Legal Actions Obama Administration Can Take To Help LGBT

Influential law professor and occasional blogger Nan Hunter has posted to Bilerico a list of legal actions President Obama that would improve the lives of LGBT Americans dramatically.

1. President Clinton issued an executive order that prohibited discrimination against federal employees based on sexual orientation. President Obama should add gender identity to the list of prohibited bases for discrimination. One method would be by defining either "sex" or "sexual orientation" in the current order to include gender identity and expression. He has strong legal grounds for doing so, especially if the new language is added to the definition of sex discrimination, because he can invoke the ruling in Schroer v. Library of Congress, in which a federal court held that it was a violation of the sex discrimination aspect of Title VII to withdraw a job offer made to a transgender woman.

President-elect Obama has committed his administration to support anti discrimination laws that include protection for gender identity and expression. If that means anything, it should mean that he will be willing to actually make that policy a reality for federal employees. And as a matter of principle, it's a good thing for the federal government in its capacity as the nation's largest single employer to impose anti-discrimination obligations on itself before applying them to other employers.

2. Another important signal from the White House on employment matters will come if and when President Obama adds sexual orientation and gender identity to the list of prohibited grounds for discrimination by private companies that have contracts with the federal government.

3. On the legislative side, pass an inclusive ENDA already.

4. Also legislatively, repeal DoMA (especially the part limiting federal government recognition of marriage to those between a man and a woman, even if state law provides otherwise). And enact, perhaps as an amendment to DoMA, a provision that grants all federal benefits and rights and responsibilities under federal law that now go only to married persons to persons in a family relationship status formally
recognized under state law. In other words, eliminate the differential that persons in civil unions now face because their status has zero standing under federal law.

5. Lastly, reform the health care system so that every American - whether married, single, partnered or living in a cave - has access to health care. This may not be solely an lgbt issue, but it is a fact that persons in unmarried partnerships have much higher rates of uninsurance than even the abysmal U.S. average. And health care benefits are probably the number one material issue that drives the family recognition agenda. Let's solve that problem at the root.

I agree with this list, although I would add the Matthew Shepard Hate Crimes Act to the list of immediate legislative actions.



To the second tier of actions (to be completed by election day 2010) I would add:

1. Enacting the Permanent Partners Immigration Act. Passing a comprehensive immigration reform bill that includes the ability for Americans in binational same-sex relationships to sponsor their foreign partner for permanent residence is extremely important.


2. Repealing "Don't Ask, Don't Tell." There is absolutely no scientific basis for the rationale that "homosexuality is incompatible with military service." The Clinton-era "compromise" public policy of allowing LGBT folk to serve in the military as long as they don't openly declare their homosexuality is wrong and should be eliminated. Almost every member of NATO allows openly gay people to serve in their military and the American public overwhelmingly supports this concept in opinion polls.


3. Producing a National AIDS Strategic Plan. Several national AIDS organizations have called for a comprehensive strategy towards addressing the HIV/AIDS crisis in this country. A national AIDS strategy would probably lead to fully funding the Ryan White CARE Act, administratively repealing the HIV travel ban, and finally enacting the Early Treatment for HIV Act, the Stop AIDS in Prison Act and many other bills that have been languishing in Congress waiting for a "reality-based" administration.