There seems to be very little reality-based objections that 2012 will be logged in history as a very decisive year for LGBT rights. Pick your cliche—watershed, milestone—but by any metric, the LGBT community won. They historically won ballot measures, not once but four times. They've claimed more seats at the state and federal legislative tables than ever before and elected the first out senator. They demonstrated they could very effectively insulate key allies from electoral backlash, from Supreme Court Justice Wiggins and Senate Leader Mike Gronstal in Iowa, to helping deliver a massive 72 percent win for New York Sen. Kirsten Gillibrand, as well as helping reelect the gay-friendliest president ever.
At the top of ticket the LGBT vote can be shown to be decisive in delivering the popular vote to President Obama. And now, The New York Times says even decisive margins in swing states like Florida and Ohio.
What's also notable is the president's support for the LGBT community drew very little mainstream conservative criticism. Despite countless opportunities, the Romney campaign made no overt attacks on Obama's support for marriage equality, his repeal of "don't ask, don't tell," use of Medicare to enforce hospital visitation rights, the Housing and Urban Development's adoption of non-discrimination policies, and many others. It was "the dog that didn't bark," says Tico Almeida, executive director of Freedom to Work, a group working for LGBT non-discrimination protection in the work place. "We can push forward strongly on the freedom to marry and freedom to work, and with the exception of the professional anti-equality types, the mainline conservatives will mostly remain quiet.”
So. How to move forward?
Aside from the Supreme Court cases, marriage equality is an issue that is most likely to move forward primarily at the state level. And the ballot wins are sure to deliver some courage to political leaders in cusp states like Hawaii, Rhode Island, Delaware, Illinois and others.
Many eyes are turning to how the federal government can address the issue of LGBT employment discrimination.
Seen as a key component is reigniting the call for Obama to issue an executive order requiring companies to have LGBT inclusive non-discrimination policies to qualify for consideration for a federal contractor. (There has long been such a requirement covering race, gender and religion dating since first initiated by the Truman administration.)
“First and foremost,” says Fred Sainz, Human Rights Campaign's vice president for communications and marketing, Obama must sign “an executive order on nondiscrimination with respect to federal contractors. That’s the most high-profile of the issues.”
The movement calling for the order was reaching a particular fever pitch in the spring of 2012. In April, 72 members of Congress called on the president to sign it, as well as a handful of allied groups, like the Council of La Raza and a big handful of labor unions.
Then two funny things happened. The administration called advocates in to the White House to explain that it wasn't happening before the election.
And then the president announced support for marriage equality, essentially draining any grassroots momentum that had been built up to pressure the president further on LGBT rights, perhaps appropriately.
Now, the election is over and the issue is back.
(Continues after the fold ...)
Fear of political backlash was never based in reality, and the election demonstrated that very well. Polling shows Americans support non-discrimination protection for LGBT community by unprecedentedly high majorities, 73 percent in 2012, including 66 percent of respondents who identify as Republican.
Wednesday afternoon advocates from LGBT advocacy groups gathered with press in the Congressional Rayburn office, in conjunction with staffers from Reps. Barney Frank, Jared Polis, David Cicilline and (Senator-elect) Tammy Baldwin's offices. The future of the executive order and prospects for the Employment Non-Discrimination Act in Congress was the topic.
The panel was organized in conjunction with Tico Almeida, founder and president of the Freedom to Work Advocacy Fund, and included: Jeff Krehely, vice president for LGBT Progress, Center for American Progress; Stacey Long, director of public policy and government affairs, National Gay and Lesbian Task Force; Brian Moulton, legal director, Human Rights Campaign; Brad Sears, executive director, Williams Institute; Harper Jean Tobin, director of policy, National Center for Transgender Equality.
Advocates were united that delivery of the order was not only necessary but inevitable. No one seems to doubt it's coming.
With a second Obama term assured, opinions differ somewhat on ideal timing. There's a school of thought that it would be a symbolic delivery of a promise and should come by the end of the first term, making Jan. 20 an important deadline. Says Heather Cronk, managing director at GetEQUAL:
"The president made a promise to the LGBT community as a candidate in 2008 that, if he was elected, he would sign this federal contractor Executive Order in his first term. After a landslide election that could arguably be attributed to many core constituency groups -- including LGBT Americans -- we're now looking at about two months in which the president can make good on this promise. We hope that he'll do that because it's the right thing to do -- but we're more than willing to help make the case in the public square if he's not willing to move on this now."Not unreasonable for a generation of activists who have watched non-discrimination protection languish in Congress since 1973 and for who the promise of "later" has long been synonymous with "never." Cronk is referencing a candidate survey wherein Sen. Obama wooed the support of an LGBT rights group in 2008 with an unqualified promise to deliver such an executive order.
But many advocates are certainly not ignorant that for the foreseeable future all eyes are on the "fiscal cliff," an issue Human Rights Campaign is currently messaging to their own base. And a midnight Friday lame duck press release—while a terrific pragmatic win for millions—may rob the movement of an important teaching moment.
Recent polls also showed that 90 percent of Americans believe erroneously that LGBT employment discrimination is already illegal. (Feel free to facepalm, there.) This points to a massive public education effort that needs to be continued; LGBT employment discrimination exists, is prevalent and its unemployed and/or harassed LGBT victims are more often that not left no legal recourse.
There are rumors that a spring announcement will be made with a press conference, a presidential signing ceremony and some pomp and circumstance and this does indeed offer an attractive side-benefit to the cause.
Almeida sees value in such an event that would include prominent CEOs and employees of contractors, many of whom already have such employment policies.
"A high-profile event like that would make a strong national security argument in favor of this executive order, as well as the business case. I think it would make it very difficult for everyone but the most ultra-conservative anti-equality activists to complain about the new policy.”At the House briefing, Almeida outlined a two-step plan for moving the issue forward in the national agenda of LGBT employment equality.
Secure the executive order
Though not as expansive as legislative remedy, it will provide protection to as much as 22 percent of the American work force, including millions of Americans who currently do not have it, particularly in high-population states that receive many federal contractor dollars but offer no state-level discrimination protection like Texas, Florida and Ohio.
Historically such orders have always lead to legislation and there's no reason to believe this case would be any different.
Press Harry Reid to finally deliver the Senate vote for the Employment Non-Discrimination Act
Not all legislative votes require arrival at the Oval Office to be considered a political win. Certainly no one labored under the illusion that the Paycheck Fairness Act would find a presidential signature in 2012, did they?
Speaking at a Williams Institute post-election debrief Thursday night, Human Rights Campaign President Chad Griffin remained noncommittal on whether his organization would advocate for a Senate vote. Almeida sees a Senate vote as obtainable in 2013, and very helpful to the overall movement:
“Unfortunately, Senate leadership has not brought ENDA to the floor for a full vote since the fall of 1996. In those 16 years of inaction, there’s been too much atrophy of the legislative muscles behind the bill. When any issue is not raised for debate on at least a semi-regular basis, people forget about it. This reminds me of my least favorite ENDA advocacy story involving an LGBT advocate who was walking the halls of Congress last year between ENDA meetings, and one Senator who knew the advocate stopped him to chat and ask him what he was working on. When the advocate responded with ‘ENDA,’ the Senator looked puzzled and said, ‘Oh, I thought we passed that years ago.’”Some votes are merely helpful to create a spotlight on the politics of contrast. It will also offer Democrats another moment to demonstrate the depth and breadth of Republican obstructionism in Washington, D.C., when even the august and slothful body of the (Democratically dominated) Senate can move forward on issues with which Republicans remain determined to stay planted in '50s.
And that brings us to the House ...
This of course would be where the plan gets a little sketchy. Speaker Boehner is a significant hurdle, to say the least. Spending bill attachments are a possibility if an opportunity can be identified and a sympathetic committee is found.
Chris Johnson reports in the Washington Blade that Jared Polis of Colorado will be assuming outgoing Rep. Barney Frank's place as the lead sponsor for the Employment Non-Discrimination Act in the next session. The article also raises the prospect of a little-used tool called a discharge petition, where leadership can be circumnavigated by obtaining 218 signatures for a floor vote. It was last used successfully in 2000 to pass what was known as the McCain-Feingold campaign finance bill (RIP).
Almeida sees the House as a bridge to cross when the movement comes to it. In the long game view, midterms are not so very far away and there are worse things than arriving in 2014 with a half-fulfilled mandate for LGBT non-discrimination protection thwarted only by yet another example Republican obstructionism.