I have always considered Elizabeth Birch, the former head of the Human Rights Campaign (HRC), to be a smart and savvy leader for our civil rights movement. At the new organization Freedom to Work, we're pushing hard for President Obama to sign the ENDA executive order, along with HRC and many other organizations. So I was disappointed when I read the comments Birch made to reporter Chris Geidner from Metro Weekly upon exiting the high-dollar fundraising dinner with President Obama last week. While President Obama has shown strength and leadership in the past months through his ongoing "We Can't Wait" campaign by issuing dozens of progressive executive orders, Birch's comments appeared to undercut our president by questioning the wisdom of taking executive action. Birch also projected to the LGBT community that we should be happy to wait longer for workplace equality, even when President Obama's own Justice Department and Labor Department have already drafted an ENDA executive order and recommended that he sign it.
With just the stroke of his pen, President Obama can add enforceable LGBT workplace protections to more than 16 million American jobs. The order will give the U.S. Labor Department strong enforcement powers at 22 percent of all jobs in America to seek back-wages and reinstatement for LGBT workers who are fired for discriminatory reasons. I suspect most of the LGBT community would celebrate that move.
However, after Elizabeth Birch left the fundraising dinner, at which several other attendees had strongly urged President Obama to sign the ENDA executive order, she downplayed the importance of executive action for LGBT Americans. Metro Weekly reported, "What's more, she suggested that it mightn't even be the most strategic move, saying, 'Executive orders are great, but they can have wobbly legs.'" With this wobbly comment, Birch even seems to be undercutting her old colleagues at HRC. Back in 2008, during the Obama transition, HRC presented a list of actions the new administration could take without waiting for Congress, in a memo called "A Blueprint for Positive Change." HRC clearly laid out the case for the ENDA executive order:
Nondiscrimination by Employers and Service Providers Who Use Federal Dollars
When the federal government hires private companies to perform government functions with public funds, it can and should expect the contractors to adhere to the same civil rights standards as the government would if it were doing the work itself.
Executive Order 11,246 already ensures strict conformity to these standards by providing recourse to act when a federal contractor or subcontractor discriminates on the basis of race, color, religion, sex or national origin. The president should amend Executive Order 11,246 to prohibit discrimination on the basis of sexual orientation and gender identity by federal contractors and subcontractors as a term of contract. No longer should a corporation be allowed to reap the rewards of receiving federal contracts while ignoring basic workplace protections for its employees.
Since HRC wrote this memo three years ago, they have been relatively quiet on this issue, leaving much of the detailed research work and public advocacy to groups like the Williams Institute, the Center for American Progress (CAP), and, to a lesser degree, Freedom to Work. But the good news is that reports coming out of Dupont Circle suggest that HRC is now gearing up to make a stronger public case for President Obama signing the ENDA executive order.
And about those supposedly "wobbly legs," American history proves that these concerns are just plain wrong. Executive orders have been used by many presidents to advance civil rights in the workplace since the time of Franklin D. Roosevelt 70 years ago. These executive orders have consistently lain strong foundations for equality legislation later passed by Congress. And history shows that Republican presidents do not rescind these executive orders; they just scale back on enforcing them. The next Democratic president then ramps up enforcement. It's a natural cycle in politics.
For example, let's look at the record of Bill Clinton, who was president when Birch ran HRC. In August 1995, President Clinton signed Executive Order 12968, which stated that sexual orientation could not be considered a security risk for the purposes of employment in national security jobs. Guess who welcomed that executive order? Reports the Baltimore Sun:
"I would put this in the category of an important request [to Mr. Clinton] that has now been fulfilled," said Elizabeth Birch, president of the Human Rights Campaign Fund, a gay advocacy group.
"There is no reason why a gay or lesbian person who otherwise is making a good contribution in their federal job should be restricted from moving on to higher responsibility because of arbitrary discrimination."
Not such wobbly legs for that one.
Later, in 1998, President Clinton signed Executive Order 13087, which banned discrimination in federal hiring. Guess who also welcomed that one? Yes, HRC did, of course. And if there was ever an executive order that might be wobbly, it was that one. Back in 1998 it was much easier for politicians to be publicly homophobic, and Republicans in the U.S. House of Representatives tried to overturn Clinton's executive order. But they failed miserably. According to the San Francisco Chronicle:
The 252-to-176 vote marked a major victory for pro-gay forces. The amendment by Colorado Republican Joel Hefley was the highest profile gay issue to come before Congress this term...
"We're absolutely jubilant,'' said Elizabeth Birch, executive director of the Human Rights Campaign, a national gay lobby.
So even against tough odds, Clinton's executive order for workplace nondiscrimination was not so wobbly.
Think about this: a Gallup Poll in March 1948 showed that "63% thought that black troops and white troops should remain separated, while 26% thought they should live and work together." But President Harry Truman had the courage to sign the executive order integrating the military anyway. He did the right thing to advance civil rights, even when the polls suggested he should wait.
Fast-forward to today and the ENDA decision currently pending in the Obama White House. A recent poll conducted by the Center for American Progress showed very strong support for this kind of proposal. From CAP's Jeff Krehely:
Greenberg Quinlan Rosner Research fielded the poll of likely 2012 voters in the first and second weeks of April 2011: Nearly three-fourths of voters (73 percent) support protecting gay and transgender people from workplace discrimination. This support cuts across political party affiliation, with 81 percent of Democrats, 74 percent of independents, and 66 percent of Republicans supporting workplace nondiscrimination laws for gay and transgender people.
Today, the polling is strongly on President Obama's side when it comes to banning LGBT employment discrimination. And, it sure fits with his current "We Can't Wait" campaign that has led to other strong executive actions this year.
In fact, the ENDA executive order may just prove to be a winning wedge issue to use against either Mitt Romney, who has flip-flopped multiple times on ENDA, or Rick Santorum, who is staunchly in favor of keeping it legal for discriminatory employers to fire LGBT Americans just because of who they are or whom they love. Indeed, smart political commentators like Andrew Sullivan have noted that one of President Obama's greatest skills is getting his political opponents to over-reach and self-destruct. The ENDA executive order is a perfect trap, and I predict that both Romney and Santorum will foolishly take the bait during their long-slog of a primary contest. When they do, President Obama can remind the Republicans that America's top government contractors -- companies like Lockheed Martin, Raytheon, Boeing, Northrop Grumman, etc. -- have already adopted LGBT nondiscrimination policies, because they realize workplace harassment is bad for the bottom line. The new executive order will only affect the holdout companies that still engage in prejudice. President Obama can explain to taxpayers and voters that we should never have our money squandered by letting our government subsidize discrimination and harassment.
So for the first time in American history, a presidential candidate may effectively use LGBT rights as a winning wedge issue against the conservatives and the discriminators. The polling, after all, is strongly on our side, and ENDA divides their party, with prominent Republicans like Chairman Paul Ryan of Wisconsin having voted in favor of the bill.
But putting politics aside, this ENDA executive order is both the morally right thing to do and decades overdue. In my opinion, President Obama has accomplished more for LGBT Americans than any other president in the history of the United States, and the ENDA executive order that his staff has drafted for his signature is a no-brainer compared to the far more challenging things he's already done. It is because I believe so strongly in President Obama that I am confident that he will do the right thing by signing this executive order. To quote our president, "We can't wait."
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