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Administrative Advocacy

Through the power that our Constitution provides the president and executive branch, the Obama administration continues to institute much-needed changes in federal policy without congressional action. The president has the power to appoint officials who are receptive to civil rights, and judges who respect fundamental constitutional principles and enforce legal protections for all Americans. The president is also empowered to direct administrative actions that will improve the lives of millions of LGBT people.

 

For example:

 

  • Federal Workplace Non-Discrimination: As leader of our nation’s largest civilian work force, the president may institute non-discrimination, healthcare access and other policies to establish the equal rights of federal LGBT employees.
  • HIV and Health: The administration, and its secretary of Health and Human Services can promote honest, accurate information about LGBT people in its public information on HIV/AIDS and other health issues and support a national, comprehensive strategy to fight HIV/AIDS in the United States. In 2010, President Obama signed the Affordable Care Act into law and thanks to guidelines from the Department of Health and Human Services in 2012, LGBT patients have explicit protections against discrimination in healthcare access and services across the country.
  • Hate Crimes and Civil Rights: As head of the nation’s largest law- and civil rights-enforcement entities, the president can appoint an attorney general committed to fighting bias-motivated violence against LGBT Americans, as well as to rigorously enforcing all civil rights protections. In 2010, President Obama signed the Matthew Shepard/James Byrd, Jr. Hate Crimes Prevention Act into law. This historic federal measure, provides legal safeguards for LGBT victims of hate crimes throughout the country.
  • Federal Funded Non-Discrimination: The president can ensure that no social service program uses federal funding to discriminate against LGBT Americans.  And although the LGBT community celebrates America’s tradition of religious liberty, the president can oppose the use of religious liberty as a proxy for anti-LGBT discrimination.
  • Judicial Appointments: A fair-minded judiciary is critical to the civil rights of all Americans. LGBT Americans rely upon the president to appoint judges with a robust understanding of fundamental rights and equal protection, and who respect Congress’ power to enact civil rights legislation.


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The Federal Government as Employer

Non-Discrimination in the Federal Workplace

According to seasonally adjusted numbers from the Bureau of Labor Statistics, the federal government employed some 2,74753,000 individuals in June June 2013 — 2 percent of the nation’s non-farm labor force. It has the duty and power to set an example for all public and private employers by providing equal opportunity for its LGBT employees.


President Clinton’s 1998 Executive Order 13,087 sent a clear message that discrimination based on sexual orientation would not be tolerated in federal employment. It clearly resonated throughout the private sector. Such discrimination was banned by 86.6 percent of Fortune 500 companies, 26 state governments and 281 local governments as of January 2008.


Although Clinton’s executive order was a step forward, today’s federal work force lags well behind other leading employers in banning workplace discrimination based on gender identity. Gender identity protections are provided by 57 percent of Fortune 500 companies, 18 states and 128 local governments. The president should issue a new executive order protecting transgender workers and act quickly to restore full enforcement of civil service law with regard to discrimination based on sexual orientation.

 

Non-Discrimination by Employers and Service Providers Who Use Federal Dollars

When the federal government hires private companies to perform government functions with public funds, it can and should expect the contractors to adhere to the same civil rights standards as the government would if it were doing the work itself.
 

Executive Order 11,246 already ensures strict conformity to these standards by providing recourse to act when a federal contractor or subcontractor discriminates on the basis of race, color, religion, sex or national origin. The president should amend Executive Order 11,246 to prohibit discrimination on the basis of sexual orientation and gender identity by federal contractors and subcontractors as a term of contract. No longer should a corporation be allowed to reap the rewards of receiving federal contracts while ignoring basic workplace protections for its employees.

 

Non-Discrimination in Faith-Based Initiatives

In recent years, the federal government has increasingly turned to religious organizations to provide vital services to vulnerable populations. These include substance abuse treatment, early childhood education, food and nutrition assistance, job training and homeless shelters. Faith-based groups often have expertise in these areas as well as strong ties to the communities they serve. Making use of their skills and commitment can have remarkable benefits.


Yet in order to ensure that federal dollars do not finance discrimination, the administration must issue clarifying regulations that ensure that the government does not discriminate on the basis of religion, religious affiliation, or lack of religious affiliation in making government grants or contacts and that grants and contracts continue to be issued based solely on merit. The administration should also affirmatively clarify that the statutes containing charitable choice provisions in no way preempt federal, state or local laws preventing discrimination on the basis of sexual orientation or gender identity.


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The Executive Branch’s Role in Promoting Public Health

Public health is a national priority, and the administration plays a key role in providing funding for research, education and programs to address the special needs of minority communities. Yet while the LGBT community faces urgent and particular challenges, not all employers offer health benefits to their employees’ same-sex partners, and where those benefits are provided they are subject to unfair taxation.

Health insurance is also less accessible to LGBT people only eight states and D.C. provide health insurance discrimination coverage for all LGBT constituents. Most insurers fail to cover procedures and treatments related to gender transition, and the IRS has ruled that, such costs are not reimbursable under flexible spending accounts.

 

The Human Rights Campaign has studied the following areas of public health and crafted recommendations to address inequities in federal policy.

 

Improved Response to HIV/AIDS

Although HIV/AIDS affects people from all walks of life, the epidemic continues to disproportionately impact the LGBT community — especially young gay and bisexual men of color. Our government has made tremendous strides toward effective prevention and treatment, but there is much more to be done. The administration should promote a national plan to reduce AIDS infections, provide treatment and fund research for a cure.

 

Addressing the Specific Needs of LGBT People as a Community

Although HIV/AIDS affects people from all walks of life, the epidemic continues to disproportionately impact the LGBT community — especially young gay and bisexual men of color. Our government has made tremendous strides toward effective prevention and treatment, but there is much more to be done.


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Protecting Families

According to the 201000 Census, gay and lesbian couples live in 99.3 percent of U.S. counties, and in 96 percent of those counties gay and lesbian couples are raising children. Of the more than 646,000 same-sex couple 780,000 same-sex couples households estimated in 201106, approximately 27 19 percent are raising children under 18 in the home. As of 201100, 1122.3 percent of gay couples and 2734.3 percent of lesbian couples are raising children.
 

Although different-sex couples have access to hundreds of protections for themselves and their children in every state, and more than 1,100 protections and benefits at the federal level, families headed by gay and lesbian couples suffer legal disadvantages in inheritance rights, taxation, retirement planning, family and medical leave, access to healthcare, and often even the opportunity to visit one another in the hospital. Even though the Supreme Court recently ruled the Defense of Marriage Act unconstitutional, there are steps that the president could take to ensure that federal agencies are protecting the rights and privileges of LGBT Americans as quickly and comprehensively as possible.
 

In 31 states, gay and lesbian couples are denied the right to marry. In addition to full marriage equality in 19 states (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Washington and Vermont) and the District of Columbia, an additional two states (Colorado and Nevada) provide the equivalent of state-level spousal rights to same-sex couples within the state.

 

Clarifying the Family and Medical Leave Act (FMLA) to Protect LGBT Couples and their Children

Sixty percent of children raised by same-sex couples live in jurisdictions that do not permit second-parent adoption. Consequently, for these children, it is impossible to secure a permanent, legal relationship to both parents and the guarantee of legal protections that such a relationship provides. Although the definition of “spouse” under federal law explicitly excludes same-sex couples, the administration can and must clarify the FMLA definition of “child” to ensure that all children of same-sex couples are covered.

 

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Community Safety

Improving Response to Hate Crimes
 

According to FBI data, a bias-motivated violent crime occurs every hour. Although the FBI stated that 6,2227,722 hate crimes occurred in 201106, and that 20.8% of those crimes were specifically motivated by sexual orientation bias, the Bureau of Justice Statistics — the research arm of the Department of Justice — estimates that approximately 191,000 bias-motivated incidents, affect approximatelying 259,700 210,000 victims, occur annually, and that approximately 18% of those incidents are motivated by sexual orientation bias . Although there may be any number of reasons for this disparity, it is indisputable that hate crimes are vastly under-reported in this country While LGBT people constitute a small percentage of the population, anti-LGBT attacks are among the most common hate crimes.  The passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009 created the federal mechanism for prosecuting hate crimes including those based on sexual orientation or gender identity.  

While the Matthew Shepard/James Byrd, Jr. Hate Crimes Prevention of 2010 is a promising step towards providing much needed federal safeguards for LGBT victims of hate crimes throughout the country, there are further steps which can and should be taken.

 

Alleviate Burdens on Transgender Travelers

New screening measures instituted by the government to ensure the security of airline travel are not equally experienced by all groups. Current Transportation Security Administration (TSA) regulations require transgender passengers to sacrifice a certain level of privacy in order to travel freely. Although TSA has sought to avoid time-consuming and privacy-invasive security measures through the adoption of new technologies, these efforts have failed to address the privacy concerns of the transgender community. The administration should make sure that security procedures accommodate the privacy of transgender travelers and treat them in a respectful and non-discriminatory way.

 

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Travel and Immigration

In an age of heightened security concerns, the executive branch has a strong interest in ensuring the safety of citizens traveling to and from the United States, as well as foreign nationals visiting or seeking asylum. For LGBT people, new security regulations and immigration policies have created extra burdens, including invasions of privacy. The administration should revisit travel and immigration policies in order to remove unfair barriers to LGBT people traveling or visiting.

Alleviate Burdens on Transgender Travelers

New screening measures instituted by the government to ensure the security of airline travel are not equally experienced by all groups. Current Transportation Security Administration (TSA) regulations require transgender passengers to sacrifice a certain level of privacy in order to travel freely. Although TSA has sought to avoid time-consuming and privacy-invasive security measures through the adoption of new technologies, these efforts have failed to address the privacy concerns of the transgender community. The administration should make sure that security procedures accommodate the privacy of transgender travelers and treat them in a respectful and non-discriminatory way.

 

Providing Asylum to Individuals Persecuted Because of Their HIV Status or Gender Identity

When deciding whether to grant asylum, the Board of Immigration Appeals (BIA) considers whether a foreign national can demonstrate a “well-founded fear” of persecution in his or her home country on account of his or her “membership in a particular social group.” BIA has defined social group membership as “that [which] the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”


In general, what constitutes “membership in a particular social group” is determined by precedent established by the BIA and reviewed by the attorney general. BIA should recognize HIV-positive and transgender petitioners as members of a “particular social group” because they meet the BIA definition of being unable to change their HIV status or gender identity.


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Judicial and Executive Appointments

A president’s power to appoint judges and officials has far-reaching consequences. Judges’ decisions can affect our lives for generations. Executive branch officials shape the policies that have been discussed elsewhere in this summary, ranging from civil rights enforcement to public health to protections for families. The Administration should ensure that only fair-minded individuals, committed to impartial judgments and policies based upon fact rather than ideology, serve our nation in these key posts.

 

Appointing Fair-Minded Justices and Judges

Appointments to the federal judiciary are a president’s most enduring legacy. Because Supreme Court justices and lower-court judges serve life terms, and because the courts seldom reverse their own precedents, each new justice shapes decisions that will be felt by generations to come.
 

In recent years, we have seen important legal victories in cases such as Romer v. Evans, which held that a state could not make it more difficult for LGB people to secure protections through the legislative process, Lawrence v. Texas, in which the Court concluded that a state could not impose criminal penalties for private, adult, noncommercial, consensual sexual relations, Windsor v. United States, which held that the discriminatory Defense of Marriage Act was unconstitutional; and Hollingsworth v. Perry, which returned same-sex marriage to California. 
 

These cases signal that the federal courts are increasingly willing to enforce the constitutional rights of lesbian, gay, bisexual and transgender Americans.
 

The LGBT community is making great strides in securing legal protections through the legislative process, especially in the states, but protections for LGBT people are still sparse, and increasingly, are challenged by anti-LGBT litigation groups. In order to ensure that legal protections survive these challenges, that the courts do not erode civil rights laws that will pass in the future (as has recently happened with other civil rights laws such as Title VII and the Voting Rights Act), and to guarantee that the courts recognize LGBT people’s fundamental rights and basic equality, the president should nominate only justices and judges who possess exceptional intellectual ability, distinguished experience in law, and a temperament that would enable them to make decisions fairly and with an open mind should they be confirmed for lifetime appointments to the bench.
 

HRC believes that an assessment of temperament worthy of lifetime appointments should include the following:

 

  • Demonstrated commitment to full equality under law for lesbian, gay, bisexual and transgender Americans; individuals living with HIV and AIDS; women; people with disabilities; and racial, ethnic and religious minorities;
  • Demonstrated commitment to the constitutional right to privacy and individual liberty, including the right of two consenting adults to enter into consensual intimate relationships;
  • Respect for the constitutional authority of Congress to promote equality and civil rights and provide statutory remedies for discrimination and violence;
  • Sophisticated understanding of and commitment to the separation of church and state and the protection of those citizens with minority religious views;
  • Respect for state legislatures' attempts to address discrimination and violence based on sexual orientation, gender identity, disability, race, ethnicity and other factors through carefully crafted legislation that meets the requirements of the Constitution.


Executive-Branch Appointments

Although executive branch officials serve only during the president’s term and at the president’s pleasure, their decisions and priorities drive the administration’s policies in many areas, including those of particular interest to LGBT Americans. As the breadth of topics covered in this summary indicates, the president’s appointments to every branch of government can have a material impact on the well-being of LGBT people.

 

The Obama administration has the opportunity to implement policies that improve access to medical care, workplace equality, family protections, public health, and community safety for the LGBT community. By appointing fair-minded judges and LGBT-friendly executive branch officials, the administration can ensure that future polies  not only reverse the damage of the past, but  that the government continues to serve this community as it never has before.

 

President Obama, through executive actions and appointments throughout the executive branch, can and should continue to act to alleviate the challenges faced by LGBT Americans. Such action is consistent with his long-standing commitment to pro-LGBT legislation in the U.S. Senate and the Illinois Legislature. We encourage President Obama to continue this work throughout his second term as the head of the executive branch.


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