Proposed Executive Order Could Ban Anti-LGBT Discrimination By Government Contractors

Picture 22The Employment Non-Discrimination Act, or ENDA, has been kicking around the government in various iterations since 1994, and since 2009 has included language protecting transgender people from workplace discrimination. ENDA's never been signed into law, and given the current state of Congress, it won't be anytime soon. But! As a stop-gap measure, the executive branch can at least ensure that government contractors don't discriminate against their employees, and grant same-sex families the same benefits afforded to straight ones.

Now Metro Weekly has gotten its hands on a "lengthy memo," penned by The Williams Institute and The Center for American Progress, urging the president to do just that, and outlining how such an order might be implemented. The memo has apparently made it to the White House as well as the desk of Rep. Barney Frank — the legislature's greatest ENDA champion. On January 13th, several of the memo's authors and supporters met privately with Frank's senior policy advisor, Diego Sanchez.

From Metro Weekly:

The 12-page memorandum — which Sanchez confirmed to Metro Weekly was read by Frank — lays out the case for the executive order proposal, from ongoing discrimination faced by LGBT people to the fact that ENDA will not pass in the current Congress. It goes on to detail the specific methods that could be employed to issue the protections — from expansion of an existing executive order addressing federal contractor discrimination to a new executive order that specifically would address only sexual orientation and gender identity discrimination.

Sanchez, who led the Jan. 13 meeting, tells Metro Weekly, that the meeting was held at the request of Freedom to Work founder Tico Almeida, who served as the lead counsel for ENDA in the House from 2007 through 2010.

Of the memo, Sanchez notes, "Part of what was in the memo was about the timing: allowing six months for the Department of Labor to write the recommended regulations and allow for the public comment period, so everyone in the country would be able to weigh in.

"There has to be time enough to do the regulations," Sanchez says, making the case for quick executive action in light of this November's presidential election. "You can't just have the executive order; you have to have the regulations."

The memo notes that more than half of government contractors already have workplace protections in place for LGBT employees, either because of local legislation or out of the goodness of their hearts. But according to The Williams' Institute's Brad Sears, one of the memo's co-authors, there are still "millions of employees" with no protection at all.

If the Obama administration wishes to protect the LGBT employees of government contractors, according to MetroWeekly, it has two obvious ways of doing so. President Obama could amend Executive Order 11246, which already includes protection from discrimination based on "race, color, religion, sex, or national origin." Or Obama could issue a new order altogether. From Metro Weekly:

Amending the existing executive order "would strongly signal that discrimination based on sexual orientation and gender identity warrants a remedy similar to that which is used to reduce discrimination based race, color, religion, sex, or national origin" but "could result in a legal challenge that attacks the entirety of EO 11246" and would raise questions, which the memo states are easily addressed, about whether the expansion would "trigger affirmative action and data collection requirements." Issuing a new executive order, the memo states, would avoid those issues but "may attract more political attention than would amending the existing order."

If Obama takes any action at all, his job will be easier for the work done by The Williams Institute and the Center for American Progress, who have already studied at length the impact either an amendment or a new order might have on all aspects of the contracting process. Almeida tells the Metro Weekly that he's pretty sure the administration will take some action:

"I'm now sufficiently confident" that [the executive order] will be signed, Almeida tells Metro Weekly. "When he does, we want our Capitol Hill allies to be fully briefed … to be strong advocates for the wonderful thing the president will have done at that point."


  1. Todd says

    Could Erza comment on how legally certain organizations accepting USG funding can still get away with this through religious exclusion clauses? If further clarification is needed on the question, I’d prefer to clarify privately so as not to jeopardize my employment.

  2. uffda says

    Just notify me when KIWI starts ranting at Rick (the real Rick) or Jason and TJ defends him. It’ll be the best part.

  3. says

    when it comes to all the so-called “religious protections” what possible defenses can people bring up?

    the reality is that there is nothing in the judeo-christian bible that says that people have any right nor responsibility to discriminate against LGBT people (I’d say “or non Christians”, too. but the reality we’re all aware of is that people only bring up “i’m a Christian!” when it comes to gays and abortions and Muslims). So what would their defense be if they cannot actually point to their religious faith as a reason to justify their actions or inactions?

    denying work or housing? that sounds remarkably like being ‘inhospitable’ – *coughcoughSODOMcoughcough*

    there is no “thou shalt not sell cupcakes to lesbians who want to get married” declaration.

    there is no “do not rent an apartment to two men who are more than just friends” doctrine.

    we all know that the religious-right doesn’t have a clue what they’re talking about, or what their own supposed “faith” is saying. we’re seeing it in the comments of Santorum and the Prop 8 trials – circular logic:
    gays cant marry because they can’t have kids. straight people who can’t have kids can marry because they’re not gay.

    circle game! the musical.

    the recent “honour killings” trial and verdict in Canada has sparked a terrific dialogue and distinction between where cultural and/or religious laws/rights end and where HUMAN rights begin.

  4. jason says

    ENDA could have been enacted under the supermajority that the Democrats had. However, Obama had no passion for it. He has had no passion for any gay rights cause. He’s a total fake.

    This is one very important reason why he’s going to lose the next election. Gallup already has him losing a swag of states that he won last time. Memo to Obama: the gays have turned against you.

  5. John says

    Gov. Edwin Edwards signed the same Executive Order on Valentine’s Day 1992. So President Fierce is only 20 years behind Louisiana.

  6. elg/edwin says

    The previous democratic governor of Ohio, Ted Strictland, signed an executive order banning discrimination based on sexual orientation some months after he took office in 2006. As soon as Ohio’s current Republican governor John Kasich took over in 2110 he rescinded that order within 24 hours (I’m not kidding – it was like the first or, maybe, second order of business) after he took office.

    Not saying an executive order banning discrimination based on sexual orientation is a bad idea, it’s just not worth the paper it’s written on. If and/or when Mitt Romney wins this year, he will rescind it the very day he is sworn in as president. Or maybe the next day. The conservatives will demand it.

  7. Artie says

    @ Larry,

    Jason could also have bitter straight conservative parents who demand that Jason act in a self-hating way. That happens too sometimes.

  8. jack says

    Response to Jason’s post. You may have turned against Obama, if you were ever for him. In reading many of your posts, i suspect that you are a republican plant. Gay realists understand that Obama is the best president we have ever had. The overwhelming majority of gay folks will vote to reelect Mr Obama in Nov 2012.Mabye you should peddle your views on Fox, they might buy them.

  9. uffda says

    Jason is odd alright, very odd, but I appreciate, as with Fox, the contrast he provides.

    You’re welcome TJ!

    But really, I did appreciate your recent reiteration of “freedom of religion is freedom from religion.” A quotable zinger in many situations.

  10. billmiller says

    Our current president treads a fine line. Every step he makes is under the microscope, unlike any other past American leader. When he is re-elected, hopefully he will pull all the stops out an take care of what he has been too cautious to in his first four years. President Obama is the most intelligent, forthright, honest leader we’ve had since Clinton. Why would anyone support a republican’t as president, especially a gay person? Some of the posters here need to turn off fakes ‘news’ and open their eyes!