Dr. Jillian T. Weiss

Melissa Harris-Perry MSNBC Show: Trans Politics & Funny Business

Filed By Dr. Jillian T. Weiss | April 16, 2012 10:00 AM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: ENDA executive order, Joy-Ann Reid, Mara Keisling, Melissa Harris-Perry, MSNBC

Yesterday, the Melissa Harris-Perry show, a delightful new addition to MSNBC's weekend morning offerings, spent an hour talking about transgender political issues. That's a first for MSNBC (outside of a few documentaries about transgender children), and frankly, it's a first for national television. So kudos to Melissa Harris-Perry, whose show I enjoy a lot, and to her guests.

In the second half-hour, there was a discussion of the Administration's decision to announce that it's not going to sign the Melissa-Harris-Perry.jpgso-called ENDA Executive Order, which would prohibit discrimination by federal contractors based on sexual orientation and gender identity. That topic is a favorite of mine in the last week, as I've blogged about the problems with the Administration's illogical reasons for not signing the order. A clip of the discussion can be found after the jump.

Ms. Harris-Perry noted that Candidate Obama had said in writing that he would sign such an order. She said that the main question to be addressed was, given that the Obama Administration had previously issued Executive Orders prohibiting discrimination based on sexual orientation or gender identity for federal employees and for those receiving federal housing grants, but had just refused to do so for federal contractors, how do we assess the Obama Administration's record on transgender rights?

Excellent question.You can't say it's horrible, because he's done more for the trans community than any previous President. On the other hand, we're so far down the totem pole that even mentioning the word "transgender" is more than any previous President has done.

Her guests for that section were Mara Keisling, Executive Director of the National Center for Transgender Equality, journalist and author Kai Wright, Joy-Ann Reid, Managing Director of The Grio, and Allison Kilkenny of Citizen Radio. It was a fascinating discussion, but I was surprised by Joy-Ann Reid, who gave a talking-to to the LGBT community, saying that "the LGBT community was a bit unfair to this Administration from the get-go," and implying that the LGBT community is being unfair in asking the Obama Administration to sign the federal contractor executive order.

Oh, is that so?

Before I get to that, I should mention that Mara Keisling acquitted herself nobly, not giving the Administration a pass in the name of access, stating clearly that we need this Executive Order, but giving credit where credit is due, noting some of the President's accomplishments and that "there's isn't a President in second place" when it comes to trans and LGBT rights. She's correct in saying that, and the Administration deserves a tremendous amount of credit for the work they are doing on behalf of transgender people. Just last week, the Department of Homeland Services, United States Citizenship and Immigration Services, put out a new policy to more correctly recognize the gender of transgender people and to abide by marriage certificates issued by the state. That's going to be a big help. The President and the Administration deserves a lot of credit for that one. That makes it all the more mysterious that the federal contractor Executive Order is something that is too hard to do.

Kai Wright made the point that the Administration was saying that it was not going to be a leader in LGBT rights, which is consistent with about 20 years of Democratic politics, although Ms. Harris-Perry pointed out, correctly, that the Obama Administration can hardly be compared with the ghastly record of the Clinton Administration.

Joy-Ann Reid then weighed in, saying that she is a contrarian, even though she's seen as being part of the liberal media, in that she believes the LGBT community was unfair to the Obama Administration from the get-go. When it came to Don't Ask Don't Tell, there was a request for an Executive Order to address the situation, which the President could not give because Don't Ask Don't Tell was enacted by federal statute, which the President had a responsibility to uphold. It was the responsibility of Congress to change, not that of the President. Well, actually, the President did take executive branch action to take the policy out of the Middle Ages and bring up to the standards of Admiral Nelson's Royal Navy. So the argument that President Obama couldn't take any executive action is simply wrong. He couldn't overturn the law, true enough, but the executive branch interprets how to enforce. Just as it did with DOMA, declaring that it considered the law unconstitutional and stating that it would not defend the law.

She made the point that the President does not have a "magic wand," and that these laws need to be done piece by piece, by Congress. That struck me as a bit condescending. I don't envisage the President in a conical hat with a sprig of elderberry. But I do envisage him doing what he promised in writing to do in 2008. She noted that the housing Executive Order was possible because the subject of the order is those receiving federal housing money. Federal contractors, she argued, are different because there are some who have been "grandfathered in," that you couldn't just get rid of. "How would you replace General Dynamics?" she said.

Guess what? General Dynamics is already on board with not discriminating based on sexual orientation or gender identity. And so are most of the other major federal contractors. We will not need to worry about "replacing" them. It's extremely unlikely that a federal contractor that makes millions or billions from public contracts is going to take its marbles and go away if they're asked to include sexual orientation and gender identity in their EEOs. And what does it mean to say that contractors are "grandfathered in," by the way? I don't know, but I'd like to find out.

As far as Executive branch action being a problem for Administration, it was no less than Melody Barnes, the Assistant to the President and Director of the White House Domestic Policy Council, who said that the President was committed to moving forward by Executive branch actions because the White House could not control legislative actions:

"At the same time, even though the President shares that frustration, they have been able to take many steps forward, advancing the ball through executive action. Some of those have come in collaboration with the community, which they believe is very important. One of the recent examples is the memo the President sent to HHS on hospital visitation with regard to the LGBT community, to make sure that no one who is in a hospital has to go through a difficult or devastating experience without the support of their loved ones. The HHS Secretary then put out a proposed rule and sent a letter to the Hospital Association, and followed up with calls to ask them to move forward with this even as the regulatory process was still ongoing.

Similarly, there is action taking place at Housing and Urban Development with regard to grant recipients being required to follow state and local non-discrimination law. The State Department has taken action on passports for transgender individuals ensuring that a person going through gender transition can get their new gender reflected on their passport with appropriate certification. There was also removal of the HIV travel ban, which resulted in being able to bring a large HIV conference to the United States recently.

These are some the ways in which they have been able to act using executive powers. This has also acted as a signal to the many executive branch agencies, to show them how they can move forward on taking action to ensure that members of the LGBT community can have access to the types of benefits that straight couples are able to access."

Thus, just a little while ago, the Obama Administration was saying that it had no hand in legislation, and that it was committed to action through executive branch actions, but now we have Joy-Ann Reid saying that we're going to lose General Dynamics if we do that. We have a promise in writing from a President saying I will do X -- and now it is impossible to do X , because of some alleged grandfathering. My grandfather had some tall tales, let me tell you, but he would have been impressed by this one.

I also note that the Williams Institute of UCLA Law School (of which I am on the Advisory Board) issued a statement in response to the President's spokesperson saying that the Administration wanted more research that this is the right thing to do. The Williams Institute, a well-respected think tank on LGBT legal and policy issues, said that extensive research already exists supporting the need, effectiveness, and stability of such an order.

No one called out Ms. Reid on the show regarding this less-than-thought-out argument, and I understand that it probably wasn't the place to do so. But now I'd like to hear some answers. How is it the LGBT community is being unfair in expecting the President to keep his campaign promise?

I have great respect for Ms. Reid and her work at The Griot. She should rethink this argument.

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