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Will Obama ‘use the pen’ to protect LGBT workers?

President pledges to take executive action if Congress fails to pass agenda items

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Jay Carney, White House, gay news, Washington Blade
Jay Carney, White House, gay news, Washington Blade

White House Press Secretary Jay Carney won’t say whether Obama’s use of his pen will include action to protect LGBT workers. (Washington Blade photo by Damien Salas)

President Obama pledged this week to take executive action if Congress fails to pass certain items on his legislative agenda, but so far the strategy of bypassing Congress doesn’t extend to the issue of barring discrimination against LGBT workers.

In public remarks before a Cabinet meeting on Tuesday, Obama said he intends to make clear that Congress isn’t the only path for policy change, saying “we are not just going to be waiting for legislation” to provide aid to Americans.

“I’ve got a pen and I’ve got a phone,” Obama said. “And I can use that pen to sign executive orders, and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, and making sure that our businesses are getting the kind of support and help they need to grow and advance to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”

That situation could apply to the Employment Non-Discrimination Act, a bill that would bar most employers from engaging in anti-LGBT workplace discrimination. Although the bill passed the Senate last year on a bipartisan basis, it has languished in the House. House Speaker John Boehner (R-Ohio) has said he opposes the legislation.

LGBT advocates are jumping on Obama’s remarks as another opportunity to push him to sign the executive order prohibiting federal contractors from discriminating against LGBT workers.

Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization “certainly hope[s]” the president’s words — and similar words from other administration officials — indicates Obama is preparing to take action to institute LGBT non-discrimination protections.

“The White House’s statements were a perfect description of the executive order that hardworking LGBT Americans need,” Sainz said.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the “time is right for more action” in the wake of Obama’s words that he’ll use his pen to advance his agenda.

“If politics is local, then all the administration has to do is take a look at what Virginia’s new Gov. Terry McAuliffe did as his first act — signing an executive order that protects LGBT state employees from discrimination,” Carey said. “With one stroke of his pen, the president can immediately improve the lives of LGBT people across the country; we encourage him to use it.”

But the White House maintains the legislative route to protecting LGBT workers from discrimination is the path it prefers.

Under questioning from the Washington Blade, White House Press Secretary Jay Carney said on Thursday he doesn’t “have any change or update” from the administration’s previously stated preference for passage of ENDA over an executive order prohibiting LGBT discrimination among federal contractors.

“So our view has always been that the best way to address this important matter is through broad, comprehensive employment non-discrimination legislation,” Carney said. “And we support action on that legislation in the House so that the president can sign it.”

Asked by another reporter why the president would take executive action to advance his policies on issues such as gun control and education, but not on LGBT discrimination, Carney reiterated the administration’s position.

“We are very focused on the potential for further action in the Congress — for the progress that we’ve seen around the country and in Congress in recognizing that these are fundamental rights that ought to be recognized,” Carney said. “And we expect that Congress will, as I said, get on the road toward progress that so many in this country have been traveling on these issues.”

Obama’s words this week mark a significant change in tone from what he’s previously said on the issue of bypassing Congress and issuing executive orders to enact new policy.

In November during a fundraiser for the Democratic National Committee in San Francisco, Obama was heckled by an audience member who kept shouting “executive order.” Although the protester didn’t make clear on what issue he was seeking executive action, Obama responded that his belief generally is that he shouldn’t bypass Congress.

“There is no shortcut to politics,” Obama said. “And there’s no shortcut to democracy. And we have to win on the merits of the argument with the American people. As laborious as it seems sometimes, as much misinformation as there is out there sometimes, as frustrating as it may be sometimes, what we have to do is just keep on going, keep on pushing.”

The reason for the change in tone could be attributable to a new face on the White House staff. John Podesta has recently joined the staff as a counselor to Obama. During his time building the Center for American Progress as its founder, Podesta was a strong advocate of use of executive power by the president.

In a 2010 report titled, “The Power of the President: Recommendations to Advance Positive Change,” Podesta advocates for the use of executive power for Obama to advance job creation and economic competitiveness and to improve education, health care and security.

“Concentrating on executive powers presents a real opportunity for the Obama administration to turn its focus away from a divided Congress and the unappetizing process of making legislative sausage,” Podesta writes. “Instead, the administration can focus on the president’s ability to deliver results for the American people on the things that matter most to them.”

Winnie Stachelberg, vice president of external affairs at the Center for American Progress, insisted that Obama has asserted he has the prerogative to exercise executive authority, saying she supports him doing so for LGBT workers.

“I think his comments this week and comments from others who are senior advisers at the White House that he will act if Congress doesn’t is in keeping with what he has said in his first term and in the past year in his second term,” Stachelberg said. “He has been clear that he wants to work with Congress on issues that challenge our country, but where and when Congress won’t act, he will use the authority that he has.”

Obama will likely flesh out what he intends to pursue through executive action during his annual State of the Union Address before a joint session of Congress on Jan. 28. Although the details of the speech are under wraps, Obama has already disclosed he’ll talk about mobilizing the country around a national mission of ensuring the economy offers all hardworking Americans a fair shot at success.

Tico Almeida, president of Freedom to Work, identified another item that Obama should bring up during the State of the Union speech: pushing the U.S. House to finish the job on ENDA.

“We will keep pushing for an ENDA vote in the House of Representatives in 2014, and we hope the president will use the State of the Union Address to call for that vote, but the very best thing he can do right now is lead by example and sign the executive order,” Almeida said.

Advocates of workplace protections pushed Obama to sign the directive prior to his campaign to win a second term, but the White House announced it wouldn’t happen at that time. Despite a presumption the president would sign the measure once re-elected, there was no change in the White House position following Election Day.

After first lady Michelle Obama was heckled during a DNC fundraiser over the executive order, renewed pressure was placed on the White House, and advocates had renewed hopes Obama would announce he would sign the order at the annual Pride reception at the White House. Instead, Obama took the opportunity to renew his call for ENDA passage.

Finally, amid questions over whether Obama would sign the executive order once ENDA made it halfway through Congress and passed the Senate, the White House indicated there was still no change in plans.

Dan Pinello, a political scientist at the City University of New York, didn’t put much stock in the notion that things would change this time around — despite the president’s words.

“My guess is that Obama would not issue an executive order that might unduly upset the business community,” Pinello said. “He’s been fairly deferential to them.”

Pinello added most federal contractors are large enough business entities that they likely have LGBT non-discrimination provisions already in place with regard to LGBT people.

“Thus, there might be significantly diminished returns from such an executive order, especially in light of the antagonism potentially felt by those small contractors who’d feel put upon by the action,” Pinello said. “So I’d be surprised if Obama did it.”

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2 Comments

2 Comments

  1. peter Rosenstein

    January 17, 2014 at 11:00 am

    Great report- keep up the pressure at the press conferences

  2. Rebecca Juro

    January 17, 2014 at 4:09 pm

    My prediction: Obama will focus on other issues, those that are useful to the Democratic Party in the upcoming election like immigration, and completely ignore ENDA and the ENDA executive order. Why do I believe this? Because it's exactly what he's been doing for the last five years.

    I will believe Obama is serious about our issues when I see pen hit paper or hear the words come out of his mouth, not one second before. At this point, only fools and suckers take anything this Administration says about LGBT issues on faith.

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World

Jamaica man attacked after using gay dating app

Victim’s penis partially severed before he was set on fire

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A Jamaican and Pride flag fly on the beach in Montego Bay, Jamaica, on Oct. 15, 2018. (Photo courtesy of Maurice Tomlinson's Facebook page)

An 18-year-old man in Jamaica remains hospitalized in critical condition after he was targeted on a gay dating app.

The Jamaica Gleaner reports the victim on Oct. 11 went to a neighborhood in Montego Bay, a resort city that is the capital of Jamaica’s St. James Parish, to meet the man with whom he was speaking.

The newspaper reports the man and two other men abducted the victim, robbed him and partially severed his penis before they set him on fire. Officials said the three men took his cell phone and used his bank card to withdraw money from his account.

“He is a very lucky young man because although they left him in a critical condition, he managed to make his way to a security checkpoint in the community where they assisted him to the hospital, where he was admitted in critical condition,” a local police officer told the Jamaica Gleaner.

The Jamaica Gleaner reported a 43-year-old man in St. James Parish disappeared in January 2020 after he went to meet someone with whom he had spoken on a gay dating website. Authorities later found the man’s body, and two men have been charged with his murder.

Violence against LGBTQ Jamaicans remains commonplace. Consensual same-sex sexual relations also remain criminalized in the country.

J-FLAG, a Jamaican LGBTQ rights group, has condemned the latest attack.

“Like all well-thinking Jamaicans at this time, JFLAG is outraged at the recent attack on an 18-year-old man in St. James,” tweeted J-FLAG on Sunday. “His attackers must be brought to justice.”

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National

Colin Powell, leaving mixed legacy on ‘Don’t Ask, Don’t Tell,’ dies at 84

Key figure once opposed gays in military, then backed review

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gay news, Washington Blade, Colin Powell, gay marriage
Colin Powell leaves behind a mixed legacy on 'Don't Ask, Don't Tell."

Colin Powell, the first ever Black secretary of state who served in top diplomatic and military roles in U.S. administrations, died Monday of coronavirus at age 84, leaving behind a mixed record on “Don’t Ask, Don’t Tell.”

The world continues to grapple with the pandemic and the public grows increasingly frustrated with its persistence as many remain unvaccinated despite the wide availability of vaccines. Powell was fully vaccinated, according to a statement released upon his death. Powell reportedly suffered from multiple myeloma, a condition that hampers an individual’s ability to combat blood infections.

Rising to the top of the military as chair of the Joint Chiefs of Staff, Powell supported in 1993 Congress moving forward with “Don’t Ask, Don’t Tell,” a law that barred openly gay people from serving in the U.S. military.

During a key moment congressional testimony, Powell and other top military officials were asked whether or not allowing gay people in the military would be compatible with military readiness. Each official, including Powell,” responded “incompatible.” Congress would enact “Don’t Ask, Don’t Tell” that year.

Things changed when President Obama took office 15 years later and advocates for repeal of “Don’t Ask, Don’t Tell” were eager to claim Powell’s voice among their ranks. After all, Powell was highly respected as a bipartisan voice after having served as secretary of state in the administration of George W. Bush and endorsing Obama in the 2008 election.

After the Obama administration in 2010 announced it would conduct a review of the idea of allowing gay people to serve openly in the military, Powell came out in support of that process. Advocates of repeal called that a declaration of reversal, although the statement fell short of a full support for gay people serving openly in the military.

“In the almost 17 years since the ‘Don’t Ask, Don’t Tell’ legislation was passed, attitudes and circumstances have changed,” General Powell said in a statement issued by his office, adding, “I fully support the new approach presented to the Senate Armed Services Committee this week by Secretary of Defense Gates and Admiral Mullen.”

Congress acted to repeal “Don’t Ask, Don’t Tell” and the policy was lifted in 2011. At the time, Powell was widely considered a supporter of ending “Don’t Ask, Don’t Tell” and publicly counted among supporters of repeal, although the Blade couldn’t immediately find any statements from him to that effect.

In 2012, Powell had similar vaguely supportive words on same-sex marriage, saying he had “no problem with it” when asked about the issue.

“As I’ve thought about gay marriage, I know a lot of friends who are individually gay but are in partnerships with loved ones, and they are as stable a family as my family is, and they raise children,” Powell said. “And so I don’t see any reason not to say that they should be able to get married.”

The Blade also couldn’t immediately find any statement from Powell on transgender people serving in the military. After the Obama administration in 2016 lifted decades-old regulations against transgender service, former President Trump issued a ban by tweet the following year. President Biden reversed that ban and allowed transgender people to serve and enlist in the military in his first year in office.

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World

Botswana attorney general seeks to recriminalize homosexuality

High Court heard case on Oct. 12

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(Public domain photo)

GABORONE, Botswana — On June 11, 2019, Botswana moved toward being a state that no longer held some of its citizens (and, by extension, visitors) as criminals if they identified within the LGBTQ spectrum. However, the government didn’t take too long before it declared its intention to appeal the High Court judgment that asserted that consensual same-sex sexual activity in private was not to be a criminal act.

The appeal hearing took place on Oct. 12.

There are some key things to understand about what the High Court did for people in Botswana. The judgment, written and delivered by Justice Leburu, not only put a clear delineation between the state’s powers to intrude in people’s private sexual lives, but it also stated that laws that served no purpose in the governance of the people they oversaw were most likely worthy of “a museum peg” more than being active laws of the land.

In the hearing on Oct. 9, a full bench of five judges of the Court of Appeal was treated to the government’s case—as presented by advocate Sydney Pilane of the Attorney General’s Chambers—along with hearing the rebuttals from the legal counsel representing Letsweletse Motshidiemang, who brought the original case against the government, and LEGABIBO, an NGO admitted as amicus curiae, a friend of the court. The appeal, two years in the making, would have been expected to be based on facts rather than opinions of what could and could not be accepted by hypothetical Batswana. Pilane even went so far as to contest that President Mokgweetsi Masisi’s utterances about how people in same-sex relationships were “suffering in silence” were taken out of context as he was talking about gender-based violence and not endorsing their relationships.

The 2019 ruling of the High Court, the most supreme court of incidence in the country, not only declared people who were or had interest in engaging in consensual same-sex sexual activity not criminals, but it also allowed non-queer people to engage in sex acts that would otherwise be considered “against the order of nature” freely. The latter clause had often been interpreted as being solely about non-heterosexuals but on greater interrogation one realizes that any sex act that doesn’t result in the creation of a child was considered against this ‘order of nature’ and that nullified much of heterosexual sexual exploration—further painting these clauses as out of touch with contemporary Botswana as Leburu expressed.

In some of his appeal arguments, Pilane stated that Batswana “do not have a problem with gay people”, yet he based his contention on the fact that Batswana “respect the courts’ decisions;” as such they would not take up arms at the court’s decision to decriminalize consensual same-sex sexual activity. Pilane maintained that the decision to decriminalize should be left to the Parliament on the recommendation of the courts. The bench was swift to query whether a body of politicians elected by a majority would be the best representatives of a minority that was oppressed by laws that the very politicians benefitted from.

Botswana’s legal system allows for the High Court ruling to remain the law of the land until such a point as it’s struck down. The Court of Appeal ruling in favor of Batswana’s sexual liberties will be a nail in the proverbial coffin of residual colonial sex-related laws plaguing Botswana. This will not be the end by any means though. Where the attorney general can form a case stating that decriminalizing consensual same-sex relations could be likened to people locking themselves in their houses with animals and having their way with them, we know that mindset changes need to be prioritized to ensure that all Batswana understand their constitutionally protected rights to privacy, expression, and freedom of association as relates to their personal and sexual lives.

The 2010 Employment Act of Botswana already protects people from being discriminated against based on their sex or gender identity. The nation’s sexual violence laws were made gender neutral, thus covering non-consensual sex (rape) in all its possibilities. In upholding the ruling of the High Court, the Court of Appeal will allow the LGBTQ and SOGIESC (sexual orientation, gender identity and expression and sex characteristics) movements in Botswana some respite as attention is then channeled toward other pressing matters such as name changes, access to healthcare, and other culturally pertinent issues.

The Court of Appeal is expected to hand down a judgement following their deliberations in 4-6 weeks (mid to late November), however, this remains at their discretion. As it stands, since the High Court ruling in 2019, Botswana has experienced increased social accommodation for LGBTQ matters and figures—however, this is not to say there have not been any negative instances. With the continued sensitization, the expectation is that the courts, the government and NGO players will all contribute to a broad, national, culturing of LGBTQ rights in Botswana devoid of colonial residues.

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