THE ENDURANCE TEST: EXECUTIVE POWER AND THE CIVIL RIGHTS OF LGBT AMERICANS Mathew S. Nosanchuk* INTRODUCTION .............................................................................441 I. FROM DISCRIMINATION 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 Lesbian and Gay 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 Transgender 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. 440 2012] THE CIVIL RIGHTS OF LGBT AMERICANS 441 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 executive order.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). 442 ALBANY GOVERNMENT LAW REVIEW [Vol. 5 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 gay men and lesbians 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 Barack Obama 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); Matthew Shepard 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 Bill Clinton 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 sexual orientation 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