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Obama Didn’t Let Congress Stop LGBT Advances

No Congress? No Problem

President Obama has made big leaps in LGBT rights without ever signing a new law.

On January 20, 2017, when President Barack Obama leaves the Oval Office for good, he will leave behind an LGBT rights legacy whose astonishing scope most Americans are only beginning to grasp. During his eight years as president, Obama created a revolution in LGBT equality -- protecting gay and transgender people from workplace, housing, and credit discrimination; shielding their access to unprejudiced health care; and defending their right to nondiscriminatory education.

He will have done all of this without signing a single bill.

Obama did, of course, sign three LGBT rights bills: one expanding federal hate crime laws to include gender identity and sexual orientation; another ending the military's "don't ask, don't tell" policy; and, in 2013, a measure extending the Violence Against Women Act's protections to LGBT people. But his signature legislative triumphs were secured in the first half of his first term -- and during the draining fight over VAWA, Republicans made it clear that they would never again support a pro-gay, pro-trans bill. Once Democrats lost their hold on both houses of Congress, the president's hope of furthering LGBT equality seemed to disappear.

But it didn't. Instead, Obama's efforts to strengthen LGBT rights across the country accelerated in the last two years of his term. Indeed, it's now safe to say that many of Obama's most lasting LGBT achievements were accomplished without a peep from Congress.

How did the president sneak an LGBT rights revolution past a hostile legislative branch? By mastering the art of executive orders and agency rule-making. If that sounds boring, consider what it did for gender and sexual minorities in every state in the country.

Obama's critics on the left often bemoan the fact that he failed to pass a law prohibiting workplace LGBT discrimination, instead settling for an executive order banning LGBT discrimination by government contractors. But that alleged failure is increasingly irrelevant. Under the leadership of Obama appointee Chai Feldblum, the Equal Employment Opportunity Commission has broadened the scope of existing employment nondiscrimination law to encompass LGBT people. Feldblum, a lesbian civil rights firebrand, led the charge to interpret Title VII's ban on workplace "sex discrimination" to include discrimination based on sexual orientation and gender identity. Her theory was simple: Discrimination against gay, bisexual, and transgender people is rooted in stereotypical beliefs about gender expression, biology, and romantic attraction. All of these prejudices link directly back to sex. And sex discrimination is already illegal under federal law.

So Feldblum's EEOC ruled that Title VII, as written, outlaws LGBT discrimination. The commission's 2015 decision that antigay discrimination is sex discrimination was 3-2; the majority was composed entirely of Obama appointees.

Most courts that have considered the EEOC's position in recent years have agreed with it. A few have not -- but that turns out not to matter much. The EEOC is immensely powerful: Employees file charges with the commission, which attempts to reach an accord with the employer before even stepping into court. Employers are often eager to settle quickly and quietly. Thus, even when the EEOC works a case in a jurisdiction that's skeptical of its view on LGBT discrimination, employers have a strong incentive to reach a speedy resolution. If courts do get involved they might reverse themselves and agree with the EEOC. Thanks to that looming threat, the EEOC has secured millions of dollars in restitution for wronged LGBT employees.

More controversially, the Department of Education -- an executive department whose secretary Obama appoints -- borrowed the EEOC's logic to interpret its own nondiscrimination statute. Title IX bans sex discrimination in any educational institution or program that receives federal funds, unless the institution receives an explicit waiver for religious purposes. In 2014, under Obama's purview, the DOE announced that Title IX's sex discrimination provision bans LGBT discrimination. It has also held that excluding transgender students from the bathroom that corresponds to their gender identity constitutes illegal sex discrimination. Some religious schools swiftly moved to obtain a waiver from the new rules -- but the DOE responded by providing a public list of the exempted institutions, which were previously permitted to exempt themselves in secrecy.

The DOE's guidance has a mixed track record in the courts. One federal appeals court and several district judges have affirmed its legality, while a single conservative judge in Texas purported (absurdly) to block it across the country. But the new rule is already helping young trans people across the country -- kids like Ash Whitaker, who sued his horrifically transphobic school after it banished him from the boys' bathroom and considered making him wear a bright green wristband so the staff could monitor his restroom use. In September, Whitaker won the right to use the correct bathroom when a federal judge issued an emphatic ruling forbidding the school from discriminating against him. The judge was an Obama appointee.

Other agencies have managed to extend existing civil rights laws to LGBT people with virtually no political fuss. The Department of Health and Human Services has interpreted a sex discrimination ban in the Affordable Care Act to forbid anti-trans discrimination in health care; as part of that rule, doctors cannot refuse to perform gender-transition-related services. (Texas has filed a frivolous lawsuit against the guidance, with very little chance of success.) The Department of Housing and Urban Development clarified that its long-standing Equal Access Rule bans LGBT discrimination in government-financed housing. And at the end of the summer, the Consumer Finance Protection Bureau -- an agency Obama helped to create -- declared that the Equal Credit Opportunity Act prohibits discrimination on the basis of sexual orientation and gender identity. In one fell swoop, the CFPB had outlawed LGBT discrimination in credit, including bank loans, mortgages, and brokerage services.

Republicans didn't even bother to launch court battles against the Obama administration's LGBT fair housing and equal credit rules. If they had, they may well have been foiled by Obama appointees to the federal judiciary, who have proved skeptical of political and bigoted arguments against LGBT rights. Obama's two Supreme Court appointees, after all, voted for marriage equality -- after Obama's Department of Justice gave up defending "traditional marriage" and conceded that the federal Defense of Marriage Act violated the Constitution. (His Justice Department has remained fiercely progressive ever since, recently suing North Carolina for violating transgender people's civil rights.) Eleven of Obama's appointees are openly gay; coincidentally, one was assigned a challenge to Oregon's same-sex-marriage ban. (He struck it down.)

Ultimately, Obama's executive actions and judicial appointments are fundamentally intertwined. For most of his tenure, the president relied on agency rule-making and executive orders to promote LGBT equality; he will now rely on the judiciary he remade to uphold the legality of his new rules. I asked Feldblum how she predicted the EEOC's move to ban LGBT workplace discrimination -- probably the executive branch's most impressive LGBT rights victory -- would fare in the courts after Obama's presidency.

"Courts across the country are questioning the logic that led them to exclude sexual orientation and gender identity from 'sex,' " she told me. "That genie cannot be put back in the bottle. Ultimately, one of those cases is going to reach the Supreme Court. My prediction is that we are going to win that case."

If and when that happens, we'll have Obama to thank.

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Mark Joseph Stern