WASHINGTON — The Obama administration and Democrats are pushing hard on Republican House Speaker John Boehner to take action on the LGBT rights bill passed Thursday by the Senate, but officials in Obama's Labor Department are mum when it comes to their own actions to protect LGBT workers.
On Thursday, Labor Department Secretary Thomas Perez issued a statement about the Senate passage of the Employment Non-Discrimination Act, saying, "The arc of the moral universe bent a little more toward justice today. Protecting the workplace rights of LGBT workers is a moral imperative that is long overdue. We still have a long road ahead of us, but today's historic vote moves us one step closer to a nation that truly embodies its founding principles of equality, opportunity and fairness for all."
Ten minutes after the statement was issued, BuzzFeed emailed a Labor spokesperson to follow up on a question the department has refused to answer for more than a year and a half: Whether the department is applying an executive order banning federal contractors from discriminating on the basis of sex to include a ban on anti-transgender discrimination.
The question arose in April 2012, when the Equal Employment Opportunity Commission decided in the case of Mia Macy that the sex discrimination ban in Title VII of the Civil Rights Act of 1964 includes anti-transgender discrimination. The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246, which bans federal contractors from discriminating, among other areas, on the basis of sex, and its policy is to interpret the language in the executive order as the EEOC interprets the language in the Civil Rights Act.
Following Perez's comments that protecting LGBT workers' rights is a "moral imperative," BuzzFeed asked, "Has the Secretary or anyone in the Department taken any action to ensure that OFCCP's enforcement of Executive Order 11246 includes transgender protections in its enforcement of the prohibition of sex discrimination in the order? If not, what are the limits of the Secretary's understanding of action to be taken in response to a moral imperative?"
The spokeswoman did not respond to Thursday's email. On Friday afternoon, when no response had been received, a follow-up email was sent, but an automated out-of-message was sent in response. Several follow-up calls to the number provided in the message, which resulted in multiple messages left seeking a return call, have not yet netted a response.
One advocate has suggested that the lack of action comes from outside the Labor Department from the White House.
In August, BuzzFeed reported that Tico Almeida, a former House counsel who worked on ENDA who is now the president of Freedom to Work, said, "I am told that the Labor Department leadership has been severely controlled by the senior White House staff, which I'm told has forbidden Labor officials from formally adopting the Macy decision."
Neither the White House nor the Labor Department have ever disputed the account.
In addition to the question of the Labor Department and the existing executive order, Obama thus far has declined to sign an executive order that would specifically include gender identity protections, along with sexual orientation protections, for employees of federal contractors — with officials saying Obama's preferred path for action is passage of ENDA.
Recently, however, White House press secretary Jay Carney suggested that, if Congress doesn't pass ENDA, the Obama administration might reconsider the executive order issue.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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