Late Wednesday afternoon, it was reported that the Obama administration had made the decision to delay issuing an executive order to ensure that federal contractors receiving tax dollars do not discriminate against applicants and employees based on their sexual orientation or gender identity.
The decision to delay issuing the executive order is extremely disappointing. The reality remains that it is legal to fire or refuse to hire someone based on their sexual orientation in 29 states. Those who are transgender can be fired or denied employment solely based on their gender identity in 34 states. The costs of LGBT workplace discrimination are especially heavy on gay and transgender people of color, who have been shown to face disproportionately high rates of unemployment and poverty.
An executive order on contractors, when combined with existing workplace protections provided by existing state laws and federal law for federal workers, would likely mean that for the first time in history, more than half of all American workers would have legally binding workplace rights. And with federal contractors employing people in all 50 states, there would be at least some workplaces in every state where employees would have legally binding protections against discrimination.
In response to the decision to delay the order, the White House said:
The president is dedicated to securing equal rights for LGBT Americans and that is why he has long supported an inclusive Employment Non-Discrimination Act (ENDA), which would prohibit employers across the country from discriminating on the basis of sexual orientation and gender identity.
The ACLU is also fully committed to working to see ENDA enacted into law. However, President Obama could and should follow a bipartisan tradition that dates back to President Franklin Roosevelt and the early beginnings of the civil rights movement by using his executive authority to require nondiscrimination on the part of federal contractors on the basis of sexual orientation and gender identity.
In addition, as coalition colleagues at the Center for American Progress point out, even if ENDA were to become law tomorrow (very unlikely given the current political environment), there will still be a need for this executive order, which, when issued, will ensure that gay and transgender individuals have the same types of employment protections currently afforded to women, people of color, and others.
Further, all of the congressional champions of ENDA have called on President Obama to issue the executive order, including House Minority Leader Nancy Pelosi (D-Calif.) and the four openly gay and lesbian cochairs of the Congressional LGBT Equality Caucus.
Amazingly, President Obama has actually already endorsed the order. Metro Weekly reported on March 8 that then-candidate Sen. Obama told the Houston GLBT Political Caucus in a written survey in February 2008 that he would support a "formal written policy of non-discrimination that includes sexual orientation and gender identity or expression…for all Federal contractors." Additionally, in an interview with the Advocate published on December 22, 2010, President Obama said, in response to a question about employment nondiscrimination protections for LGBT workers languishing in Congress:
…there are still a lot of things we can do administratively even if we don't pass things legislatively. So my ability to make sure that the federal government is an employer that treats gays and lesbians fairly, that's something I can do, and sets a model for folks across the board.
Then-Sen. Obama was right in 2008. He was right again in 2010. It is time for President Obama to issue this executive order.
Overwhelming majorities of Americans support federal policies that advance workplace fairness for LGBT people — including majorities of self-identified Democrats, Republicans, and Independents. It's not only the right and just thing to do; it's also the politically popular thing to do! The ACLU continues to view the executive order as the single most important step that President Obama could take this year to eradicate LGBT discrimination from workplaces across the country. There is no need for delay. LGBT workers who are forced to hide their true selves and deny their families and loved ones at work for fear of losing their jobs can't wait.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.