hunter of justice

The President's HRC speech: What the media are missing

The news media seem unanimous this morning in reporting that the big news from the President's speech last night was his promise that "I will end Don't Ask Don't Tell." Many gay commentators, on the other hand, are asking how this speech was different from any other speech he has given - after all, he's promised to end DADT before. I think both voices are missing the mark.

What President Obama said that was new and different last night wasn't the repetition of his support for ending DADT, or passing ENDA, or signing the hate crimes bill into law, or ending the HIV immigration ban, or enacting benefits for federal employees - all of which he has said before and none of which he can do without Congress. What was new, at least to my ears, were the subtle steps toward a language of moral equality.

He did this at two points in the speech.  First, he argued that society should recognize relationships between same-sex partners as "just as real and admirable as a relationship between a man and woman." He's not taking any chances by calling them just as real - mainstream America is already backing civil unions. But "just as admirable"? That's important.

And no - he very carefully did not endorse marriage equality. I won't hold my breath for that. But "just as admirable" is what the marriage struggle is all about; it's the reason why marriage has come to dominate the lgbt agenda. This is America, and we Americans seem to have a penchant for using the promise and premise of domestic security in marriage as an unacknowledged stand-in, even litmus test, for the nation's domestic security. Yes, it's a false promise and no, it doesn't make much sense to me, but there it is. The marriage struggle has become the proxy for equal citizenship, and so it's the fight we're going to have to win. And "just as real and just as admirable" -- if I lived in Maine, I'd start printing No on 1 bumper stickers with that phrase.

The second important moment in the speech was his call for an America where "no one has to fear walking down the street holding the hand of the person they love." That example - although totally outside the realm of law - cuts to the heart of making it safe to come out, which has always been the central goal of lgbt rights advocacy. Visibility without fear is the marker of true cultural equality. There are many places where it's already safe to hold hands, but there are many more where it isn't. And one reason why I regret that the coverage of the speech is focusing on DADT is that I would much rather that all the people living in the unsafe-to-be-gay states read the hand holding sentence than that they hear that the President has (once again) declared the military policy is wrong.

So while the speech announced nothing new in the realm of law and policy, it was a moment and a text that was rich in meaning and in promise. And a good use of the bully pulpit.

[PS - If you compare his Pride reception speech in June, you'll see several of the same ideas - even the same lines - that he used in the HRC speech. What's different is the tone on relationship recognition.]

The federal employee benefits memo as anti-climax

The President's Memorandum for the Heads of Executive Departments and Agencies is out. Criticizing it is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action. The only Cabinet-level department already to have taken any initiative whatever appears to be the State Department, which announced its reforms several weeks ago.

In his remarks, the President also restated his support for legislation granting benefits to partners of federal employees that cannot be achieved administratively, and for repeal of DoMA.

A few observations on the hype and the real possibilities:

* Although the President claimed in his oral remarks (see below) that it is the product of a "long and thorough review," the memorandum itself reads much more like a directive to senior management to assess what can be done quickly. It really is the kind of memorandum that should go out in the first weeks of an administration, and easily could have, if anyone had been on top of these issues during the transition. This same memorandum could have been drafted in December and issued by the end of January. And if it had been, the lgbt community would have been thrilled.

It's clear from the specific examples that the White House identified in supporting materials that the administration has done some research, although at least one benefit they claim credit for is old news. But the absence of specifics from the memorandum itself strongly suggests that this project was interrupted to create an event before all the work was done. OPM is directed to effectuate the new benefits it has identified, but all the other departments (except for State) seem to be getting the message to start looking now.

The main problem, of course, is that there are statutes that curb who is eligible for certain benefits. A federal statute explicitly limits enrollment for health insurance and pension benefits to an employee and members of his/her family, 5 USC 8905(a); and another section defines "member of family" to include only a spouse and unmarried dependant children under 22, 5 USC 8901(5). The first of those provisions eliminates the option of creating a new category for domestic partners (which DoMA would not prohibit). And when you combine the latter provision with DoMA' s limitation on "spouse" to different-sex marriages, there's not much space for action.  

* There is also a section of the memorandum that directs OPM to issue guidance within 90 days to insure "compliance with and implementation of" a longstanding federal law that prohibits discrimination against federal employees based on factors "not related to job performance." Who knows where this will lead, but it seems to invite OPM to "guide" federal agencies not to discriminate based on gender identity.

This section of the federal civil service law is the backdoor path used by lgbt advocates in the 1970s, who obtained a "clarification" from the Civil Service Commission that this general standard - not related to job performance - covered discrimination based on sexual orientation.  In the 1990s, President Clinton brought the rule out of the closet by explicitly adding sexual orientation to the Executive Order prohibiting discrimination against federal employees based on race, sex and religion. Adding gender identity to that Executive Order is what President Obama should have done tonight. So maybe this step will get gender identity to where sexual orientation was 30 years ago. Which is to say, it's better than nothing.

* Lastly, I couldn't help but note the stark contrast between the language of the memorandum and that of the non-binding comments of the President when he signed it. (Full text of his remarks is after the jump.) The operative document, to be published in the Federal Register, frames the problem as the federal government's inability to match private sector employee benefits. Its introduction concludes: "Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and brightest employees." How inspiring.

The President's remarks, by contrast, open with a reference to the "the long overdue progress in our nation's pursuit of equality," and he isn't talking about equality with the private sector. No, it's about people being "denied basic rights [because] the people that they love are of the same sex." That's nice.  Too bad more of that kind of equality didn't make it into the only document that matters.

OPM Director John Berry and OPM General Counsel Elaine Kaplan are good people. I wish them the best of luck in moving forward. Reforming the nation's largest employer is incredibly important. And it won't be easy.

What the President will announce tonight

THE WHITE HOUSE Office of the Press Secretary
FOR IMMEDIATE RELEASE June 17, 2009
Fact Sheet: Presidential Memorandum on Federal Benefits and Non-Discrimination

In an Oval Office event later today, President Barack Obama will sign a Presidential Memorandum on Federal Benefits and Non-Discrimination. The Memorandum follows a review by the Director of the Office of Personnel Management and the Secretary of State regarding what benefits may be extended to the same-sex partners of federal employees in the civil service and the foreign service within the confines of existing federal laws and statutes.

Over the past several months, the Director of the Office of Personnel Management and the Secretary of State have conducted internal reviews to determine whether the benefits they administer may be extended to the same-sex partners of federal employees within the confines of existing laws and statutes. Both identified a number of such benefits.

For civil service employees, domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children. For foreign service employees, a number of benefits were identified, including the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations.

The Presidential Memorandum to be signed today will request that the Director of OPM and the Secretary of State act to extend to same-sex partners of federal employees the benefits they have identified. The Memorandum will also request the heads of all other executive branch departments and agencies to conduct internal reviews to determine whether other benefits they administer might be similarly extended, and to report the results of those reviews to the Director of OPM.

The Memorandum will also direct OPM to issue guidance within 90 days to all executive departments and agencies regarding compliance with, and implementation of, the civil service laws, which make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.

whitehouse.gov

Hey buddy, where's the Executive Order?

President Obama has officially declared June to be LGBT Pride Month.  Whoopee. The White House has been promising lgbt advocates for months that an exciting package of new policies would be announced in June.  There's certainly nothing remarkable about the proclamation. So whatever is coming, this isn't it.

Moreover, the proclamation contains a false claim: that Obama is the first President to appoint an openly gay person to a Senate confirmable position in the first 100 days.  President Clinton nominated Roberta Achtenberg to an assistant secretary position in HUD within the first 100 days in 1993. Clinton also issued pride month declarations during his last two years in office.

This is about as exciting as the Obama statement gets:

During LGBT Pride Month, I call upon the LGBT community, the Congress, and the American people to work together to promote equal rights for all, regardless of sexual orientation or gender identity.

At least he included gender identity.  Meanwhile, he could issue an Executive Order banning discrimination against federal employees on the basis of gender identity. That would be exciting. 

I know you're busy running General Motors, Mr. President, but we're still waiting.

Administration promises partner benefits for federal employees

In a signal that broader change is coming, the Office of Personnel Management asked the House Foreign Affairs Committee to drop language from an authorizations bill that would have mandated partner benefits for gay Foreign Service officers. According to the committee website, "the Administration intends to end the practice of excluding the committed partners of Foreign Service officers from the benefits routinely provided to the spouses and children of officers serving abroad."

Committee Chair Howard Berman called former ambassador Michael Guest, now active with the Council for Global Equality, to his office before the hearing to explain that the provisions were being removed from the bill in response to a call that Chairman Berman had received earlier in the morning from John Berry at OPM.  Berry promised Berman that the matter would be addressed  by the administration through regulatory change within the coming weeks. Efforts by Guest and the Council were instrumental in securing this and several other pro-lgbt provisions in the bill.

UPDATE: See comments section to this post, where Julie Dorf, senior adviser to the Council, has posted a link to a video of Secretary of State Clinton's testimony before the Senate Foreign Relations Committee, also yesterday. At the 95-minute mark, Clinton responds to a question by Senator Feingold on this same issue by confirming that a decision will be announced soon.

White House convening private meetings to develop abortion "common ground" policies

Today's Wall Street Journal carries an article by Laura Meckler describing the closed-door meetings being held at the White House that have brought together abortion rights supporters and abortion opponents in the attempt to craft policy proposals to diminish the number of unwanted pregnancies and thus reduce the need for abortion:

Interviews with several participants suggest there is some common ground, but plenty of disagreements remain. It will be challenging for the White House to settle on policies that reach across the spectrum. Some in the antiabortion community, for instance, suggested more support for pregnancy "crisis centers," which discourage women from having abortions. But abortion-rights supporters say these centers give out inaccurate information. Abortion-rights supporters want more support for contraception, which some abortion opponents are unenthusiastic about.

"Not everyone may agree on every issue we discuss, but we think there is enough common ground and potential for common ground here that people can help us to move forward," said domestic policy adviser Melody Barnes, who is leading the initiative.

The meetings -- anywhere from a dozen to two dozen people at a time -- began about a month ago and are expected to continue for another six to eight weeks. The White House hopes to have a proposal formed by late summer, Ms. Barnes said.

At the end of the process, the White House doesn't plan to seek any official endorsement for its proposals from any of the participants, Ms. Barnes said. Staff will review the comments and materials provided and develop recommendations for the president. ... At the start of the initiative, the White House took off the table any discussion of whether abortion should be legal.

Ms. Barnes told participants that the White House is interested in hearing ideas in several areas, among them: sex education; responsible use of contraception; maternal and child health; pregnancy discrimination in the workplace and elsewhere; and adoption.

Participants say that suggestions included: improving education about use of contraception; better access to emergency contraception (which can be used after sex); improving education about sex, relationships and the "sacredness of sex"; stamping out employment discrimination against pregnant women; improving family-leave policies; and encouraging adoption. One suggestion was to set a concrete goal for abortion reduction, such as a 25% reduction in four years. The number of abortions peaked in 1990 at 1.6 million and has declined every year since then, reaching 1.2 million in 2005, the latest year for which data are available. ...

$491,190 plus one Executive Order

No - that's not the current value of General Motors - things haven't gotten that bad for them yet.

$491,190 is the amount in back pay and damages that federal District Court Judge James Robinson ordered the Library of Congress to pay Diane Schroer for rescinding a job offer to her when officials learned that she would start work as Diane, after having successfully interviewed as David.

The case - Schroer v. Billington, 577 F.Supp.2d 293 - generated a pathbreaking ruling that discrimination based on gender identity was discrimination based on gender, and thus violated Title VII. (More details and link to decision here)

Hopefully, the Obama administration will announce that it is not appealing the decision and pay the damages (plus, I hope, appropriately large attorneys fees to the ACLU LGBT Rights Project for doing a brilliant job of litigating the case).

More important, it is time for the President to issue an executive order banning discrimination based on gender identity for all federal employees. The White House has been quietly promising to take this step. The Schroer case provides the perfect opportunity.  Just do it.

Obama may sign Executive Order banning gender identity discrimination against federal employees

The rumor that's circulating among lgbt advocates has hit the web, although so obliquely that it hasn't gotten much attention. If it comes to pass, it will be a game changer: President Obama will sign an executive order adding a prohibition of discrimination based on gender identity to the existing order that covers sexual orientation.

According to Marc Ambinder, the order has been on hold until after John Berry's nomination as head of OPM is confirmed:

As soon as the Senate confirms John Berry to head the Office of Personnel Management, Obama intends to sign an executive order strengthening workplace protections for the LGBT community. Having Berry by his side is important -- Berry'd be the highest-ranking openly gay administration official -- and, of course, as the OPM chief, he's the chief human resource officer for government employees. This executive order may -- or may not -- be accompanied by other instructions that would have the effect of expanding gay rights. 

John has now been confirmed (by a unanimous Senate vote) and will start work on Monday the 13th.

An executive order protecting transgender federal employees would provide an enormous boost - not to mention considerable political cover - for advocates who will be seeking a trans-inclusive ENDA in Congress this year. Unlike an executive order, ENDA would cover all workers in the U.S., except for those in very small companies. (It has the same scope of coverage as Title VII.)

An executive order for federal employees would also be the appropriate response to the Schroer case, in which a federal district court ruled last summer that the Library of Congress violated Title VII by withdrawing a job offer to Diane Schroer, after having sought to hire her when she was David. Various matters have delayed the moment when the Justice Department has to decide whether to appeal. The firing was just as irrational and unfair as it sounds, and if they do appeal, they truly should be ashamed of themselves.

Do we finally have an administration that's willing to do the right thing?

Keep your fingers crossed.

Powerful Pam shames White House on Iowa marriage decision

HT to my buddy Ron at Mad Professah for recounting this tale: 

Washington correspondent for The Advocate Kerry Eleveld posted the official White House response to the Iowa marriage ruling:

"The President respects the decision of the Iowa Supreme Court, and
continues to believe that states should make their own decisions when it
comes to the issue of marriage. Although President Obama supports civil
unions rather than same-sex marriage, he believes that committed gay and
lesbian couples should receive protection under the law."

Pam Spaulding was quick to note the deficiencies of this statement:

So, let's see...it should be left to the states so that as gay couples travel across state lines, they are married, not married, civil unioned, domestic partnered...yeah that sounds like equal protection under the law. Oh wait -- the press release didn't use the word EQUAL, did it?

Can the President elaborate on this position with reasoning that excludes anything related to "God is in the mix"? The Iowa Supreme Court brilliantly torched using religion as an excuse to discriminate, so our Constitutional scholar president needs to come up with a better sham excuse. And as massaged as you know that short paragraph was, the omission of the word equal was purposeful.

I hope some enterprising reporter asks the President whether he believes gay and lesbian couples deserve equal protection of the laws of the United States and the state in which they reside.

A few hours later, they sent a new statement which includes the world "equal."

"The President respects the decision of the Iowa Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage. Although President Obama supports civil unions rather than same-sex marriage, he believes that committed gay and lesbian couples should receive equal rights under the law."

Now that's more like it! But does he really mean it?