conditions it seeks to improve are inherently political, as recently exemplified through the ongoing public debate about the health and safety of essential workers. The Supreme Court has recognized this reality and has repeatedly held that speech touching on working conditions and hiring practices is speech on a matter of public concern — a category of highly protected speech. This is all the more true when the speech is directed at the “public square,” or addressed to a public audience — as it is whenever Scabby appears on public sidewalks.

The government also argues that Scabby deserves no First Amendment protection because he is so scary that his mere presence forces people away from a business and encourages other workers to strike. In the government’s words, “the iconic and menacing rat . . . create[s] an emotional and confrontational barrier” because it is “glaring in character and size and an unmistakable symbol of contempt,” in part thanks to “red eyes, fangs, and claws.” Scabby, the government complains, appeals to “emotions,” rather than “to reason.”But speech does not lose protection because it is emotionally persuasive. And to say that Scabby is coercive is absurd. What the government seems to forget is that Scabby is … a balloon. If anything, the real rats scurrying about in a subway station are much more frightening than the fake, inflatable cartoon outside of it.

Finally, the government tries to analogize Scabby to a union picket line, which the Supreme Court has held may be more strictly regulated than other forms of expression. The government’s argument is yet again absurd. Nobody would confuse a giant rat balloon for a picket line. But the bigger problem is that the Supreme Court’s labor picketing cases no longer make any sense. The Supreme Court has recognized this when it comes to everyone from civil rights picketers to anti-abortion picketers, but it has nevertheless allowed restrictions on labor pickets to stand. For too long, labor speech has been afforded second-class status under the First Amendment. The time has come to reevaluate those decisions, and give labor speech the robust First Amendment protections it deserves.

While it may be fun to make light of defending a gigantic rat balloon, the constitutional implications here are very real. The government is attempting to exterminate Scabby because he is a labor symbol. But the First Amendment protects labor unions just as much as anyone else, and the NLRB should recognize that.

With two swift actions last week, the Supreme Court proved it is alarmingly disinterested in protecting women’s lives. 
 
The first action by the court involved mifepristone, a drug used for medication abortion and miscarriage care. The Supreme Court reinstated a dangerous policy that patients travel to a health center during the pandemic just to pick up a pill and sign a form — putting thousands of patients at risk of contracting a deadly virus. 
 
Medication abortion is safe, effective, and has been FDA-approved for 20 years — all facts the Supreme Court ignored. Instead of protecting patients’ lives while ensuring access to abortion care, the Supreme Court chose to throw its weight behind the Trump administration, show its contempt for patients who need abortion care, and put their lives at risk in the process. And it did so at a time when the nation is facing the deadliest phase of the pandemic yet.

For patients who are needlessly exposed to Covid-19 because of the travel and childcare necessitated by this requirement, the court’s action could be deadly. For Lisa Montgomery, it already has been. Last week, Montgomery became the first woman to be executed by the federal government in nearly 70 years. 
 
When the Trump administration chose to restart federal executions after a 17-year hiatus, the Justice Department hand-selected who would be the first to die. Montgomery, who was sentenced to death for the killing of Bobbie Jo Stinnett, would have been an unlikely candidate for such a list under a different administration. For one thing, the federal government had not executed a woman since Ethel Rosenberg in 1953. 

For another, Montgomery had suffered unthinkable sexual violence and torture. As a young girl, her stepfather constructed a rape chamber adjoining the family home specifically to abuse and terrorize her. Her mother trafficked her to countless men to pay the bills and later married her to a stepbrother, who continued the pattern of raping, abusing, and beating her. She was then just 18 years old. These years of abuse left her with documented mental illness so severe that she regularly dissociates and did not understand why she was being executed at the time she was killed — a clear red line in terms of whether it was constitutional for the government to kill her. 
 
Montgomery’s lawyers filed a clemency petition with Trump, asking him to take into account these circumstances and convert her death sentence into life without parole, but he never even bothered to respond. Including Montgomery on the federal government’s must-execute list was a neon sign from Trump that no one, not even a victim of sexual torture, would be spared.
 
President-elect Biden opposes the death penalty and is expected to halt federal executions. But after Trump lost the election, his administration forged angrily ahead with its execution plans — despite a pandemic and the fact that federal judges had concluded that Montgomery’s execution should be paused while the courts considered multiple legal challenges.
 
The Supreme Court could have left that schedule in place. Instead, it removed the final safeguards between a disgraced president and a woman’s life. 

In both cases, it was sadly unsurprising that the Trump administration acted with blatant disregard for women’s lives. This is, after all, the same administration whose leader boasted that he liked to “Grab ‘em by the pussy,” claimed that lying about committing rape was part of the president’s job description, and rolled back schools’ obligations to respond to sexual harassment and assault. The brutality of this executive has become almost banal. But by needlessly greenlighting Trump’s bloodthirst just days before the incoming administration might have changed course, the Supreme Court sent its own cruel message about its disregard for women.
 
As it often has, the majority of the Court did not even bother to explain its decisions. But to women, its silence spoke volumes.

Note: This piece was first published in Ms. Magazine on 1/19/21