WASHINGTON -- In the lead-up to Tuesday night's State of the Union address, there was lingering hope within the gay rights community that President Barack Obama would draw attention to the discrimination that lesbian, gay, bisexual and transgender individuals still face in the workplace.
And so the speech hit them with a thud when the president didn't announce plans to take executive action to ban such discrimination among federal contractors, and didn't mention the Employment Non-Discrimination Act at all.
ENDA bars employers from discriminating on the basis of sexual orientation or gender identity. The bill cleared the Senate last year, but it is currently languishing in the GOP-controlled House. While the president can't push ENDA through without congressional support, he could sign an executive order outlawing federal contractors from discriminating against LGBT individuals.
“The President’s message tonight failed to address the needs of LGBT workers looking for a fair shake in this economy," said Human Rights Campaign President Chad Griffin. "Not only was there no call for the House to pass a federal law to protect LGBT workers nationwide, President Obama also sidestepped his commitment to take action where Congress has left off, leaving out an order prohibiting discrimination by federal contractors."
Tico Almeida, founder and president of Freedom to Work, which is pushing for ENDA, called Obama's omission "disappointing," especially "given that ENDA has such strong bipartisan support."
"Moving past this evening’s address, the best thing President Obama can do for ENDA is lead by example and sign the long overdue executive order creating LGBT workplace protections at federal contractors," he said. "That order will fit perfectly in the President's planned 'year of action.'"
The address -- whose theme was "opportunity for all" -- was heavy on economic issues, energy use reform, education, trade and foreign policy. Obama discussed making sure that women receive equal pay and students get the training they need before embarking on careers. But the only mention Obama made of LGBT issues was a brief declaration that his administration was "partnering with mayors, governors, and state legislatures on issues from homelessness to marriage equality."
A fact sheet distributed by the White House in advance of the speech did reference the president's desire to see Congress approve ENDA. But the lack of a prime-time push suggests that the White House feels it's earned sufficient political credit from the LGBT community during its first term that it can withstand some backlash in the second.
The administration has consistently said that an executive order wouldn't take the place of ENDA, which is more comprehensive. But advocates held out hope that the president would take concrete steps on his own after the White House announced that Obama would use his executive authority in a different way, to raise the minimum wage for federal contractors to $10.10 an hour while simultaneously calling on Congress to raise the federal wage for all workers.
Those raised expectations were dashed by the time the White House sent around an embargoed copy of the president's speech at roughly 9:00 p.m. Earlier than that, in a background briefing, top officials said that while the president wouldn't announce an anti-discrimination executive order during the speech, it didn't mean he wouldn't do so down the road.
Speaking on condition of anonymity, the officials said issuing an executive order was not as easy as signing a piece of paper, and that it would require complicated enforcement and bureaucratic rule-making. Lawyers for the president, they argued, had to figure out whether Obama could issue certain executive orders and how broadly they could be applied.
It is currently legal in 33 states for an employer to fire or harass someone on the basis of their sexual orientation or gender identity. Forty-two percent of gay individuals and 90 percent of transgender individuals say they have experienced some form of employment discrimination.
While it's true that an executive order would not be as comprehensive as ENDA, it would protect as many as 16 million workers.
Congressional Democrats, including House Speaker Nancy Pelosi (D-Calif.) and Rep. Jim Clyburn (R-S.C.), said Tuesday before the speech, that they would like to see Obama issue an executive order.
Clyburn, the assistant Democratic leader, said he feels "very strongly" about the issue and noted that it was an 1863 executive action by President Abraham Lincoln, the Emancipation Proclamation, that led to the end of slavery.
"I don't know where I would be today if the executive order had not been used to get rid of slavery," said Clyburn, who is African-American.