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On September 22, 2020, just months before the election, President Trump issued Executive Order (EO) 13950, Combating Race and Sex Stereotyping. This EO claimed it was an attempt to stop “offensive and anti-American race and sex stereotyping and scapegoating.” But in reality, it was an attack on the diversity, equality and inclusion (DEI) policies and programs put into place by companies and other organizations to fight racism and sexism in the United States.
Thanks to subsequent litigation, the damage from EO 13950 was limited. And with a new White House Administration, EO 13950 is no more.
Let’s take a look at how important President Biden’s revocation of EO 13950 is, but to do that, we need to go back and examine what EO 13950 called for and the chilling effect it had on DEI policies and programs.
Executive Order 13950: What It Tried To Do
EO 13950 set out a list of grievances, such as certain ideologies in today’s society falsely state how “America is an irredeemably racist and sexist country” and that DEI materials and instructors are “teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist.”
To counter these perceived wrongs, EO 13950 declared that the U.S. Armed Forces, government contractors, federal agencies and recipients of federal grants shall no longer promote, among other things, “divisive concepts” as a part of any DEI or training programs or policies.
EO 13950 defined a “divisive concept” as any form or race or sex-stereotyping or scapegoating, including statements that convey the idea that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” EO 13950 effectively made many diversity training programs unlawful.
If an entity did not comply with EO 13950, it could result in its government contract being canceled or suspended. It could also lead to the contractor being banned from future government contracts. The U.S. Department of Labor was also instructed to set up a hotline for people to call and submit a complaint about a possible violation of EO 13950.
On September 28, 2020, the Office of Management and Budget released its Memorandum for the Heads of Executive Departments and Agencies which attempted to provide further guidance for federal agencies attempting to comply with EO 13950. Unfortunately, it didn’t provide much clarification, and the parts that did, further reiterated the overall message of EO 13950 and its goal of undermining DEI programs and policies.
The Response to Executive Order 13950
EO 13950 encountered a lot of resistance after it was released. The U.S. Chamber of Commerce, a group of U.S. Senators and the American Hospital Association represent just some of the groups and organizations that issued letters asking for EO 13950 to be withdrawn. Then there were lawsuits, one of the most notable being from Lambda Legal. Much of this opposition came for two reasons.
First, many of its directives were vague. This meant federal agencies and companies didn’t know how they could continue their DEI programs while still complying with EO 13950. For example, imagine a DEI training session and its materials are fully compliant with EO 13950, but an employee asked a question about a topic classified as a “divisive concept” under EO 13950. Would the organization face liability for the DEI instructor’s response to that question?
Second, certain parts of EO 13950 attacked one of the bedrock points of many DEI programs: that racism and sexism could be unconscious and that individuals could be acting in racist or sexist ways without even realizing it.
As a result of EO 13950, many DEI programs stopped, such as at the Department of Justice and the Department of Health and Human Services, as well as some companies, nonprofit organizations and institutions of higher learning.
Despite the negative impact EO 13950 was having, many of its mandates weren’t in effect for very long. On December 22, 2020, a federal court issued a nationwide injunction halting the enforcement of EO 13950 as it applied to government contractors and recipient organizations of federal grants.
But this injunction was only temporary and didn’t apply to all of EO 13950. However, President Biden made this a moot point after he issued Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government on January 20, 2021.
President Biden’s Executive Order
Most of this EO is not directly related to EO 13950. Instead, it outlines a plan for fighting inequality in the United States. Directives include asking agencies to review their programs and policies to ensure that underserved communities and individuals do not face systemic barriers to enjoying the benefits offered by these federal programs.
But Section 10 specifically revoked EO 13950. It also ordered the heads of any agencies covered by EO 13950 to review its actions in response to EO 13950 and within 60 days, terminate those actions if they are inconsistent with “applicable law.”
The Bottom Line
President Biden’s revocation of EO 13950 not only cleared up the lack of clarity concerning DEI programs and policies across the country, but it also represents a strong signal that the current White House administration is serious about fighting racism and sexism in workplaces across the United States. This is true even if it requires acknowledgment that discrimination can be a systemic problem and/or the result of unconscious beliefs or behaviors.
