There's been an ongoing debate within the LGBT community, mostly among bloggers and activists, about whether President Barack Obama should sign an executive order that would ban discrimination by employers with federal contracts. This so-called mini-ENDA, proponents argue, would lessen discrimination against LGBT employees as we wait to see whether the Democrats can regain control of Congress and retain the Senate in order to finally pass the fuller Employment Non-Discrimination Act, which has languished under the GOP-controlled House. On the other side are gay Democratic activists who argue that the president should not sign the executive order because it could possibly only be in effect for a few months (if he loses the election the order could be rescinded by the next president) and it risks losing votes for Obama from people who are not gay-friendly.
That doesn't add up to us. Frankly, we don't believe many Republicans and independents are using gay issues to motivate and increase voter turnout in the election this year. Oh sure, the Christian conservatives may get wound up, but just last week Romney brought onboard an out gay man to advise him on national security matters and no one's making a fuss about that. One recent survey resulted with same-sex marriage at the bottom of the list of issues that preoccupy voters. Rather, we see such twisted reasoning providing political cover for the president. And the argument in the Advocate by Andrew Tobias, an out gay member of the Democratic National Committee, is replete with phrases that are often used in presidential election years when some LGBTs wonder if they should vote for the Democrat: "We risk seeing the Supreme Court lost for 20 years." Actually, most voters don't base their decisions on the fate of Supreme Court nominations; maybe they should, given the influential power of the justices, but it just doesn't happen.
Furthermore, it has been reported widely that Obama has used executive orders to establish policies in the absence of any legislative action by Congress – and, to bolster his standing among his base, a base that includes LGBT voters. On Monday, the lead story in the New York Times was headlined "Shift on Executive Power Lets Obama Bypass Rivals." The article reveals that at a meeting last fall, Obama "expressed frustration, saying we have got to scour everything and push the envelope in finding things we can do on our own," in the words of former Chief of Staff William Daley. In recent months, the article noted, the Obama administration has taken to branding the effort "We Can't Wait," as in we can't wait for Congress to act so the president will take action and sign an executive order. That strategy could and should certainly apply to something as basic as the mini-ENDA, which would help LGBTs keep their jobs in this tough economy.
Federal agencies, it seems, are moving in the right direction even without an executive order. This week the Transgender Law Center scored a big win when the U.S. Equal Employment Opportunity Commission announced that Title VII, the federal sex discrimination law, protects employees from discrimination because they are transgender. The case involved a trans woman who had applied for a federal job as male and was told that funding for the position had been suddenly cut after disclosing her gender transition mid-way through the process. Not surprisingly, it turned out that funding was not cut and the woman later learned that someone else had been hired for the job.
TLC staff noted that this week's EEOC decision follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII's prohibition against sex discrimination. But it has broader implications than a court ruling because EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation.
The president should reconsider his decision and sign the mini-ENDA executive order. Transgender people especially are underemployed or unemployed. You can be fired for being gay in 29 states. In 34 states you can be fired for being transgender. While the executive order would not be as broad as the ENDA legislation, it would be a good first step. And it's action that the president can take and bypass the do-nothing Republicans in Congress.