On Monday the president, "by the authority vested in [him] by the Constitution and laws of the United States of America," signed two Executive Orders. The first made explicit, as said by the president, anti-discrimination protections in the federal workforce based on gender identity. The second, and more important one, extended the federal contractor anti-discrimination protections to the entire LGBT community.
The first EO simply amended a previous one -- 11478 -- as ordered by President Clinton in 1998, and the second one simply amended 11246, which had originated with President Franklin Roosevelt and been expanded by Presidents Eisenhower and then Johnson in 1965.
I say "simply" for several reasons. The first is because the best law is the simplest and most elegant; i.e., the Bill of Rights. President Obama simply added four words -- sexual orientation & gender identity -- to 11246, and two words -- gender identity -- to 11478. So simple to take protections which are already in existence and working on behalf of many and expand them to include others in great need of the same.
Also, however, simply because they provide trans and gay persons with the same protections of the previously protected classes and retain the previous religious exemptions, based on the 1964 Civil Rights Act, which have been in place since 1965. While the religious conservatives have been trying for many years to carve out larger and larger exemptions for themselves, and doing so with increasing success in both Congress and the courts, these Orders are exemplars of the best from the past. They provide more than adequate ministerial exemptions and nothing more, showing respect for the First Amendment.
With the recent debate over the expanded religious exemptions written into the stalled current and earlier forms of ENDA, the Employment Nondiscrimination Act, the LGBT community was concerned the president might expand the exemptions in the previous Executive Orders based on Title VII. But with input from our best legal minds, led by Professor Tobias Wolff of the University of Pennsylvania and his colleagues throughout academia and the advocacy community, the president heard our voices and continued the best of America's tradition of the separation of church and state.
I would also like to note that while trans persons were explicitly added to these two Orders, we had already been implicitly covered by this administration. We were covered in the federal workforce due to regulations first promulgated in 2009 and then again via the Macy decision in 2012, and in the federal contractor worksphere thanks to that same Macy decision and the relationship between the EEOC (Equal Employment Opportunity Commission) and the OFCCP (Office of Federal Contract Compliance Programs) which manages that workspace. But it's still better, when the opportunity presents itself, to be explicitly covered by the law to minimize legal complications in the future.
It's always an honor to be invited to the White House to celebrate a victory, and this one is particularly sweet in that many of us have pushed for this for six years. Some worked from inside, like my colleagues at Freedom to Work, Tico Almeida and Christian Berle, and the teams from the National Center for Transgender Equality, HRC and the Williams Institute. Others of us pushed from the outside, including Freedom to Work and the glorious troublemakers at GetEqual. There were times when the blowback from the White House was pretty intense, and there were many White House press briefings when the Executive Order was called "hypothetical." I still don't understand why it took so long, as this seemed to be the easiest lift of all for the White House. But I always remembered the president's personal exhortation to persevere, of which he reminded us from the East Room. It's how progress has been made since the days of the first progressives.
"Many of you have worked for a long time to see this day coming. You organized, you spoke up, you signed petitions, you sent letters -- I know because I got a lot of them. And now, thanks to your passionate advocacy and the irrefutable rightness of your cause, our government -- government of the people, by the people, and for the people -- will become just a little bit fairer."
I'm reminded of how difficult and messy this progress can be from the review of the creation of "the sex amendment" in Title VII by Louis Menand in this week's New Yorker. What has often been portrayed as a prank or poison pill turns out to have been preceded by months of machinations steeped in racial and religious jockeying. The circumstances pitted "white, Christian" suffragettes, like Alice Paul, against the African-American civil rights community. The women were worried that when black men and women received their rights, they, white women, would be left in the dust without legal protection. Martha Griffiths, a congresswoman from Michigan, during the House debate on the "sex amendment" introduced by Howard W. Smith of Virginia, the Democratic chair of the Rules committee, known as "the House substitute for the Dixiecrat filibuster," argued that if the bill were passed without the amendment, "you are going to have white men in one bracket, you are going to try to take colored men and colored women and give them equal employment rights, and down at the bottom of the list is going to be a white woman with no rights at all."
We look back now and recognize how naive those fears were. Did they really believe that black men would be treated well, let alone black women? In an age where those in greatest need of protection and support are trans women of color we understand the reality. Apparently those politically engaged white women were so blinded by their own lives, circumscribed by patriarchy, that they didn't understand one of the most basic facts of American life.
While it doesn't carry any legal weight, only the power of symbolism, the most touching moments for me in the president's presentation were his fluency with the word "transgender." Acceptance is something you feel more than know, and the president's comfort and ease with the word signaled to me that growing acceptance. I remember discussing trans issues with the late Senator Kennedy, followed soon after by his first public utterance of the word. We've come a very long way since then.
And within days the Executive Order has already born fruit. Exxon Mobil, the worst major corporate scofflaw in the name on HRC's Corporate Equality Index, scoring a -25, agreed to abide by the Order. Amazing what a little presidential leadership can accomplish.