With the clock ticking on Obama’s second term, yesterday the administration announced it was drafting an executive order forbidding federal contractors from discriminating against gays, lesbians, and transgender people.
It’s a consolation prize. Since 2012, the administration has shied away from executive action to protect LGBT workers, saying it preferred for Congress to pass the Employment Non-Discrimination Act (ENDA). Unlike a presidential order, ENDA would make it against the law—not just the policy of the current administration—to discriminate on the basis of sexual orientation and gender identity. It would also apply to private companies as well as federal contractors, giving individuals who have faced discrimination the ability to sue.
But ENDA, which passed the Senate last fall with bipartisan support, has been stonewalled by Republicans in the House. The Obama administration’s decision to act independently of Congress is a frank acknowledgment that, like nearly all pieces of legislation since the GOP takeover of “the people’s chamber” in the 2010 midterms, the House is where legislation goes to die.
Here’s the rundown of what Obama’s proposed order would—and wouldn’t—do.
Isn’t discrimination against gays, lesbians, and transgender people already illegal?
Given the spread of gay marriage, which is way more controversial, you’d think so. But no. Unlike with race or gender, there is no federal law banning employers from discriminating against someone because of their sexual orientation or gender identity. Many states and cities have enacted such protections, but in 29 states, employers are free to fire someone—or refuse to hire them in the first place—because they are gay or lesbian. In 32 states, you can similarly refuse to hire someone on the basis of gender identity.
Part of the reason it has been so difficult to get workplace protections for LGBT people is because 69 percent of the public thinks they already have them. If it seems like something that should have been taken care of a long time ago, that’s because it almost was: In 1996, ENDA failed to pass the Senate by a single vote.
Who would the executive order protect?
Obama’s proposed order only covers federal contractors. Still, it’s nothing to scoff at. Federal contractors employ more than 20 percent of the American workforce. The order would cover an estimated 16 million workers, 400,000 to 600,000 of whom are gay, lesbian, or transgender.
A lot of companies say they don’t discriminate based on sexual orientation already, don’t they?
Many corporations have figured out that inclusive hiring policies help attract the highest-caliber workers—not just queer people, but straight workers who value equality, too. Because of this, more than 90 percent of Fortune 500 companies have policies against discrimination that cover gays and lesbians. But only 61 percent have them for transgender workers, and many smaller businesses—particularly those without large human-resources departments—don’t make it a formal policy not to discriminate against LGBT folk. Obama’s proposed executive order would force small contractors as well as large ones—for instance, Exxon Mobil, whose shareholders have repeatedly voted down resolutions saying the company will not discriminate against gay people—to make fair hiring practices the rule.
How does Obama’s proposed order stop discrimination?
The president’s executive order would stipulate that contracts with the federal government worth more than a certain amount—$10,000 is the general threshold—require the cosigner to have a policy against anti-LGBT discrimination. In other words, companies like Exxon Mobil would face a tough choice: Rewrite your HR rules to cover gays, lesbians, and transgender people, or miss out on millions of dollars in potential business with the federal government.
If it’s just an executive order, can’t the next president just come along and throw it out?
Yes, but it’s unlikely given public opinion. Not only do a vast majority of Americans—63 percent, according to Gallup—support a federal law like ENDA banning discrimination on the basis of sexual orientation and gender identity; a majority of voters in every single congressional district in the country do. Polling commissioned by the Human Rights Campaign—the largest LGBT-rights group in the country—shows similarly high levels of support for an executive order signed by the president.
Given not just the current state of, but the the direction of public opinion on gay rights, it’s unlikely a future president will turn back the clock. “The American public strongly supports the principle that tax money should not be used to discriminate,” says Jenny Pizer, law and policy project director for Lambda Legal, the country’s largest LGBT legal-advocacy organization. “Future presidents can change [nondiscrimination policies], but it has not been common that nondiscrimination protections have been put in place and then withdrawn.”
Once the arc of history bends toward justice, it tends not to snap back.
So all this seems pretty straightforward. What’s the pushback?
The argument from House Speaker John Boehner has been that Republicans in the chamber oppose discrimination of all kinds and that there’s no need to enact “special rights” for LGBT people. But it’s a smokescreen: If you really opposed discriminating against queer folk, why wouldn’t you support saying so explicitly in the same way we do for race or religion? It’s because House Republicans are beholden to social conservatives in their own party even though most Republicans oppose anti-LGBT discrimination.
And what’s their problem?
The pushback from social conservatives against an executive order barring anti-LGBT discrimination is the same as it is for ENDA. Already, they are saying it infringes on their religious freedom. If you don’t like gays, they say, you shouldn’t have to hire them.
But the argument that Obama’s order constitutes an attack on religious freedom is weak. Current laws protecting employees on the basis of race or religion generally exempt religious organizations. This makes sense: Why should a church have to hire someone who doesn’t adhere to their beliefs? But the executive order only applies to for-profit businesses. “No one is required to seek and accept federal money,” says Lambda Legal’s Pizer. “If a company wants public money, they should be willing to hire anyone in the general public.”
What about the Hobby Lobby case?
In Sebelius v. Hobby Lobby, the Supreme Court is currently considering whether for-profit, private corporations have religious-freedom rights. If it finds that they do, then private employers would likely have standing to sue the federal government for requiring them to engage in practices that violate the religious beliefs of their owners—whether that’s providing contraception or ruling out potential employees, or discriminating against current ones, based on their sexual orientation or gender identity. But even if the Court finds that they do, it should have little effect on Obama’s executive order because it only applies to federal contracts. Whether or not you think a private employer should be able to discriminate against LGBT people when it comes to hiring and firing, there is no obligation to pursue a federal contract. If you don’t want to let LGBT applicants compete for jobs at your company on equal footing with everyone else, just don’t do business with the feds.