Nan Hunter

The Obama era, legally speaking

Filed By Nan Hunter | November 20, 2008 5:00 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: Barack Obama, gay agenda, LGBT agenda, LGBT community, Obama era

The bittersweet combination of the Prop 8 loss and the Obama win, combined with the Dems picking up more seats in both houses of Congress, means that a much greater focus on federal-level policy-making is in the offing in lgbt politics. In thinking about what should be prioritized, the first cut is between what the new Congress can do and what steps can the new administration take with confidence that Congress won't overrule a progressive initiatives.

There are certainly lots of possible goals, but I would suggest two executive orders and three major pieces of legislation as the primary targets for the lgbt rights movement over the next four years. Five in four, you might say. Not that these should be the only objectives: there is much that can be done at the congressional and agency levels as well.

I would argue, however, that these five would be the most effective and pragmatic solutions to the issues facing the largest number of lgbt Americans.

(In no order)

  • President Clinton issued an executive order that prohibited discrimination against federal employees based on sexual orientation. President Obama should add gender identity to the list of prohibited bases for discrimination. One method would be by defining either "sex" or "sexual orientation" in the current order to include gender identity and expression. He has strong legal grounds for doing so, especially if the new language is added to the definition of sex discrimination, because he can invoke the ruling in Schroer v. Library of Congress, in which a federal court held that it was a violation of the sex discrimination aspect of Title VII to withdraw a job offer made to a transgender woman.

    President-elect Obama has committed his administration to support anti-discrimination laws that include protection for gender identity and expression. If that means anything, it should mean that he will be willing to actually make that policy a reality for federal employees. And as a matter of principle, it's a good thing for the federal government in its capacity as the nation's largest single employer to impose anti-discrimination obligations on itself before applying them to other employers.


  • Another important signal from the White House on employment matters will come if and when President Obama adds sexual orientation and gender identity to the list of prohibited grounds for discrimination by private companies that have contracts with the federal government.

  • On the legislative side, pass an inclusive ENDA already.

  • Also legislatively, repeal DoMA (especially the part limiting federal government recognition of marriage to those between a man and a woman, even if state law provides otherwise). And enact, perhaps as an amendment to DoMA, a provision that grants all federal benefits and rights and responsibilities under federal law that now go only to married persons to persons in a family relationship status formally recognized under state law. In other words, eliminate the differential that persons in civil unions now face because their status has zero standing under federal law.

  • Lastly, reform the health care system so that every American - whether married, single, partnered or living in a cave - has access to health care. This may not be solely an lgbt issue, but it is a fact that persons in unmarried partnerships have much higher rates of uninsurance than even the abysmal U.S. average. And health care benefits are probably the number one material issue that drives the family recognition agenda. Let's solve that problem at the root.

The key slots for appointees who can move these issues will be the White House domestic policy and legislative staff, the Department of Justice and the EEOC. So far, to my knowledge, none of the transition team appointments in these areas contain openly gay persons. Not good.

What I think should be the priorities don't necessarily have anything to do with sequence. As Rep. Tammy Baldwin has said, the first lgbt issue that Congress will move on is hate crimes, because it should be fairly easy legislation to pass (although of what great effect I've never been certain). The splashiest, most symbolically rich action would be a repeal of DADT. I certainly support that, but I don't rank it in my top five.

Political vagaries that we can't foresee now may affect some of these calculations, and one has to be ready to recalibrate if events demand that. But for now - five in four. Let's keep our eyes on that prize.


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If your third bullet point (full ENDA) were achieved, would it make your first two bullet points redundant?

Yes, ENDA would eliminate the need for points 1 and 2. But I don't think that ENDA will get to the floor of either chamber before 2010, and an executive order could be issued at any time.

A great round up of necessities that I couldn't agree with more.