Originally published on Advocate.com March 20 2012 10:45 AM ET
WASHINGTON — What’s the hold up?
That’s what some advocates are wondering in regards to the latest big ask for LGBT rights: an executive order that would bar federal contractors from discriminating on the basis of sexual orientation or gender identity.
Such a move, which according to recent polling enjoys broad support among likely voters, could be executed in two ways. It could be a stand-alone executive order — President Obama has signed seven already this year, which have resulted in the freezing of Iranian assets in the United States and the expediting of visas in order to boost American tourism, among other aims — or it could be an amendment to an existing executive order that has prohibited businesses with contracts exceeding $10,000 from discriminating on race, religion, sex, and other factors. The options were outlined in a January memo from the Center for American Progress and the Williams Institute to Congressman Barney Frank, who introduced the latest House version of the Employment Nondiscrimination Act (ENDA) nearly one year ago.
Either route would have far-reaching effects, setting a precedent for the long-languishing ENDA and providing explicit nondiscrimination protections in the workplaces of 26 million people, roughly one-fifth of the nation’s civilian workforce (the top five federal contractors, all in the defense sector, already have sexual orientation and gender identity nondiscrimination policies).
“Ideally, Congress would pass ENDA to make sure that LGBT people across the country have a fairer shot at success in the workplace,” CAP and Williams Institute, a think tank on sexual orientation and gender identity law and policy at UCLA, wrote in the January memo, obtained by Metro Weekly. “But given political realities, the Obama Administration can leverage its executive authority to ensure federal contractors have workplaces that put LGBT workers on equal footing with their peers and colleagues.”
Officials at both the Department of Labor, which would enforce the nondiscrimination policy, and the Department of Justice, which would be tasked with defending it against any potential legal challenges, have reportedly signed off. So whether or not a memo urging the executive order lands on President Obama’s desk may now depend on a group of top-level West Wing advisors, from new Chief of Staff Jack Lew to Cecilia Muñoz, the new director of the White House Domestic Policy Council. And several whose opinions loom large have notable records of engaging on LGBT rights issues.
But it’s unclear whether such a measure is actively being considered in the West Wing. A White House spokesman did not respond to comment for this article.
“It’s been frustrating,” says one advocate involved in the executive order push who asked not to be named. “We can’t get a consistent answer for what the problem is.” Says another source: “In December, [a decision on the executive order] was leaning ‘no’ but not final.” Yet following an increasingly public campaign in support of the measure, “it seems to be leaning 'yes' now, though still by no means final.”
Several advocates say a thumbs-up from the following senior staffers is crucial:
— Jack Lew took over as chief of staff in January following the departure of William M. Daley, who has since returned to Chicago. Lew is the former director of the White House Office of Management and Budget. “The impression some of us got was that Daley didn’t support moving the EO forward,” says a source. “We’re not yet sure where Lew is, but we hope he’s more open to considering it.” Deputy Chief of Staff Nancy-Ann DeParle, who previously served as director for the White House’s Office of Health Reform, is also likely an influential figure in executive order consideration, as the issue would be part of her portfolio in the Chief of Staff’s office.
— Support from senior advisor Valerie Jarrett is key — and by all accounts, she could prove to be a formidable advocate for the EO.
In recent months, Jarrett has been dispatched by the White House to keynote events for national and state LGBT groups from Servicemembers Legal Defense Network to Equality Illinois (she also gave the 2010 keynote at the national Human Rights Campaign dinner in Washington, D.C.).
“Let’s not rest. Instead, let’s keep fighting,” Jarrett said in remarks at the SLDN dinner in Washington earlier this month. “We must keep striving for true and lasting equality. And we must protect our progress from those who would turn back the clock. … let’s continue to bend that arc towards justice.”
Freedom to Work founder and president Tico Almeida says of Jarrett, “She’s the conscience of the political operation at the White House, and over the past three years she has often stood up for LGBT rights when other senior staff were cowardly and wanted to delay our LGBT community’s progress toward equality under the law.”
“She also has the ear of the president, and serves as his most trusted personal advisor,” Almeida adds. “I hope Ms. Jarrett is telling President Obama that he can be the first presidential candidate in American history to effectively use gay rights as a winning wedge issue against the pro-discrimination candidates like Romney and Santorum.”
— Cecilia Muñoz is the new director of the White House Domestic Policy Council, having replaced Melody Barnes, who left her post in December. The president’s chief domestic policy advisor, Muñoz was senior vice-president for the Office of Research, Advocacy, and Legislation for the National Council of La Raza, where her lobbying work included bills on both hate crimes (the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act) and employment nondiscrimination (ENDA).
“Having the support of Director Muñoz for the executive order is critical,” says Ian Thompson, legislative representative for the American Civil Liberties Union. “The DPC, which she oversees, is responsible for the coordination of the domestic policy-making process in the White House, and both of the relevant agencies for this executive order — the Departments of Justice and Labor — are members of the Council.”
— David Plouffe, who managed the Obama campaign in 2008 and is currently a senior advisor to the president, is a bridge of sorts between the White House and the reelection campaign, though as The New York Times noted in an article on Plouffe last month, “Obama’s aides are hesitant about discussing the frequency of Mr. Plouffe’s dealings with the reelection effort led by Jim Messina in Chicago, presumably not wanting to suggest he is running the campaign from the White House.” But clearly the campaign must decide how to message an executive order if the White House decides to proceed, and it’s unknown where Plouffe may stand. Does he believe that the substantial gains made by the administration — which include a denunciation of North Carolina’s Amendment One by a state Obama campaign official Friday — are enough in the run-up to November?
— Kathleen Hartnett is the White House associate counsel to the president and one of the more than 200 LGBT appointments in the Obama administration. Vetting the legality of an executive order (as well as legal issues surrounding all policy decisions) falls under the domain of the White House counsel’s office. Hartnett has been involved in other recent LGBT-related policy matters, namely a January meeting with LGBT legal advocates who have attempted for months to persuade the administration to put a hold on deciding green card applications for gay binational couples, as reported by The Advocate. Such a move would provide greater stability for couples where one individual is a non-citizen (the Defense of Marriage Act prohibits LGBT individuals from the equal rights and responsibilities of marriage). White House officials, as well as officials from the Justice Department and the Department of Homeland Security, rejected the request, though administration officials have previously said they will not allow the deportation of any individual who would be eligible for a marriage-based green card if it were not for DOMA.
Some advocates are heartened by reports that the Justice Department has already cleared the order, and point to previous LGBT employment gains as a positive sign that an executive order may not be a stretch for the White House legal team. “Given policies the administration has enacted to advance workplace equality for LGBT federal employees, and its support of an ENDA that includes sexual orientation and gender identity, the administration as a whole clearly supports LGBT equality in the workplace and recognizes that LGBT discrimination is a very real and widespread problem,” says Jeff Krehely, vice-president of LGBT Research for the Center for American Progress.