Kansas Gov. Sam Brownback came under withering criticism this week after he issued an executive order repealing former Gov. Kathleen Sebelius' non-discrimination protections for lesbian, gay, bisexual, and transgender state employees. While the move was par for the course from the inveterate culture warrior, Brownback's order was notable for how discordant it was with the rest of the country's progress toward full equality for its LGBT citizens. But the developments in Kansas offer a preview of what could very conceivably happen nationwide if the country elects a Republican president next year.
First, some background: Frustrated by the Republican-led House of Representatives' failure to take up the Employment Non-Discrimination Act (ENDA) after it passed the Senate in a bipartisan 2013 vote, President Obama last year exercised his authority as the federal government's chief executive by issuing an order barring federal agencies and contractors from discriminating against employees on the basis of sexual orientation or gender identity. Obama's order was less sweeping than ENDA, which would have prohibited employment discrimination by all private companies, not just those which do business with the federal government. Still, the executive order applied to 24,000 companies with an estimated 28 million workers, approximately 20 percent of the U.S. labor force.
Because Congress has yet to pass legislation making it illegal to discriminate against LGBT workers, it is technically only the policy of the current administration not to allow anti-LGBT discrimination. Now, Obama's order will still be in effect after he leaves office at noon on January 20, 2017 -- but just as Obama wielded his power to ban employment discrimination, his successor could use his or hers to overturn his order.
That may well happen if the 45th president is a Republican. Sen. Rand Paul (R-KY), a likely 2016 candidate, has already promised that he will repeal every prior executive order if he wins the presidency.
Moreover, the GOP field includes a handful of senators who voted against ENDA, suggesting that they may be disinclined to continue the Obama administration's policy. In addition Paul, Sens. Ted Cruz (R-TX), Lindsey Graham (R-SC), and Marco Rubio (R-FL) each opposed the bill.
Even Jeb Bush, a purported moderate, may target Obama's order. When he signed the order last summer, Obama did not include a religious exemption allowing contractors to discriminate if their discrimination was based on sincere religious beliefs. Bush, meanwhile, has said that "respect" for gay people must be counterbalanced by "religious liberty" protections.
With most forecasters predicting a closely contested presidential election, LGBT advocates are sounding the alarm about what the events in Kansas could portend for the country.
“Gov. Brownback’s unconscionable decision to roll back protections for LGBT workers in Kansas is a reminder about what’s at stake in 2016, particularly when so many candidates have already made clear they oppose giving LGBT workers basic protections from discrimination in the workplace,” said Brandon Lorenz, communications campaign director for the Human Rights Campaign.