AUSTIN, Texas — President Obama will celebrate the legacy of President Lyndon B. Johnson's signing of the Civil Rights Act on Thursday in a speech at the former president's library.
But on the issue of discrimination against lesbian, gay, bisexual, and transgender workers, advocates remain critical of Obama's record.
White House officials have repeatedly professed an interest in passing the Employment Non-Discrimination Act — passed by the Senate last fall — as the president's preferred route for protection against LGBT job discrimination. Until last week, though, administration officials hadn't given any other reason as to why Obama has not signed the proposed executive order to bar federal contractors from the same type of discrimination.
In fact, Obama himself had told the Houston GLBT Political Caucus more than six years ago, in 2008, that he would be supportive of establishing an LGBT nondiscrimination policy for federal contractors if elected president.
But on April 3, White House Press Secretary Jay Carney said the order would be made "redundant" if ENDA was passed into law. LGBT advocates and allies, though, have pushed back, urging the president to sign the executive order and to press for ENDA's passage.
The Human Rights Campaign, the nation's largest LGBT rights group, has been a steadfast supporter of Obama, but Carney's comments led the organization to lash out in an organizational statement: "We couldn't disagree more." The group's president, Chad Griffin, told BuzzFeed on Wednesday that Obama would "send a vital message of support for equality" were he to sign such an executive order.
The administration's inaction thus far on the issue — which the administration first announced in April 2012 — has confounded LGBT advocates, who had included the proposed order in a list of priorities for the White House, both at Obama's election in 2008 and re-election in 2012.
Now, as Obama heads to Austin to address the civil rights summit taking place this week at the LBJ Library, those advocates are, once again, looking for action on the issue.
"The Obama administration should use the two years that remain to expand those workplace protections to include LGBT Americans, and they need the president to pick up his pen and sign a new order before time runs out," Tico Almeida, the head of Freedom to Work, told BuzzFeed. "The LBJ Library would be the perfect venue for President Obama to announce that critically important civil rights work is about to begin. There isn't a single valid excuse to delay these workplace protections any longer."
LGBT leaders are not alone. Former NAACP chairman Julian Bond — who was honored at the Civil Rights Summit taking place this week at the LBJ Library — told BuzzFeed Wednesday, "It seems like most people can do more than one thing at a time. So, let's hope he does."
One of the few out LGBT members of Congress, New York Rep. Sean Partick Maloney, pointed to the political landscape he sees in the House as another reason for Obama to act on the executive order, telling BuzzFeed, "With little willingness from Speaker [John] Boehner and his Tea Party Caucus to support basic workplace protections, millions of hardworking Americans are depending on the president to act immediately as we continue the fight to pass ENDA."
Earlier this year, more than 200 members of Congress — including Maloney — wrote to Obama, asking him to sign such an executive order. On Wednesday, Sen. Jeff Merkley — another signatory of the letter and ENDA's lead sponsor in the Senate — asked Labor Secretary Tom Perez whether he had seen the letter. "I read the letter," Perez said, "and I believe we actually responded to the letter if my memory serves me, or we're in the process of responding." Merkley's office told BuzzFeed later Wednesday that the senator has not, in fact, received any response to the letter.
The use of the executive order by past administrations is actually pretty deep — including during the Johnson administration.
On July 2, 1964, Johnson signed the Civil Rights Act into law. It was a little more than a year later, on Sept. 24, 1965, that Johnson also signed Executive Order 11246, an order setting out the federal government's nondiscrimination policies — including the provision that remains, though amended, to this day: "Nondiscrimination in Employment by Government Contractors and Subcontractors."
In addition to requiring contractors to agree that they "will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin" — later expanded to include a ban on sex discrimination — the order gave the secretary of the Labor Department the authority to "investigate the employment practices of any Government contractor or subcontractor."
In the days before Johnson signed that order, Vice President Hubert Humphrey wrote a four-page memorandum to Johnson on Sept. 17, 1965, detailing the federal government coordination on civil rights in education and employment. In the employment section, Humphrey pointed to coordinated action in the administration — including "the Contract Compliance System enforcing the Executive Orders applicable to Government contractors" — as a means of making "a significant contribution in eliminating discrimination" in some fields of work.
"It would be great for President Obama to celebrate not only the Civil Rights Act, but also LBJ's federal contractor executive order that has worked in tandem with the statute for the past five decades to expand workplace opportunity for all Americans," said Almeida, of Freedom to Work.
Johnson was not the first president to take action to stop discrimination among federal contractors. President Franklin D. Roosevelt began the movement to stop such discrimination in 1941 — a decision made in order to stop a threatened march on Washington by A. Philip Randolph. Presidents Truman, Eisenhower, and Kennedy had amended and expanded the initial order before Johnson's signing of Executive Order 11246. Presidents since Johnson — up to and including Obama himself this week — have amended and expanded the order.
"President Obama's record on civil rights is particularly historic because he has consistently gone out of his way to link the lives of LGBT Americans to the broader step-by-step struggle for liberty and justice for all," HRC's Griffin noted. "I hope he continues that trend when he speaks in Austin tomorrow to commemorate the 50th anniversary of a transformative year for the civil rights movement — but I also hope he'll look to history for the next step forward."
Specifically, Griffin pointed to Johnson and Roosevelt's actions, saying, "Even as President Obama continues to be a tireless supporter of the Employment Non-Discrimination Act, his administration should send a vital message of support for equality by issuing a similar executive order barring discrimination on the basis of sexual orientation and gender identity to mark this anniversary."
Action from the administration does not, however, appear likely — at least not in Austin.
The day after Carney said such an order would be redundant, Deputy Press Secretary Joshua Earnest was asked on April 4 about Executive Order 11246 — and whether Title VII of the Civil Rights Act made that order redundant. Earnest replied, "I'll be honest with you, I'm not familiar … with that specific executive order, but we can certainly look into it for you." Carney had responded similarly when the same question was posed to him on April 12, 2012 — the day after the administration first announced that Obama would not be signing the proposed federal contractor order.
On Tuesday of this week, Obama actually amended Executive Order 11246 — but in another area, increasing protections for employees of federal contractors on issues of pay equity and sex discrimination.
Of that order, Obama said, "[I]n this year of action I've used my executive authority whenever I could to create opportunity for more Americans" — taking action where Congress has not. Of his equal pay amendment to Executive Order 11246, Obama said, "[U]ltimately, equal pay is not just an economic issue for millions of Americans and their families. It's also about whether we're willing to build an economy that works for everybody … and whether or not we're willing to restore to the heart of this country that basic idea — you can make it, no matter who you are, if you try."
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at firstname.lastname@example.org.
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