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5 Things Obama’s LGBT Employment Rights Orders Won’t Do

5 Things Obama’s LGBT Employment Rights Orders Won’t Do

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 Doesnt 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 Doesnt 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 Doesnt 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 Doesnt 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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Photo credit: Thinkstock.

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7:37PM PDT on Aug 2, 2014

This President is the best friend the LBGT community has ever had in the White House.

Just think what he could have done with a progressive Congress.

All of these programs could come to a screeching halt with another Ronald Regan or, Goddess forbid, a Paul Ryan.

I worry.

The American Taliban is still out there and getting stronger.

We could be sent back into the dark Ages where intolerance and bigotry are the law of the land, in the blink of a eye.

1:04PM PDT on Jul 30, 2014

ty

11:05AM PDT on Jul 27, 2014

Thanks for sharing

9:28AM PDT on Jul 27, 2014

Thanks

7:06PM PDT on Jul 26, 2014

Signed and I hope that some day that we can all come together as one people Wendy;o

2:34AM PDT on Jul 26, 2014

Thank you.

9:29PM PDT on Jul 25, 2014

Discrimination is discrimination and it takes effort for humans to treat one another with dignity and respect.

12:02PM PDT on Jul 25, 2014

the majority opinion said "this court cannot presume to determine the plausibility of a religious belief". (This after acknowledging , as did the plaintifs themselves that their belief that hormonal birth control and IUDs prevented implantation of a fertile ova was not scientifically sound.) The court said this was not material, since the case was about belief , which is protected constitutionally , not facts. Maybe it's time there was constitutional protection for rationality and empiricism. The idea that people , under the guise of religion, can press a legal case that impels the rest of the populace to behave as though their provably erroneous belief is as legitimate as provable empirical data and should exempt them from law in some way is profoundly discomforting. How does the court nullifying laws for a religious believers,(whos beliefs by law they can pull out of their ass , by the way) not equal affording primacy to religion? The Establishment clause requires neutrality on religion.

11:44AM PDT on Jul 25, 2014

There is no fundamental change to the structure of the executive orders that were issued by LBJ in 1965 and by GW bush in 2007- Obama inserted gender identity and sexual orientation into the protected categories . The protections for religious organizations are the same as they have been for nearly the last 50 years.I repeat, and document, that constitutional religious liberties are protected as they have been here to for.If you google this, then you get literally pages of headlines that say "no religious exemption..." but you have to actually read the articles, google the executive orders from '65 and '07 and read them to get the real story. Darryll G- your citation refers to a GRANT program which would not be affected by this executive order in any event....as I was reading these , again and again I was struck with the shrill tenor of the headline as opposed to the explanations in the content of the articles. I did not come across a single one in the first three pages of articles that took the tone that the fears of religious organizations were not well founded and that both RFRA and the exec order itself contained protections for religious liberty. The narrative from the religious right is that their rights are actually being taken away here, and that simply isn't true..... i must add too , that it struck me in the citation by the federal atty general, the language used: "reasonably construed" . In the SCOTUS ruling on the Hobby Lobby case, the court said it " c

11:02AM PDT on Jul 25, 2014

Thanks for this information.

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