WASHINGTON — Democratic members of Congress are pushing the Obama administration to take action to protect LGBT workers — an area where the otherwise supportive administration has fallen short of advocates' expectations.
Nineteen House members sent a letter to Labor Secretary Tom Perez on Thursday pushing for "better inclusion of LGBT individuals" in the agency's workplace programs. Other offices, led by Sen. Jeff Merkley, are preparing a letter from House and Senate members urging Obama to sign an executive order to ban federal contractors from discriminating against LGBT workers.
"Time is of the essence," the draft of the letter to Obama states. "Even with an executive order in place, full implementation of these protections will require regulations to be developed and finalized, a process that will take many months, if not longer, to fully put in place."
The Obama administration has long held a policy that it supports passage of the Employment Non-Discrimination Act, legislation that would ban most private employers from discriminating on the basis of sexual orientation or gender identity — and has resisted taking executive action on the issue. ENDA, the administration argues, is their focus because it would be more comprehensive than the federal contractor order.
On other top issues, the administration has shown a willingness to implement executive orders as part of broader campaigns — like the minimum wage.
President Obama said Wednesday that Congress needed to act to pass a minimum-wage increase, pointing to his own actions earlier this year to raise the minimum wage of federal contractors and calling on Congress "to get on board" and "finish the job."
The Wednesday push on increasing pay for workers — which involved praising states that have acted and highlighting private businesses that have raised wages on their own — is a marked contrast from the efforts the White House has put into ending discrimination against LGBT workers.
Though similar statements haven't stopped the White House from pushing other legislation, Obama made no mention of ENDA in his State of the Union speech this year.
The most recent mention of the legislation by Obama appears to have been in December, when, in one sentence of a 50-minute speech, he said, "It's time to pass the Employment Non-Discrimination Act so workers can't be fired for who they are or who they love."
The night of the State of the Union, White House officials pushed back against concerns that the bill's absence from that speech signaled the bill wasn't a priority for the administration, with spokesman Shin Inouye noting that Obama has "long supported ENDA," and adding, "The State of the Union isn't a comprehensive list of all of the President's positions or priorities. … Last year, a bipartisan majority of the Senate passed ENDA, and the President renews his call for the House to do the same."
Despite that, Obama has not directly mentioned the bill in any public forum since then.
He also has never spoken publicly about the proposed executive order that Merkley's office will be pushing Obama to sign in the draft letter circulating now. The proposal has gotten a lot of attention in the media — to the point that White House officials had to announce back in April 2012 that the president wouldn't be signing the proposed order, referred to by White House officials as a "hypothetical" order.
Reporters, from LGBT and mainstream publications, have regularly pressed White House Press Secretary Jay Carney on the issue. Carney, regularly, has reiterated the White House position that it supports ENDA as a "more comprehensive" solution than the executive order would be. Of course, the same is true of the minimum wage bill, but Obama acted to give a raise to federal contractors despite the lack of action from Congress.
Just last week, in the wake of Arizona Gov. Jan Brewer's veto of a bill that opponents said would have given businesses in the state a "license to discriminate," Carney was asked whether Obama saw "a window of opportunity to make a statement against discrimination by signing" the executive order.
Although multiple people told BuzzFeed that there has been at least one White House meeting about the executive order proposal since the State of the Union, Carney hasn't changed his response to reporters' inquiries.
"I don't have any new information to provide to you on a hypothetical executive order," he said, then pivoting back to ENDA: "What I can tell you is we do support legislation that would enshrine in law the non-discrimination approach the president believes is the right approach for the country."
Finally, the White House's intransigence on the executive order proposal has, one advocate told BuzzFeed last year, led that same White House to forbid the Labor Department from taking action to protect transgender employees of federal contractors from discrimination.
In April 2012, the Equal Employment Opportunity Commission ruled that Title VII's ban on sex discrimination in employment included a ban on discriminating against transgender people. Since then, the Labor Department has not answered whether it — in accordance with its general policies — would apply the EEOC's definition of sex to its definition of sex in Executive Order 1126, which bans federal contractors from discriminating on the basis of, among other factors, sex.
The prior Labor secretary, Hilda Solis, and the head of the office within the Labor Department that enforces the executive order, Patricia Shiu, refused to tell BuzzFeed whether the department is protecting transgender workers under the order. Spokespeople have refused to answer questions about the protections under the executive order, and officials prevented BuzzFeed from asking Labor Secretary Tom Perez about the issue at a public event in February.
Later that week, when he appeared at a White House press briefing unannounced, he was asked about the issue and said only that the impact of the EEOC ruling was "under review." Labor Department officials have not responded to BuzzFeed's multiple requests since then asking for information about when that "review" began.
The letter sent Thursday to Perez, which was led by Reps. George Miller, Jared Polis and Mark Pocan and also signed by 16 other members, asks the secretary how Shiu's office — the Office of Federal Contract Compliance Programs — is implementing the executive order in light of the EEOC ruling.
All of this comes from a president who has pushed LGBT rights more directly and successfully than any other president and an administration that has enacted more policy changes to benefit LGBT people than any administration before it.
What's going on?
Because the White House has not moved on the proposed executive order to provide explicit sexual orientation and gender identity protections for federal contractors, it makes a certain amount of sense, at least as a political matter, that the Labor Department has not acted on gender identity protections alone through the existing executive order.
If the Labor Department did so, the White House would face significant pressure immediately to act to protect gay, lesbian, and bisexual employees of federal contractors as well. Getting backed into signing an executive order by the action of one of your own agencies is not something any administration would want.
Nonetheless, as detailed by BuzzFeed before the State of the Union, no explanation has been given for why the White House has not signed the proposed executive order in the first place.
"The more time passes, the more inexplicable it is that the White House has not moved on a common-sense executive order ensuring that federal contractors do not discriminate on the basis of sexual orientation or gender identity," Human Rights Campaign spokesman Michael Cole-Schwartz told BuzzFeed. "This is a tailor-made situation for the President to act where Congress so far has not," he noted, adding that the Labor Department likewise should "conclude that protections based on the [EEOC] case will apply to the existing Executive Order."
Tico Almeida, the founder and head of Freedom to Work was more direct, telling BuzzFeed, "Nobody from the White House has given a single valid reason for their delays. Jay Carney's only excuse is that they prefer the full ENDA statute over a partial executive order, but by adopting the partial solution of the minimum wage executive order, they've shown they are just stalling and inventing excuses."
In the meantime, federal contractors without employment protections for LGBT workers continue to sign contracts with the federal government — and taxpayers continue to foot the bill for those contracts.
Read the letter to Secretary Perez:
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at firstname.lastname@example.org.
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