Analysis: Will Kenney’s Executive Order Outlast Kenney?

Philadelphia Mayor Jim Kenney signs an executive order protecting trans and gender-expansive individuals seeking gender-affirming care in the city. (Screenshot: City of Philadelphia Government Facebook page)
Philadelphia Mayor Jim Kenney signs an executive order protecting trans and gender-expansive individuals seeking gender-affirming care in the city. (Screenshot: City of Philadelphia Government Facebook page)

Mayor Jim Kenney signed an executive order Oct. 17 protecting people seeking and receiving gender-affirming care in Philadelphia. The executive order also protects local health care professionals providing such care. It’s an expansive executive order with a tone of emergency. A  tone many trans and gender-nonconforming people would agree is necessary in the current political climate.

At the press conference where he signed the order, Kenney said, “This executive order demonstrates once again that Philadelphia truly is a welcoming city, a place where all people can be treated fairly with dignity and respect.”

A press release from Kenney’s office states, “More than 60,000 Philadelphians identify as lesbian, gay, bisexual, transgender, and/or queer. The city of Philadelphia has a long history of LGBTQIA+ activism, and it is now one of the most accepting cities in the United States for LGBTQIA+ people.”

It adds, “The City of Philadelphia has a longstanding commitment to protecting all people’s right to privacy and bodily autonomy, and Executive Order No. 4-23 will ensure transgender and gender diverse people are protected and cared for with equal rights.”

Kenney’s action indeed made Philadelphia appear cutting edge in gender-affirming care, particularly at a time when, as PGN has been reporting for over two years, GOP state legislatures have been promoting and passing bills restricting gender-affirming care. Nearly half of U.S. states — 21 in all — have passed laws restricting gender-affirming care and who can receive it.

But what does this executive order really mean? How much weight does it really carry? Why now? And will this executive order outlast Kenney, whose mayoralty ends in January?

Executive order 4-23 states that “all members of the executive branch shall, to the fullest extent of their authority and ability, take steps to protect the ability of individuals and entities in Philadelphia to seek, travel to obtain, provide, receive, or assist in providing and receiving gender-affirming health care services.”

The four-page executive order, which was effective immediately, details why the order was put forward and what it covers. It prohibits local government officials from giving information to or aiding investigations that would penalize residents or visitors who seek gender-affirming care in Philadelphia, barring state or federal law requirements.

Additionally, the order states that should state or federal laws criminalize gender-affirming health care, Philadelphia lawmakers will “deprioritize enforcement of crimes related to providing or receiving such gender-affirming health care services.” 

As Kenney’s office asserts, “This Executive Order not only helps to ensure the safety of LGBTQIA+ adults, children, and their families; it also publicly reaffirms Philadelphia’s ongoing effort to advance equality and support our diverse communities.”

The executive order was greeted positively. The Inquirer put the story out as a news alert. Josie Pickens, chief diversity, equity and inclusion officer in the Mayor’s Office of Diversity, Equity and Inclusion, said at the press conference, “This executive order reflects the city’s commitment to the full inclusion of the LGBTQ+ community, and strengthens Philadelphia’s reputation as a welcoming city.”

Celena Morrison, executive director of the city’s Office of LGBT Affairs, said at the press conference, “Philadelphia and this administration has long been committed to promoting the equal rights and protections of trans and gender-expansive communities. The Philadelphia Fair Practices Ordinance already prohibits discrimination based on a person’s gender identity, but our transgender and gender-expansive community is still under attack.”

Morrison and Pickens are correct, but given what they and Kenney himself said and the language of emergency inherent in the tone of the executive order, why did Kenney wait to put the order forward until a month before the election? Why not back in January? Or last year?

Kenney had been quick to announce Philadelphia as a sanctuary city and when threatened by the Trump administration’s Department of Justice in Oct. 2017, Kenney had the city file a lawsuit against the DOJ, claiming the attorney general was overstepping. A video of him dancing in his office went viral.

Kenney is seemingly unafraid of controversy, so why did he wait so long to proffer this executive order? People in local politics that PGN asked about this declined to comment on the record, but one local official said, “This action solidifies Kenney’s record as the best mayor for LGBTQ people. Call me cynical, but that’s definitely part of this EO.”

Another City Hall denizen told PGN, “The Mayor’s taken some hits this year — especially on gun violence. This is a no harm, no foul, net positive for the Mayor and gives him some much-needed positive press on his way out.”

The executive order also puts the incoming mayor-elect — which is projected to be Democratic nominee Cherelle Parker — in the position of having to uphold the executive order or rescind it. And while Kenney endorsed Parker and supported her candidacy — unlike his two predecessors, Mayors Michael Nutter and John Street, who supported the more progressive former Controller Rebecca Rhynhart — Kenney did not do ads for Parker nor campaign with her during the crowded Democratic primary

According to the Philadelphia City Charter, “as CEO, the mayor has the power to issue executive orders to agencies in the executive branch of City government. These commands or directives generally concern the implementation of laws or mayoral policies. Executive orders may be amended, revised, or repealed by subsequent orders.”

This means Kenney’s executive order doesn’t end with Kenney: such executive orders last as long as subsequent mayors choose. So it will remain in place until Parker makes any change to it. This suggests good news for Philadelphia’s trans and gender-nonconforming community, as Parker has asserted her commitment to LGBTQ+ people and last month Parker wrote an op-ed for PGN detailing her support.

It’s also good news for Pennsylvania, because Philadelphia has one of the best and most innovative gender care clinics in the U.S. for youth at Children’s Hospital (CHOP). So the executive order has real heft, as there are people coming from all over the country — but certainly within the state — to access CHOP’s gender clinic. What’s more, such programs have faced attacks from anti-LGBTQ+ activists like Moms for Liberty, so the executive order protects not just the doctors and nurses engaged in this care, but anyone working in such an environment.

Another key provision of the executive order is protection for incarcerated people who are routinely denied continuation of care or initiation of care. The executive order requires care throughout the duration of custody.

Unlike California, New York, Massachusetts, D.C. and a few other states, Pennsylvania has no shield law protecting access to transgender health care. There also isn’t a state law to ban health insurance providers from excluding coverage of gender-affirming health care. Local activists have been agitating for a state law, but Harrisburg remains unresponsive to LGBTQ+ issues. And in an election year in this swing state and after the unprecedented efforts to attempt a fake electors scheme in Pennsylvania, it won’t be a year when Democrats use their slender majority to attempt controversial legislation.

So Kenney’s executive order is as significant as he asserted. As human rights advocate Kendall Stephens told PGN, “A lot of our rights have been erased….It’s a relief to know that the medical system, at least in Philadelphia, is one system where we can expect to have our dignity.”