While this new executive order is a huge step forward—federal contractors employ roughly 22% of all U.S. civilian workers, which is approximately 28 million people—the fact remains that federally mandated LGBT workplace protections are needed for everyone. A majority of states lack explicit workplace protections on the basis of sexual orientation and gender identity, while discrimination and harassment of LGBT workers is pervasive—studies show that between 15-43% of gay, lesbian, and bisexual workers, and a disturbing 90% of transgender people, report experiencing some form of workplace abuse.
To protect LGBT workers throughout the country, we still need to pass the Employment Non-Discrimination Act (ENDA). ENDA is legislation that has been proposed in every Congress since 1994 with the purpose of prohibiting workplace discrimination on the basis of sexual orientation or gender identity by employers with 15 or more employees. The bill passed in the Senate last fall, but stalled in the House.
But even with ENDA’s traction in Congress in 2013, LGBT advocates were critical of the fact that the version of the bill included an alarmingly broad religious exemption. This exemption, modeled after a similar provision of Title VII of the Civil Rights Act of 1964, would have allowed religious organizations to discriminate against LGBT individuals. It is important to highlight that the exemption in Title VII permits a religious organization to require individuals who carry out its work to share its faith, but it does not allow discrimination based on race, color, sex, or national origin. While it makes some sense to allow religious organizations to prefer their own faith, the ENDA religious exemption flies in the face of our current civil rights laws by seriously undermining ENDA’s intended protections.
While President Obama’s executive order certainly won’t have the reach that an ENDA would, there’s an upside: executive orders making federal contracts conditioned on workplace nondiscrimination compliance have historically been precursors to Congress passing similar requirements for employers of the general workforce (EOs 8802, 9346, and 10925 prior to the Civil Rights Act of 1964). The Obama administration is finalizing the executive order’s details in the coming weeks, so it remains to be seen whether there will be an ENDA-esque exemption for religious organizations (though—surprise!—some voices are already calling for such).
Opponents of LGBT equality are increasingly recognizing the turning tide for LGBT rights. Instead of voicing outright opposition to barring discrimination based on sexual orientation or gender identity, they are strategically picking their battles for broader national appeal. With the Supreme Court’s Hobby Lobby ruling just around the corner, their messaging is increasingly changing from stark opposition to LGBT rights to pushing for broad exemptions under the guise of “religious accommodation.”
We are entering another phase of political discourse; one focused on the sacred First Amendment and its messy jurisprudence. No, this is not a new thing, but advocates be wary. Fight hard and fight smart.
Alyssa Sappenfield is a legal intern at Legal Voice and a rising third-year student at Lewis & Clark Law School. Alyssa received her Bachelor's from the University of Notre Dame in Sociology and Psychology, with a focus on social movements. She is obsessed with digesting culture and substantive equality for marginalized groups.