THE ENDURANCE TEST:
EXECUTIVE POWER AND THE CIVIL
RIGHTS OF LGBT AMERICANS
Mathew S. Nosanchuk *
INTRODUCTION .............................................................................441
I. FROM DISCRIMINATION TO NONDISCRIMINATION: LGBT
FEDERAL EMPLOYEES FROM 1950–2008 ............................447
A. Longstanding Prohibition is Relaxed, Then
Eliminated ...................................................................447
B. The Clinton and (Second) Bush Administration, and
Equal Opportunity for Lesbian and Gay Federal
Employees ....................................................................452
II. THE OBAMA ADMINISTRATION ................................................456
A. Expanding Benefits Through Existing Legal
Authorities ...................................................................456
B. Expanding Benefits by Seeking Additional Legal
Authority ......................................................................457
C. Legal Protections for Transgender Federal
Employees ....................................................................459
D. Executive Branch Actions Expressed Through an
Administration’s Litigating Positions .........................463
E. The Staying Power of Executive Branch Action ............469
CONCLUSION ................................................................................474
* Senior Counselor to the Assistant Attorney General for the Civil Rights
Division, U.S. Department of Justice. This article expands upon remarks
delivered at the Albany Government Law Review’s Symposium, held on October
13, 2011, at Albany Law School. The author wishes to thank Civil Rights
Division colleagues Jocelyn Samuels, the Principal Deputy Assistant Attorney
General, and Sharon McGowan, the Co-Chair of the Division’s GLBT Working
Group, for their helpful comments; and Hammad Ahmed and Jessica Agarwal
for their excellent research assistance. The author also wishes to thank
Assistant Attorney General Tom Perez for his commitment to using the
division’s existing authorities to ensure equal opportunity for LGBT individuals,
and the dedicated attorneys of the division’s GLBT Working Group for making
this commitment a reality.
440
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THE CIVIL RIGHTS OF LGBT AMERICANS
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INTRODUCTION
Presidents, using their executive power, play a central role in
the advancement of civil rights in America. One of the most
noteworthy acts in this regard was President Harry S. Truman’s
decision to end racial segregation of the U.S. military, 1 which took
place before the Supreme Court decided Brown v. Board of
Education2 in 1954, and before Congress passed the Civil Rights
Act of 1964. 3 President Truman accomplished this, not through
legislation, but through an executive order. 4 His executive order,
in turn, built on an earlier one signed by President Franklin
Delano Roosevelt, prohibiting racial discrimination in the defense
industry. 5 Both presidents nudged the federal government closer
towards the goal of greater racial equality at a time when it was
extremely difficult to move affirmative civil rights legislation
through the Congress. Only after these executive orders did
Congress pass important civil rights legislation—landmark bills
to prohibit discrimination on the basis of race, religion, national
origin, gender, and disability in employment, public
accommodations, housing, and education, ensuring equal
opportunities to millions of Americans. 6
For lesbian, gay, bisexual, and transgender (LGBT)
individuals, whose efforts to achieve equal opportunity and
protection from discrimination are only measurably advanced in
recent decades, the trajectory is arguably similar. Executive
branch actions to expand civil rights preceded legislative
advances, but that was not always the case when it came to equal
opportunity for LGBT individuals. During the mid-twentieth
century, as executive power was employed to prohibit
discrimination on the basis of race, executive branch action did
not remove barriers for equality to LGBT individuals. On the
contrary, it erected them.
In 1953, President Dwight D.
Eisenhower signed Executive Order 10,450, entitled “Security
Requirements for Government Employment.” 7 This executive
Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 26, 1948).
347 U.S. 483 (1954).
3 The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as
amended in scattered sections of 42 U.S.C.).
4 Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 26, 1948).
5 Exec. Order No. 8802, 6 Fed. Reg. 3109 (June 25, 1941).
6 See, e.g., Fair Housing Act of 1968, Pub. L. No. 90-284, 82 Stat. 81 (codified
as amended at 42 U.S.C. §§ 3601–3631 (2006)).
7 Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 27, 1953).
1
2
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order required background investigations into applicants for
federal positions or federal employees to ensure that their
employment was not inconsistent with the interests of national
security. 8 Disqualifying conduct included “sexual perversion,” a
term that included homosexuals. 9 The executive order, therefore,
made it extremely difficult for gay men and lesbians to obtain or
hold federal jobs or obtain federal contracts. It was not until 1975
that the bar to federal service for homosexuals was removed, and
executive branch action turned a corner and began to protect gay
men and lesbians from discrimination. 10 During the forty years
since executive branch action first began providing hope and
protection to LGBT Americans, Congress failed to pass any
significant pro-equality legislation for LGBT individuals until
very recently. 11
Achieving legislative expansion of LGBT rights and protections
remains an uphill battle. The federal hate crimes law that finally
passed in October 2009, for example, was first introduced by
Senator Ted Kennedy in 2001 during the 107th Congress and
reintroduced in every subsequent Congress until it finally was
passed in the 111th Congress and signed into law by President
Legislation to prohibit
Barack Obama in October 2009. 12
employment discrimination against LGBT individuals was first
introduced in 1974 by Representative Bella Abzug, to amend
existing civil rights statutes. 13 Then it was reintroduced as a
Id.
Id.
10 Compare 5 C.F.R. § 731.201(b) (1974) (allowing as grounds for dismissal
from federal civil service employment for conduct that is “[c]riminal, infamous,
dishonest, immoral, or notoriously disgraceful”), with 5 C.F.R. § 731.202(b)(2)
(1976) (removing “immoral” conduct as a grounds for dismissal). But see Voyles
v. Ralph K. Davies Med. Ctr., 403 F. Supp. 456 (N.D. Cal. 1975) (holding that
Title VII of the Civil Rights Act did not protect employment discrimination
based on sexual preference).
11 See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124
Stat. 3515 (repealing 10 U.S.C. § 654); Matthew Shepard and James Byrd, Jr.
Hate Crimes Prevention Act, Pub. L. No. 111-84, 123 Stat. 2835, 2835–44 (2009)
(codified in scattered sections of 18 U.S.C. and 42 U.S.C.).
12 H.R. 1343, 107th Cong. (2001); S. 625, 107th Cong. (2001); H.R. 4204,
108th Cong. (2004); S. Amdt. 3183, 108th Cong. (2004); H.R. 2662, 109th Cong.
(2005); S. 1145, 109th Cong. (2005); H.R. 1592, 110th Cong. (2007); S. 1105,
110th Cong. (2007); H.R. 1913, 111th Cong. (2009); S. 909, 111th Cong. (2009);
S. Amdt. 1511, 111th Cong. (2009); Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act, Pub. L. No. 111-84, 123 Stat. 2835, 2835–44.
13 Nondiscrimination Legislation Historical Narrative, NAT’L GAY & LESBIAN
TASK FORCE, http://www.thetaskforce.org/issues/nondiscrimination/narrative
(last visited Mar. 31, 2012).
8
9
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THE CIVIL RIGHTS OF LGBT AMERICANS
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stand-alone bill in the 103rd Congress in 1994, yet despite having
been voted on and reintroduced numerous times in every
Congress but one, it still has not become law. 14 Advocates in the
LGBT civil rights movement therefore looked to the president and
the executive branch to use whatever authority it had, short of
legislation, to make LGBT equality a matter of federal policy and
law. 15
President Bill Clinton campaigned on promises to extend civil
rights for LGBT Americans. 16 Almost immediately after he was
elected, LGBT advocates began circulating via fax machine draft
executive orders that would follow in President Truman’s
footsteps to lift the ban on military service by gays and lesbians
and that would prohibit discrimination on the basis of sexual
orientation in federal employment. 17 The effort to bring about an
end to the ban was unsuccessful, generating opposition from the
Joint Chiefs of Staff and members of Congress, and prompted
congressional action that codified the new policy, “Don’t Ask,
Don’t Tell” (DADT), into law on September 20, 1993. 18 The other
significant piece of LGBT-related legislation to pass during the
H.R. 4636, 103d Cong. (1994); S. 2238, 103d Cong. (1994); H.R. 1863, 104th
Cong. (1995); S. 932, 104th Cong. (1995); S. 2056, 104th Cong. (1996); H.R. 1858,
105th Cong. (1997); S. 869, 105th Cong. (1997); H.R. 2355, 106th Cong. (1999);
S. 1276, 106th Cong. (1999); H.R. 2692, 107th Cong. (2001); S. 1284, 107th Cong.
(2001); H.R. 3285, 108th Cong. (2003); S. 1705, 108th Cong. (2003); H.R. 2015,
110th Cong. (2007); H.R. 3685, 110th Cong. (2007); H.R. 2981, 111th Cong.
(2009); H.R. 3017, 111th Cong. (2009); S. 1584, 111th Cong. (2009); H.R. 1397,
112th Cong. (2011); S. 811, 112th Cong. (2011).
15
Of course, the courts play a vitally important role too in the effort to secure
constitutional protections for LGBT individuals, but this article focuses on
affirmative federal civil rights policies. See, e.g., Perry v. Schwarzenegger, 704
F. Supp. 2d 921 (N.D. Cal. 2010) (striking down ban and officially designating
legal recognition of same-sex couples “marriage” because ban deprives such
couples of the fundamental right to marry guaranteed by the Fourteenth
Amendment’s Due Process Clause and discriminates against such couples in
violation of the Equal Protection Clause), aff’d on other grounds sub nom. Perry
v. Brown, 671 F.3d 1052 (9th Cir. 2012), petition for rehearing en banc, Perry v.
Brown, Nos. 10-16696 & 11-16577 (9th Cir. Feb. 21, 2012).
16 See Michael Isikoff, Gays Mobilizing for Clinton as Rights Become an Issue,
WASH. POST, Sept. 28, 1992, at A1.
17 The author, at the time, was working as a Skadden Fellow at the ACLU of
Illinois, and recalls, as one of the attorneys working on the ACLU’s Gay and
Lesbian Rights and AIDS and Civil Liberties Projects, reviewing faxes of
proposed executive orders to end the ban on military service and prohibit
discrimination in federal employment. They were circulated within days of
President Clinton’s election in 1992.
18 Policy Concerning Homosexuality in the Armed Forces, Pub L No 103160, 107 Stat 1670, 1670–73 (1993) (codified at 10 U.S.C § 654 (2006)), repealed
by Pub. L. No. 111-321, 124 Stat. 3515.
14
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Clinton administration, the Defense of Marriage Act (DOMA)—
which gave states the power to refuse to recognize same-sex
marriages performed elsewhere and defined marriage, for
purposes of federal law, as being between a man and a woman—
was also rights-restrictive and discriminatory. 19 It was not until
late in his second term that President Clinton finally signed into
law an executive order banning discrimination on the basis of
sexual orientation in the executive branch. 20
There were no significant advances for LGBT equality through
executive action during the two terms of President George W.
On the legislative front, the Bush administration
Bush. 21
supported passage of the Federal Marriage Amendment, which
would have amended the U.S. Constitution to define marriage as
between a man and a woman. 22 In addition, President Bush
threatened to veto the National Defense Authorization Act, which
is generally viewed as a must-pass bill each year, if it came to his
desk containing a federal hate crimes law forcing Congress to
remove the provision it had passed in 2007. 23
President Obama entered office with renewed expectations for
furthering LGBT civil rights through both legislation and
executive branch action. During the transition period before his
inauguration, a coalition of LGBT civil rights groups came
together as the New Beginning Initiative (NBI), “designed to
push for concrete administration federal policy and regulatory
changes directly benefiting the lives of lesbian gay, bisexual and
transgender people and eliminating discrimination from federal
policies.” 24 The New Beginning Initiative developed and provided
to President-elect Obama’s transition team a collection of eighty
detailed proposals spanning thirty agencies and outlining actions
19 Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7; 28
U.S.C. § 1738C (2006)).
20 Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (May 28, 1998).
21 See DAVID FRUM, THE RIGHT MAN: THE SURPRISE PRESIDENCY OF GEORGE W.
BUSH 103–04 (2003); Mike Allen & Alan Cooperman, Bush Backs Amendment
Banning Gay Marriage: President Says States Could Rule on Civil Unions,
WASH. POST, Feb. 25, 2004, at A1.
22 S. Res. 40, 108th Cong. (2004); Allen & Cooperman, supra note 21 (noting
the president’s support for a constitutional amendment).
23 See Jon Ward, Defense Bill’s Veto History Debunked White House Cites
Three Previous Rejections, WASH. TIMES, Oct. 3, 2007, at A3; A Chance to Fight
Hate: Congress Left Until Next Year Legislation That Would Address Bias and
Crimes Against Gays and Lesbians, L.A. TIMES, Dec. 24, 2007, at 22.
24 New
Beginning Initiative, NAT’L GAY & LESBIAN TASK FORCE,
http://www.thetaskforce.org/newadmin/newbeginning_intro.html (last visited
Mar. 31, 2012).
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THE CIVIL RIGHTS OF LGBT AMERICANS
445
the new administration could take that were entirely within the
authority of the executive branch and did not require approval by
Congress. 25
Employing his executive authority, the Obama administration
has compiled a robust record of executive branch action to further
LGBT equality, as well as two critical legislative
accomplishments—passage of the Matthew Shepard and James
Byrd, Jr. Hate Crimes Prevention Act 26 and the repeal of DADT. 27
Regulatory accomplishments include a range of executive actions:
a presidential memorandum expanding federal-benefits for the
same-sex partners of foreign service and executive branch
government employees; 28 a presidential directive requiring all
hospitals receiving Medicare or Medicaid funds to allow visitation
rights for LGBT patients; 29 a notice from the Department of
Housing and Urban Development ensuring that housing
programs do not discriminate on the basis of sexual orientation or
gender identity; 30 and guidance from the Department of
Education addressing bullying in schools and clarifying school
districts’ legal obligations to address bullying and harassment. 31
In addition, the Obama administration enacted a number of the
eighty NBI proposals noted above, including, inter alia: ensuring
that hospitals receiving Medicare or Medicaid payments allow
patients to designate their visitors, without regard to the visitors’
sexual orientation, gender identity, or other non-clinical factor; 32
Id; see, e.g., Federal Benefits and Non-Discrimination, 74 Fed. Reg. 29,393
(June 7, 2009) (providing benefits to partners of same-sex federal employees via
presidential memorandum).
26 See Pub. L. No. 111-84, 123 Stat. 2835, 2835–44 (2009) (codified in
scattered sections of 18 U.S.C. and 42 U.S.C.); see also 155 Cong. Rec. 4765,
4808–11 (daily ed. Apr. 28, 2009) (statements of Sens. Kennedy & Leahy). The
original bill did not include James Byrd, Jr.’s name in the title. See 155 Cong.
Rec. 4810 (statement of Sen. Leahy). See generally S. 909, 111th Cong. (2009).
27 10 U.S.C. § 654 (2006 & Supp. I 2011), repealed by Pub. L. No. 111-321,
124 Stat. 3515.
28 Federal Benefits and Non-Discrimination, 74 Fed. Reg. 29,393.
29 Respecting the Rights of Hospital Patients to Receive Visitors and to
Designate Surrogate Decisions Makers for Medical Emergencies, 75 Fed. Reg.
20,511 (Apr. 15, 2010).
30 Notice of HUD’s Fiscal Year (FY) 2010 Notice of Funding Availability
(NOFA) Policy Requirements and General Section to HUD’s FY 2010 NOFAs for
Discretionary Programs, U.S. Dep’t of Housing & Urban Dev. 20, 22, available
at http://www.hud.gov/offices/adm/grants/nofa10/gensec.pdf.
31 See Press Release, Dep’t of Educ., Guidance Targeting Harassment
Outlines Local and Federal Responsibility (Oct. 26, 2010), available at
http://www.ed.gov/news/press-releases/guidance-targeting-harassment-outlines32
local-and-federal-responsibility.
25
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funding a national resource center on LGBT aging; 33 lifting the
HIV travel ban; 34 changing the definition of family to include
LGBT families to ensure access for Department of Housing and
Urban Development (HUD) programs; 35 and changing passport
rules to reduce the burden on transgender individuals who seek
to change their gender maker. 36
As President Obama entered the fourth year of his presidency,
he made it clear that he would use his executive authority to
further the administration’s policy objectives to overcome the
deadlock in Washington that has made congressional passage of
administration priorities an uphill battle. 37 LGBT advocates
inquired whether the many gains made through executive branch
action can, and will, endure through subsequent administrations;
especially a hypothetical future administration that does not
want to take affirmative steps to protect and expand rights for
Because executive orders and other
LGBT individuals. 38
executive branch actions do not require congressional approval to
get signed, a president can revoke an executive order or reverse
an administration policy or regulation without the blessing of
Congress or any other authority. 39 Noting the possibility of
rescission, one leading advocate for LGBT civil rights stated:
“Executive orders are great, but they can have wobbly legs. I
want us to be able to marshal all of our energy and focus and
75 Fed. Reg. 70,831 (Nov. 19, 2010) (amending 42 C.F.R. §§ 482, 485).
Press Release, U.S. Admin. on Aging, Secretary Sebelius Awards Funding
for a National Technical Assistance Resource Center for Lesbian, Gay, Bisexual
and Transgender Elders (Feb. 10, 2010), available at http://www.aoa.gov/
aoaroot/Press_Room/For_The_Press/pr/archive/2010/February/lgbt.html.
34 74 Fed. Reg. 56,547 (Health & Hum Servs. Nov. 2, 2009) (amending 42
C.F.R. § 34.2(b)).
35
77 Fed. Reg. 5662 (Dep’t of Housing & Urban Dev. Feb. 3, 2012) (amending
scattered sections of 24 C.F.R.).
36 U.S. Dep’t of State, Foreign Affairs Manual, 7 FAM 1300 app. M (Jan. 20,
2011), available at http://www.state.gov/documents/organization/143160.pdf.
37 Mike Dorning, Obama Skirts Deadlock by Using Executive Power to Favor
Allies, BLOOMBERG (Feb. 28, 2012, 11:19 AM), http://www.bloomberg.com/news/
2012-02-28/obama-skirts-deadlock-by-using-executive-power.html.
38 See, e.g., Dave Boyer, Perry Slams Obama Directive Promoting Gay Rights
Abroad, WASH. TIMES, Dec. 7, 2011, at A4 (quoting Texas Gov. Rick Perry
criticizing President Obama for being “out of touch with America’s values”);
Mark Landler, Obama Still Lets Surrogates Take the Lead as Gay Rights
Momentum Builds, N.Y. TIMES, Dec. 31, 2011, at A11 (expressing sentiments of
potential Presidential candidates Newt Gingrich, Mitt Romney, and Rick Perry
regarding gay rights).
39 Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 548 (2005).
32
33
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THE CIVIL RIGHTS OF LGBT AMERICANS
447
resources, and get real laws passed.” 40
This article suggests, through selected examples, that when it
comes to LGBT rights, the legs of executive branch actions are
not so wobbly after all. Subsequent administrations, by and
large, have left LGBT executive protections alone, despite having
the ability to revoke them. Because these executive orders and
other executive branch actions were left “on the books,”
succeeding sympathetic administrations used them as a
foundation for further executive branch actions to expand the
rights of LGBT individuals. This article examines the trajectory
of executive branch action to address the civil rights of LGBT
Americans, using several examples from the Carter through the
Obama administrations, and posits several reasons as to why
these executive branch actions have staying power.
I. FROM DISCRIMINATION TO NONDISCRIMINATION:
LGBT FEDERAL EMPLOYEES
FROM 1950–2008
A. Longstanding Prohibition is Relaxed, Then Eliminated
As noted above, gay men and lesbians were expressly barred
from federal service by President Eisenhower’s 1953 executive
order. 41 For the next twenty years, lesbian and gay federal
employees were officially shut out from holding federal
employment, and many private employers adopted similar
The Civil Service Commission, which was the
policies. 42
precursor to the Office of Personnel Management, reported that
in 1954 there were 618 dismissals for “sexual perversion,” the
terminology employed in the order; the number increased to 837
dismissals by 1955. 43 Accurate statistics were not maintained in
the late 1950s and 1960s by the Civil Service Commission, but
the first formal relaxation of the ban did not occur until 1973, in
40 Chris Geidner, High-Dollar Dem Donors Talk With Obama, Celebrating
LGBT Successes But Looking for More, METRO WEEKLY POLYGLOT BLOG (Feb. 10,
2012, 5:15 AM), http://www.metroweekly.com/poliglot/2012/02/high-dollar-demdonors-talk-wi.html.
41 Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 29, 1953).
42 See Defendants’ Brief in Opposition to Motion to Dismiss at 12, Golinski v.
U.S. Office Pers. Mgmt., 781 F. Supp. 2d 967 (N.D. Cal. 2011) (No. C 10-00257).
43 Gregory B. Lewis, Lifting the Ban on Gays in the Civil Service: Federal
Policy Toward Gay and Lesbian Employees Since the Cold War, 57 PUB. ADMIN.
REV. 387, 389 (1997).
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direct response to litigation challenging the exclusion. 44
In 1969, the U.S. Court of Appeals for the District of Columbia
Circuit decided Norton v. Macy. 45 In an opinion by noted Judge
David Bazelon, the court invalidated the termination of a NASA
budget analyst, who was discovered picking up another man in
the vicinity of Lafayette Square, which, in addition to being
across the street from the White House, was, at the time, known
as a gay cruising area. 46 The opinion held that Norton’s
homosexual activity alone was not enough to justify his
discharge, and that in order to justify terminating a federal
employee on account of private sexual conduct, the agency needed
to demonstrate a rational basis for concluding that the discharge
was necessary to promote the efficiency of service. 47 While such a
basis did not exist in this case, the D.C. Circuit left open the
possibility that a federal employee’s homosexuality could be a
basis for discharge from federal service. 48
While Norton v. Macy represented a step forward for gay and
lesbian federal employees, the Civil Service Commission
continued to claim the existence of a rational basis to discharge
gay and lesbian federal employees. It took another case from
California, Society for Individual Rights, Inc. v. Hampton, 49 to
force a change in the Civil Service Commission’s policy. In this
class action case the lead plaintiff, a supply clerk, was dismissed
because his discharge papers from the army revealed that he was
gay. 50 The government argued that the rational basis was
satisfied by its claim that federal employment of gay men and
lesbians would give rise to “public contempt.” 51 The court found
that this justification for terminating gay and lesbian federal
workers “ignor[ed] the plain holding of Norton,” 52 and ordered the
Civil Service Commission immediately to stop excluding or
discharging gays and lesbians from federal government service
See discussion infra notes 50–51.
417 F.2d 1161 (D.C. Cir. 1969).
46 Id. at 1162.
47 Id. at 1165, 1168. Norton was an administrative case, not a constitutional
case, and “rational basis” here is not used as the term of art denoting deferential
judicial review under the Due Process or Equal Protection Clauses of the U.S.
Constitution.
48 Id. at 1167.
49 63 F.R.D. 399 (N.D. Cal. 1973).
50 Id. at 400.
51 Id. at 400.
52 Id. at 401.
44
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THE CIVIL RIGHTS OF LGBT AMERICANS
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due to the public contempt rationale. 53
In response to these decisions, the Civil Service Commission
took a significant step forward on December 21, 1973, releasing
an agency-wide bulletin stating that agencies could no longer find
someone unsuitable for federal service based solely on an
individual’s sexual orientation. 54 Such action would only be
justified if a person’s homosexual conduct affected his or her
fitness to serve. 55 An unsubstantiated belief that service would
give rise to public contempt was not enough to disqualify
someone. 56
The force of this announcement was blunted to some extent by
a subsequent decision of the U.S. Court of Appeals for the Ninth
Circuit in Singer v. U.S. Civil Service Commission. 57 Singer, a
clerk typist at the Equal Employment Opportunity Commission
in Seattle, was terminated because he “flaunted” his
homosexuality by kissing a man in public, being active in the gay
rights movement, and attempting to obtain a marriage license. 58
The court upheld his dismissal finding that it was not based upon
either “his status as a homosexual or . . . any private acts of
sexual preference.” 59 Rather, the court found that Singer’s
termination was based upon “openly and publicly flaunting his
homosexual way of life and indicating further continuance of such
activities” while working at a federal agency.” 60 This “flaunting”
behavior provided the rational basis for concluding that his
actions undercut the efficiency of service in accordance with
Norton v. Macy. 61
Singer was vacated by the Supreme Court because the Civil
Service Commission took further steps in 1975 to change the civil
service rules to further strengthen the prohibition for termination
of gay and lesbian federal employees. 62 Finally, in 1978, Congress
put these changes into law, passing the Civil Service Reform Act
of 1978 (CSRA), which prohibits the consideration of non-merit
factors in federal employment. 63 The Act provides that federal
53
54
55
56
57
58
59
60
61
62
63
Id. at 402.
Lewis, supra note 43, at 392.
Id.
Id.
530 F.2d 247 (9th Cir. 1976), vacated, 429 U.S. 1034 (1977).
Id. at 249.
Id. at 255.
Id.
Id.
See 5 C.F.R. § 731.202(b)(2) (1976).
Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered
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employment “selection and advancement should be determined
solely on the basis of relative ability, knowledge, and skills, after
fair and open competition which assures that all receive equal
opportunity.” 64 Under these principles, the CSRA prohibits
discrimination against certain categories—“race, color, religion,
national origin, sex, marital status, age, or handicapping
condition” 65—and it contains a broader proscription on personnel
practices that are based on non-job related factors. 66 The Act
empowers the president to issue rules, regulations, or directives
that the president determines are “necessary to ensure that
personnel management is based on and embodies the merit
system principles.” 67 While this provision of law established the
preeminence of merit federal hiring and firing, it did not
explicitly prohibit discrimination on the basis of sexual
orientation. 68
Therefore, the Carter administration in 1979 informed gay and
lesbian civil rights leaders that an executive order was under
consideration, but it ultimately was deemed too much of a
political risk and was shelved. 69 Instead, administration officials
devised a means to achieve a similar result by having Alan
Campbell, who then headed the Office of Personnel Management
(OPM), issue what became known as the Campbell
Memorandum. 70 It declared as a matter of administration policy
that “applicants and employees are to be protected against
inquiries into, or actions based upon, non-job-related conduct,
such as religious, community or social affiliations, or sexual
orientation.” 71 Towards the end of the Carter administration,
major progress was made to eliminate the entrenched policy of
discovering, stigmatizing, and discharging gay men and lesbians
in the federal workforce.
The administration of President Ronald Reagan did not take
additional steps to promote inclusion of gay men and lesbians in
sections of 5 U.S.C.).
64 5 U.S.C. § 2301(b)(1) (2006).
65 Id. § 2301(b)(2).
66 Id.
67 Id. § 2301(c).
68 See id. § 2301(b).
69 Lewis, supra note 43, at 393.
70 See WILLIAM N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND
THE LAW 786 (2d ed. 2004) [hereinafter CAMPBELL MEMO] (quoting Memorandum
from Alan K. Campbell, Director, U.S. Office of Personnel Management, to
Heads of Departments and Independent Establishments (May 12, 1980)).
71 Id.
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THE CIVIL RIGHTS OF LGBT AMERICANS
451
the federal workforce. Rather, the administration was viewed by
many LGBT Americans as being consciously indifferent to gay
rights, an attitude expressed most prominently in connection
President
with its response to the HIV/AIDS pandemic. 72
Reagan’s desire to keep the gay and lesbian community at arm’s
length was encapsulated in his unwillingness to say the word
“AIDS” in public or give a speech on the subject until 1987,
towards the end of his second term in office, six years after AIDS
was first described in medical journals, and after 21,000
individuals, most of them gay men, died from the disease. 73 At
the same time, despite President Reagan’s indifference toward
the disease that was devastating the gay community and his
administration’s lack of support for expanding civil rights for gay
men and lesbians, his administration left in place the Carter
administration’s interpretation of the CSRA to include sexual
orientation as a non-merit factor.
President Reagan’s successor, President George H.W. Bush,
followed suit, leaving in place the Carter administration policy as
expressed in the Campbell Memorandum. Throughout this
period, efforts to advance equality for gay and lesbian federal
employees shifted away from proposed executive orders and into
efforts by federal employee groups to push for the adoption of
non-discrimination policies by agencies. 74 For example, in 1988,
at the Department of Health and Human Services, the employees’
union, the National Treasury Employees Union, negotiated the
right of union members to bring sexual orientation discrimination
In at least one instance, however, the Bush
claims. 75
administration resisted making a change. In 1990, at HUD,
Secretary Jack Kemp refused to sign a similar agreement with
the HUD employees’ union, the American Federation of
Government Employees (AFGE), but the union appealed the
denial, and the inclusion of the nondiscrimination provision was
upheld by a federal appeals court. 76
The Campbell Memorandum, combined with the individual
agency provisions negotiated by employee unions, represented
progress but still did not rise to the level of an express guarantee
72
at 4.
Editorial, The Reagan AIDS Strategy in Ruins, N.Y. TIMES, Oct. 11, 1987,
Hank Plante, Ronald Reagan & AIDS: A Legacy of Silence, EXAMINER
(S.F.), Feb. 6, 2011.
74 Lewis, supra note 43, at 393.
75 Id.
76 Id.
73
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of non-discrimination and equal employment opportunity
applicable throughout the entire federal government. 77
Identifying sexual orientation as a non-merit factor under the
CSRA supplanted an outright ban on federal service by gay men
and lesbians, but it did not go as far as the executive branch did
to weave the rights and remedies of federal civil rights legislation
into federal executive branch policy for those groups protected
under existing statutes. These protections were accomplished
through an executive order, Executive Order 11,478, issued by
President Nixon in 1969. 78 The executive order was amended by
President Carter in 1978 to add handicap and age as protected
categories and to require the Equal Employment Opportunity
Commission (EEOC) to direct the implementation of federal
government policy “to provide equal opportunity in Federal
employment, to prohibit discrimination in employment because of
race, color, religion, sex or national origin, handicap, or age” and
to promote equal opportunity through a continuing affirmative
program that is integral to every aspect of an agency’s personnel
This express guarantee requires executive branch
policy. 79
agencies to put into place a full range of policies and practices in
order to comply with the executive order’s terms. 80
B. The Clinton and (Second) Bush Administration, and Equal
Opportunity for Lesbian and Gay Federal Employees
It took close to two decades from the time President Carter
amended Executive Order 11,478 to prohibit discrimination on
the basis of handicap and age to President Bill Clinton’s signing
executive orders that removed barriers to federal service by gay
men and lesbians. First, in 1995, President Clinton issued
Executive Order 12,968, which was a broad directive revamping
the criteria for obtaining a security clearance. 81 Among the
provisions touted by the Clinton administration, however, were
those finally removing the longstanding bar on granting
homosexuals access to classified information, on the grounds that
their sexual orientation rendered them vulnerable to being
77
78
79
80
81
CAMPBELL MEMO, supra note 70.
Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8, 1969).
Exec. Order No. 12,106, 44 Fed. Reg. 1053 (Dec. 28, 1978).
Id.
Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 7, 1995).
2012]
THE CIVIL RIGHTS OF LGBT AMERICANS
453
blackmailed. 82 The executive order states that the federal
government does not discriminate on the basis of “race, color,
religion, sex, national origin, disability, or sexual orientation in
granting access to classified information,” and that no negative
inference regarding a person’s eligibility to obtain a security
clearance can be based on his or her sexual orientation alone. 83
As one report on the executive order noted, it was “a move long
sought by gay rights groups.” 84
Three years later, President Clinton undertook another step
that was long advocated by civil rights groups when he signed
This executive order amended
Executive Order 13,087. 85
Executive Order 11,478 by adding sexual orientation as a
protected category, so that the executive order now requires nondiscrimination and equal opportunity in federal civilian
employment and prohibits discrimination in employment
“because of race, color, religion, sex or national origin, handicap,
age, or sexual orientation.” 86
In his statement released the same day as the order itself,
President Clinton declared: “This Executive Order states
Administration policy but does not and cannot create any new
enforcement rights (such as the ability to proceed before the
Equal Employment Opportunity Commission).” 87 This limitation
was made clear by qualifying that the requirements of the
executive order apply “to the extent permitted by law.” 88 Thus,
while the executive order does not create a cause of action akin to
a discrimination claim under Title VII, it does allow gay and
lesbian federal employees to use their own agency’s grievance
procedures or, in some cases, to take their claim to the Office of
Special Counsel (OSC). 89
Id.
Id. at 40,250.
84 Todd S. Purdum, Clinton Ends Ban on Security Clearance for Gay Workers,
N.Y. TIMES, Aug. 5, 1995, at 9.
85 Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (May 28, 1998).
86 Id.; Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8, 1969).
87 Press Release, The White House, Presidential Statement Accompanying
Exec. Order 13,087 (May 28, 1998), available at http://clinton6.nara.gov/1998/05/
1998-05-28-statement-on-amendment-to-eeo-executive-order.html.
88 Exec. Order No. 13,087.
89 See Addressing Sexual Orientation Discrimination in Federal Civilian
Employment: A Guide to Employee’s Rights, U.S. OFFICE OF PERS. MGMT.,
http://www.opm.gov/er/address2/Guide04.asp (last visited Feb. 28, 2012). OSC
is the independent federal agency with power to investigate and enforce the
Civil Service Reform Act, as well as other federal statutes that protect federal
employees from prohibited employment practices, including the Hatch Act. See
82
83
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Any executive order can be overturned by Congress, and there
was an attempt to overturn this one. Representative Joel Hefley,
a Republican from Colorado, introduced an amendment to an
appropriations bill in an attempt to limit the executive order,
claiming that Executive Order 13,087, in prohibiting
discrimination on the basis of sexual orientation in the federal
workforce, infringed the freedom of speech of federal employees
possessing religious or moral objections to homosexuality. 90 The
amendment sought both to prohibit the addition of any categories
beyond those already identified in federal civil rights laws, and
the expenditure of funds by the executive branch to enforce
Executive Order 13,087. 91 The legislation was defeated in the
House, by a vote of 252-176, leaving the executive order in place. 92
In response to the vote, President Clinton issued a statement
commending the House for defeating the legislation, noting that
the executive order made uniform throughout the federal civilian
workforce a non-discrimination policy that already was adopted
by many individual agencies. 93 Defeat of the amendment was
lauded by supporters of the executive order as historic. The
executive director of the Human Rights Campaign, the nation’s
largest LGBT civil rights organization, proclaimed: “For the first
time in the history of this country, the U.S. House of
Representatives voted that discrimination against gay and
The fact that this vote
lesbian Americans is wrong.” 94
represented the first time Congress had voted to support nondiscrimination on the basis of sexual orientation underscores the
central role that executive branch action has played in advancing
LGBT civil rights.
U.S. OFFICE OF SPECIAL COUNSEL, Introduction to OSC, http://www.osc.gov/
Intro.htm (last visited Feb. 28, 2012). Responsibility for enforcing Title VII and
other laws prohibiting employment discrimination in federal employment
belongs to the EEOC, working with individual agency EEO offices.
90 See 144 Cong. Rec. 18,959 (1998).
91 See Freedom of Speech Act, S. 41, 106th Cong. (1999).
92 Anti-Gay Hefley Amendment to Overturn Clinton’s Executive Order
Banning Job Discrimination Defeated: Congress Realizes Vote for Discriminatory
Hefley Amendment is Bad Politics, Asserts HRC, COMMON DREAMS (Aug. 6, 1998,
9:34 AM), http://www.commondreams.org/pressreleases/Aug98/080698a.htm
[hereinafter COMMON DREAMS].
93 William J. Clinton, Statement on House Action on the Executive Order on
Prohibiting Discrimination Based on Sexual Orientation in the Federal Civilian
Work Force, THE AMERICAN PRESIDENCY PROJECT, http://frwebgate1.access.
gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=cqYNfw/0/1/0&WAISaction=retrieve
(last visited Mar. 11, 2012).
94 COMMON DREAMS, supra note 92.
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THE CIVIL RIGHTS OF LGBT AMERICANS
455
Supporters of Hefley’s amendment could have successfully
pushed incoming President George W. Bush to reverse the
executive order upon taking office, stripping protections for gay
and lesbian federal employees. The possibility existed, evidenced
by the fact that the Log Cabin Republicans, the pro-LGBT group
within the Republican Party, submitted a memo to the BushCheney transition that argued for keeping the executive order in
place. 95
In fact, the Bush administration did leave the executive order
in place.
However, there was an attempt to weaken the
enforcement of its provisions when Scott Bloch, the Director of
the OSC, removed the sexual orientation discrimination language
from the OSC website, from OSC training slides, and from an
OSC brochure titled “Your Rights as a Federal Employee.” 96
Office of Special Counsel is the independent agency that has
investigative and prosecutorial authority to safeguard the merit
system and protect federal employees and applicants from
prohibited personnel practices, including discrimination that
violates the CSRA. 97 Initially, Bloch defended the removal of this
language, claiming that there was legal uncertainty over the
provision’s applicability to sexual conduct versus sexual
orientation. 98 He was soundly criticized, and his interpretation
was assailed by his predecessor at OSC as “demonstrably
inaccurate” and criticized by advocates as a step that would allow
federal employers to discriminate against employees on the basis
of sexual orientation. 99
Due to the criticism, Bloch subsequently restored the
information to the OSC website and issued the following
statement: “Based on its review, OSC has concluded that such
authority exists in cases other than actual conduct when
reasonable grounds exist to infer that those engaging in
discriminatory acts on the basis of sexual orientation have
95 See Memorandum from Trevor Potter, Esq., et al. to Bush-Cheney
Presidential Transition (Jan. 2001), available at http://libertyeducationforum.
org/docs/whitepapers/1h_wtpa_exec1_1.pdf.
96 See Stephen Barr, Gay Rights Information Taken off Site: New GOP Head
of Agency Says He Is Reviewing Material, WASH. POST, Feb. 18, 2004, at A17;
Bush Appointee Criticized for Distorting GLBT Anti-Discrimination Information,
LEADERSHIP CONF. ON CIV. & HUM. RTS. (Mar. 31, 2004), http://www.civilrights.
org/lgbt/resources/bush-appointee-criticized-for-distorting-glbt-anti-discriminati
on-information.html [hereinafter LEADERSHIP CONF.].
97 Introduction to OSC, supra note 89.
98 Barr, supra note 96; LEADERSHIP CONF., supra note 96.
99 See LEADERSHIP CONF., supra note 96.
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discriminated on the basis of imputed private conduct.” 100 The
unsuccessful attempt by OSC to undercut the executive order
provides an illustration of the difficulty of rolling back an
expansion of civil rights and protections through executive branch
action and once again underscores why executive action is a
central part of the LGBT community’s affirmative civil rights
agenda. Administrations that were uninterested in expanding
LGBT rights were able to maintain the status quo and refrained
from enacting any new protections.
However, once one
administration undertook an expansion of rights for LGBT
individuals, employing executive branch authority, its successor
largely took a hands-off approach or, in the case of the OSC
example, tried to roll back protections but reversed course in the
wake of harsh criticism.
By leaving the expanded protections in place, the Clinton
administration was able to build on the Carter administration’s
interpretation of the CSRA with the issuance of Executive Order
13,087, and the Obama administration, in turn, used the
executive order as a baseline for undertaking its expansion of
protections.
II. THE OBAMA ADMINISTRATION
A. Expanding Benefits Through Existing Legal Authorities
In June 2009, President Obama issued a presidential
memorandum directing every federal agency to examine its
employment policies and identify ways in which it could expand
benefits for gay and lesbian federal employees to the extent
permitted by law. 101 Each agency undertook a comprehensive
review and identified certain benefits that could be extended to
the partners and families of gay and lesbian federal employees. 102
100 See Under Pressure, Bush Appointee Restores GLBT Anti-Discrimination
Information, LEADERSHIP CONF. ON CIV. & HUM. RTS. (Mar. 23, 2004),
http://www.civilrights.org/lgbt/resources/under-pressure-bush-appointee-restore
s-glbt-anti-discrimination-information.html.
101 See Memorandum from the White House to Heads of Exec. Dep’ts &
Agencies, 74 Fed. Reg. 29,393 (June 17, 2009) [hereinafter White House
Memorandum].
102 See Memorandum from John Berry, Director of U.S. Office of Pers. Mgmt.
to Heads of Exec. Dep’ts & Agencies (June 2, 2010), available at http://
www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalId=2982
[hereinafter Berry Memorandum].
The benefits identified in the Berry
Memorandum include, but are not limited to: (1) Credit union membership; (2)
2012]
THE CIVIL RIGHTS OF LGBT AMERICANS
457
In addition, the presidential memorandum contained a section on
“Promoting Compliance with Existing Law Requiring Federal
Workplaces to be Free of Discrimination Based on Non-Merit
Factors,” directing OPM to issue guidance applicable to the entire
executive branch, regarding the implementation of the CSRA
provision that made it unlawful to discriminate on the basis of
non-merit based factors—i.e., factors that are unrelated to job
performance. 103
Like Executive Order 13,087, President Obama’s memorandum
did not extend beyond current law or create any new enforceable
rights. Rather, it directed agencies to examine what they could
do, consistent with existing law, to extend benefits to gay and
lesbian federal employees and their same-sex partners. 104 Those
benefits, in turn, are restricted by the existence of the Defense of
Marriage Act, and, in particular, section 3, which defines
marriage for purposes of federal law as being between a man and
a woman. 105 Thus, the available benefits for couples are based on
their status as domestic partners, not legally married couples.
Accordingly, in response to President Obama’s memorandum,
OPM Director John Berry provided guidance that defines
domestic partners for purposes of accessing the available
benefits. 106
B. Expanding Benefits by Seeking Additional Legal Authority
The Obama administration also has sought to expand the
benefits that would be available to lesbian and gay federal
employees and their same-sex partners by obtaining expanded
legal authority. First, in his statement at the signing of the
presidential memorandum, 107 President Obama affirmed the
Access to fitness facilities; (3) Hardship transfers; (4) Planning and counseling
services; (5) Family assistance services; (6) Family and morale/
wellness/recreation events; (7) Access to medical treatment; (8) Access to lodging
or allowances; (9) Joint consideration of transfers, and (10) Accidental death and
dismemberment insurance. Id.
103 White House Memorandum, supra note 101, § 3.
104 Id. § 1.
105 1 U.S.C. § 7 (2006).
106 See Berry Memorandum, supra note 102, at Part I.
107 See Press Release, White House, Statement by the President on the
Presidential Memo. on Fed. Benefits and Non-Discrimination, and Support of
the Lieberman-Baldwin Benefits Legislation (June 17, 2009), available at
http://www.whitehouse.gov/the_press_office/Statement-by-the-President-on-thePresidential-Memorandum-on-Federal-Benefits-and-Non-Discrimination-and-Su
pport-of-the-Lieberman-Baldwin-Benefits-Legislation.
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administration’s support for federal legislation, the Domestic
Partnership and Benefits Obligations Act, 108 which would make
federal benefits, like health insurance, available to the same-sex
domestic partners of federal employees. Those benefits presently
are unavailable because they are by law available only to the
spouses of federal employees and for those same-sex couples who
are legally married, DOMA precludes enrolling their spouses for
By simultaneously
the federal health benefits program. 109
announcing support for the domestic partners legislation and
directing federal agencies to make available benefits immediately
to the extent permitted by law, the president took an action that
reinforced the central role that executive branch action plays in
furthering civil rights for LGBT Americans.
Second, the Obama administration supports legislation to
repeal DOMA, 110 the Respect for Marriage Act, 111 which would
make available all of the benefits provided to married couples
that are withheld from same-sex couples because of DOMA. 112
The Senate Judiciary Committee held a hearing on the legislation
in November 2011, and favorably reported the bill out of
committee on a 10-8 vote, dividing along party lines, with
Democrats supporting DOMA’s repeal and Republicans opposing
it. 113
Third, in a significant step, President Obama, on the
recommendation of Attorney General Holder, concluded that
section 3 of DOMA is unconstitutional and directed the Attorney
General to cease defending it. 114 This has resulted in the
S. 1102, 111th Cong. (May 20, 2009).
See 1 U.S.C. § 7; 5 U.S.C. § 8905 (2006). But cf. Golinski v. U.S. Office of
Pers. Mgmt., No. C 10-00257 JSW, 2012 U.S. Dist. LEXIS 22071, at **3, 64
(N.D. Cal. Feb. 22, 2012) (holding that DOMA, which bars health benefits for
same-sex spouses of federal employees, is unconstitutional when applying
heightened scrutiny).
110 See Colleen Curtis, President Obama Supports the Respect for Marriage
Act, WHITE HOUSE BLOG (July 19, 2011, 6:43 PM), http://www.whitehouse.gov/
blog/2011/07/19/president-obama-supports-respect-marriage-act.
111 Respect for Marriage Act of 2011, S. 598, 112th Cong. (2011).
112 Id.
113 See 157 Cong. Rec. S7366 (daily ed. Nov. 10, 2011); see also Andrew
Harmon, A Major Milestone? DOMA Repeal Advances in Senate, ADVOCATE
(Nov. 10, 2010, 3:55 PM), http://www.advocate.com/News/Daily_News/20
11/11/10/Senate_Committee_to_Vote_on_DOMA_Repeal_Bill (recounting the
committee vote).
114 See Press Release, Dep’t of Justice, Letter from the Att’y Gen. to Congress
on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), available at
http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.
108
109
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THE CIVIL RIGHTS OF LGBT AMERICANS
459
administration filing briefs in courts throughout the nation
explaining its view that heightened scrutiny applies to
classifications based on sexual orientation, and, therefore, section
3 of DOMA unconstitutionally denies the panoply of federal
benefits that are available to married couples, such as access to
the Federal Employee Health Benefits Program, burial benefits
for veterans, tax benefits, and more. 115
C. Legal Protections for Transgender Federal Employees
The efforts to build upon Executive Order 13,087 not only focus
on expanding protections and benefits for gay and lesbian federal
employees, but also on expanding rights and protections for
transgender employees. 116 President Clinton’s executive order
made no mention of transgender individuals, but by 2009, the
voice of the transgender community, within the LGBT
community, had gained considerable force, increasing efforts to
ensure that transgender individuals, a population that still faces
extensive discrimination and marginalization, received increased
protections under law. 117
President Obama took office two years after a very public
struggle among LGBT advocates over the proposed Employment
Non-Discrimination Act (ENDA), which was reintroduced in
Congress following the Democrats victory in the 2006 election. 118
Leading congressional sponsors, including Representative Barney
Frank, who is openly gay, urged passage of ENDA without adding
a prohibition on gender identity discrimination. 119 His view,
which ultimately prevailed, was that ENDA had no chance of
passage if it included gender identity in addition to sexual
orientation. 120 He favored an incremental approach that would
yield gains for gay men and lesbians immediately and lay the
See, e.g., United States’ Memorandum of Law in Response to Plaintiff’s
Motion for Summary Judgment and Intervenor’s Motion to Dismiss, Windsor v.
United States, No. 10-CV-8435, 2011 WL 3422841 (S.D.N.Y. July 28, 2011).
116 Issue: Federal Advocacy, Administrative Advocacy, HUMAN RIGHTS
CAMPAIGN, http://www.hrc.org/issues/pages/administrative-advocacy (last visited
Feb. 28, 2012).
117 See Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (May 28, 1998); see Issue:
Federal Advocacy, Administrative Advocacy, supra note 116.
118 Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong.
(2007).
119 David M. Herszenhorn, House Backs Broad Protections for Gay Workers,
N.Y. TIMES, Nov. 8, 2007.
120 See id.
115
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groundwork for the addition of gender identity in the future. 121
Many LGBT advocates and community members were incensed
by the decision to proceed with a version of ENDA that did not
include gender identity. 122 In the end, while the bill passed the
House, it never made it to a vote in the Senate. 123 Because the
episode was so divisive among ENDA supporters, the LGBT civil
rights community coalesced around support for what is known as
an “inclusive” ENDA—namely, a law that prohibits
discrimination in employment on the basis of sexual orientation
and gender identity. 124 That position was further reflected in the
positions of the 2008 Democratic presidential candidates. 125
With the June 2009 presidential memorandum, the
administration demonstrated its support for taking positive steps
to eliminate discrimination on the basis of sexual orientation and
gender identity. In the absence of an express prohibition on
discrimination on the basis of gender identity, the memorandum
addressed discrimination based on non-merit factors, requiring
agencies to issue guidance regarding compliance with the CSRA
provision making it unlawful to discriminate on the basis of nonmerit factors. 126
In addition, a number of federal agencies revised their Equal
Employment Opportunity (EEO) policies to include gender
identity on the list of enumerated categories, such as “race, color,
religion, sex . . . national origin, age, disability, genetic
information, parental status, and sexual orientation.” 127 “Sexual
orientation,” as noted above, was already added to agency EEO
See Scott Benson, How Can Allies Effectively Advocate for Gay Rights? The
Answer Is Straightforward, 32 WM. MITCHELL L. REV. 841, 843 (2006).
122 See, e.g., ENDA to be Separated into Two Bills: Sexual Orientation and
Gender Identity, ADVOCATE.COM (Sept. 29, 2007), http://www.advocate.com/
article.aspx?id=41128.
123 153 Cong. Rec. H12,228, H13,252 (daily ed. Nov. 7, 2007) (recording vote
on H.R. 3685).
124 See Employment Non-Discrimination Act (EDNA), NAT’L GAY & LESBIAN
TASK FORCE, http://www.thetaskforce.org/issues/nondiscrimination/ENDA_ma
in_page (last visited Feb. 28, 2012).
125 The 2008 Presidential Candidates’ Positions on Lesbian, Gay, Bisexual
and Transgender Issues, NAT’L GAY & LESBIAN TASK FORCE ACTION FUND 3, 11,
http://www.thetaskforce.org/downloads/reports/reports/final_candidates_position
s.pdf (last visited Feb. 28, 2012).
126 Memorandum to the Heads of Exec. Dep’ts and Agencies on Fed. Benefits
and Non-Discrimination, 74 Fed. Reg. 29,393 (June 14, 2009).
127 See, e.g., Hilda L. Solis, Secretary of Labor, U.S. Department of Labor
Policy on Equal Employment Opportunity, U.S. DEP’T OF LABOR (Apr. 2011),
http://www.dol.gov/oasam/programs/crc/crc-internal/eeo.htm.
121
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THE CIVIL RIGHTS OF LGBT AMERICANS
461
policies in the early years of the Clinton administration, and nondiscrimination on the basis of sexual orientation became an
administration-wide policy as a result of President Clinton’s 1998
executive order. 128
The executive orders made the prohibition on discrimination on
the basis of sexual orientation explicit as a matter of law within
the executive branch by adding sexual orientation as an
additional enumerated category—even though there were efforts
in cases challenging discrimination on the basis of sexual
orientation to establish that such discrimination actually is a
subset of sex discrimination. 129 Courts, with rare exception, reject
the argument that sexual orientation discrimination is a form of
sex discrimination. 130 The predominant view is that although
one’s sex is arguably integral to defining their sexual orientation,
sexual orientation discrimination results from animus towards
someone because of their orientation, not because of their sex. 131
Efforts to extend executive branch action to include gender
identity within the nondiscrimination prohibition are consistent
with the approach of LGBT advocates in the ENDA context—
namely, to secure anti-discrimination protections for all LGBT
individuals. However, as discussed below, there is already legal
authority, under the existing prohibition on sex discrimination, to
address gender identity discrimination.
During the Obama administration, twenty-four agencies added
“gender identity” to their respective EEO policies in one of two
ways. Eleven agencies added gender identity to their EEO Policy
Statement within a parenthetical—prohibiting, discrimination on
the basis of, inter alia, race, ethnicity, sex (including gender
identity), sexual orientation, etc.—in order to make clear that it is
a subset of sex discrimination, 132 and twelve agencies and the
Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (June 2, 1998).
Thomas H. Barnard & Timothy J. Downing, Emerging Law on Sexual
Orientation and Employment, 29 U. MEM. L. REV. 555, 564 n.42 (1999).
130 See, e.g., Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 2002)
(holding that plaintiff’s “claim that he was discriminated against on the basis of
his sexual orientation cannot provide a cause of action under Title VII”). But see
Baehr v. Lewin, 852 P.2d 44, 60 (Haw. 1993) (“[T]he Hawaii Constitution
prohibits state-sanctioned discrimination against any person in the exercise of
his or her civil rights on the basis of sex.”), superseded by constitutional
amendment, HAW. CONST. art. I, § 23 (“The legislature shall have the power to
reserve marriage to opposite-sex couples.”).
131 See, e.g., Centola, 183 F. Supp. 2d at 410.
132 See, e.g., Solis, supra note 127.
The eleven agencies that have added
gender identity in a parenthetical as part of sex discrimination include the
128
129
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White House portal for applications to the Office of Presidential
Personnel added gender identity as a separate category on a list
of protected categories—prohibiting discrimination on the basis
of, inter alia, “race, ethnicity, sex, gender identity, and sexual
orientation.” 133
Including gender identity in a parenthetical is intended to
make clear that transgender victims of discrimination are
protected by existing guarantees against discrimination because
of sex. 134 These protections arise under Title VII of the Civil
Rights Act of 1964 and the Equal Protection Clause. 135 Therefore,
transgender individuals who allege employment discrimination
by a federal agency with an EEO policy that recognizes gender
identity discrimination as sex discrimination can avail
themselves of the complaint process available under Title VII and
may file suit under Title VII. By contrast, EEO policies that list
“gender identity” on a list of enumerated categories could be read
to suggest that discrimination on the basis of gender identity is
distinct from sex discrimination, and therefore, the Title VII
complaint process is unavailable in cases of gender identity
Departments of Agriculture, Health and Human Services, Treasury, and Labor;
and the Civil Rights Division within the Department of Justice, the Fish and
Wildlife Service within the Department of Interior, the Equal Employment
Opportunity Commission, the Office of Personnel Management, the Federal
Communications Commission, the Consumer Finance Protection Board, and the
United States Postal Service.
133 See, e.g., NASA Policy Directive 3713.21: Federal EEO Programs of NASA,
NASA: OFFICE OF DIVERSITY & EQUAL OPPORTUNITY (Aug. 17, 2010),
http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPD&c=3713&s=2I. The thirteen
agencies that have added gender identity as a separate category of protection
include the White House, the Departments of Commerce, Education, Justice,
State, and Veterans Affairs; and the Election Assistance Commission, the
Government Accountability Office, NASA, the Peace Corps, the Corporation for
National and Community Service, the Agency for International Development,
and Amtrak.
134 The Equal Employment Opportunity Commission sought to memorialize
the position that discrimination against a transgender woman is discrimination
“because of sex” under Title VII in its proposed amicus curiae brief in Pacheco v.
Freedom Buick GMC Truck, Inc. Brief of U.S. Equal Employment Opportunity
Comm’n as Amicus Curiae in Opposition to Summary Judgment, Pacheco v.
Freedom Buick GMC Truck, Inc., 7:10-CV-116-RAJ, (W.D. Tex. Oct. 13, 2011),
available at http://law.asu.edu/LinkClick.aspx?fileticket=OIA2vFmgYkU%3d&
tabid=2880&mid=6470. The EEOC’s motion for leave to file the amicus brief
was denied.
135 See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1316–17 (11th Cir. 2011) (citing
Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989)); Schroer v. Billington,
577 F. Supp. 2d 293, 303, 308 (D.D.C. 2008) (finding violations of Title VII due
to employer’s discrimination against applicant for her failure to conform to sex
stereotypes and because of her gender transition).
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discrimination. This means that a gender identity claim would be
treated in a manner similar to a sexual orientation discrimination
claim—namely, through an internal administrative complaint
adjudication process that exists within each agency.
This
alternative route is available for sexual orientation
discrimination claims and does not hold the possibility of review
by the EEOC, or federal courts, and also limits available
remedies.
While the complaint process may differ depending upon how
gender identity is included in an agency’s EEO policy statement,
the difference in available remedies does not diminish the fact
that all of the agencies that adopted such policies made clear that
discrimination against transgender applicants or employees is
unacceptable at the given agency. Fourteen years after President
Clinton’s executive order, the revised policies represent another
building block in federal policy to advance LGBT equality and
bring the federal government in line with the many large private
employers that added gender identity already to their nondiscrimination policies. 136
D. Executive Branch Actions Expressed Through an
Administration’s Litigating Positions
The foregoing discussion mostly has focused on the staying
power of executive orders and the policy statements related to
those executive orders. Executive branch action to further equal
opportunity for LGBT individuals can take different forms,
including through the administration’s litigation positions, as
noted above in the discussion of the administration decision to
cease defending section 3 of DOMA. In the case of executive
branch litigation, positions can change from one administration
to another. Within the sphere of executive branch authority, an
executive order is a freestanding document establishing an
overarching rule or policy that represents the position of the
executive branch until the executive order is revoked, amended,
or rendered unenforceable by Congress. 137 Litigation positions
are often expressed through individual filings in cases and,
See Corporate Equality Index 2012: Rating American Workplaces on
Lesbian, Gay, Bisexual and Transgender Equality, HUMAN RIGHTS CAMPAIGN
FOUND., 2011, at 22, available at http://sites.hrc.org/documents/Corporate
EqualityIndex_2012.pdf.
137 See 77 AM. JUR. 2D United States § 22 (2011).
136
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therefore, are more susceptible to being modified, ignored, or
reversed.
An example is the enforcement of federal law covering the
harassment and bullying of students in schools where the
harassment is based on the unlawful sex stereotyping recognized
by the Supreme Court in the Title VII employment context in
Price-Waterhouse v. Hopkins. 138 In the education context, both
Title IX of the Education Act Amendments of 1972 and Title IV of
the Civil Rights Act of 1964 prohibits sex-based harassment
including harassment based on gender stereotyping. 139
During the Clinton administration, the Department of Justice
successfully argued for an interpretation of federal law that
prohibited harassment of students who do not conform to gender
In Putman v. Board of Ed. of Somerset
stereotypes. 140
Independent Schools, 141 the Justice Department argued that
sexual harassment, consistent with the Price-Waterhouse decision
by the Supreme Court, covers sex stereotyping and therefore is
broad enough to encompass the same-sex harassment claim
brought on behalf of an LGBT student. 142 In that case, the
student was subjected to persistent and severe harassment that
included same-sex sexual harassment (unwanted sexual contact,
grabbing the plaintiff’s groin area, sexually suggestive gestures,
and sexual intimidation and humiliation). 143 The student alleged
that he was sexually harassed because he was perceived by other
students to not conform to the behavior or mannerisms of a
stereotypical boy, and while the harassment was also based on
the student’s actual or perceived sexual orientation—gay
students are protected from sexual harassment too—that fact did
not diminish the validity of the sex stereotyping claim. 144
The Justice Department’s brief, filed in 2000, noted that a
number of circuits had recognized the viability of sex-based
harassment claims based on sex stereotyping and it was
consistent with other actions taken by the Clinton administration
490 U.S. 228.
See 20 U.S.C. §§ 1681–1688 (2006).
140 See United States’ Memorandum as Amicus Curiae in Opposition to
Defendants’ Motion to Dismiss, Putman v. Bd. of Educ. of Somerset Indep.
Schools (E.D. Ky. July 28, 2000) (No. 00-145), available at http://www.justice.
gov/crt/about/edu/documents/putmanbr1.php.
141 See id.
142 See id.
143 Id.
144 Id.
138
139
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THE CIVIL RIGHTS OF LGBT AMERICANS
465
at the time, including a White House Conference on School
Violence held by President Clinton in October 1998. 145 That effort
resulted in, among other things, the production of a guide for use
by school administrators and teachers titled Protecting Students
from Harassment and Hate Crimes. 146 The guide states that
“[s]exual harassment directed at gay or lesbian students may
constitute unlawful sexual harassment.” 147
Then, perhaps to address the concern that the Clinton
administration’s interpretation of sex-based harassment might
not endure in the Bush administration, the Department of
Education’s Office of Civil Rights issued “Revised Sexual
Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties” on January 19,
2001, the day before the inauguration of President George W.
Bush. 148 The guidance expressly addressed the application of
Title IX to harassment of gay and lesbian students:
Although Title IX does not prohibit discrimination on the basis
of sexual orientation, sexual harassment directed at gay or lesbian
students that is sufficiently serious to limit or deny a student’s
ability to participate in or benefit from the school’s program
constitutes sexual harassment prohibited by Title IX under the
circumstances described in this guidance. 149
Moreover, it noted that harassment based on sex stereotypes is
145 See id.; THE CLINTON-GORE ADMINISTRATION: A RECORD OF PROGRESS FOR
GAY AND LESBIAN AMERICANS, http://clinton2.nara.gov/WH/Accomplishments/
ac399.html (last visited Feb. 28, 2012).
146 U.S. DEP’T OF EDUC., PROTECTING STUDENTS FROM HARASSMENT AND HATE
CRIME: A GUIDE FOR SCHOOLS (1999), available at http://www2.
ed.gov/offices/OCR/archives/Harassment/harassment.pdf.
147 Id. at 18.
148 U.S.
DEP’T OF EDUC., REVISED SEXUAL HARASSMENT GUIDANCE:
HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD
PARTIES (2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/sh
guide.pdf.
149 Id. at 3. The guidance went on to describe the circumstances under which
Title IX might apply to sexual harassment of gay and lesbian students:
For example, if a male student or a group of male students target a
gay student for physical sexual advances, serious enough to deny or
limit the victim’s ability to participate in or benefit from the school’s
program, the school would need to respond promptly and effectively, as
described in this guidance, just as it would if the victim were
heterosexual. On the other hand, if students heckle another student
with comments based on the student’s sexual orientation (e.g., “gay
students are not welcome at this table in the cafeteria”), but their
actions do not involve conduct of a sexual nature, their actions would
not be sexual harassment covered by Title IX. Id.
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also covered by Title IX:
[G]ender-based harassment, which may include acts of verbal,
nonverbal, or physical aggression, intimidation, or hostility based
on sex or sex-stereotyping, but not involving conduct of a sexual
nature, is also a form of sex discrimination to which a school must
respond, if it rises to a level that denies or limits a student’s ability
to participate in or benefit from the educational program. 150
The revised guidance represented an effort to formalize the
Clinton administration’s approach to enforcing Title IX in a
manner that would include protections of LGBT students who are
subjected to sexual harassment or harassment based on sex
stereotyping. Although the Bush administration did not formally
withdraw the revised guidance, neither did it vigorously enforce
it, and took the position that efforts to use the sex-based
harassment theory of discrimination to address harassment of
LGBT students represented bootstrapping—turning what was in
fact a sexual orientation discrimination claim into a sex
discrimination claim. 151
The Putman brief and the 2001 Department of Education
guidance, however, laid the groundwork for the Obama
administration to revive this argument in cases involving peeron-peer bullying and harassment. 152 In J.L. v. Mohawk Central
School District, 153 the Justice Department intervened in a private
suit brought by a fourteen-year-old gay student whose gender
expression did not conform to gender stereotypes in his
Students at J.L.’s school
appearance and mannerisms. 154
subjected him to verbal sex-based harassment and also
“threatened, intimidated, and physically assaulted [him] based on
his non-masculine expression.” 155 School district officials were
told about the harassment and failed to take action to stop it. 156
Under the applicable legal standard under Title IX, the school
district was “deliberately indifferent, resulting in increasingly
severe and pervasive harassment of J.L.” 157 The harassment took
Id.
Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of
Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer
Sexual Violence, 43 LOY. U. CHI. L.J. 205, 242 (2011).
152 Id.
153 Complaint-in-Intervention, J.L. v. Mohawk Cent. Sch. Dist., No. 6:09-CV00943 (N.D.N.Y. Jan. 14, 2010) (on file with author).
154 Id. at 3.
155 Id.
156 Id.
157 Id.
150
151
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THE CIVIL RIGHTS OF LGBT AMERICANS
467
a toll on J.L. His grades fell, he stayed home from school because
he did not feel safe, and dropped his favorite class in order to
avoid one of his harassers. 158
The Justice Department intervened in the private lawsuit
brought on J.L.’s behalf, contending that the unlawful
harassment, which the school district failed to address, violated
Title IX’s prohibition on sex discrimination and the Equal
Protection Clause under the sex stereotyping theory of
discrimination that it had previously raised in the Putman
case. 159 The Justice Department intervened in the case in order
to obtain injunctive relief to require the school district to
implement
concrete
measures
to
prevent
sex-based
discrimination in the future.
These measures included a
commitment on the part of the district to address future
complaints of sex-based harassment and provide training on
preventing harassment to teachers and other school officials. 160
The Justice Department’s utilization of Title IX in a case
involving a gay teen was criticized. One news story about the
case interviewed Republicans who worked in the Civil Rights
Division during previous administrations, and they agreed that
this was a case that they generally would not make. 161 One
former official told the reporter that “[t]hey are making up a legal
violation where there hasn’t been one.” 162 However, supporters of
the Justice Department’s action pointed to the fact that this
interpretation was not new and was advanced in other cases,
including the Putman case by the Department of Justice more
than a decade earlier. 163 Therefore, the prior use of the sex
stereotyping theory in Putman helped to inoculate the Justice
Department from the charge that it was doing something novel or
unprecedented.
This was the case even though the Bush
administration had not made similar arguments in the
intervening years.
Since the filing in the J.L. v. Mohawk case, the Justice
Department has filed briefs in other cases involving bullying and
Id. at 4.
Id.
160 Id. at 5.
161 Ari Shapiro, Justice Department Intervenes in Gay Rights Suit, NPR (Jan.
15, 2010), http://www.npr.org/templates/story/story.php?storyId=122620723.
162 Id.
163 Erin Buzuvis, Justice Department Takes Up Anti-Gay Bully Case, TITLE IX
BLOG (Jan. 18, 2010, 1:27 PM), http://title-ix.blogspot.com/2010/01/justicedepartment-takes-up-anti-gay.html.
158
159
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harassment of LGBT youth. 164 In addition to enforcing Title IV
and Title IX in individual cases, the Justice Department, which
shares responsibility for Title IX enforcement with the
Department of Education, has engaged in extensive efforts to
address bullying and harassment of youth in schools, including
LGBT youth. The Department of Education issued a “Dear
Colleague” letter to school administrators, informing them of
their obligation to respond to bullying and harassment of all
students and specifically identifying harassment based on sexstereotyping of LGBT students as prohibited. 165 In addition, due
to a number of highly publicized suicides by LGBT youth,
administration officials participated in the “It Gets Better”
campaign. 166 Senior officials, including President Obama, Vice
President Biden, and Secretary of State Clinton joined thousands
of other groups and individuals to give LGBT youth who are
harassed in school hope that the administration is on their side
and supports the right of everyone to an equal opportunity to
Finally, the Obama
learn without such harassment. 167
administration has sponsored several conferences devoted to
addressing bullying and harassment, including the White House
Conference on Bullying Prevention, two Bullying Prevention
Summits sponsored by the Department of Education, the LGBT
Youth Summit that was jointly sponsored by several cabinet
agencies, and the White House LGBT Safe Schools and
See, e.g., United States’ Memorandum as Amicus Curiae in Response to
Defendants’ Motion to Dismiss/Motion for Summary Judgment, Pratt v. Indian
River Cent. Sch. Dist. et. al., No. 7:09-CV-00411 (N.D.N.Y. Jan. 3, 2011) (on file
with author); Consent Decree, Jane Doe v. Anoka-Hennepin Sch. Dist. et al,
Nos. 11-CV-01999-JNE-SER, 11-CV-02282-JNE-SER (D. Minn. Mar. 1, 2012)
(on file with author); Letter from Zachary Pelchar, Supervising Attorney, U.S.
Dep’t of Educ., & Anurima Bhargava, Chief, Educational Opportunities Section,
U.S. Dep’t of Justice, to Richard Swanson, Superintendent, Tehachapi Unified
Sch. Dist. (June 30, 2011) (on file with author).
165 Letter from Russalyn Ali, Asst. Sec’y, U.S. Dep’t of Educ., to State Educ.
Dep’ts (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-201010.pdf.
166 Max Follmer, One Year of Getting “Better,” TAKE PART (Aug. 29, 2011),
http://www.takepart.com/article/2011/08/29/it-gets-better-one-year-later.
See
also IT GETS BETTER PROJECT, http://www.itgetsbetter.org (last visited Feb. 28,
2012) (highlighting the project “It Gets Better” and the videos uploaded in
support of LGBT teens from politicians, celebrities, and others).
167 It Gets Better, THE WHITE HOUSE, http://www.whitehouse.gov/issues/itgets-better (last visited Feb. 28, 2012) (posting videos from President Obama,
Vice President Biden, Secretary of State Clinton, and various other White House
staff).
164
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THE CIVIL RIGHTS OF LGBT AMERICANS
469
Communities Conference. 168
E. The Staying Power of Executive Branch Action
The executive branch’s gradual expansion of the employment
discrimination protection and its revived interpretation of Title
IX both serve to illustrate that when the executive branch has
acted in a manner that advances such rights, the actions
generally endured. Even where the policies were shelved during
an administration that shares different policy goals regarding
LGBT equality, a subsequent, pro-equality administration was
able to invoke them as building blocks for the further expansion
of rights. As a general matter, the staying power of such actions
is not a foregone conclusion. It is not uncommon for a new
administration to undo executive branch actions from a previous
administration that are contrary to the incoming administration’s
policy. 169
168 See, e.g., Press Release, The White House, President and First Lady Call
For a Unified Effort to Address Bullying (Mar. 10, 2011), available at
http://www.whitehouse.gov/the-press-office/2011/03/10/president-and-first-ladycall-united-effort-address-bullying.
169 For example, in 1989, President Reagan signed Executive Order 12,667,
which established rules for management and disclosure of Presidential records.
Exec. Order No. 12,667, 54 Fed. Reg. 3403 (Jan. 23, 1989). The executive order
established requirements for the National Archives when it receives a request
for access to presidential records. Id. When President George W. Bush took
office, President Reagan’s presidential papers were due to be released, and
President Bush ordered a delay in the release and then issued Executive Order
13,233, revoking the earlier Executive Order and replacing it with one that
limited access to presidential records “including those that . . . reflect[ ] military,
diplomatic, or national security secrets, Presidential communications, legal
advice, legal work, or the deliberative processes of the President and the
President’s advisors . . . in a manner consistent with the Supreme Court’s
decision in Nixon v. Administrator of General Services.” Exec. Order No. 13,233,
66 Fed. Reg. 56,025 (Nov. 5, 2001). Executive Order 13,233 was criticized as
representing an overreach by President Bush, significantly limiting access to
records that should be made public. Deb Riechmann, Critics Blast Bush Order
on Papers, ASSOCIATED PRESS, Nov. 2, 2001, http://www.commondreams.
org/headlines01/1102-01.htm.
The executive order also was criticized by
members of Congress, who sought unsuccessfully to overturn the order through
legislation. Mark J. Rozell, Executive Privilege Revived: Secrecy and Conflict
During The Bush Presidency, 52 DUKE L.J. 403, 409 (2002). President Obama,
in turn, issued Executive Order 13,489 on his first full day in office, essentially
restoring the order by President Reagan. Exec. Order No. 13,489, 74 Fed. Reg.
4669 (Jan. 26, 2009). Another example was President George W. Bush’s sixtyday moratorium on regulations issued during the last days of the Clinton
Administration. Memorandum from Andrew H. Card, Jr., Chief of Staff, to
Heads and Acting Agency Heads of Executive Departments and Agencies, 66
Fed. Reg. 7702 (Jan. 20, 2001). One commentator lauded this move but noted
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The foregoing examples, nevertheless, suggest that a future
administration that is disinclined to expand LGBT civil rights
may be more likely to take a hands-off approach rather than seek
their outright revocations.
There are several potential
explanations why, for example, the administration of George W.
Bush declined to revoke Executive Order 13,087.
First, when President Bush took office, there was no question
that gay rights issues were one of the leading divisive social
issues in America. 170 Yet, at a national level, the issue of legal
recognition of marriage by same-sex couples dominated the public
debate, overshadowing other important civil rights issues,
including the debate over protecting LGBT individuals from
discrimination in the workplace. 171 Gay rights opponents did not
elevate employment discrimination in the federal workplace to
the top of the social agenda, so there was no groundswell of
support for revoking it.
Second, President Clinton’s executive order was limited in its
reach because of DOMA, which meant that despite the existence
of a government-wide commitment to nondiscrimination on the
basis of sexual orientation, federal agencies could not extend
benefits to the same-sex spouses and partners of federal
employees that would be available to opposite-sex spouses.
Third, in the absence of legislation to extend the same
protections available to other protected categories under Title
VII, there are more limited remedies available for claims of
discrimination on the basis of sexual orientation in the federal
workplace. 172 As noted above, the complaint process for sexual
orientation discrimination complaints is separate from other
protected categories, complaints are handled exclusively within
the executive branch, and there is no possibility of going to
that it did not go far enough, arguing that President Bush’s repeal of
administrative rules and regulations needed to be converted into a “veritable
machine” of executive repeals of “actual executive orders” including Executive
Order 13,087. See, e.g., Miguel A. Faria, Jr., Dismantling Clinton’s Scaffold of
Executive Orders, NEWSMAX.COM (Jan. 29, 2001), http://archive.newsmax.
com/archives/articles/2001/1/29/104302.shtml (noting the four executive
memoranda issued by President Bush immediately after taking office, one of
which established the sixty-day freeze).
170 See Gay and Lesbian Rights, GALLUP (last updated Feb. 12, 2012, 1:00
PM), http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx.
171 Joshua K. Baker, Status, Benefits, and Recognition: Current Controversies
in the Marriage Debate, 18 BYU J. PUB. L. 569, 571 (2004).
172 See, e.g., Williamson v. A. G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th
Cir. 1989), cert. denied, 493 U.S. 1089 (1990).
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THE CIVIL RIGHTS OF LGBT AMERICANS
471
federal court, as there is under Title VII, where complaints are
filed through the EEO process in the first instance with the
potential to file suit in federal court. The more limited remedies
that are available to federal employees who complain of sexual
orientation discrimination in connection with their employment
arguably made these protections less objectionable to those who
would equate sexual orientation discrimination with forms of
discrimination that are covered by Title VII.
Fourth, at the time that non-discrimination protections were
extended to federal employees by President Clinton’s executive
order, a number of states had already passed legislation
prohibiting discrimination against LGBT individuals in the
workplace. 173 In 1998, the year President Clinton issued his
executive order, nine states and the District of Columbia had
legislation prohibiting discrimination on the basis of sexual
orientation in both public and private employment, 174 and one of
the nine, Minnesota, also included a prohibition on discrimination
in public and private employment on the basis of gender
identity. 175 Thus, non-discrimination on the basis of sexual
orientation in employment was already enacted in a minority of
states, so extending similar protections to federal civilian
employees was hardly unprecedented.
Fifth, by the time President Bush entered office, an
overwhelming majority of Americans were on record supporting
equal employment opportunities for gays and lesbians. According
to a Gallup poll, conducted in June 2001, 85 percent of
respondents indicated that gays and lesbians should have equal
rights in job opportunities. 176 The weight of public opinion
strongly supported non-discrimination protections for gays and
lesbians certainly could have acted as a check on effort to undo
them. Indeed, when Scott Bloch tried to weaken enforcement, the
reaction was sufficiently strong against what he attempted to do
See, e.g., CONN. GEN. STAT. § 46a-81c (2005).
See Statewide Employment Laws & Policies, HUMAN RIGHTS CAMPAIGN
(last updated Jan. 6, 2012), http://www.hrc.org/files/assets/resources/Employ
ment_Laws_and_Policies.pdf
(listing
California,
Connecticut,
D.C.,
Massachusetts, Minnesota, New Jersey, Rhode Island, Vermont, New
Hampshire and Wisconsin).
175 Id.
See also Laws Prohibiting Discrimination Based on Sexual
Orientation and Gender Identity, INSTITUTE OF REAL ESTATE MANAGEMENT,
http://www.irem.org/pdfs/publicpolicy/Anti-discrimination.pdf (noting the laws
prohibiting discrimination based on both sexual orientation and gender identity,
and the fact that Minnesota is one of the states with a law concerning both).
176 Gay and Lesbian Rights, supra note 170.
173
174
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that he ultimately backed down from weakening the OSC’s
enforcement. 177
While the Bush administration did not revoke the executive
order and seemed to avoid undertaking overtly provocative
measures to undo progress on LGBT civil rights made during the
Clinton administration, the Bush administration also refrained
from extending certain developments to promote LGBT equality
in the federal sector, but these developments had a lower profile
than the executive order. This was the case with its position on
the enforcement of Title IX. The Bush administration filed no
briefs arguing for application of the sex stereotyping theory from
Price-Waterhouse to cases involving harassment of LGBT
students on the basis of non-conformity to gender stereotypes.
That argument was not made again by the Justice Department
until the Obama administration Justice Department filed the
brief in the J.L. v. Mohawk case. 178
Moreover, there were two ways in which the Bush
administration placed limitations on the ability of LGBT federal
employees at the Justice Department and their allies to organize
to further equal opportunity for LGBT employees. In the Justice
Department, for example, the Bush administration did not
promote the continuation of an active GLBT Working Group in
the Civil Rights Division of the Justice Department. The
Working Group first convened during the Clinton administration
by Bill Lann Lee, then-Assistant Attorney General for the Civil
Rights Division. 179 The Working Group’s activities were premised
upon the notion that even in the absence of explicit prohibitions
on sexual orientation discrimination, the Civil Rights Division—
as described in an open letter from Assistant Attorney General
Lee—has the obligation to ensure that “federal civil rights [laws]
are enforced fairly and vigorously on behalf of all Americans,
regardless of their sexual orientation.” 180 Lee’s letter described an
array of activities that the Civil Rights Division had undertaken
under its existing authorities to ensure that the promise of equal
opportunity applied irrespective of sexual orientation, but the
See Barr, supra note 96.
Memorandum of Law in Support of The United States’ Motion to
Intervene, J. L. v. Mohawk Cent. Sch. Dist., No. 6:09-CV-00943 (N.D.N.Y. Jan.
14, 2010) (on file with author).
179 Steven A. Holmes, Asian-American Is Named to Top Civil Rights Position,
N.Y. TIMES, June 12, 1997.
180 Open Letter from Bill Lann Lee, Assistant Attorney Gen., U.S. Dep’t of
Justice Civil Rights Div. (Jan. 2001) (on file with author).
177
178
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THE CIVIL RIGHTS OF LGBT AMERICANS
473
Civil Rights Division during the Bush administration did not
encourage ongoing activities by the Working Group. 181 Early in
the Obama administration, the GLBT Working Group was reestablished as an active entity within the Civil Rights Division. 182
Since its reemergence, the Working Group is extensively involved
in current efforts to extend civil rights protections for LGBT
individuals, including through executive branch action. 183
In addition, the Bush administration, under Attorney General
John Ashcroft, prevented the Justice Department’s employee
affinity group for LGBT employees, DOJ Pride, from using
department facilities or holding its annual Gay and Lesbian Pride
Month celebrations beginning in 2003 unless the group paid
$2,000 for leasing the space. 184 Ashcroft told DOJ Pride that the
Bush administration observed an unwritten policy of not
sponsoring events without a presidential proclamation. 185 DOJ
Pride, moreover, was barred from posting information about its
events on department bulletin boards. 186
As a means to further LGBT civil rights within the federal
workforce and as a matter of federal policy, executive branch
actions, especially when they are more formal and visible, in the
case of executive orders, tend to endure. Even when subsequent
administrations that were generally more unsympathetic to
LGBT civil rights came into power, they left executive branch
actions on the books, which meant that these actions provided the
subsequent administrations that desired to expand rights and
protections with an existing foundation on which to build.
The current effort to expand the prohibition on the
discrimination by federal contractors to prohibit discrimination
on the basis of sexual orientation and gender identity exemplifies
the LGBT advocacy community’s belief in the potency of executive
action—and executive orders in particular. Executive Order
11,246, issued by President Johnson in 1965, prohibits
discrimination by federal contractors on the basis of race, sex,
Id.
Matt Nosanchuk, Senior Counselor to the Assistant Attorney Gen.,
National LGBT Bar Association Remarks 2009 (Sept. 12, 2009) (on file with
author).
183 Id.
184 Darryl Fears, Attorney General Reverses Curbs on Gay Group at Justice
Department, WASH. POST, Feb. 5, 2008, at A17.
185 Id.
186 Id. The restrictions were removed by Attorney General Michael Mukasey
in 2008, who issued a revised equal-employment opportunity policy that barred
discrimination against employee affinity groups, including DOJ Pride. Id.
181
182
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religion, and national origin. 187 Enactment of ENDA, discussed
above, would provide nationwide protection from discrimination
for LGBT employees in the workplace, including those working
An estimated 20 percent of the
for federal contractors. 188
American workforce works for federal contractors. 189 In the
absence of ENDA, LGBT civil rights advocates argue for
amending Executive Order 11,246 to add sexual orientation and
gender identity to the prohibited forms of discrimination. 190 The
calls for an executive order grow as prospects for congressional
passage of ENDA dwindle in the current Congress,
demonstrating once again that LGBT civil rights advocates have
sought to increase equal opportunity through executive branch
action when congressional action appears unlikely. 191
CONCLUSION
The trajectory of executive branch action from hindering to
furthering equal opportunity for LGBT individuals is
encapsulated in the life of Frank Kameny, who was described by
Yale Law professor and LGBT legal scholar Bill Eskridge as the
“Rosa Parks and the Martin Luther King and the Thurgood
Marshall of the gay rights movement.” 192 In 1956, Kameny moved
to Washington, D.C. and was persuaded by government recruiters
to take a position working as a civilian astronomer with the Army
Map Service. 193 He was working there only five months before
government security investigators began looking into Kameny’s
homosexuality. 194 He was dismissed from his job a few weeks
Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965) (superseded
in part by executive oder, Exec. Order No. 11,478 (Aug. 8, 1969)).
188 See Employment Non-Discrimination Act (EDNA), supra note 124.
189 Chris Geidner, Obama White House, Campaign Silent on Federal
Contractor LGBT Nondiscrimination Policy Questions, METRO WEEKLY
POLYGLOT BLOG (Mar. 12, 2012, 4:50 PM), http://www.metroweekly.com/
poliglot/2012/03/obama-white-house-campaign-sil.html.
190 Chris Geidner, ACLU: Contractor Policy “Most Important Step” Obama
Can Take Now to Fight Anti-LGBT Job Bias, METRO WEEKLY POLYGLOT BLOG
(Mar. 9, 2012, 4:15 PM), http://www.metroweekly.com/poliglot/2012/03/aclucontractor-policy-most-im.html.
191 Editorial, An Order That Would Ensure a Level Field for Gays in
Contracting, WASH. POST, Feb. 6, 2012.
192 Brett Zongker & Jessica Gresko, Frank Kameny, 86; Activist in D.C. Gay
Rights Movement, BOS. GLOBE, Oct. 13, 2011.
193 Lou Chibbaro, Jr., Longtime Gay Activist Frank Kameny Dies, WASH.
BLADE, Oct. 11, 2011, available at http://www.washingtonblade.com/2011/10/11/
longtime-gay-activist-frank-kameny-passes-on.
194 Id.
187
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THE CIVIL RIGHTS OF LGBT AMERICANS
475
later under Executive Order 10,450. 195 Rather than go away
quietly, Kameny challenged his dismissal before the Civil Service
Commission, which was the predecessor agency to what now is
known as the Office of Personnel Management. 196 At every stage
of the process, Kameny’s challenge was rejected, and, although he
was not a lawyer by training, he appealed his dismissal all the
way to the Supreme Court, submitting a brief challenging the
federal government’s policy barring homosexuals from working
for the government in any capacity. 197 His brief represented the
first time the Supreme Court was asked to step into the fray in a
gay rights case. 198
Kameny’s firing transformed him, and he organized other gay
men and lesbians to conduct protests in front of the White House
and in Philadelphia in front of Independence Hall in 1965. 199
Under Kameny’s direction, the protests were organized to be
orderly, with the picketers carrying meticulously hand-lettered
picket signs while wearing conservative business attire. 200 Other
than the fact that the protesters identified themselves as gay men
or lesbians, there was nothing counter-cultural about them.
Kameny, after all, was a career civil servant, and was protesting
the patent injustice of his being disqualified from federal service
because he was gay. These protests laid the groundwork for the
Stonewall Riots of 1969 and the emergence of the modern-day gay
rights movement.
Thus, in tracing the history of the LGBT civil rights movement
in America, it is worth recalling Kameny’s story and the fact that
it was executive branch action that transformed him from civil
servant into gay rights activist. On October 5, 2011, Kameny
came to the Justice Department to attend a special event
marking LGBT History Month sponsored by DOJ Pride. 201 The
195 Id. See also Exec. Order No. 10,450, 18 Fed. Reg. 2489 (Apr. 27, 1953)
(requiring investigation into conduct including “sexual perversion” to determine
if federal employment is in the interest of national security).
196 Chibbaro, Jr., supra note 193.
197 Id.
198 Id.; Gay Rights Papers Shown at Library of Congress, FOXNEWS.COM, May
9, 2011, available at http://www.foxnews.com/us/2011/05/09/apnewsbreak-gayrights-papers-shwon-library/print.
199 The Gay Civil Rights Movement Turns to Public Picketing, THE RAINBOW
HISTORY PROJECT, http://rainbowhistory.org/Pickets.htm (last visited Feb. 28,
2012).
200 Id.
201 Celebrate LGBT History Month on Wednesday, October 5th, DOJ PRIDE
(Sept. 23, 2011), http://dojpride.org/2011/09/23/celebrate-lgbt-history-month-on-
476
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[Vol. 5
event, held in the seventh floor conference room in the Robert F.
Kennedy, Jr. Main Justice Building, the very same building from
which the FBI under the direction of J. Edgar Hoover did its part
under Executive Order 10,450, to purge the federal service of
The current occupant of Director Hoover’s
homosexuals. 202
physical office, Assistant Attorney General for the Civil Rights
Division Thomas E. Perez came to the seventh floor conference
room that day to introduce Kameny and honor him as one of the
most significant figures in the LGBT rights movement. 203
Kameny was the featured speaker at a screening of the film Gay
Pioneers, which documented the role of Kameny and his small
group of gay allies in protesting the second-class citizenship of
LGBT Americans. 204
At the time of the event, no one knew it would be his last
speaking engagement for Kameny died the following week. 205
Kameny’s death was mourned by LGBT individuals and their
allies throughout the nation, for he bravely challenged
discrimination when no one else would, and the discrimination
that spurred him to action was discrimination by the federal
government. At a recent reception held in the month following
Kameny’s death for the more than 200 LGBT appointees working
in the Obama administration, Kameny was remembered with a
toast and one attendee noted, “None of us would be here if it
weren’t for Frank.” 206
It can only be described as poetic justice that his last speaking
engagement took place at a federal agency that was at one time
an active participant in identifying and removing gay men and
lesbians like Kameny from federal service, at an event sponsored
by an organization of current LGBT federal employees who,
thanks to Kameny and the executive branch actions that came
about as a result of his activism, now can work openly at an
agency that is part of an administration that is working to
further equal opportunity for LGBT Americans. To paraphrase
the Reverend Dr. Martin Luther King, when it comes to executive
branch action and LGBT civil rights, “the arc of executive branch
wednesday-october-5th.
202 See supra text accompanying notes 6–9.
203 E-mail from Melissa Schraibman, Secretary, DOJ Pride, to DOJ Pride
Membership (Sept. 22, 2011, 2:46 PM) (on file with author).
204 GAY PIONEERS (WHYY/PBS and Equality Forum 2004).
205 Chibbaro, Jr., supra note 193.
206 Lisa Rein, Part Way to Equality, WASH. POST, Nov. 16, 2011, at C1.
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THE CIVIL RIGHTS OF LGBT AMERICANS
477
action is long, but it bends towards justice.” 207
207 This paraphrases Dr. King’s famous quote: “The arc of the moral universe
is long, but it bends towards justice.” See Dr. Martin Luther King, Jr.,
Remaining Awake through a Great Revolution, Address Before the National
Cathedral, Washington, D.C. (Mar. 31, 1968), available at http://mlkkpp01.stanford.edu/index.php/kingpapers/article/remaining_awake_through_a_
great_revolution. Dr. King, in turn, was paraphrasing nineteenth century
Unitarian minister and abolitionist Theodore Parker. See Jamie Stiehm, Oval
Office Rug Gets History Wrong, WASH. POST (Sept. 4, 2010). King’s quote, one of
President Obama’s favorites, is embroidered into the border of the rug in the
Oval Office. Id.