Gender and Sexuality in the 2020 ElectionBy David Closson Director of Christian Ethics and Biblical Worldview
David Closson is Director of Christian Ethics and Biblical Worldview at Family Research Council. This article appeared in the Council for Biblical Manhood and Womanhood on June 10, 2020.
As the world seeks a sense of normalcy following the coronavirus outbreak, Americans are once again turning their attention to the 2020 election. In November, voters will elect a new Congress and weigh in on dozens of state amendments and referendums. Thirty-five U.S. Senate seats, all 435 seats in the House of Representatives, and ten gubernatorial races are on the ballot. Additionally, eighty-six of the nation’s ninety-nine state legislative chambers are holding elections. But most importantly, voters will decide whether President Donald J. Trump has earned a second term, or whether former Vice President Joe Biden, the presumptive nominee of the Democratic Party, will become the next president.
A wide range of issues — such as the economy, health care, trade, immigration, and national security — will be affected by the election’s outcome. Issues related to sexuality and gender — such as how “sex” is defined in federal statutes, whether individuals with gender dysphoria can serve in the military, and whether “sexual orientation” and “gender identity” become protected categories in federal civil rights law — will be significantly influenced as well.
In 2016, Donald Trump was a political newcomer with no prior experience in public office. His ideological leanings and political convictions were, therefore, mostly unknown. However, in his first term, President Trump has made decisions on a host of items important to social conservatives and now has a record open for scrutiny.
By contrast, Joe Biden is no stranger to the national political scene. He served as vice president for two terms under President Obama (2009–2017) and represented Delaware in the U.S. Senate for more than three decades (1973–2009). Throughout his political career, Biden has cast votes, enacted policies, and advocated for his views related to marriage, gender, and sexuality. Moreover, his campaign recently outlined an aggressive and detailed plan for advancing LGBT rights in America and around the world.
If we want to know how the 2020 election will influence issues deemed important by those committed to biblical complementarity, we must evaluate the proposed policies, party platforms, and past decisions of the two major candidates. While there are many important races on the ballot this year, the top of the ticket always attracts the most attention and dictates political priorities. Therefore, a careful analysis of the core beliefs, policies, and campaigns of President Trump and former Vice President Biden should give us valuable insight into how the election will shape significant social issues.
When Donald Trump clinched the Republican nomination in 2016, most social conservatives were wary. Throughout his career as a businessman, the New York real estate mogul was not known as a champion for family values. In fact, the thrice-married television personality identified as pro-choice for much of his adult life, even claiming in 1999 to be “totally pro-choice.” On same-sex marriage, then-president-elect Trump said in 2016 that his own views on the subject were “irrelevant” and that the 2015 Obergefell decision legalizing same-sex marriage was “settled” law.
However, despite past ambivalence toward subjects of great concern to conservative Christians, President Trump’s administration has repeatedly prioritized life, family, and religious liberty issues. While some have questioned the administration’s motives, many of these decisions cannot be attributed to political expediency. The administration has expended political capital to repeal Obama-era directives dealing with sexual orientation and gender identity and has taken proactive steps to defend those who hold to a biblical sexual ethic. In addition, the administration has implemented an originalist interpretation of the Constitution, which does not read social policy preferences into the law but allows for an interpretation of the plain text to arrive at legal conclusions. Many of the administration’s policy changes flow from this interpretation.
To get a clearer picture of how the Trump administration has dealt with issues related to gender and complementarity, it is worth reviewing a few specific examples.
First, on February 22, 2017, a month after his inauguration, President Trump directed the Department of Education to rescind Obama-era guidance that mandated public schools allow students who identify as transgender to use bathrooms, locker rooms, and showers of their choice. Some argue this was an “easy lift” due to the administration’s ability to argue on procedural grounds that the Department had overstepped its authority in redefining a key word in a duly enacted statute without a proper notice and comment period. Nevertheless, the move exhibited leadership on a contentious issue.
Second, on July 26, 2017, President Trump announced on Twitter that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.” This was a reversal of an Obama-era policy adopted just a year earlier, which had done away with the longstanding prohibition on transgender military service. The Obama policy was implemented despite concerns that using the military for social experiments would negatively impact military readiness, lethality, and unit cohesion. It fell to Defense Secretary James Mattis to determine how to implement President Trump’s policy, and the details were released on March 23, 2018. The Trump administration’s policy allows existing transgender-identifying personnel to remain in the military while preventing those who have been diagnosed with gender dysphoria or have undergone gender transition surgery from joining the military. Those who identify as transgender, but do not undergo gender transition surgery, can join so long as they serve in accordance with their biological sex. Several lawsuits were filed against the new policy, but it went into effect on April 12, 2019, after the last preliminary injunction against it was lifted.
Third, the Trump administration’s Department of Justice (DOJ) filed an amicus brief with the Supreme Court defending the First Amendment rights of baker Jack Phillips who declined to create a custom cake for a same-sex wedding ceremony. The DOJ argued that the government should not coerce Phillips into creating messages that violated his sincerely held religious beliefs. Phillips won a 7-2 decision delivered on June 4, 2018.
Fourth, on the interpretation of statutes, the Trump administration has consistently argued that “sex” refers to biological sex, not “gender identity.” For example, on May 24, 2019, the Department of Health and Human Services (HHS) proposed a new regulation that clarifies that discrimination on the basis of sex in section 1557 of the Affordable Care Act was to be interpreted under the plain meaning of the word. Therefore, “sex” does not include “gender identity” as set forth by a 2016 Obama administration regulation.
Fifth, the DOJ has filed a number of amicus briefs and statements of interest in federal court cases around the country, including two amicus briefs in cases pending before the Supreme Court. In the first case, Bostock v. Clayton County, the plaintiff is suing his former employer for employment discrimination based on his sexual orientation. The Court must determine whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of “sex,” encompasses discrimination based on an individual’s sexual orientation.
The other case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, asks the Court to consider the question of whether Title VII prohibits discrimination based on gender identity. Whereas the Equal Employment Opportunity Commission (EEOC) has sided with the plaintiff, the DOJ has argued that “When Title VII was enacted in 1964, ‘sex’ meant biological sex; it referred to the physiological distinction between male and female.” In both cases, the Trump administration is taking the position that “sex” is a biological reality different from the subjective categories of sexual orientation and gender identity.
Beyond these two cases, the administration has become involved in cases defending those affected by society’s push to normalize transgenderism. For instance, the DOJ recently filed a “statement of interest” defending Title IX and the right of girls to compete only against other biological females in school sporting events.
Finally, the Trump administration has taken steps to protect those whose views on marriage and human sexuality are informed by their religious faith. On November 19, 2019, HHS issued a notification of enforcement discretion regarding an Obama administration regulation that all grantees, including those that are faith-based, must accept the validity of same-sex marriage and transgender ideology in order to be eligible to participate in grant programs. These rules had previously been used to shut down faith-based adoption and foster care providers; now they will not be enforced.
Although not comprehensive, these actions are representative of the Trump administration’s policies related to gender and human sexuality. True, there are additional actions the president’s team could take. For example, President Trump has not rescinded President Obama’s executive order that elevated sexual orientation and gender identity to the status of protected classes for the employment of federal contractors, and several federal agencies have Obama-era policies on this issue still on the books. President Trump could have issued a much stronger executive order protecting religious liberty in the context of marriage and sexuality — along the lines of the First Amendment Defense Act — instead of the more generally drafted religious liberty executive order he issued in May 2017. That said, the worldview underlying a significant portion of the president’s policies in this area — whether driven by an originalist legal framework or other policy concerns — are, for the most part, aligned with a biblical sexual ethic.
Because of his extended time in public life, Joe Biden has a long track record on most policy issues, including policies related to marriage and gender. However, because politicians sometimes change their minds and shift positions, we must also examine what the former vice president is saying today. By looking at both his legislative record and current campaign, what he thinks about marriage, gender, and religious liberty will become more evident.
Throughout his career, Joe Biden has been progressive on LGBT-rights and same-sex marriage. For example, in February 2010, Biden advocated for the repeal of the 1993 law barring military service by those who engage in homosexual conduct (often referred to colloquially as “Don’t Ask Don’t Tell”). Arguing that it was “the right thing to do,” Biden supported President Obama’s push for the repeal, which was enacted by Congress in late 2010 and took effect in 2011. On May 6, 2012, Biden surprised even President Obama by announcing his support for same-sex marriage; Obama followed suit three days later. And in August 2016, Biden officiated his first wedding — a same-sex wedding — at the vice president’s residence. Thus, although Senator Bernie Sanders attacked Biden’s record on LGBT issues during the recent Democratic primary, it is clear that Biden has been a staunch ally of the LGBT lobby during the last decade.
Today, Joe Biden is running for president on a platform committed to advancing LGBT rights. The centerpiece of his publicly released plan is the passage of the Equality Act. In fact, according to his campaign, enacting the Equality Act is the “top legislative priority” for Biden’s first 100 days. Notably, the Equality Act would codify sexual orientation and gender identity as protected classes in U.S. civil rights law, thereby granting them the same status as race and national origin. The act also undermines religious protections currently in place by stripping individuals of a Religious Freedom and Restoration Act (RFRA) claim or defense.
If Republicans maintain control of the U.S. Senate, the Equality Act has little chance of passing Congress. However, Biden’s LGBTQ+ plan promises several executive actions that would circumvent the legislative process and go into effect immediately. For example, Biden has promised to reinstate Obama-era guidance to “restore transgender students’ access to sports, bathrooms, and locker rooms in accordance with their gender identity” on his first day in office. Biden has also committed to reverting to the Obama administration’s interpretation of Title VII, and “reaffirm that the Civil Rights Act prohibits employment discrimination based on sexual orientation and gender identity.” Additionally, Biden will instruct the State Department to allow people who identify as transgender or non-binary to use “preferred pronouns” on government identifications, passports, and other documentation.
Biden’s push for LGBT rights extends to his approach to foreign policy. He has promised to install a “point person” for LGBT rights on the National Security Council and appoint a Special Envoy for the Human Rights of LGBTQ+ Persons at the Department of State. He is also promising to appoint a Special Coordinator in charge of international LGBTQ+ programming at USAID.
Legislatively, Biden supports the Therapeutic Fraud Prevention Act, which would prohibit sexual orientation change efforts, or so-called “conversion therapy.” This legislation is problematic because it infringes upon the freedom of people with unwanted same-sex attractions to voluntarily obtain counseling to help them achieve their own goals. It also undermines the privacy of the therapeutic relationship, the autonomy of the client, and the religious liberty of those seeking help to live their lives in accordance with the teachings of their faith. He also has signaled support for the Globe Act, which, among other things, would establish that persecution based on sexual orientation or gender identity may form the basis of an asylum request. He has also promised that LGBTQ Americans will have “full access to health care treatments and resources,” including “care related to transitioning—including gender confirmation surgery.”
Finally, Biden has actively campaigned on expanding rights for people who identify as transgender. On the campaign trail, he has argued that “transgender equality is the civil rights issue of our time” and proposed several related policy changes. These include overturning the Trump administration’s policy regarding service members who identify as transgender (and allowing them to receive government-funded gender transition surgery), repealing the proposed HHS rule that permits faith-based adoption agencies to receive government funding while still operating according to their convictions on marriage and sexuality, and requiring the Bureau of Prisons to take into account an inmate’s gender identity when considering housing assignments. Biden has frequently touted this last proposal on the campaign trail. On September 20, 2019, Biden told the crowd at an Iowa LGBTQ forum, “In prison, the determination should be that your sexual identity is defined by what you say it is, not what in fact the prison says it is.” Biden’s press secretary Jamal Brown reiterated this position, saying, “Transgender women are women, and their placement in men’s prisons is inhumane.”
Another useful gauge for determining where a politician stands on issues related to marriage and sexuality is the party platforms. Politicians increasingly vote in line with their party’s platform — eighty percent of the time over the last thirty years. Consequently, a party’s platform is a good indicator of how politicians from that party will vote.
In 2016, the Democratic Party Platform fully embraced LGBT rights. The platform affirmed the 2015 Obergefell decision, pledged to combat LGBT discrimination, and promised to “support a progressive vision of religious freedom that respects pluralism and rejects the misuse of religion to discriminate.”
The 2016 Republican Party Platform also addressed these issues. However, Republicans condemned the “Supreme Court’s lawless ruling in Obergefell v. Hodges,” endorsed the First Amendment Defense Act (which would bar government discrimination against individuals and businesses for acting on the belief that marriage is the union of one man and one woman), and affirmed that “every child deserves a married mom and dad.”
This summer, delegates from each party will gather to officially choose their respective nominee. (Unless the conventions are rescheduled due to the coronavirus crisis, Democrats will meet July 13–16 and Republicans will gather August 24–27.) They will also write new party platforms. If the past conventions give any indication, the 2020 platforms will provide even greater clarity into how both parties are today viewing issues connected to sexuality and marriage.
Voters will make an important decision in November. Unquestionably, there are significant policy differences between the two major parties and their respective nominees. This is especially true with issues related to gender and complementarity. Christians everywhere should commit to praying for politicians in both parties and every candidate appearing on the November ballot. Moreover, they should vote based on biblical principles. But regardless of the outcome of the election, Christians should continue praying for their elected leaders (1 Tim. 2:2), submit to the God-delegated authority of civil rulers (Rom. 13:1–7), and seek ways to love and serve their neighbors (Matt. 22:39).