Alex Blaze

Obama to act on anti-trans civil service discrimination, has no timeline on DOMA

Filed By Alex Blaze | June 17, 2009 7:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Barack Obama, gender expression, gender identity, john berry, press conference, relocation benefits, sexual orientation, transgender, White House

I moved this update up to its own post to make discussion clearer. Video of the ceremony and a transcript after the jump.

Earlier today I was on a conference call with the director of the Office of Personnel Management John Berry, who's also openly gay. There was plenty of mainstream media on the line (ABC, USA Today, LA Times), so expect some print and TV coverage of this issue and this memo.

He discussed the memo at some length and stressed that this is part of an "internal review" that was conducted at the OPM and at the Department of the State that started at the beginning of the Obama Administration to search for benefits that could be extended to same-sex partners that wouldn't violate DOMA. Lots of benefits will be extended, but not health care and retirement benefits. He said those would require legislative action.

A few interesting points.

First, he was careful to stress that the memo is "not in response to any outside pressure." Berry said that the policy changes took "analysis and care on them" and preparation for the changes has been "underway for many months." In other words, he wanted to make the point clear that the White House was not buckling to pressure exerted this week because of the DOJ DOMA brief. That's fair enough, he was discussing these benefits with the Advocate before the brief came out.

Second, he was asked about the timeline for DOMA, and replied:

Anybody who works in Washington who tells you a specific timeline is kidding you. A timeline is when you get 218 votes in the House and 51 in the Senate.

So, there ya go. No news on when the White House will start lobbying Congress to move on the DOMA, but he mentioned earlier in the conference that while there are enough votes for hate crimes legislation, there aren't enough for DOMA, DADT, and ENDA.

Third, John Aravosis asked him what's actually changing with these guidelines. Federal employment is already supposed to be based on merit, not on factors unrelated to job performance. Aravosis mentioned a woman who worked for the federal government who got leave to take care of her same-sex partner.

Berry responded that previously such benefits to gay employees was "subject to whim of the supervisor." They were optional, and now they'll be mandatory.

Fourth, I got a question in and wanted to know about protections for trans people mentioned in the Advocate. Since Berry mentioned several times that only job-related factors will now be considered in federal employment, and said how sexual orientation isn't included in that several times, I asked if the new directions will specifically mention gender identity, gender expression, and/or transgender people. He responded:

Gender identity is a non-work-related factor, and in the guidelines [to federal agencies] we will be making that clear.[...] Gender identity will be added and made very clear in our guidelines.

That's at least one positive out of this memo: specifically mentioning transgender people when it comes to federal employment.

Berry also acknowledged that this isn't an end:

This is a first step, not a final step. This is an attempt to get our federal house in order. It's an example of practicing before preaching and the administrations is taking bold steps to move forward.

Oval Office 6:04 P.M. EDT THE PRESIDENT: Well, today I'm proud to issue a presidential memorandum that paves the way for long-overdue progress in our nation's pursuit of equality. Many of our government's hard-working, dedicated, and patriotic public servants have long been denied basic rights that their colleagues enjoy for one simple reason -- the people that they love are of the same sex. Currently, for example, LGBT federal employees can't always use sick leave to care for their domestic partners or their partners' children. Their partners aren't covered under long-term care insurance. Partners of American Foreign Service officers abroad aren't treated the same way when it comes to the use of medical facilities or visitation rights in case of an emergency. These are just some of the wrongs that we intend to right today. In consultation with Secretary of State Clinton, as well as OPM Director John Berry, my administration has completed a long and thorough review to identify a number of areas where we can extend federal benefits to the same-sex partners of Foreign Service and executive branch government employees. I'm requesting that Secretary Clinton and Director Berry do so where possible under existing law -- and that the heads of all executive departments and agencies conduct reviews to determine where they may do the same. Hundreds of Fortune 500 companies already offer such benefits not only because it's the right thing to do, but because they recognize that it helps them compete for and retain the best possible talent -- and we need top talent serving their country right now more than ever. Now, under current law, we cannot provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples. That's why I'm proud to announce my support for the Domestic Partners Benefits and Obligations Act, crucial legislation that will guarantee these rights for all federal employees. I want to thank Representative Tammy Baldwin, who is behind me somewhere -- there she is, right there -- for her tireless leadership on this bill and in the broader struggle for equality. I want to thank Senator Joe Lieberman -- Joe is here -- as well as Susan Collins for championing this bill in the Senate; and Representative Barney Frank for his leadership on this and so many other issues -- in fact, this is his second trip to the White House today. (Laughter.) It's a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step. Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it. We've got more work to do to ensure that government treats all its citizens equally; to fight injustice and intolerance in all its forms; and to bring about that more perfect union. I'm committed to these efforts, and I pledge to work tirelessly on behalf of these issues in the months and years to come. Thank you very much everybody, and with that I am going to sign this executive order. (The memorandum is signed.) (Applause.) END 6:08 P.M. EDT

Here's the press release with more details.

Office of the Press Secretary
June 17, 2009

Fact Sheet: Presidential Memorandum on Federal Benefits and Non-Discrimination

In an Oval Office event later today, President Barack Obama will sign a Presidential Memorandum on Federal Benefits and Non-Discrimination. The Memorandum follows a review by the Director of the Office of Personnel Management ant the Secretary of State regarding what benefits may be extended to the same-sex partners of federal employees in the civil service and the foreign service within the confines of existing federal laws and statutes.

Over the past several months, the Director of the Office of Personnel Management and the Secretary of State have conducted internal reviews to determine whether the benefits they administer may be extended to the same-sex partners of federal employees within the confines of existing laws and statutes. Both identified a number of such benefits.

For civil service employees, domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children. For foreign service employees, a number of benefits were identified, including the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations.

The Presidential Memorandum to be signed today will request that the Director of OPM and the Secretary of State act to extend to same-sex partners of federal employees the benefits they have identified. The Memorandum will also request the heads of all other executive branch departments and agencies to conduct internal reviews to determine whether other benefits they administer might be similarly extended, and to report the results of those reviews to the Director of OPM.

The Memorandum will also direct OPM to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, which make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.

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I am glad to see movement. I am cautiously optimistic. Thanks for reporting on this, Alex.

Now to those messy details and who they are refering to as Transgendered that my friends will be what to watch.

Something I'm trying to understand-- when he says gender identity protections "will be added and made very clear in our guidelines"-- he means the guidelines that the OPM is being directed to release in the next 90 days?

Also: Something that was actually on the HRC's circa-inauguration list of things they believed could legally be done by (and wanted to see done by) executive order alone was modifying Clinton's Executive Order 13,087 (sexual orientation nondiscrimination in government hiring) to include gender identity. This is something I've been waiting to hear about for a long time. Will the "guidelines" or "memo" that are now being issued be as strong as a modification to EO 13,087 would? For example, would Berry's "guidelines" survive by default into the next presidency in the way an executive order would? HRC also asserts that EO 13,087 applies not just to the federal government as an employer, but mandatorily to all contractors and subcontractors of the federal government-- would Berry's "guidelines"?

I guess ENDA would make all of this moot anyway, but it would be nice to know.

Er, to correct my previous post: I misread the HRC link, sorry. Clinton's EO 13,087 does not cover contractors, only federal employees. Contractors are covered by a different EO and that EO still does not cover sexual orientation discrimination (HRC was requesting Obama change this).

Something I'm trying to understand-- when he says gender identity protections "will be added and made very clear in our guidelines"-- he means the guidelines that the OPM is being directed to release in the next 90 days?


About ENDA, I believe it would, but we've got a ways to go on that one.

I don't believe Berry when he says the votes aren't there (at least on DADT and ENDA). He's making that up as a way to focus our attention from asking for too much right now. Obama's little friend is a parrot.

Agreed. Even if they really aren't there, that's a starting point for work now, not a reason to punt this down the road.

What mystifies me is the interview with John Berry where he says we have the votes for hate crimes, but not for ENDA or a DADT repeal.

And yet, these are also overwhelmingly supported by the public. If we don't easily have enough votes for ENDA right now from the lawmakers after all these years, then what can we really expect from this Congress?

We can expect to get bent over and told this time they will use lube, which is at least better than the republicans ever did.

Legislation is all well and good, and telling people they are not to discriminate gives a nice healthy glow to the halo, but it don't mean crap.
People are still going to act on their prejudices,they will just have to be more inventive in the ways they refuse to give you a job or promotion or whatever. I mean "sorry we gave the job to someone more qualified." works just as well as " We don't won't your kind working here".

Angela Brightfeather | June 18, 2009 12:20 AM

Great!!! Essentially the cat is out of the bag and now we can talk out loud.

What do I mean by that?

Throughout all this clamoring for revolution and banging of damaged pots on the blogs to create dissatisfaction in the administration, the one thing that shouts out over all that noise, at least to me, is that they are saying that there still is not enough votes to pass ENDA and DADT, but Hate Crimes seems to have been accepted enough to pass and that DOMA is beleived to be unconstitutional in the eyes and opinion of this President. Standing on his right hand was Barney Frank, in back of him was Tammy Baldwin and to his left rear was Joe Solomonese as he signed the orders.

Those in DC and in touch with DC over the last six months have known that there has been a careful collection of white papers, departmental revisions and general suggestions being requested from Obama's team. But it has been quiet and throughout that process the people in DC who have been trusted to gather that paperwork, do the research on what needs to be changed from the Bush years and submit those proposals have beern very careful to suggest that those contributing to that effort remain quiet, so as not to ressurect the culture wars in the process. Now we are seeing the careful study of that and implementation of some kind of policy, but it all translates to some progress and some hope.

This does not mean that we now need to stomp on the backbone of the President to get his attention. But it might be a really good idea to apply ourselves to the areas that will do us the most good, identifying the NO votes out there on ENDA and DADT and start stepping on those backbones and applying pressure immediately to the those people in the Congress who continue to be reticent and stubborn. Especially those Democrats who are afraid of losing their conservative constituencies and elections at home.

I truly think that this movement on the part of the President, although not earth shattering by any means, is the shot across our bows that we need to heed and to get busy with the legislators now rather than later. I don't think that Obama can get the things we need by himself and this prod in the right direction is a warning that if we continue to level our guns at him, then we are only making his job more difficult than it already is. He is not the problem. It's the Congress people who are still responding to the religious bigots in their districts. It's time to redirect the noise of our banging pots to where it's going to do the most good and give Obama and his team a hand and get those votes linrd up at home.

So the result of endless hours of white papers, meetings and extending the National Security Act of 1948 to cover LGBT rights strategy to keep it all secret was "The Rental Truck Equality Memorandum of 2009?"


Yes, the coverage of U-Haul costs of relocating domestic partners of federal employees was without doubt the long awaited June Surprise that Joe and HRC alluded after meeting with the President.

But real progress? Hardly

As for lobbying....they will give us only what we demand, they will give to us only when we make it impossible not to.

That is done through derailing the administration's media message through protests at Presidential appearances and DNC events.

By the way:
Ms Brightfeather, either you are an HRC insider or you are guessing at what has been going on.

I wish today's queer "activists" (I'm still scratching my head how a married hetero plumbing contractor became a Washington insider on gay issues) would remember what those of us who graduated from the activist school of street actions in the sixties learned over and one pays a single minute of attention of a MLK if a Malcolm X isn't standing behind him.

That's reality. Take to the streets, keep the pressure up because it's nothing more than the same damn words of the past thirty years and nothing happens until the administration is embarrassed enough not being able to walk on water to actually do something....and make no mistake, he's gonna continue doing the least he can do, so it's up to us to force that to be the max.

Want to talk about something here real quick.

THe reason that we don't have enough votes for ENDA right now is that in 2007, the HRC penalized and worked against the will of the rest of the groups.

This shifted the thinking in many of the coalitions -- including the black caucus that we had the support of in 2007 and do not have the support of today.

That isn't guessing, either. In May, I visited 94 Senate offices and 260+ Representative offices, by myself and as part of the NCTE and NTAC lobby days.

I polled them as I did that, and I listened closely, and I made my arguments on behalf of ENDA and the hate crimes bill. I did a lot of them with my straight boyfriend from Tennessee in tow and speaking up with me, as well.

This is what I was told by the aides and the representatives I spoke with (I talked with no Senators directly).

In the case of many of the junior representatives -- even the republican ones -- there is some willingness beneath the veneer of partisanship to support such.

They are indeed willing, but need some sense that there will be no bs for it.

And let's face a few facts: we do not think there will be none of that. Most transfolk are basically just waiting for this to be screwed up again, either by dropping us or by taking all the teeth out of it.

As a result of that experience, my focus has changed. I have, to be blunt, lost faith in any of the national political groups. I still feel we need them in place, those offices are critical to have, but the idea of top down direction is killing us -- especially since "God is in the mix" here, in the form of Mammon (that is, money, for those who don't know the reference, is polluting the process).

We are mainstream now. Indeed, we are so freaking boring that we no longer make the news.

Its time we switch and go bottom to top, establish a whole new methodology of local activism to national.

It is time we light a thousand fires.

Our opponents have been holding tea parties -- drawing on a powerful sense of imagery that resonaes at a nearly unconscious level with people.

Why don't we have constitutional conventions? Local meetings in our communities that basically elect members representing all our diversity (hell, for all it matters it can be delegations of five each from the major cities - LGBTQ) and meet together and make it public so that people see.

Organization on *that* scale changes things, and it goes beyond the boundaries of anything done before.

Its a suggestion, pulled from the top of my head, but that would tell our failed and failing leadership that they need to listen to us, and that the old way of doing things needs to change to a new way.

We need to stand up, to make noise, to startle (not shock) the world into realizing that we do indeed mean business.

(Funny thing, too -- that idea would suddenly create a sort of power bloc that could even turn into an election changing new party. Just saying).

Strike a match, dammit.

Light a fire.

Light a thousand of them. Light ten thousand.

ITs time.

Angela Brightfeather | June 18, 2009 7:50 AM

"Strike a match, dammit.

Light a fire.

Light a thousand of them. Light ten thousand.

ITs time."

I do believe that this is the way also, but with a bit of a final twist.

I think that now is the time to go to the offices of those fence sitters on ENDA and to insure them that there is someone to help defend them when the religious nut jobs come at them and threaten them.

In other words, it's time to form coalitions that are comprised of supportive elements like parents and relatives, students, religion leaders, business, education, support groups, doctors and therapists and other political people and take the time to have a sit down with those representatives who are to timid to do the right thing.

I remind everyone that Congressman Frank's office made the offer last year, that if some of these fence sitters need to be convinced about ENDA, then he would be happy to pay them a visit and talk to them. I am sure that Baldwins office would do the same thing if they knew it could make a difference, but those representatives need to be identified and met with. We can't expect their offices to do all the footwork on ENDA and we also have to meet with these area coalitions to insure the pols that we have their back if the media comes at them before or after the vote.

It's time to step up. For those that say this is a gutted bill and won't make a difference, I disagree with that position. The fact that this bill will direct the Fed and State EEO offices to "investigate" all claims, puts the burden of defense for any claim on the employer to prove that they did not discriminate. That will thrust these employers and their coporate lawyers into a field they are not used to being in, human rights. Any claim will cost a minimum of $5,000.00 to defend and even those companies who have lawyers on retainers (most do not) will still have to spend valuable business time from executive scedules to defend claims. Sooner or later they (smart business people) get the picture and the message. If you discriminate against Trans people who are qualified, prepare to have to pay for that right to do so.

There's nothing optional about giving a federal employee the right to use sick leave to care for a sick partner. Here are the details of the policy since 1994:

It should be noted that a dozen federal courts and the EEOC have acknowledged that discrimination against transgender employees is already a violation of the Civil Rights Act of 1964's ban on sex discrimination.

And as far as I know the EEOC unwritten but followed policy of circular filing of ANY trans related complaint still is in effect. That means someone without a job, with no income and almost always zero support from those groups who are supposed to help, must FIRST sue the EEOC for the right to sue the employer.

Let's tell the whole story here non-medical doctor.

I think Cathy forgets that Angela has been an activist for 45 years, before Cathy graduated high school. Also, she has been to DC more than Cathy has and she has actually done many things for the trans community in the 21st Century that Cathy hasn't.

Also, Maura, Angela has been a thorn in HRC's side for over a decade, at the time when Riki Wilchins sold us out. Cathy was there, too, and as much as either one might not want to admit it, they worked well together.

Christ, here we go.

More past-their prime activists comparing metaphorical chest sizes.

Age does not equal experience. And experience does not equal wisdom.

its chick fighting. Smile, step back, and laugh...

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