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President Obama won’t, at this time, sign Executive Order covering sexual orientation & gender identity discrimination

May 3rd, 2012  |  Cynthia L. Hackerott

During recent press briefings, White House press secretary Jay Carney confirmed press reports that the President will not, at least for the time being, sign an executive order to bar federal contractors from discriminating on the basis of sexual orientation and gender identity. “We are not approaching this at this time through executive authority, through an executive order.  We are, however — in another demonstration of the President’s firm commitment to securing equal rights for the LGBT community — aggressively pursuing passage of ENDA,” Carney said referring to the Employment Non-Discrimination Act. The New York Times and other publications have reported that a senior Obama Administration advisor informed LGBT activists last month about the decision. To date, no official written statement has been issued by the White House on this decision.

As noted in a previous posting on this blog, earlier this year, two LGBT news publications — Metro Weekly and the Washington Blade  reported that President Obama was considering expanding Executive Order (E.O.) 11246 – which currently covers race, color, sex, religion, and national origin – to include sexual orientation and gender identity. However, it was not clear whether the anticipated expansion of E.O. 11246 would have only required non-discrimination or whether it would have also required implementation of affirmative action programs on the basis of sexual orientation and gender identity. According to the reports, the President was also considering, as an alternative to expanding E.O. 11246, issuing a separate, new executive order to address sexual orientation and gender identity.  Both Metro Weekly and the Washington Blade reported that multiple sources stated this proposed expansion of the executive order had been approved by both the Labor and Justice Departments, and that the proposal had been presented to the White House. However, the White House had been silent on this topic until last month.

According to the New York Times, Metro Weekly and the Washington Blade, LGBT advocates were informed of the President’s decision when they attended an April 11 meeting led by White House senior advisor Valerie Jarrett to discuss the administration’s work addressing anti-LGBT workplace discrimination. A supplemental report by Metro Weekly indicated that no specific timing was discussed by White House officials, although “multiple attendees” told Metro Weekly that “they were left with no doubt that the White House’s decision not to proceed with such an order at this time would last through the election.”

Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity. Longstanding efforts to pass ENDA have repeatedly stalled in Congress.

When asked about the decision during an April 12 press briefing, Carney stated in part:

 “The President is dedicated to securing equal rights for all LGBT Americans.  And that is why he has long supported an inclusive employment non-discrimination act which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity. The President is committed to lasting and comprehensive non-discrimination protections, and we plan to pursue a number of strategies to attain that goal. Our hope is these efforts will result in the passage of ENDA, the Employment Non-Discrimination Act, which is a legislative solution to LGBT employment discrimination.

“[W]hile it is not our usual practice to discuss executive orders that may or may not be under consideration, we do not expect that an EO on LGBT non-discrimination for federal contractors will be issued at this time.  We support, as I just said, legislation that has been introduced — the Employment Non-Discrimination Act — and we will continue to work with congressional supporters to build — sponsors, rather, to build support for it.”

When asked if the decision was a political calculation, Carney responded: “Absolutely not. The President is committed to securing equal rights for LGBT Americans and that is why he has long supported ENDA. I think the President’s record on LGBT issues speaks volumes about his commitment to securing equal rights for LGBT Americans. The approach we’re taking at this time is to try to build support for passage of this legislation, a comprehensive approach to legislate on the issue of non-discrimination.” 

An April 17 report in the Washington Blade indicates that Carney reiterated his earlier statements in response to questioning about a comment made on April 16 by Shin Inouye, a White House spokesperson, to the Blade and other media outlets that “[w]hile the administration hasn’t taken any options off the table, our belief is that the time is right for a comprehensive legislative approach to achieve passage of ENDA.”

Nevertheless, a May 2 report in the Washington Blade notes that advocates are continuing to push the President regarding such an executive order, but the predominate sentiment seems to be that if it is issued, it won’t happen prior to the election.