Legislation and an LGBTQ Executive Order: What’s the Difference?

Source: Thinkstock

Source: Thinkstock

In upcoming weeks President Barack Obama is set to finally put pen to paper against work discrimination for the LGBTQ community, an action he promised to take on a long time ago, but which had been delayed while Congress waited to vote on the Employment Non-Discrimination Act (ENDA) bill.

After ENDA passed the Senate but failed to be dealt with in the House of Representatives again this year — with House Speaker John Boehner (R-Ohio) insistent that the bill was unnecessary, the president is preparing to take the matter up himself. But while the order is generally lauded as a boost to LGBTQ protection and equal rights, it is not the direct equivalent of congressional legislation; the two are not synonymous pieces in their effects or implications.

So where do these distinctions lie? Let’s take a look at what each political action has to offer, starting with the failed ENDA. ENDA is nothing if not an elderly piece of legislation, one that’s been on congressional radar for many years. This was the first year that it passed in the Senate, though, in order to do so, senators first dealt with concerns over freedom of religion clashing with anti-discrimination laws, a major stumbling block for many politicians. The initial bill had provisions in it to allow that certain religious organizations, including churches and other specifically religious groups, to discriminate based on religious reasons. However, when further provisions to increase the number of exceptions were attempted with the Toomey amendment, it had critics from the other side insisting that the power and enforceability of the law had been reduced.

This amendment threatens to gut the central premise of ENDA. The amendment is ill-defined, and opens floodgates to all kinds of court cases,” said Sen. Tom Harkin (D-Iowa), according to Advocate.com, a sentiment that John Boehner had echoed in his refusal to take it to the House floors even without the amendment added on.

Boehner also controversially argued that “People are already protected in the workplace.” Even those in favor of the ENDA argued to an extent that it might create legal grey areas that would ultimately be difficult to handle all at once, or as Boehner phrased it, “provide a basis for frivolous lawsuits.” ENDA may not have been a bill without problems, but it did have strengths to it that Obama’s executive action cannot measure up to. ENDA would expand the legislation nationally that is already in place in twenty-one states to prevent job discrimination due to sexual orientation and the eighteen states that prevent discrimination based on gender identity.

In the same way that Obama’s executive order on the minimum wage for federal workers in no way replaced the accomplishment a Congressional increase to the minimum would have had across all states, Obama’s non-discrimination order only has the capability of dealing with federal contractors, and as such the effect it can have is limited. The executive order, still not released, would disallow government contracts with those entities with discriminatory practices. It would likely also have provisions outlining exceptions for religious nonprofits.

As Vice President Joe Biden explained, it doesn’t hurt, but it certainly isn’t a swinging blow to discrimination, more another small effort to chip away at it.

I don’t see any downside,” he said in an interview with The Huffington Post, but noting that “The way to do this is to pass ENDA. That ends it everywhere,” and calling it “the single best, most significant way to do this. I’m still hopeful.” This is just another addition to the growing list of orders and efforts stemming from the executive which are simultaneously replacing and failing to live up to efforts from Congress.

Part of the problem with the bill is that, as The Human Rights Campaign points out, a state by state approach has so far not gotten to the root of the problem. Yes, twenty-one states have already individually dealt with discrimination on sexual orientation and eighteen on gender identity, but the HRC notes that 2013′s General Accounting Office report shows very few such issues cropped up in states who have enacted such legislation. People with cavities avoid the dentist; those without have far less reason to.

The administration is obviously clear on the shortcoming, and the often repeated rhetoric on Congress is heard here as well. “An executive order along these lines would not be as substitute for robust congressional action,” said Josh Earnest, spokesman for the White House. “Unfortunately this is yet another example of Republicans blocking Congress on the kind of issue that has pretty strong support all across the country.”

Criticism of Congress is at least in part being used as justification for the time it took for Obama to act. Employment discrimination action has been demanded since 2008, and some are critical that the President took so long to address it.

“The President was really clear at the beginning of the year that … we want to work with Congress in bipartisan fashion to make progress on behalf of the American people,” said Earnest. “We have for several months now been encouraging the House to take up and pass that legislation … So we’re disappointed that the House hasn’t taken action.”

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