LGBT Nondiscrimination Executive Order Remains in Place

White House says LGBT protections for federal workers will remain.

Score one for the Log Cabin Republicans. Guess the fear-mongers were wrong.

I fully support LGBT nondiscrimination policies within the federal workforce. But when extended to federal contractors, I’d favor a reasonable religious exemption so that, for instance, Catholic charities could choose not to participate in adoptions by same-sex couples.

But any change to Obama’s order by Trump would have been demagogued mercilessly as a “license to discriminate.”

The Human Rights Campaign never misses an opportunity to remain irrelevant. Via The Advocate, HRC’s head Chad Griffin tweeted: “Claiming ally status for not overturning the progress of your predecessor is a rather low bar.”

More. Walter Olson at the Cato Institute addresses this issue: An Executive Order On LGBT Issues? Religious Exemptions? Both? He clarifies that while the White House said the president would keep in place Obama’s LGBT order applying to the federal workforce:

The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies.

Let the outrage begin!

Olson continues:

The effect of a contractor ban without religious objector provisions, I argued, would be to kick various religious agencies out of social service work in public settings in adoptions and foster care, as well as some prison, drug rehab, and various other settings. Ousting conservative religious groups from participation in social service adoption is likely to cut down on the number of successful placements made of children in public care, which would hurt the taxpayer, hurt adoptive parents, and, not least, hurt kids. The more genuinely pluralist approach, I argued, would be to acknowledge conscience exemptions while fully opening these systems to participation by contractors that gladly serve gays, persons of no given sect, religious unbelievers, and so forth.

Sounds good to me.

Furthermore. To clarify, it’s specifically the 2014 executive order that applies to employees of federal contractors that the White House said would continue in place.

“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” the [White House] statement says. “President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election. The president is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging then to protect the community from violence and oppression. The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”

The New York Times relates:

Leaving those protections, of course, does not preclude another executive order that would roll back gay rights in other areas. Mr. Trump could, for example, still enshrine a religious freedom provision in federal policy.

I hope so, as balancing competing rights—civil rights (public accommodations nondiscrimination) and religious liberty (the right not to be forced by the state, on threat of punishment, to take action that violates religious convictions)—is what America is about.

26 Comments for “LGBT Nondiscrimination Executive Order Remains in Place”

  1. posted by Tom Scharbach on

    Congratulations to LCR. The group may be small, and lightly funded, but it clearly has influence and allies in the White House, allies willing to risk a great deal by leaking internal matters to the press in order to create a reaction before the fact. LCR’s strategy of using internal White House allies to lead the charge was smart.

    As you said in another post, “It’s Log Cabin’s time …” and I wish them success going forward.

    I caution, though, that the While House statement is just the first shoe to drop in what looks like it will be a hard internal fight within the Trump administration — the draft EO did not come out of the clear blue sky, and the opposition leaks didn’t either. Federal policies protecting gays and lesbians extend beyond Executive Order 13672, and we can expect to see a lot more infighting.

    We need to keep an eye on:

    (1) COURTS/CASES — Judicial nominations and positions taken by the DOJ in federal cases involving LGBT issues.

    (2) LEGISLATION — The administration’s position on federal legislation affecting gays and lesbians.

    (3) EXECUTIVE ORDERS — Issuance of future Executive Orders affecting gays and lesbians.

    (4) REGULATIONS — The administration’s actions with respect to departmental regulations implementing Windsor and Obergefell, and regulations protecting gays and lesbians from discrimination in employment, medical care and hospital visitation, housing and other areas.

    (5) LAW ENFORCEMENT — DOJ enforcement/nonenforcement of federal laws protecting gays and lesbians from violence and discrimination.

    (6) HIV/AIDS — Administration action on HIV/AIDS funding and programs, and actions with respect to the National HIV/AIDS Strategy.

    (7) INTERNATIONAL — The administration’s actions with respect to existing policies encouraging countries, particularly close allies like Russia and our allies in the Middle East, to end repression of basic human rights for gays and lesbians.

    (8) SOCIAL SECURITY — The administration’s actions with respect to recognition of same-sex marriages contracted prior to Obergefell.

    At least that is what I’ll be tracking.

    Reply
  2. posted by Tom Scharbach on

    OMG, Carl DeMaio is jumping on the “Mission Accomplished” bandwagon already? Seriously?

    A bit premature, I’d say, for reasons explained above. But that’s Carl for you.

    Reply
  3. posted by Tom Scharbach on

    I fully support LGBT nondiscrimination policies within the federal workforce. But when extended to federal contractors, I’d favor a reasonable religious exemption …

    We already have “a reasonable religious exemption”, the Religious Freedom Restoration Act of 1993.

    … so that, for instance, Catholic charities could choose not to participate in adoptions by same-sex couples.

    Whether RFRA extends far enough to permit government contractors to receive government funds but not provide the services contracted for is in litigation and will be decided soon enough.

    Reply
  4. posted by JohnInCA on

    I just did a quick 30 second search for *any* news from or about LCR on lady couple of days, and found nothing regarding the possibility of an EO, or how they were instrumental in diverting it.

    Shouldn’t you wait till they claim credit themselves before you do so? Or are we supposed to assume every gay-neutral news from the White House is due to LCR’s influence, even a they make no such claim of their own?

    Reply
    • posted by JohnInCA on

      Amended. Searched a second time, found a vague one-liner.

      So sure, give em the credit. They stopped things from getting worse one time.

      Reply
    • posted by Tom Scharbach on

      LCR’s statement on the White House statement didn’t claim direct credit, which is all to the good. But that doesn’t mean credit isn’t due. While it may appear that LCR did little more than write a White Paper, LCR operated smart in this case, deploying White House staffers to leak the draft EO in order to create a potential shit-storm and get the President’s attention.

      LCR deftly manipulated the matter in a way that left no fingerprints on the internal White House betrayal (whatever the President may think about gays and lesbians, he should be furious that the White House turned into a sieve yesterday afternoon), and maintains LCR’s credibility for work on future issues. As much as I favor transparency in the normal course, there are cases where stealth and secrecy is the best course.

      LCR played this very smart, very close to the chest, and I doubt we’ll see much crowing from the organization. It would destroy the organization’s effectiveness.

      Reply
      • posted by JohnInCA on

        … I think I know the plot of the next Tom Clancy novel.

        Reply
        • posted by Tom Scharbach on

          … I think I know the plot of the next Tom Clancy novel.

          Yeah, well, I guess I’ll have to take it all back, even if I was being sarcastic.

          It turns out that (at least according to Walter Olson), LCR got suckered, and suckered bad, by the White House statement.

          Reply
  5. posted by wilberforce on

    This is good news, especially after the fright from a day ago, that trump would sign an broad executive order allowing discrimination against us.
    But please explain why everything that happens, good or bad, is an opportunity on this site to blame evil liberals and their evil ways.

    Reply
    • posted by Houndentenor on

      Stephen will go to any length to make everything the fault of liberals so he can rationalize being a gay conservative.

      Reply
  6. posted by Tom Scharbach on

    Sounds good to me.

    No doubt, but it is a very odd position to take in terms of equal treatment under the law.

    If the government directly performs a function, then the government is required to treat all citizens equally, without discrimination. If the government contracts out the function to a contractor that acts as the government’s agent with respect to the function, then the government (acting through its agent) is not required to treat all citizens equally, without discrimination. The effect is to permit the government to discriminate with respect to any government function by contracting the function out to non-governmental agents.

    I don’t think that the distinction will survive constitutional scrutiny. We’ll find out in due course, since several cases are in litigation, and one or more will eventually be heard by the Supreme Court.

    Reply
    • posted by JohnInCA on

      Why not? We have a long history of “we won’t torture enemy combatants. So we’ll hand them over to a nation that *will*”.

      Getting contractors to do the dirty work is a time-honored tradition.

      Throw in that fun hitting freeze and the new contractors that’ll bring in…

      Reply
    • posted by Tom Scharbach on

      Getting contractors to do the dirty work is a time-honored tradition.

      It does make me wonder, now that Stephen has helped me see the connection, if the conservative push to privatize and/or contract out government functions isn’t driven by the conservative distaste for nondiscrimination requirements.

      Reply
  7. posted by Tom Scharbach on

    The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies.

    If the White House statement did not affirm Executive Order 13672 (as the NYT, WP and all other mainstream media are reporting), then what in the hell is LCR crowing about?

    LCR’s statement: “President Trump has announced that his administration will preserve the longstanding executive order providing LGBT workplace protections for federal contractors.”

    That executive order requires federal contractors to adopt nondiscrimination policies.
    According to LCR’s White Paper:

    On July 21, 2014, President Barack Obama “signed Executive Order 13672, amending Executive Order 11246, to prohibit federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity. This Executive Order prohibits federal contractors from discriminating against lesbian, gay, bisexual, and transgender employees and applicants. The Executive Order directed the Secretary of Labor to prepare regulations implementing the new protections. As a result, the Department of Labor published a Final Rule in the Federal Register on December 9, 2014, changing OFCCP’s regulations to require federal contractors and subcontractors to treat applicants and employees without regard to their sexual orientation or gender identity. This Final Rule took effect on April 8, 2015. Contractors covered by the new rule will have to ensure that agreements modified or entered into after the effective date of the final rule, as well as job solicitations and postings, contain appropriate references to the new prohibited forms of discrimination. Contractors will need to revise their EEO and affirmative action policies and statements to include sexual orientation and gender identity as protected classes.

    So if the White House statement affirmed Executive Order 13672, then Olson is wrong. If OIson has it right, and the White House statement did not rule out subsequent repeal of Executive Order 13672, then, then LCR shouldn’t claim that it is true.

    I know full well that gays and lesbians are going to have to watch the Trump administration like hawks, given the administration’s record of making statements and then backing away. But this is ridiculous.

    Either the White House statement affirmed Executive Order 13672 or it did not. If there is any question about whether the statement affirmed Executive Order 13672, then LCR is way, way out of line by suggesting that it did.

    Reply
    • posted by Tom Scharbach on

      The comment above properly formatted:

      The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies.

      If the White House statement did not affirm Executive Order 13672 (as the NYT, WP and all other mainstream media are reporting), then what in the hell is LCR crowing about?

      LCR’s statement: “President Trump has announced that his administration will preserve the longstanding executive order providing LGBT workplace protections for federal contractors.”
      That executive order requires federal contractors to adopt nondiscrimination policies.

      According to LCR’s White Paper:

      On July 21, 2014, President Barack Obama “signed Executive Order 13672, amending Executive Order 11246, to prohibit federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity. This Executive Order prohibits federal contractors from discriminating against lesbian, gay, bisexual, and transgender employees and applicants. The Executive Order directed the Secretary of Labor to prepare regulations implementing the new protections. As a result, the Department of Labor published a Final Rule in the Federal Register on December 9, 2014, changing OFCCP’s regulations to require federal contractors and subcontractors to treat applicants and employees without regard to their sexual orientation or gender identity. This Final Rule took effect on April 8, 2015. Contractors covered by the new rule will have to ensure that agreements modified or entered into after the effective date of the final rule, as well as job solicitations and postings, contain appropriate references to the new prohibited forms of discrimination. Contractors will need to revise their EEO and affirmative action policies and statements to include sexual orientation and gender identity as protected classes.”

      So if the White House statement affirmed Executive Order 13672, then Olson is wrong. If OIson has it right, and the White House statement did not rule out subsequent repeal of Executive Order 13672, then, then LCR shouldn’t claim that it is true.

      I know full well that gays and lesbians are going to have to watch the Trump administration like hawks, given the administration’s record of making statements and then backing away. But this is ridiculous.

      Either the White House statement affirmed Executive Order 13672 or it did not. If there is any question about whether the statement affirmed Executive Order 13672, then LCR is way, way out of line by suggesting that it did.

      Reply
  8. posted by Houndentenor on

    Just yesterday the word was out that he was going to repeal those executive orders. Suddenly he’s not. Anyone know what actually happened?

    Sorry, but i’m not going to throw a ticket tape parade for someone not doing something that would be really bad. It would be like thanking the bully for not punching me in the face today. The religious right is under the impression that the order to rescind Obama’s gay rights orders is still on the way. We’ll see if they are right. Give Trump’s erratic nature anything could happen tomorrow.

    Reply
  9. posted by Jorge on

    Score one for the Log Cabin Republicans.

    So they were influential enough early enough to be invited to write plaintively to the Trump administration, and smart enough to do it well?

    I guess so.

    LCR deftly manipulated the matter in a way that left no fingerprints on the internal White House betrayal (whatever the President may think about gays and lesbians, he should be furious that the White House turned into a sieve yesterday afternoon), and maintains LCR’s credibility for work on future issues.

    Sir?

    If it’s worth crediting them for carrying out a plot without leaving their “fingerprints” and favorable that they should keep their credibility afterward, why on earth are you giving them a shoutout for it?

    Do you think Donald Trump is any less adept at learning from adversity than anyone else in Washington? Already he has revamped the National Security Council’s permanent team, allegedly in response by performance issues by his National Security Adviser (and the New York Times has an interesting article that has more to say about how Bannon’s running the executive order process in the administration).

    It is only because Trump chose the tactic of making these big all-encompassing executive orders very early on, before the president could learn his team’s potential and vulnerabilities, that Tom’s scenario, if true, had an even remote possibility of occurring.

    Well, I wasn’t displeased to learn there’s a powerful gay lobby in the Vatican. I suppose I’m not unhappy to learn there’s one in the Trump administration, too.

    No, wait, actually, I am. Excuse me, when it comes to elected government, *I* want to call the shots, not some unelected shadow puppet.

    Reply
    • posted by JohnInCA on

      Ignoring that you missed the sarcasm… You seem to have a fundamental misunderstanding of why we elect someone. In a republic we acknowledge that not everyone is going to be informed on every issue. So we elect a small number of people who can dedicate their time and energy to *becoming* informed and making good decisions. But those people can’t be perfectly knowledgeable, so they seek experts and listen to folks (lobbyists) to (hopefully) become educated enough. And after learning more on a topic, they make a decision.

      It might not be the same decision they would have made before educating themselves. It might not be the same decision that the voters *wanted* them to make. That’s why you have to make sure you like the person’s judgement and reasoning, and not just their tentative positions.

      What you say you want? Is not a republic. Is a pure democracy. And it would be horrible.

      Reply
  10. posted by Jorge on

    It turns out that (at least according to Walter Olson), LCR got suckered, and suckered bad, by the White House statement.

    They’re probably making the best of a good hand in a deck that’s stacked against them. The reals suckers are those who would follow the LCR blindly into the fray.

    Reply
    • posted by Tom Scharbach on

      [LCR is] probably making the best of a good hand in a deck that’s stacked against them.

      If the White House statement did not affirm Executive Order 13672, including the requirement that federal contractors adopt employment non-discrimination policies, then LCR’s statement “making the best of a good hand in a deck that’s stacked against them” has drifted off into Alt-Fact land.

      Any reasonable reading of LCR’s statement would conclude that “President Trump has announced that his administration will preserve the longstanding executive order providing LGBT workplace protections for federal contractors.” means that the White House statement affirms Executive Order 13672, particularly so since LCR’s statement linked directly to LCR’s White Paper on Executive Order 13672.

      But there is a difference between “spin” and “misrepresentation”. If Olson is right, LCR crossed the line.

      I learned many years ago, from hard experience in the political trenches, that when a anti-equality conservative Christian looked me right in the eye with that ultra-sincere “As Jesus is my witness …” look, he/she was lying through his/her teeth, one hundred percent and one hundred percent of the time. I’m learning that Alt-Fact conservatives — and if Olson is right, LCR is among them — are no different, albeit without the ultra-sincere “As Jesus is my witness …” look.

      The reals suckers are those who would follow the LCR blindly into the fray.

      Indeed.

      Reply
    • posted by Tom Scharbach on

      But there is a difference between “spin” and “misrepresentation”. If Olson is right, LCR crossed the line.

      I should qualify this: LCR may have crossed the line. It might also have fallen prey to the habit of human beings seeing not what is, but what they want to see.

      Either way, if Olson is right, and the Trump Administration is crossing its fingers behind its back on Executive Order 13672, LCR has a problem.

      Reply
  11. posted by JohnInCA on

    For what it’s worth, what I heard at work is “this was a result of an effort behind the scenes by the LGBTQ caucus on the hill. Then the folks from LCR did a quick save.”

    So at least in *my* wrong of the executive branch, folks are giving LCR some credit. But it’s been what, two days? I won’t be surprised if the story changes again.

    Reply
    • posted by JohnInCA on

      *wing of the executive branch.

      Why do I only see these autocorrect-wrongs after I hit submit?

      Reply
  12. posted by Tom Scharbach on

    To clarify, it’s specifically the 2014 executive order that applies to employees of federal contractors that the White House said would continue in place.

    Good. Olson got it wrong.

    Reply
  13. posted by Tom Scharbach on

    I hope so, as balancing competing rights—civil rights (public accommodations nondiscrimination) and religious liberty (the right not to be forced by the state, on threat of punishment, to take action that violates religious convictions)—is what America is about.

    Want to be a dime that “religious liberty” will be limited to opposition to same-sex marriage?

    Reply
  14. posted by Tom Scharbach on

    The religious freedom draft order has been leaked.

    As expected, consistent with conservative Christian theology, only religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity are deemed important enough to warrant protection. (Matthew 6:21)

    The good news about the draft EO is that it appears to maintain the “substantial burden” test embodied in the Religious Freedom Restoration Act of 1993 and Sherbert/Yoder.

    Read the actual draft order (down toward the bottom of the article) and see what you think. I’m sure that we’ll be hearing a lot more about this in coming weeks.

    Reply

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