Jeffrey Marburg-Goodman was special counsel to the administrator of the U.S. Agency for International Development from 2010 to 2012 and was a foreign policy adviser to the 2008 Obama campaign.
President Obama’s continuing popularity among lesbian, gay, bisexual and transgender (LGBT) Americans is due in large part to major accomplishments of his first term: overturning the military’s “don’t ask, don’t tell” policy, abandoning support for the so-called Defense of Marriage Act in court and his personal backing for marriage equality, which he announced a year ago this month.
Obama has also supported LGBT rights in other, more indirect ways, including by appointing more “out” LGBT individuals to political office than all previous presidents combined; I was, proudly, one of them.
But every day millions of LGBT people who are not lucky enough to be hired by the administration are at risk of losing their jobs. In much of the country, it is legal to reject gay Americans for employment or to dismiss them later based on their sexual orientation.
Given this, it is strange and incongruous that, while recent weeks have brought news that state after state has passed, or is considering, laws permitting same-sex couples to marry, the arguably more fundamental pursuits of work and livelihood are still in jeopardy for LGBT Americans. The lesbian mother working in a diner in Mississippi, Montana or Michigan can be fired just for being who she is; the gay aerospace engineer in Texas or Tennessee can lose his job because of whom he loves.
To bridge this gap and correct these wrongs, a broad Employment Non-Dis-crimination Act (ENDA) was simultaneously introduced in the House and Senate last month. With Republicans controlling the House, however, swift passage of a broad ENDA is doubtful.
Still, the president has the power to lead the way on this issue — and he can do so right now.
Every year the federal government pays out more than a half-trillion dollars through contracts to private businesses providing goods and services to the American people; another half-trillion in federal grants goes to businesses and nonprofits. These businesses employ more than one-fifth of the civilian U.S. labor force.
Federal contracting rules are hardly the place one might expect to find civil rights or LGBT protections. But in 1965, as a direct result of the civil rights movement, President Lyndon Johnson signed an executive order — later codified into contracting regulation — prohibiting U.S. businesses working under federal contracts from discriminating in their workplaces on the basis of “race, color, religion, sex, or national origin.” In the 1990s, this rule was expanded to prohibit most U.S. government contractors from discriminating on the basis of disability or status as a veteran.
With a stroke of his pen, and without congressional approval, Obama could expand the 1965 executive order again, this time to cover LGBT Americans.
Individual federal agencies have done what they could to advance equality and reflect current American norms and values. Last year, we at the U.S. Agency for International Development, under the leadership of then-Secretary of State Hillary Clinton and Administrator Rajiv Shah, announced the most advanced position any federal agency has taken on this issue: By an agency policy rule, USAID now formally “encourages” its contractors and grantees not to discriminate on the basis of a wide array of personal status categories, including sexual orientation and gender identity as well as pregnancy, parental status and even genetic information.
Many businesses around the country have already instituted broad anti-discrimination policies, as have many states and communities. And polling over the years shows that, by a wide margin, Americans favor LGBT nondiscrimination in hiring and employment practices. The federal government ought to step up as well and ensure LGBT nondiscrimination for the trillion dollars it pays out annually for contracts and grants.
Observers of Obama’s evolution regarding LGBT equality know that each time he has taken a principled stand on an issue within the limits of his authority, the public has followed. In 2011 the administration announced it would no longer defend DOMA — and DOMA may soon be overturned by the Supreme Court. After the president announced his personal belief in marriage equality, support for this issue passed the 50 percent mark nationwide. In November, in every state where marriage equality was on the ballot, it passed.
Once again, action by the president, in the form of signing an executive order, could be a tipping point, leading to congressional passage of ENDA.
Just a few months ago, in his second inaugural address, Obama spoke passionately about advancing progressive values: “We must act,” he said, “we must act knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial.” Although admittedly imperfect and only partial, an executive order that helps advance employment equality nationwide is overdue.