LGBT advocates and lawmakers on Capitol Hill continue to press President Obama to issue an executive order barring LGBT workplace discrimination among federal contractors, despite the announcement that the directive won’t happen at this time.
Though the pressure continues, there are mixed views about whether a change of course is likely to happen during Obama’s first term.
A Senate Democratic aide, who spoke on condition of anonymity, said “more than one Democratic office” on Capitol Hill is pushing the White House to reconsider the decision not to issue the executive order, although the source wouldn’t identify which offices were speaking with the White House.
“There are ongoing discussions, and I think there’s going to be senator-level discussions,” the aide said.
Asked what the response has been from the administration, the aide said White House officials weren’t “too sympathetic to the notion that the president should issue the executive order,” but predicted pressure from Capitol Hill would “grow louder and louder.”
The aide said Obama could still issue the executive order before the end of this term, saying, “I think there’s more than enough wiggle room that the White House has left itself.”
Advocates were told on April 11 during a high-level White House meeting that Obama wouldn’t issue such a directive at this time and prefers to pursue passage of legislation to address the issue known as the Employment Non-Discrimination Act.
Sen. Jeff Merkley (D-Ore.) criticized the White House publicly in a statement, and disappointment was echoed by Rep. Frank Pallone (D-N.J.), who circulated a letter among colleagues that urged Obama to sign the directive. Gay Rep. Jared Polis (D-Colo.) said he wished the president “was a little more aggressive” in combatting workplace discrimination in an interview with Roll Call.
Several LGBT advocates echoed the feeling that the fight is not over on the executive order and that the administration could issue the directive before the year is out.
“It is my understanding from conversations with Hill staffers that their bosses are privately engaging the White House to explain to them the mistake that was made by delaying the executive order, and encouraging them to fix the mistake sooner rather than later,” said Tico Almeida, executive director of Freedom to Work.
Almeida said he’s engaged in meetings with White House staff and is proposing further discussions to address remaining concerns about the executive order. He plans to fly in from across the country LGBT victims of workplace discrimination to meet with senior officials and members of Congress.
“I’m optimistic that the White House staff will take this very seriously and I maintain some hope that President Obama will correct the mistake made by White House staff, who decided to delay the executive order,” Almeida said. “I maintain hope that the president will sign it in May or June.”
Jeff Krehely, vice president for LGBT programs at the Center for American Progress, said his organization continues to have conversations with White House officials and has exchanged documentation about the executive order following the April 11 meeting.
“There have definitely been a couple of conversations thinking through whether there’s a need for additional research of perspectives on the problem,” Krehely said. “From CAP’s perspective, we’ve been clear that we’ve all in the advocacy community done quite a bit of research, shown the magnitude of the problem, the legal authority the president has to act on an executive order. I think we’re just having a conversation about making sure that everybody in all the different places in the administration is fully aware of all the research that’s been done to date on the issue.”
Brad Sears, executive director of the Williams Institute at the University of California Los Angeles, said his organization has taken part in meetings with administration officials on publicly available research the organization has showing businesses thrive when they have LGBT non-discrimination protections in place and that the executive order is legally sound.
“My impression from those meetings is the White House doesn’t have a question about either of those,” Sears said. “We believe that the policy research and the legal authority is there.”
According to a report published last week by the organization, 86 percent of all federal contractors protect against discrimination on the basis of sexual orientation and 55 percent on the basis of gender identity. The combined total means almost one-half of all federal contractors have LGBT protections, which amounts to more than $249 billion in federal spending.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said his organization has joined in conversations with the White House on the executive order.
“Along with CAP and the Williams Institute, we are compiling all of our comprehensive materials for the White House that makes the case for this common-sense order,” Cole-Schwartz said. “While we continue to advocate for these workplace protections, we believe that the arguments have been ironclad even before we were informed that the White House would not be taking action at this time.”
A White House spokesperson didn’t immediately respond to a request for comment.
Krehely added he thinks there’s room for Obama to issue the executive order during his first term because White House officials didn’t deliver a hard “no” during the April 11 meeting, but rather said they weren’t issuing the order at this time.
But other LGBT advocates, who agreed to speak on condition of anonymity to be more forthcoming on their views, weren’t as optimistic and didn’t see a path for the executive order this year.
“They have doubled down on their strategy on the executive order,” one advocate said. “I don’t believe they will reverse their course. I think the EO is done until after the election.”
According to the source, the decision has implications for Obama’s 18-month long “evolution” on marriage.
“With respect to marriage, there are a lot of cards still to be played, like the convention and the ballot states,” the advocate said. “Unfortunately, the mood has turned dire in that if they didn’t let the EO proceed, it stands to reason that the president won’t announce a pro for marriage equality position before the election. I don’t know that for sure but it stands to reason.”
Another anonymous source who has an interest in building LGBT support for Obama in the election expressed a similar sentiment about the prospects for an executive order against workplace discrimination this term.
“The thing about executive orders is that he can issue them whenever he wants, but he’s not going to,” the source said. “In the meeting they made it very clear that they’re not going to do it.”
Another source with connections to the White House said political concerns played a role in the decision not to issue the executive order. According to the source, there are fears that issuing the order could give the impression that the White House is trying to bypass Congress and that such actions won’t play well in battleground states like Ohio, which could determine the outcome of the election.
In an interview with the Washington Blade last week, gay Rep. Barney Frank (D-Mass.) expressed a similar sentiment.
“I understand there’s a lot on the plate politically,” Frank said. “And there are concerns now — not about LGBT issues — but there’s a whole developing argument about his being too much unilateral. I don’t know if you saw the article in the New York Times about too much unilateral executive order, and I think that had more to do with it than the LGBT specifics.”
But two sources expressed confidence that Obama would issue the executive order in a second term if Congress fails to act on ENDA.
“I’d be very surprised if he didn’t do this in a second term, and I’d be very surprised if he didn’t come out for marriage in a second term,” one source said.
Since the April 11 meeting, Obama endorsed legislation that aims to protect LGBT students from bullying, known as the Student Non-Discrimination Act and the Safe School Improvement Act. Additionally, the Blade has learned that the White House plans to host another Pride celebration during the month of June.
Even so, some LGBT organizations have pledged to continue pressing for the executive order.
Heather Cronk, managing director for GetEQUAL, said her organization has had positive reactions in meetings that supporters have had with various Obama campaign offices on LGBT workplace discrimination.
“What we’ve discovered through those campaign actions is a lot of the campaign staff agreed with us that the president, the candidate they’re working for, should sign the executive order,” Cronk said. “It was clear to us that we didn’t actually want to do too hard-hitting action at some of those offices because we were finding that the staff and volunteers agreed with us.”
Supporters at Obama campaign offices in Virginia, Los Angeles, Austin and Laramie, Wyo.,delivered pens to campaign officials — in case the president couldn’t find something to write with — in a symbolic action to encourage the president to sign the order.
Next on the agenda for GetEQUAL, Cronk said, will be actions “more theatrical in nature” to drive the point less to the Obama campaign offices and more to campaign headquarters.
“The pressure isn’t letting off,” Cronk said. “We still have our foot on the gas and we still think there’s an opportunity for President Obama to do the right thing, and we’ll keep escalating until we either get another response from the White House with a more definitive ‘no,’ or get an affirmative response from the White House and see an executive signing in the next month.”