Even as LGBT advocates are uniform in faulting the Obama administration for its unwillingness to move forward with an executive order barring sexual orientation and gender identity discrimination by contractors doing business with the federal government, the White House press secretary, on April 12, insisted the decision ought not be faulted because “the president’s record on LGBT issues speaks volumes about his commitment.”
Facing a barrage of questions a day after news of Obama’s intention not to embrace an executive order, Jay Carney was asked to respond to a statement from Tico Almeida, president of Freedom to Work, an LGBT advocacy group, charging that “this is a political calculation that cannot stand.”
The press secretary responded, “Absolutely not. The president is committed to securing equal rights for LGBT Americans and that is why he has long supported ENDA. I think the president’s record on LGBT issues speaks volumes about his commitment to securing equal rights for LGBT Americans.”
Carney reiterated the same argument made the day before by White House spokesman Shin Inouye –– that, as with ending the Don’t Ask, Don’t Tell policy, the president believes legislation will ensure a permanent solution that an executive order, which could be withdrawn by a later president, cannot.
Freedom to Work’s Almeida, however, pointed out that in recent months, Obama has sidestepped the Republican House of Representatives on a number of issues where he faced recalcitrance by taking administrative actions, including executive orders –– an effort the administration has dubbed “We Can’t Wait.” Freedom to Work has now launched its own “We Can’t Wait” effort, which it described as “an all-out offensive… to beat back homophobia in the workplace.”
Almeida was among a group of LGBT advocates who learned of the decision not to move on an executive order during an April 11 meeting with senior White House aides, including Valerie Jarrett, Obama’s assistant for public engagement and intergovernmental affairs.
In a written statement, Almeida said, “I urged senior White House staff yesterday to reconsider their mistake. We will continue to publicly urge them to reconsider for many months to come. White House staffers and lawyers have let politics stand in the way of a basic American value – that a solid day’s work deserves a solid day’s pay, regardless of the color of your skin, your place of worship, your gender, or who you love. We can’t wait for the White House to catch up with this basic democratic value.”
Almeida said senior White House staff voiced concerns about the possibility of an executive order becoming entangled in litigation, but added nobody could cite a precedent that called legality of the concept into question.
Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), said that issue was examined closely by the Williams Institute, an LGBT think tank at UCLA, which found no legal problems with such an order.
Almeida also said that administration officials acknowledged that the Departments of Justice and Labor have been examining the idea for some time, though other participants at the meeting cautioned that no formal position has been taken by either department.
Inouye had no comment on whether the administration had a view on whether Obama legally could issue a nondiscrimination executive order.
Others who attended the White House meeting were also critical of the administration's position.
Joe Solmonese, president of the Human Rights Campaign (HRC), which endorsed the president’s reelection last year, said, “We are extremely disappointed with this decision and will continue to advocate for an executive order from the president.”
Referring to HRC’s decade-long effort on its Corporate Equality Index, as well as research by the Williams Institute and the Center for American Progress (CAP), Solmonese said, “No similar executive order has ever had this kind of extensive research or factual basis established.”
Winnie Stachelberg, CAP’s executive vice president for external affairs, also termed the administration’s decision “disappointing,” noting that, according to a survey her group completed last year, non-discrimination protections based on sexual orientation and gender identity are supported by nearly three-quarters of Americans and almost two-thirds of small business owners, as well as most Fortune 500 companies.
In fact, the CAP survey found, nine out of ten Americans incorrectly believe such protections already exist in federal law.
NCTE's Keisling said, “President Obama right now has the power to stop trans employees of federal contractors from getting fired on the job. Of course, we also need the Employment Non-Discrimination Act, but we can solve a small but important part of the problem now. What we know is that the White House is going to take a more active role in addressing anti-LGBT discrimination in the workplace. But trans people and their loved ones can’t wait.”
A survey completed by NCTE found that a staggering 97 percent of transgender people have faced harassment at work.
Not surprisingly, among the toughest words came in the reaction from the Log Cabin Republicans.
“This president has been all about making promises and spouting empty words, but here he has failed to deliver on a policy that has broad, bipartisan support among the American people,” R. Clarke Cooper, the national group’s executive director said in a written statement. “It is a shame that our community's self-described 'fierce advocate' sees no need to expend the minimal political capital to keep this important promise, especially when a large majority of Americans, including conservatives, support such a policy.”
Supporters of the LGBT community on Capitol Hill responded to the administration’s posture in a variety of ways.
Drew Hammill, a spokesman for House Democratic Minority Leader Nancy Pelosi, released a statement saying, “This decision adds more urgency to Democrats winning back the House to continue on our path of ending discrimination as we did by repealing ‘Don’t Ask, Don’t Tell’ and making a fully-inclusive hate crimes bill the law of the land. With a Democratic Congress, we will make more strides toward equality by passing a fully-inclusive ENDA and repealing the so-called Defense of Marriage Act.”
Asked whether Pelosi was prepared to commit to getting ENDA passed in the first two years of a new speakership, something the House did not accomplish during her four years as speaker from 2007 through 2010, he responded, “I can only speak for the House under Democratic control.” A House led by Pelosi, he said, would make passage of ENDA “a priority.”
Senator Jeff Merkley, the Oregon Democrat who is the lead sponsor on ENDA, took the president on directly.
“I am deeply disappointed that the administration will allow companies that accept federal contracts to discriminate against workers on the basis of their sexual orientation or gender identity,” he said in a written statement. “Such discrimination in the workplace is unacceptable. There is no way that equal opportunity exists for all Americans when such discrimination is tolerated.”