This week President Obama signed a number of changes to federal contracting law that, come 2015, will protect LGBTs from employment discrimination.
Obama actually amended two executive orders this week. One was originally by President Lyndon Johnson and authored in 1965. The new language added to that places “sexual orientation” and “gender identity” into the existing text which says the federal government “prohibits federal contractors and subcontractors and federally-assisted construction contractors and subcontractors that generally have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” The order also “requires covered contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.”
The second order Obama amended this week was signed by President Richard Nixon in 1969 and prevents discrimination against federal workers on grounds of race, religion, gender, nationality, age and/or disability. President Bill Clinton actually added “sexual orientation” to that list during his tenure, and now Obama amends that directive to include “gender identity” and shore up trans protections that arguably already exist under the enumerated “gender” classification.
Despite the fact that the majority of federal contractors already prohibit discrimination on grounds of sexual orientation, and that there are relatively few large religious organizations which contract with the federal government, the Right is protesting these orders as being deeply injurious to religious rights.
Inspired by that, here’s a brief list of what the orders don’t do:
1. The LGBT Executive Order Doesn‘t Grant Special Rights
The Right is claiming that the order grants LGBTs special workplace rights. It doesn’t. These changes are very clear and precise. They simply add “sexual orientation” and “gender identity” to current federal contractor anti-discrimination rules, meaning that those contracting with the government — that is to say, those that through this relationship benefit from tax-payer money — cannot discriminate on grounds of someone being gay, lesbian, bisexual or trans.
2. The Order Doesn‘t Take Away Religious Rights
The order leaves in place a 2002 executive order issued by George W. Bush that amended the Johnson order to give contractors scope to make hiring decisions based on their religious beliefs. That order allows businesses with a clear religious underpinning to prioritize hiring people who share their faith — clearly, then, there is still room to make hiring policies against openly LGBT people.
However, the Right wanted a broader exemption than this, with a number of high-profiled conservative Christians including Catholic Charities USA, an editor of Christianity Today, and pastor Rick Warren all writing to Obama asking that he ensure that any new order should expand the Bush era exemptions. In effect, they wanted a special right that, while perhaps glimpsed at in the Hobby Lobby decision, currently has no basis in law.
To be clear, the order does not take away any existing federal religious protections — the Obama administration simply refused to add any extra leeway.
3. The Order Doesn‘t Violate the Limitation on Executive Powers
While religious conservatives are crying “unconstitutional,” there is a clear precedent for this kind of executive order.
Congresswoman Eleanor Holmes (D-DC), a former chair of the U.S. Equal Employment Opportunity Commission (EEOC), points out in a statement praising Obama’s signing of the order:
“I applaud the President’s initiative to do what is clearly within his authority to help eliminate discrimination against the employees of federal contractors,” Norton said. “The President is doing what President Franklin Delano Roosevelt did in 1941 with Executive Order 8802, which barred discrimination in the federal government and defense industries based on race, color, creed and national origin, well before Title VII of the 1964 Civil Rights Act barred discrimination in the entire country. ”
While those on the Right like Bryan Fischer might not like it, this order hasn’t exceeded the authority of the President’s office. Nevertheless, you can expect we’ll see a lawsuit challenging the order.
4. These Ill-Defined Terms Could Mean Religious Contractors Get Sued More
A favored argument by the Right this week has been that “sexual orientation” and “gender identity” are nebulous terms that have no concrete definitions. As such, they leave religious federal contractors facing a slew of legal challenges, the complaint goes.
It simply isn’t true, though. As already pointed out, the term “sexual orientation” already exists in federal law, and at the very least the Obama administration helped to clarify sexual orientation and gender identity with legislation like the Matthew Shepard Act and the administration’s announcements regarding trans-inclusion under the Civil Rights Act. Those definitions have a solid legal underpinning, so while general use might be more vague, there is very little ambiguity here.
5. Most Importantly: The Order Doesn‘t Cover All LGBTs
It’s worth reiterating that this order, while very welcome, only covers federal workers. That’s a sizable proportion of the workforce but it doesn’t offer the kind of comprehensive protection that the Employment Non Discrimination Act would give. Sadly, as we’ve reported before, that legislation is currently too toxic to move in the House, and a number of LGBT-positive civil rights groups have withdrawn their support for the current ENDA bill because of its suspect religious exemptions.
On this front though, the White House’s refusal to give broad exemptions in its latest executive orders does seem to suggest what kind of bill the Obama administration would prefer to sign.
All that said, the executive orders are historic and very necessary, and so are certainly worth celebrating.
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