Culhane: Obama’s LGBT report card
At a recent fund-raiser for Senator Barbara Boxer, Obama was heckled [1] on the military’s “Don’t Ask, Don’t Tell” policy, and some think this isn’t such a bad thing. Even though Boxer is one of our biggest supporters, the protesters’ sentiment captures a frustration many in the LGBT community feel over Obama’s record on our issues.
But is the frustration justified? How, more than a full year into his Administration, should our community grade the President on his performance so far? Speaking from my legal perspective, I’d give him a passing grade (B-, maybe).
This may seem startling to some that I would pass him at all, because very little of the legislation he promised has been enacted. From a candidate who courted the LGBT community on issues ranging from DADT, to the Employment Non-Discrimination Act, to the repeal of the Defense of Marriage Act, we’ve gotten nothing on those issues to date. ENDA may not have the votes in the Senate to pass DADT repeal seems like a moving target, and DOMA’s not even on the radar screen.
We have only hate crimes law, hardly a major victory. Worse, Obama has spent little of his political capital pushing for any of these goals.
So why the B-? It sounds like a “D” would be more appropriate.
But this overlooks the limits of Presidential power to enact legislation. It’s obvious but easy to forget that the President has no power to actually pass any laws. True, Presidents do suggest legislation that they want to see enacted, but they have only the “bully pulpit” of office to make anything happen. And one thing we’ve learned about Obama is that he’s reluctant to use that pulpit to talk directly to the people in support of his agenda. His passionate advocacy for the health care reform bill is the exception that proves the rule.
Of course, Obama could and should use the fact that his party substantially controls both houses of Congress to urge action on these bills, but given the way the filibuster has metastasized into an every-vote thing, he needs all of the Democrats and now at least one Republican for anything to clear the paralyzed Senate. So what can or should he do?
Let me quickly dispel any suggestion that I’m giving the President a pass on any of this. He could and should be trying to do more, especially on DADT where the Administration’s public pronouncements have been harder to chart than the course of a mosquito.
Saying in response to hecklers that he supports the policy’s repeal just won’t cut it any more. And the protesters deserve our gratitude for calling Obama on what Andrew Sullivan has called “the fierce urgency of whenever.” [2]
Yet legislative inaction isn’t the whole story. We should look at what Obama is doing in areas where he can effect change without Congress. Here I’m talking about the vast body of law – including administrative matters and the interpretation and enforcement of legislation – that’s under the control of the Executive Branch. And here, with at least one glaring exception, he’s done much better.
Let’s start with the exception: In defending DOMA against a lawsuit last year, Obama’s Department of Justice wrote a needlessly offensive brief [3] that, as I wrote at the time, “seemed to have been intended to set the course of judicial progress on gay rights back many years.” I was hardly the only blogger to go ballistic over the brief, and then…things got better. A later brief in the case expressly disavowed the argument that children did better in homes headed by opposite-sex parents [4] than in our homes.
Then there was another encouraging performance by the DOJ in a recent bullying case. [5] The Administration took an aggressive and unsettled legal position, arguing that Title IX (the federal law that protects against gender discrimination in education) also covers discrimination based on gender stereotyping.
From the administrative law standpoint, there have been a few other encouraging moves: putting into place long-awaited rules that lifted the HIV immigration restriction; the very recent directive to the Department of Health and Human Services to honor hospital patients’ visitation wishes (in a memorandum that expressly cited the problems of gay and lesbian couples); a memorandum that extended some limited benefits to the same-sex partners of federal employees; and the recent announcement that DADT will now be enforced more “humanely.” None of these actions require acts of Congress, and Obama has at times stepped smartly into this breach.
Should any of us be satisfied if Obama’s (first? only?) term ends with a few more administrative moves, but no additional legislation? No. He has to deliver what he promised, whatever the obstacles. We have to demand results. Above, I gave him a passing (probably inflated) grade on his performance so far.
But the more precise assessment is: ”Incomplete.”
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, biology, sports, pop culture, philosophy and lots of personal stuff) at http://wordinedgewise.org [6]A fuller bio is here [7]. Starting next Tuesday, he will be blogging the week-long Equality Forum [8] from Philadelphia.
[1] http://www.365gay.com/blog/withers-protestors-interrupt-obama-at-fundraiser/
[2] http://andrewsullivan.theatlantic.com/the_daily_dish/2009/05/the-fierce-urgency-of-whenever.html
[3] http://wordinedgewise.org/?p=128
[4] http://wordinedgewise.org/?p=300
[5] http://www.365gay.com/news/culhane-how-to-stop-gay-bullying/
[6] http://wordinedgewise.org/
[7] http://law.widener.edu/Academics/Faculty/ProfilesDe/CulhaneJohnG.aspx
[8] http://equalityforum.com/
ENDA activists avoid prison time
Four lesbian activists who earned the nickname “the ENDA 4” for staging a protest – and getting arrested – at House Speaker Nancy Pelosi’s Washington, D.C., office will not face any prison time, a judge ruled Tuesday.
ENDA is the Employment Non-Discrimination Act that has been held up in a House committee since last year. The activists want the bill to come to a House vote.
While the charges against the group were dropped, the four women affiliated with the gay advocacy group Get Equal [1] were ordered to stay away from Pelosi’s office for the next six months, according to Metro Weekly [2].
[3]
In addition, the women – Chastity Kirven, Janine Carmona, Michelle Wright and Samantha Ames – are barred from engaging in “disruptive behavior” around the Capitol for the next six months.
Ames and Carmona, who are both D.C. residents, also must perform 60 hours of community service. The other two are exempt from community service because they live outside the District.
Claire Morris Clark, the attorney representing the ENDA 4, told Metro Weekly, “This is a very good outcome.”
[1] http://getequal.org/
[2] http://www.metroweekly.com/news/?ak=5054
[3] http://www.365gay.com/wp-content/uploads/news-rainbow-gay-flag-top.jpg
Full Civil Rights Division ENDA testimony
STATEMENT OF THOMAS E. PEREZ ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
BEFORE THE COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS, UNITED STATES SENATE
“EMPLOYMENT NON-DISCRIMINATION ACT: ENSURING OPPORTUNITY FOR ALL AMERICANS”
PRESENTED NOVEMBER 5, 2009
Mr. Chairman, Ranking Member Enzi and members of the HELP Committee, thank you for the opportunity to appear before …
Human Rights Campaign Calls on the LGBT Community and Allies to Participate in National, Grassroots Push to Lobby Congress Face-to-Face
The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today launched a national, grassroots campaign called “No Excuses” to demand action from Congress on key issues of equality. Designed to take advantage of the congressional summer recess, when members are in their local offices and meeting with constituents, “No Excuses” will mobilize HRC’s 750,000 members and their allies to meet directly with lawmakers and push for federal legislative change. Members and supporters can get involved by visiting: http://noexcuses.hrc.org.
“While we salute and acknowledge the heroic members of Congress who have worked tirelessly on our behalf, far too many have dragged their feet on basic matters of fairness and equality that have lingered too long and hurt too many LGBT people and their families,” said Human Rights Campaign President Joe Solmonese. “Yes, there are many challenges facing this Congress and this president. But LGBT people often face additional hardship protecting their families, their loved ones and their jobs, and too few in Congress are willing to champion these issues of basic fairness. Now, more than ever, members of the LGBT community need to make their voices heard face-to-face and in the districts where they live.”
Using innovative online tools, one-on-one trainings and staff and volunteer follow-through, HRC members will press lawmakers to end discrimination in the military, treat all legally married couples equally, pass immigration reform that recognizes and honors LGBT families, outlaw workplace discrimination for LGBT employees, and treat all federal employees’ compensation equally.
The interactive “No Excuses” website allows supporters to download a meeting toolkit, schedule a meeting and report back on how it went. To take action, visit: http://noexcuses.hrc.org.
The in-district meetings will focus on the following key legislative priorities in the 111th Congress:
–Repeal the Defense of Marriage Act (DOMA), which denies legally married lesbian and gay couples more than 1,000 federal protections;
–Prohibit workplace discrimination for the LGBT community by passing an inclusive Employment Non-Discrimination Act (ENDA);
–Repeal “Don’t Ask, Don’t Tell” to ensure that service members who contribute to our nation’s security are no longer summarily discharged for who they are;
–Pass immigration reform that recognizes permanent same-sex couples and ends the painful separation of families;
–And provide health benefits equally to the nearly 3 million federal government employees, including same-sex domestic partners.
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Original source : http://gay_blog.blogspot.com/2009/07/human-rights-…
DOJ Will Not Appeal Veteran’s VictoryIn Transgender Discrimination Case
Signals Commitment By Obama Administration To Protect Transgender Workers From Discrimination
WASHINGTON, DC – The U.S. Department of Justice decided not to appeal a federal court ruling awarding transgender veteran Diane Schroer the maximum compensation for the discrimination she suffered after being refused a job with the Library of Congress. The deadline for seeking an appeal was June 30. The American Civil Liberties Union has represented Schroer in her case.
The Obama administration’s decision whether to appeal the final ruling in the case has been closely watched in part because the Bush administration defended the case so vigorously, arguing that transgender Americans are not protected by any existing federal laws. The decision not to appeal the verdict is consistent with the Obama administration’s campaign promises to protect transgender workers against discrimination and his administration’s recent order taking steps to bar gender identity discrimination in federal employment.
“I am grateful that the court took the time to examine the case in detail and come to a fair and unbiased decision. In that same light, I am gratified that the current administration saw this for what it was, a case of sex discrimination focused against transgender people, and recognized that it must end in this country,” said Schroer, an Army Special Forces veteran with 25 years service. “The important signal that the administration’s decision sends to all LGBT individuals gives me renewed hope and restores some of my shaken faith in what our country stands for.”
On April 29, 2009, a federal court awarded Schroer maximum damages of $491,190 for back pay, other financial losses and emotional pain and suffering after finding the Library illegally discriminated against Schroer because of her sex. At trial, Schroer testified that she had applied for a position with the Library of Congress as the senior terrorism research analyst and was offered the job. Prior to starting work, she took her future boss to lunch to explain that she was in the process of transitioning and wished to start work presenting as female. The following day, Schroer received a call from her future boss rescinding the offer, telling her that she wasn’t a “good fit” for the Library of Congress.
“We are pleased and relieved that the Obama administration has decided to bring an end not only to years of hard-fought litigation but also to a painful chapter of Ms. Schroer’s extraordinary life,” said Sharon McGowan, a staff attorney with the ACLU LGBT Project. “The administration’s decision not to challenge this important civil rights ruling is a welcome sign that it intends to live up to its commitment to help end transgender discrimination in the workplace.”
The ACLU filed the lawsuit against the Library of Congress on June 2, 2005, charging that the library unlawfully refused to hire Schroer in violation of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. In an earlier ruling in this case, the court issued a groundbreaking opinion that discriminating against someone who transitions from living as one gender to another is sex discrimination under federal law. In reaching this decision, the court compared the discrimination faced by Schroer to religious-based discrimination, saying, “Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testified that he harbors no bias toward either Christians or Jews but only ‘converts.’ That would be a clear case of discrimination ‘because of religion.’ No court would take seriously the notion that ‘converts’ are not covered by the statute.” The court also ruled that the library was guilty of sex stereotyping against Schroer because of its view that she failed to live up to traditional notions of what is male or female.
“This case put employers on notice that discrimination against transgender individuals is like any other form of discrimination – counterproductive and against our principles as a nation,” added Schroer. “But this case alone won’t end the rampant discrimination that transgender people face throughout the country. That’s why we need Congress to pass the Employment Non-Discrimination Act that was introduced last week.”
In addition to McGowan, the legal team consisted of Ken Choe, Senior Staff Attorney for the ACLU LGBT Project, James Esseks, Litigation Director for the ACLU LGBT Project and Arthur Spitzer, Legal Director of the ACLU of the Nation’s Capital.
A copy of the decision, the complaint, a video, a bio and photographs of Diane Schroer are available at: http://www.aclu.org/lgbt/transgender/24969res20050602.html
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Original source : http://gay_blog.blogspot.com/2009/07/doj-will-not-…
Lowenstein: Barney Frank to introduce inclusive ENDA next week
An aide to Barney Frank told the Washington Blade that the Congressman intends to introduce a fully inclusive version of the Employment Non-Discrimination Act next week:
An assistant to U.S. Rep. Barney Frank (D-Mass.) revealed Wednesday that the congressman will introduce the Employment Non-Discrimination Act next week.
Diego Sanchez, who is transgender …
NY Senate urged to pass trans rights bill
(Albany, New York) The New York Assembly has voted to amend the state’s human rights law to include anti-discrimination protections based upon gender identity and expression.
The bill, known as the Gender Expression Non-Discrimination Act or GENDA, bans discrimination against transgender people in housing, employment, credit, public accommodations, and other areas …
National Equality Rally at Independence Hall March for Equality on Independence Mall Sunday, May 3, 2009
PHILADELPHIA, PA — The National Park Service (NPS) has issued a First Amendment permit for a National Equality Rally at Independence Hall on Sunday afternoon, May 3, 2009 at Independence National Historical Park.
The goals of the National Equality Rally are:
– Passage of trans-inclusive hate crimes legislation and the Employment
Non-Discrimination Act (ENDA)
– Repeal of “Don’t Ask, Don’t Tell” and the Defense of Marriage Act
(DOMA)
– Support for GLBT health issues
– Equal benefits for same-sex families
– Same-sex marriage Equality
Regional, state and national organizations, people of color, progressive religious institutions, high school and college GSAs, and straight ally organizations will be represented as Co-Organizers. Over 100 organizations from across the nation will March for Equality on Independence Mall.
Leaders will carry their organization’s name on pole-mounted placards. Activists, participants and straight allies will be offered American and rainbow flags. After completion of the March for Equality, activists, organizations, and allies will fill in Independence Mall for a one-hour high-impact Rally.
Gay Pioneers Frank Kameny and Lilli Vincenz will lead grassroots activists, organizations, and straight allies in the March for Equality on Independence Mall from the National Constitution Center to Independence Hall.
The Rainbow Chorale of Delaware will open the Rally with a choral tribute, and 100 members of the Philadelphia Gay Men’s Chorus, Anna Crusis Women’s Choir and the Mendelssohn Club of Philadelphia will sing a special rendition of “America the Beautiful” to end the Rally.
The Philadelphia Freedom Band and members of the national Lesbian and Gay Band Association will join the March for Equality on Independence Mall. The Lesbian and Gay Band Association marched in President Obama’s Inaugural Parade. There will be participants from the New York Big Apple Corps, D.C.’s Different Drummers, North Carolina Pride Band, and Flamingo Freedom Band of South Florida, among others, marching past the Liberty Bell Center and the Gay Pioneers Historic Marker to Independence Hall.
Independence Hall and the Liberty Bell are where the Gay Pioneers held the first organized gay and lesbian civil rights demonstrations called “Annual Reminders” each Fourth of July from 1965 to 1969. The Annual Reminders laid the groundwork for the Stonewall Riots in 1969 and the first New York Pride Parade in 1970.
“Independence Hall and the Liberty Bell are where the movement was launched. With a new Congress and a President who describes himself as a ‘fierce advocate’ of our civil rights, it is the right moment for us to join hands at an iconic location to demand Equality,” stated Malcolm Lazin, Executive Director of Equality Forum.
Equality Forum is a national and international GLBT civil rights organization with an educational focus. The National Equality Rally at Independence Hall will be held on the concluding day of Equality Forum 2009 (April 27 to May 3), the largest and premiere annual national and international GLBT civil rights forum.
For more information about the National Equality Rally at Independence Hall, visit www.nationalequalityrally.org. For more information on gay-friendly Philadelphia or to book a hotel stay, visit the Greater Philadelphia Tourism Marketing Corporation’s website at www.gophila.com/gay.
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Original source : http://gay_blog.blogspot.com/2009/04/national-equa…
ENDA, end of military ban, DP benefits top Polis’ agenda
The Employment Nondiscrimination Act, lifting the military gay ban and providing domestic-partner benefits to federal employees are the chief first-term goals cited by U.S. Rep. Jared Polis, D-Colo. “We should absolutely be holding our elected officials, including President Obama, to their commitments to support those three pieces of legislation — and our elected members of the House and Senate to deliver on those,” he said. Dallas Voice
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Original source : http://gay_blog.blogspot.com/2009/02/enda-end-of-m…
WhiteHouse.gov reflects commitment to LGBT rights
The updated WhiteHouse.gov Web site reflects the civil rights priorities of the administration of President Barack Obama, including a section on LGBT rights indicating support for the passage of an Employment Non-Discrimination Act that would “prohibit discrimination based on sexual orientation or gender identity or expression.” See Pam’s House Blend
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Original source : http://gay_blog.blogspot.com/2009/01/whitehousegov…
