Why Obama changed mind on executive order for LGBT now?

                                                                               

  

 On Monday, President Barack Obama let it be known that he planned to sign an executive order to prohibit federal contractors from discriminating on the basis of sexual orientation and gender identity. The President has resisted taking such action for many years, despite increasingly heavy pressure, and so the announcement raised two questions of timing: Why now? And, since the President remained vague about when the signing would actually take place, why not yet?

In the past, Obama has explained his hesitation about an executive order by saying that it would be better if Congress passed the Employment Non-Discrimination Act, or ENDA, which contains similar (but more broadly applicable) protections. At one point, in defending the President’s reluctance, his spokesman even called the executive order “redundant.” But ENDA, which the Senate passed last year, is stalled and trapped in the Republican-controlled House; it’s not a realistic alternative, at least for the near future.

Obama’s commitment to sign the order comes on the eve of a New York fundraiser Tuesday night for the D.N.C. given by gay supporters of the President, at which he is scheduled to speak. It also comes in June, during gay-pride month, when the White House has often made big gay-rights announcements. The executive order would give federal-contractor workers protections on par with those that prohibit discrimination based on race, gender, and the other more traditional factors. The order would cover twenty-eight million people over all, according to Politico.

Many companies that do business with the government already have such protections in place, as do some states and municipalities. But more than half of the states have no protection for gay workers—meaning that a person can be fired for being gay in most states and have no legal recourse.

Monday’s announcement is also in keeping with the President’s stated intention to move unilaterally on key Administration priorities via executive order in the remaining years of his second term.

The Administration’s prior skittishness around this issue reflected a sensitivity to criticism about “over-regulating” business, and a fear of potential political backlash to the inclusion of gender identity—which would afford protections to transgender workers, not just gay and lesbian ones—in the executive order. (There is a legal argument that certain protections for transgender Americans already exist because of rulings from the Equal Employment Opportunity Commission that interpret gender-based non-discrimination provisions elsewhere in the law broadly, but this argument has not been widely applied or clarified.)

The announcement that the President would sign an executive order at some point in the future reflected an additional concern: the Supreme Court’s ruling in Sebelius v. Hobby Lobby Stores, Inc., which is expected at the end of this month. The question in the Hobby Lobby case is whether secular businesses can claim exemptions from laws by citing the religious beliefs of their owners. Hobby Lobby, a chain of craft stores, brought the suit because it objected to paying for contraceptive coverage for its employees, as mandated by the Affordable Care Act. But one can imagine how a ruling could be applied to areas well beyond health care, including the treatment of gay and lesbian workers. So it is probably only prudent for the Administration to wait for the decision before settling on the wording of an executive order.

President Clinton signed an executive order during his second term that made the federal government the largest employer prohibited from discriminating on the basis of sexual orientation. (At the time, I was working as an adviser to Clinton on gay issues.) That executive order did not explicitly include gender identity, and it did not include federal contractors, as Obama’s order will.

After announcing his support for gay marriage two years ago, in May, 2012, and his support for overturning the Defense of Marriage Act in the landmark Supreme Court case United States v. Windsor, the President and his Administration have continued to move forward on gay-rights issues. Earlier this month, Attorney General Eric Holder spoke to a Washington fund-raising dinner for Lambda Legal, the country’s oldest and largest gay-rights legal organization, and said that his department would work for the “swift implementation” of Windsor, in “both letter and spirit.” He added,

All of these changes will have profoundly positive, real-world implications for many throughout the nation. Every step forward is laudatory, and every marker of progress worth celebrating. But, as you know as well as anyone, this is no time to be complacent. Our pursuit of a more perfect Union must go on. The work of extending opportunity and preserving liberty is both vast and unending. And there remains a great deal to be done.

Protections against employment discrimination have widespread voter support, and this executive order is evidence of that. But, five years ago, when the President first took office, many gay-rights activists, including me, criticized Obama for not moving quickly enough to end Don’t Ask Don’t Tell and to support marriage equality. Now he seems to be on a trajectory to make gay rights one of his Administration’s most lasting accomplishments. Obama may finally have the timing right.

Richard Socarides is an attorney and longtime gay-rights advocate. He served in the White House during the Clinton Administration and has also been a political strategist. He now oversees public affairs at GLG. Opinions expressed here are only his own. Follow him on Twitter @Socarides.

Photograph by Pablo Martinez Monsivais/AP.