Obama Circumvents Gridlocked Congress To Advance LGBT Rights

WASHINGTON - JUNE 22:  (L-R) Housing and Urban Development Secretary Shaun Donovan, Labor Secretary Hilda Solis, Health and H
WASHINGTON - JUNE 22: (L-R) Housing and Urban Development Secretary Shaun Donovan, Labor Secretary Hilda Solis, Health and Human Services Secretary Kathleen Sebelius and Veterans Affairs Secretary Eric Shinseki participate in the release of a report about homelessness June 22, 2010 in Washington, DC. The Obama Administration cabinet members used the event to release the nation's first comprehensive strategy to prevent and end homelessness, called 'Opening Doors.' (Photo by Chip Somodevilla/Getty Images)

WASHINGTON -- Don't expect any landmark gay rights bills in the 113th Congress. The GOP-controlled House of Representatives continues to use taxpayer money to uphold a law barring federal recognition of same-sex marriage, and even smaller provisions often meet with stiff resistance.

But in the meantime, the Obama administration has been advancing LGBT equality by using its executive authority in federal agencies. Working within existing law, Cabinet secretaries have searched for ways to ensure that gay men and women receive equal rights through regulatory changes.

"The President has made clear that his Administration will treat LGBT Americans as fairly as possible, consistent with existing law, and the steps we've taken reflect that policy," said White House spokesman Shin Inouye.

For example, although gays and lesbians received the right to serve openly in the military with the 2010 repeal of Don't Ask, Don't Tell, their families still weren't able to receive certain benefits available to other service members. The Defense of Marriage Act remains law, barring the federal recognition of same-sex marriages and prohibiting the government from conferring equal rights to those couples.

But this month, outgoing Defense Secretary Leon Panetta announced that the Pentagon had reviewed its policies and found a number of benefits that could be extended to gay and lesbian families, even with DOMA in place.

Perhaps less-noticed has been the work of the Department of Housing and Urban Development, which has made advancing LGBT equality a priority under Secretary Shaun Donovan, who was the first sitting Cabinet secretary in history to publicly support marriage equality.

"Extending and enforcing equal protections for the LGBT community has been a priority of mine in every job and position I have held, from my days in New York City to today as Secretary of HUD. It has also been a priority of this Administration since day one," Donovan said in a statement to The Huffington Post.

The agency has worked to prohibit discrimination by HUD-funded housing authorities, recognize state and local laws that are more LGBT-friendly than federal ones and raise awareness of resources available to the LGBT community.

HUD Assistant Secretary John Trasviña has been with the department since 2009 and leads the Office of Fair Housing and Equal Opportunity. In a recent interview, he stressed how important it is to his office to advance LGBT rights -- even if the work they do isn't always making headlines.

"Maybe it is under the radar screen, maybe the other issues are of greater prominence in the news -- they get in front of the Supreme Court or they lead to very public marriage ceremonies or something like that," he said. "But when somebody moves into a house and they're a couple, our goal is that there's no news, and they're just accepted."

The most significant administrative change has been the department's 2012 equal access housing rule, which bars officials at HUD-funded housing units from making decisions based on an applicant's actual or perceived sexual orientation or gender identity.

Under that rule, HUD has brought nine cases. In January, the department announced that it had reached an agreement with Bank of America to settle a claim that the mortgage lender refused to provide financing to a lesbian couple.

It is also conducting the first nationwide study of LGBT housing discrimination. The results are set to be released in the next few months, according to Trasviña.

"Since the first days of the Obama administration, federal agencies have been actively seeking to identify sources of inequality under federal law and taking steps to remove those inequalities," said Tobias Barrington Wolff, a University of Pennsylvania Law School professor who served as LGBT policy chair for the Obama campaign from 2007-2008.

"Agencies operate under some limitations -- they must act within the bounds of federal law, and statutes like the Defense of Marriage Act sometimes constrain their options," Wolff said. "Nonetheless, the agencies have implemented major policy initiatives that form a significant part of the fundamental transformation that the Obama administration has accomplished in the relationship of millions of LGBT citizens with their government."

Congress' intransigence is no surprise to gay rights groups. Many of the leading organizations are part of a coalition called the New Beginning Initiative -- led by the National Gay and Lesbian Task Force -- that urges the Obama administration to make administrative and regulatory changes.

Successes across the executive branch include granting same-sex benefits to partners of federal employees, ending the ban on travel to the United States for people with HIV/AIDS, granting hospital visitation and medical rights to LGBT individuals at facilities that receive Medicare and Medicaid funding, and providing foreign service benefits to same-sex partners.

"With the role of the president and the head of a particular agency, we can have changes that really impact people's lives almost immediately. So the administrative rule process is just much simpler than trying to get a bill through Congress," said Stacey Long, the task force's director of public policy and government affairs.

That isn't to say that there isn't disappointment among LGBT groups. Most notably, activists have been frustrated and baffled that the president has refused to sign an executive order barring discrimination by federal contractors on the basis of sexual orientation and gender identity. Instead, White House Press Secretary Jay Carney said in April 2012 that Obama wanted to "build support for passage of ... a comprehensive approach to legislate on the issue of non-discrimination" through Congress.

Activists slammed the decision at the time as "extremely disappointing" and argued that Obama "embraced this executive order" as a candidate.

But while these groups and HUD would still like to see the order signed -- and to see Congress pass legislation expanding LGBT rights -- they argue that progress can't stop while they wait. Right now, the Fair Housing Act, first enacted in 1968, prohibits discrimination in the sale or rental of housing on the basis of race, color, national origin, religion, sex, familial status or handicap.

The Housing Opportunities Made Equal (HOME) Act would add sexual orientation, gender identity, marital status and source of income to those FHA protected classes. It has not yet been introduced in the 113th Congress, and its former champion in the Senate -- John Kerry -- is now Secretary of State.

While the HUD equal access rule enacted in 2012 applies only to entities that receive public funds, the HOME Act would prohibit housing discrimination everywhere.

"Right now, there's nothing to say that those entities can't discriminate on the basis of sexual orientation or gender identity if they don't fall under the rubric of the new HUD rules," explained Long.

Although the FHA still doesn't recognize sexual orientation or gender identity, a handful of states and localities do. HUD has already directed potential grant applicants that they must comply with those stricter local laws in order to receive federal funding.

"One of the things that's been most instructive to me is that about 10 years ago, 2 percent of the country lived in places that had LGBT housing discrimination protections. Today, it's 41 percent of the country," said Trasviña. "So the state and local governments are truly in the lead. But we're able to reflect that by saying, if there's a state or local law, we're going to honor that local commitment by our funding decisions on discretionary funds."

Trasviña's office is running an ongoing "Live Free" campaign to get the word out about rights and obligations under the equal access rule. It also launched a website, phone number and email address to field discrimination complaints.

Kenneth Carroll, director of HUD's Fair Housing Assistance Program, told The Huffington Post that the program is now focusing more on LGBT homeless issues, particularly regarding the transgender community and young people. Carroll credited groups like the National Center for Lesbian Rights and the National Center for Transgender Equality in bringing the issues to the forefront.

A 2011 survey of transgender and gender non-conforming individuals by the National Gay and Lesbian Task Force and the National Center for Transgender Equality found that 29 percent of respondents who had attempted to access homeless shelters were turned away, while 42 percent were forced to stay in facilities designated for the wrong gender. Fifty-five percent reported harassment, and 22 percent were sexually assaulted.

"It's not something that we dealt with directly in our equal access rule, other than of course saying that if you're a HUD-funded shelter, you can't discriminate on the basis of sexual orientation or gender identity or marital status," said Carroll. "But we're working on developing some best practices for shelters to utilize in effectively serving the transgender community and LGBT folks in general."

"Last year, I participated in the first-ever White House LGBT conference on housing and homelessness in Detroit, where we discussed the profound housing challenges faced by many LGBT youth," said Donovan. "At a time in life when most young people should be worried about which college they’re going to go to, what their first job might look like, or what opportunities might exist once they graduate from high school, thousands of gay, lesbian, bisexual, and transgender teenagers are forced to worry about something far more basic, where are they going to sleep tonight."

Donovan noted that under the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009, the government is expanding its definition of homelessness to include unaccompanied youth under 25 years old -- allowing more LGBT young people to qualify for assistance.

Another key area, according to Trasviña, will be LGBT senior citizens. In 2011, HUD, the Department of Health and Human Services and the National Center for Lesbian Rights held the first-ever LGBT elder housing summit, highlighting housing and long-term care barriers for seniors in that community.

"We recognize that there's now a much larger senior citizen population in general, but also in the LGBT community. They need to be able to stay together as couples and make sure that housing places are open to them," said Trasviña. "So whether it is supporting an actual construction or whether it is making sure that programs are open, that's another area that we're looking at."

And that effort -- ensuring the security of the LGBT elderly community -- would be boosted by Congress finally repealing DOMA, said Aaron Tax, director of government relations at Services & Advocacy for GLBT Elders (SAGE).

"There's a whole slew of areas under Social Security where LGBT older adults are currently discriminated against," said Tax, "and they would do much better" if DOMA is overturned.

Trasviña said HUD has received an outpouring of support for its work ensuring equal rights for the LGBT community, and department will continue to ensure that the nation's housing rules reflect the 21st century.

"Our contribution in this way is going to have a lasting impact," said Trasviña. "Whether it gets a lot of news or not is secondary, except to the extent that we want to make sure people know about their rights and responsibilities. But this is one [area] where I think we're able to accomplish a lot for the values and for our communities and for the people who are served."

This article was updated after publication to include information about an executive order barring discrimination by federal contractors on the basis of sexual orientation.



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