Representatives of the Obama administration continue to send mixed signals about the possibility of an executive order protecting the LGBT employees of federal contractors from discrimination. During a briefing last week, White House Press Secretary Jay Carney stood by the administration’s stonewalling line that such an executive order was “hypothetical” and that the President still favors the legislative solution of passing the Employment Non-Discrimination Act through Congress. Responding to questions about House Speaker John Boehner’s assertion that there was “no way” ENDA was coming up for a vote this year, Carney simply said that the administration believes that is “the wrong approach.”
White House adviser John Podesta, however, suggested in an interview to Bloomberg News on Friday that such an executive order is actually “under consideration” and that the administration is “looking at it.” This jibes with emails from Democratic National Committee Treasurer Andrew Tobias sent last year to LGBT donors confirming that “a process” is underway that would lead to President issuing the executive order. This process could refer to a supposed “study” that the administration said it would conduct on LGBT employment discrimination after it first announced it would “delay” the order in April of 2012. The administration only began describing the order as “hypothetical” after making that announcement, and no study has ever again been referenced in the nearly two years since.
Meanwhile, the Labor Department refuses to confirm whether it is actively protecting transgender employees of federal contractors from the same kind of discrimination. In the same month that the administration announced its delay of the order, the Equal Employment Opportunity Commission ruled that Title VII’s sex discrimination protections also applied to people who are trans. Per this precedent, the long-standing executive order that already protects against discrimination on the basis of sex could likewise be applied to protect transgender employees. However, department officials have been mum on the topic since the EEOC decision and again declined to answer clarifying questions submitted by BuzzFeed last week.
Even if ENDA could somehow pass the House, an executive order protecting the LGBT employees of federal contractors would be an important step for the President to take, as it would cover the many small businesses that are exempt from ENDA. In the meantime, 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.