THE ENDURANCE TEST: EXECUTIVE POWER AND THE CIVIL RIGHTS OF LGBT AMERICANS

Mathew S. Nosanchuk*

INTRODUCTION ...... 441 I. FROM 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 and 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 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.

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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 .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

1 Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 26, 1948). 2 347 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).

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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 and 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 in October 2009.12 Legislation to prohibit 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

8 Id. 9 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); 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).

2012] THE CIVIL RIGHTS OF LGBT AMERICANS 443 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 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 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

14 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 “” 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 , 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 in the Armed Forces, Pub L No 103- 160, 107 Stat 1670, 1670–73 (1993) (codified at 10 U.S.C § 654 (2006)), repealed by Pub. L. No. 111-321, 124 Stat. 3515.

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Clinton administration, the (DOMA)— which gave states the power to refuse to recognize same-sex 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. Bush.21 On the legislative front, the Bush administration 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 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).

2012] 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 Act26 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 ;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

25 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-outlines- local32 -and -federal-responsibility.

446 ALBANY GOVERNMENT LAW REVIEW [Vol. 5 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 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 LGBT individuals.38 Because executive orders and other 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

32 75 Fed. Reg. 70,831 (Nov. 19, 2010) (amending 42 C.F.R. §§ 482, 485). 33 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/.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 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 , , and Rick Perry regarding gay rights). 39 Kevin M. Stack, The Statutory President, 90 L. REV. 539, 548 (2005).

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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 policies.42 The Civil Service Commission, which was the 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-dem- donors-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 , 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

44 See discussion infra notes 50–51. 45 417 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.

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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 Id. at 402. 54 Lewis, supra note 43, at 392. 55 Id. 56 Id. 57 530 F.2d 247 (9th Cir. 1976), vacated, 429 U.S. 1034 (1977). 58 Id. at 249. 59 Id. at 255. 60 Id. 61 Id. 62 See 5 C.F.R. § 731.202(b)(2) (1976). 63 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 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 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 with its response to the HIV/AIDS pandemic.72 President 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 claims.75 In at least one instance, however, the Bush administration resisted making a change. In 1990, at HUD, Secretary 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 Editorial, The Reagan AIDS Strategy in Ruins, N.Y. TIMES, Oct. 11, 1987, at 4. 73 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.

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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 policy.79 This express guarantee requires executive branch 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 CAMPBELL MEMO, supra note 70. 78 Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8, 1969). 79 Exec. Order No. 12,106, 44 Fed. Reg. 1053 (Dec. 28, 1978). 80 Id. 81 Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 7, 1995).

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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 Executive Order 13,087.85 This executive order amended Executive Order 11,478 by adding sexual orientation as a protected category, so that the executive order now requires non- discrimination 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

82 Id. 83 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

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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 , 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 , 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 lesbian Americans is wrong.”94 The fact that this vote represented the first time Congress had voted to support non- discrimination 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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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 , the pro-LGBT group within the Republican Party, submitted a memo to the Bush- Cheney 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 , 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)

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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-the- Presidential-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 the federal health benefits program.109 By simultaneously 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

108 S. 1102, 111th Cong. (May 20, 2009). 109 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.

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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 , 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

115 See, e.g., ’ 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 , 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.

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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 non- merit 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

121 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.

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policies in the early years of the Clinton administration, and non- discrimination 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 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

128 Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (June 2, 1998). 129 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 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

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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).

2012] THE CIVIL RIGHTS OF LGBT AMERICANS 463 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 non- discrimination 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,

136 See 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).

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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 stereotypes.140 In Putman v. Board of Ed. of Somerset Independent Schools,141 the Justice Department argued that , 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

138 490 U.S. 228. 139 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.

2012] 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 : 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 peer- on-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 did not conform to gender stereotypes in his appearance and mannerisms.154 Students at J.L.’s school 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

150 Id. 151 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-CV- 00943 (N.D.N.Y. Jan. 14, 2010) (on file with author). 154 Id. at 3. 155 Id. 156 Id. 157 Id.

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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

158 Id. at 4. 159 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/justice- department-takes-up-anti-gay.html.

468 ALBANY GOVERNMENT LAW REVIEW [Vol. 5 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 sex- stereotyping 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 learn without such harassment.167 Finally, the Obama 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

164 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/it- gets-better (last visited Feb. 28, 2012) (posting videos from President Obama, Vice President Biden, Secretary of State Clinton, and various other White House staff).

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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-lady- call-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 sixty- day 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, .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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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, , 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

173 See, e.g., CONN. GEN. STAT. § 46a-81c (2005). 174 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., , Minnesota, New Jersey, , , and ). 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.

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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

177 See Barr, supra note 96. 178 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).

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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 re- established 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,

181 Id. 182 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.

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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 for federal contractors.188 An estimated 20 percent of the 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 , 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

187 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/aclu- contractor-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.

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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 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-gay- rights-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-

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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 homosexuals.202 The current occupant of Director Hoover’s 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.

2012] 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://mlk- kpp01.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, 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.