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Four Reasons for Hope on LGBT Rights and the Obama Administration


OK, so you voted for Obama, and you are a big LGBT rights supporter, and you are starting to despair because he has yet to push for the repeal of either DOMA or the Don't Ask, Don't Tell policy. And to make matters worse, you've heard that his Department of Justice filed a brief in a case challenging the constitutionality of DOMA in which it argued that the law is clearly constitutional.

The Administration has been hit hard, and rightfully so, on all of these points by LGBT leaders and by the gay blogosphere.

But I, for one, do not want to completely lose the sense of optimism that I felt just a few months ago when Obama replaced what was without a doubt the worst and most incompetent administration since that of Herbert Hoover's. I want to find reasons to still believe that the Obama Administration will do the right thing for LGBT people, and do it relatively soon. Below are four "signs of hope" (and perhaps you can think of more). Please understand that I am not suggesting that these small steps justify the Administration's refusal so far to push for the repeal of DOMA and of the military's blatantly discriminatory policy. All I am saying is that these are silver linings of sorts which suggest that perhaps better things are on the way when it comes to how the Administration will handle some of the most important civil rights issues of our time.

1. The Administration has decided not to appeal a successful discrimination lawsuit brought by a transgendered person who was denied a position with the library of congress.
This is an important case because the trial judge ruled that the plaintiff, as a transgendered individual, is protected by Title VII of the Civil Rights Act of 1964, the nation's most important employment antidiscrimination law. You can be sure that the Bush Administration would have appealed this ruling By refusing to appeal, the Administration (at least implicitly) is agreeing that transgendered individuals are protected by Title VII, a point that will no doubt be used by future litigants. By deciding not to appeal, the Administration is also sending the message that government agencies should not discriminate on the basis of gender identity. This is consistent with reports that the Administration is in the process of quietly drafting workplace guidelines prohibiting discrimination by agencies of the federal government.

2. The Administration has decided that the 2010 census will count same-sex couples who are married.
It will not surprise you to learn that the Bush Administration took the position that DOMA prohibited the federal government from even counting how many same-sex couples are married under either the laws of foreign countries or of those states that recognize gay marriages. The Obama Administration has reversed that decision, which will help to render visible the thousands of same-sex couples across the country whose marriages have been recognized by at least one jurisdiction.

3. The Administration has proposed eliminating the regulation that excludes HIV + immigrants.
There used to be a time when having a same-sex sexual orientation was a sufficient ground to deny an immigrant the right to enter or stay in the United States. That law was changed in 1990. But a few years before that, during the dark days of the Reagan Administration, the federal government adopted a regulation requiring that those who want to emigrate to the U.S. (or immigrants already here who want to stay) have to be tested for HIV, with their petitions denied if they test positive. Since HIV is not transmitted casually, there was never a public health justification for the HIV immigration ban. It is therefore heartening that Obama's Department of Health and Human Services has started the public comment process that should lead to the elimination of this unnecessary and discriminatory regulation.

4. The Administration has appointed several open LGBT people for relatively high positions
including John Berry (Director of Personnel Management), Nancy Sutley (Chair of the Council of Environmental Quality); Fred Hochberg (Chair of the Export-Import Bank); and Brian Bond (Deputy Director of the White House Office of Public Liaison). I know that in this day and age, we should be beyond the point of commending organizations, including the government, for not discriminating against people because of their sexual orientation. But, again, remember where we were just a few months ago: The previous Administration, to my knowledge, did not make a single significant appointment of an openly gay or lesbian person to the federal government for eight years. The fact that political appointees of the federal executive branch are starting to reflect the country's diversity, including its sexual diversity, is a positive and important change.

I trust that you will not think I am being unduly Pollyannaish in my search for hope when it comes to the Obama Administration and LGBT rights. I fully recognize that the Administration's track record so far on these issues has been (to say the least) mixed. But I want to believe. So I am going to try to hold off despair for as long as I can.