In a State of the Union speech full of commitments to executive actions, President Obama once again avoided promising an executive order that would institute nondiscrimination protections for the LGBT employees of federal contractors.
The administration’s justification for not advancing this executive order has been that it prefers a legislative solution — the Employment Non-Discrimination Act (ENDA), a bill that has been proposed in various forms for over 20 years, but which has never passed out of Congress. The two are not mutually exclusive, however, as the executive order would protect the employees in small businesses that ENDA doesn’t cover. Even if Obama had the opportunity to sign ENDA into law, the executive order would still be an important action for him to take. On its own, it would protect as many as 16 million employees.
Moreover, the administration announced Tuesday that it would take a different executive action that directly contradicts this “legislative solution” talking point. Not waiting for Congress to raise the federal minimum wage, Obama will sign an executive order raising the minimum wage for all federal contractors. In fact, during the speech, Obama promised the American people: “Wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.” These are the exact same workers that a nondiscrimination executive order could protect as ENDA continues to stall in Congress.
LGBT advocacy groups and lawmakers were critical of the omission and inaction. The Human Rights Campaign’s Chad Griffin said that President Obama “missed a real opportunity” and the National Gay & Lesbian Task Force’s Rea Carey pointed out the “irony” that “some LGBT federal contract workers will get a pay raise but they could still be fired for who they are and who they love.” Tico Almeida of Freedom to Work called it “surprising and disappointing” that Obama did not mention LGBT workplace protections in any way. Rep. Mark Takano (D-CA), one of eight openly LGBT members of Congress, expressed confident hope that Obama will continue to use executive orders “in the gayest way possible,” like he already has done when interpreting the Supreme Court’s decision overturning the Defense of Marriage Act.
2013 was a milestone year for ENDA, as it was the first time in the legislation’s history that it passed the Senate. Unfortunately, House Speaker John Boehner (R-OH) doesn’t believe ENDA is necessary, and thus refuses to allow it to come up for a vote. It remains legal in 29 states to fire people for their sexual orientation and and in 33 states to fire people for their gender identity.
The history of the proposed LGBT nondiscrimination executive order has been turbulent. In 2008, then-candidate Obama pledged that he would implement it if elected. In early 2012, LGBT groups pressured the administration to follow through on that promise, but in April of that year, the White House announced it would “delay” taking action while it continues to study anti-LGBT discrimination. No study has ever again been mentioned, and the administration has since described the executive order as “hypothetical.” Despite rumors that a “process” was underway, Obama remains mum that it might ever be a possibility during his administration.