Our movement for equality has been working to gain passage of meaningful nationwide workplace protections for LGBT Americans for decades now, and while we’ve made some gains in a few states and municipalities, the goal of a federal law that includes us once and for all has seemed perpetually out of reach. So now comes President Barack Obama this week directing staff to draft an executive order that would expand existing protections by prohibiting all federal contractors and subcontractors from discriminating against their employees based on sexual orientation and gender identity, and he will sign it.
“Woohoo!!” right?
There is no question that this president has done more to advance LGBT equality than all of his predecessors combined. In the face of a stalled Congress that prefers bickering and symbolic votes to meaningful action, Obama in his 2014 “year of action” plan has further vowed to use his power of “pen and phone” to accomplish through executive order some things that Congress has not acted on. With strong bipartisan passage of the Employment Non-Discrimination Act (ENDA) in the Senate and zero action on it in the House, many in the LGBT movement have been pressuring him to take precisely this action — namely, to institute workplace protections for LGBT Americans via executive order.
There are pros and cons to both pathways to workplace protections, and how they balance for any given LGBT person is a matter of personal opinion and perspective. Neither is perfect, and there are serious problems with both. But we have no federal workplace protections in law or regulation right now, and gay workers in 29 states and transgender employees in 32 states can still be fired simply for being who they are. So something is better than nothing.
The planned executive order would bring immediate relief for what the Williams Institute estimates to be more than 16.5 million Americans and their families, but it would cover only LGBT Americans employed by federal contractors. And an executive order is not law — it can be wholly rescinded by the simple pen stroke of a future president in 2017 or beyond.
So why not focus on ENDA? One, the bill has stalled for decades in Congress, and odds are that it will not pass this Congress or the next. A federal ENDA would certainly have the full force of permanent law and would protect all LGBT Americans nationwide, but putting all of our workplace equality eggs in the ENDA basket would be a long indefinite wait for everybody.
But there is another significant downside to passing ENDA right now: In its present form, ENDA contains the broadest religious exemption in the history of civil rights legislation — completely gutting the spirit and intent of the law, in the eyes of many. The baseline 1964 Civil Rights Act Title VII has been the “religious exemption” benchmark until now, providing only a narrow allowance for religiously-affiliated organizations to create a community of believers of the same faith while still requiring such religious organizations to comply with nondiscrimination for all protected classes beyond religion. ENDA in its current form would expand the Title VII standard to carve out a huge unprecedented “special” religious exemption for employers to legally discriminate against LGBT employees.
Many major LGBT organizations, including National Center for Lesbian Rights, no longer support the current version of ENDA. Others, including the Human Rights Campaign, only cautiously support it, expressing “grave concerns” about the breathtakingly far-reaching religious exemption as written. All of these organizations would wholeheartedly support an ENDA that includes only the standard Title VII religious exemption.
Still, this week LGBT organizations and individuals across the country are enthusiastically applauding the president’s plan to sign an employment non-discrimination executive order. The National Gay and Lesbian Task Force’s Rea Carey hailed it as “the single largest expansion of LGBT workplace protections in our country’s history.” HRC’s Chad Griffin cheered the move and deftly noted that while most federal contractors already provide these protections, major corporations who are federal contractors and have refused in the past will now be required to comply. “This order will bring much-needed relief to ExxonMobil’s LGBT employees,” he said, pointing out that for almost 20 years Irving-based ExMo “has held the lowest spot in HRC’s Corporate Equality Index — the first and only company to receive a negative score.”
The president said it best himself this week to a group of LGBT Democratic leaders: “Because in the United States of America, who you are and who you love shouldn’t be a fireable offense.
It would be better, by the way, if Congress passed a more comprehensive law that didn’t just cover federal contractors. And we need to keep working on that, so don’t take the pressure off Congress.”
Patti Fink is president of Dallas Gay and Lesbian Alliance and a host of Lambda Weekly on KNON-FM 89.3.
This article appeared in the Dallas Voice print edition June 20, 2014.