President Barack Obama scored a big win with the certification of the "Don't Ask, Don't Tell" repeal last week, but LGBT Americans are still hungry to hear what's up next on his equality agenda as he prepares to address the Human Rights Campaign dinner this Saturday, Oct. 1.
When I interviewed President Obama last December and tried to draw him out on his road map, he spent a good bit of time talking about the changes he could make by utilizing his executive authority even though the House of Representatives would be in hostile GOP hands.
"[L]et me just say there are still a lot of things we can do administratively even if we don't pass things legislatively," Obama told me. "So my ability to make sure that the federal government is an employer that treats gays and lesbians fairly, that's something I can do, and sets a model for folks across the board."
But since that interview, the president has not issued a single executive order that would advance equality, despite repeated calls for him to do so.
One obvious place to start would be to prohibit discrimination in the military based on sexual orientation and gender identity. It is true that gay and lesbian soldiers are no longer at risk for being discharged because of who they love, but they do not receive equal benefits if they have a partner, and they have no means of legal recourse if they are, for instance, passed over for a promotion because of their sexual orientation.
Pentagon officials have expressly opted out of writing lesbian and gay service members into their nondiscrimination regulations, and addressing that concern is unfinished business as far as repeal is concerned. The president has the power to right that wrong by providing a remedy.
Another area that is crying out for presidential leadership is private-sector anti-discrimination policies.
During the 2008 campaign, candidate Obama said he would lobby Congress to pass a law protecting LGBT people against job bias -- legislation known as the Employment Non-Discrimination Act (ENDA). But at our December interview, the president said he had not pushed ENDA in the last Congress because his administration had been "focusing on" repealing "Don't Ask, Don't Tell." Since the employment measure is now DOA in the Republican-led House, President Obama could substantially expand the federal government's role in fostering a fairer and more equitable workplace for LGBT Americans by mandating that the U.S. government only contract with private companies that provide anti-discrimination protections on the basis of sexual orientation and gender identity.
It would be a bold move with sweeping implications. While LGBT federal employees already enjoy such protections, they comprise only 1.4 percent of the nation's workers, according to the Partnership for Public Service. Federal contractors, by contrast, employ approximately 22 percent of the American workforce, according to the U.S. Department of Labor.
But the administration, which has aggressively courted the business community following reforms in health care and on Wall Street, seems reluctant to upset the corporate apple cart with more regulations heading into the 2012 election cycle.
In fact, President Obama intensified his corporate charm offensive at the outset of the year with the appointments of former JP Morgan executive Bill Daley as his chief of staff and GE President Jeffrey Immelt to head his presidential Council on Jobs and Competitiveness -- an initiative Obama created via executive order. He also gave a major address to the U.S. Chamber of Commerce, which dumped about $33 million into the 2010 election cycle. And just recently, President Obama stroked the business community and incensed environmental activists by pulling back on regulations designed to curb greenhouse gas emissions that were recommended by the Environmental Protection Agency.
Nonetheless, as the year has progressed, the concept of taking executive action to prohibit LGBT job bias among federal contractors has increasingly gained steam with advocates and Congressional leaders following the demise of ENDA. House Minority Leader Nancy Pelosi backs it, and Sen. Tom Harkin, who chairs the Senate Health, Education, Labor and Pension Committee, said he would "strongly support" an executive order.
"Everyone deserves a fair chance to earn a good living, judged by their talent, ability and qualifications free from discrimination," Harkin told the Washington Blade earlier this year.
The necessity of setting that example at the federal level has been brought into stark relief on several occasions this year.
In May, Tennessee state lawmakers voted to reverse a Nashville measure that would have required city contractors to provide LGBT protections to their employees. When Governor Bill Haslam signed the bill, he said he was ultimately motivated to nullify the Nashville ordinance because it had exceeded protections mandated by the federal government.
"In this case, we were going beyond what the federal requirements were," Haslam said, offering his rationale for approving legislation that clearly targeted LGBT people.
It was a heartbreaker for activists who live in the Volunteer State after what had seemed like a rare advancement for equality.
"We are in a red state usually controlled by Republicans, or anti-gay Democrats, and we really have no chance of being on the offense and winning anything at the state or local level," Tommy Simmons, a gay activist in Memphis, told me, adding that he was pleased that the Nashville Metro Council had originally succeeded in adding the protections. But ultimately, "this has to be won at the national level," Simmons said, referring to legislation like ENDA.
Another middle-American city that could benefit from an example set by bold federal leadership is Holland, Mich., which President Obama visited just last month to discuss job creation. In June, the Holland City Council fell just one vote short of enacting a measure that, among other things, would have prohibited employment discrimination against people on the basis of their sexual orientation and gender identity.
Ever since the vote, equality activists in this conservative enclave of Western Michigan have been staging regular demonstrations at Holland's City Hall to protest the city council's vote (a PSA video for their struggle is here).
Although many cities and states across the nation have enacted laws protecting lesbian, gay, bisexual and transgender workers against bias, providing basic fairness continues to be the exception rather the rule. Gays can still be fired in 29 states, and 35 states allow transgender individuals to be summarily dismissed without a means of legal recourse. Sadly, recent polling from the Center for American Progress shows that 90 percent of Americans believe federal protections already exist for LGBT workers, even as legislation that would provide relief has continued to languish for more than 35 years.
Executive orders not only carry the force of law, they also articulate a national ideal expressed by our country's chief executive that is often emulated by state and local governments and even adopted by Congress itself. President Franklin D. Roosevelt first initiated the idea of barring discrimination among federal contractors via executive order in 1941 and Congress eventually codified it into federal law with Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination among entities nationwide based on race, color, religion, sex or national origin.
By taking executive action that would require federal contractors to safeguard their LGBT employees against discrimination, President Obama could proactively protect a vulnerable minority and set the nation on the same trajectory toward justice that FDR did 70 years ago. The question is, will he take it?
Kerry Eleveld is senior fellow at EqualityMatters.org. She was the White House correspondent for The Advocate during the first two years of the Obama administration.
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