A New Opening

Nancy Goldstein Jan 21, 2013

Nancy Goldstein
Office of Public Engagement

My first act as Obama’s new head of the Office of Public Engagement and Intergovernmental Affairs would be to heed the drum that a vast array of LGBT and human rights activists pounded all last year and put some damned LGBT non-discrimination policies in place, as Obama has failed to do despite his 2008 campaign promises. (Yes, DADT is certainly a fine beginning, but it took him until the third year of his first term to get on it, activists had to push him uphill the entire way, and it still allows discrimination against transgender servicemembers.)

The President could start by signing the executive order he refused to sign last April — the one that would ban federal contractors from discriminating against employees based on sexual orientation or gender identity. Of course, his inaction ticked off activists like Heather Cronk, managing director of GetEQUAL, who calls it “shameful that the United States government still chooses to accept the premise that it’s okay to fire someone simply for being lesbian, gay, bisexual, or transgender.” But preventing taxpayer-funded workplace discrimination is such a no-brainer that even the New York Times Editorial page was peeved by the president’s punting.

As political strategist Paul Yandura and blogger Joe Sudbay noted in a recent post, “This executive order has been awaiting his signature for over two years now. He could do it this week, and it would be a historic first step toward federal employment protections.” It would also, according to Tico Almeida, President of the LGBT organization Freedom to Work, “give the U.S. Labor Department strong enforcement powers to seek back wages and reinstatement for LGBT workers who are fired for discriminatory reasons.”

Just as important are the ways that the executive order would, as Yandura told me, provide “the smartest step and best pathway we have toward passage of the Employment Non-Discrimination Act.” ENDA would offer the broadest possible protections for transgender and nonconforming people and has been languishing in Congress since 1994. As of now, only 16 states and the District of Columbia have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector. And, as Almeida pointed out, ‘’The order will also trigger national news stories pointing out congressional inaction on this issue, and that will help our movement with one of our biggest ENDA hurdles — the fact that 90 percent of Americans mistakenly believe ENDA has already become law.’’

Yandura also noted that the existing executive orders that protect minorities but exclude LGBT Americans, originated years before Congress got it together to pass federal legislation and were the impetus for that change. These orders create a strong foundation for legislation later passed by Congress. According to Nan Hunter, a lesbian law professor at Georgetown University, “History has shown executive orders for non discrimination often precede changes in law.” So there is a strong historic precedent for signing a similar order to protect LGBT Americans to create a pathway to passage of ENDA. Moreover, if the President signs a revised executive order now, almost a quarter of the U.S. workforce will have already lived under similar LGBT employment protections by the time ENDA does finally come up for a vote. That should go a long way toward undercutting any fear-based arguments used against it by homophobic and transphobic lawmakers.

So good morning, Mr. President, and welcome to your second term. I super appreciate this new gig and the free seltzer in the OPE kitchen. And now I’ve got some papers for you to sign.

Nancy Goldstein’s work has appeared in venues including the Guardian, The Nation, the Daily Beast, NPR, Politico, Salon, Slate, the American Prospect and the Washington Post, where she was an Editor’s Pick and the winner of the blogging round during their Next Great Pundit Contest. You can follow her on Twitter at @nancygoldstein.

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