On Monday, the White House announced its plans to draft an executive order forbidding job discrimination against LGBT employees by federal contractors and subcontractors. The order, frequently dubbed an executive ENDA, would follow through on a campaign promise President Barack Obama made in 2008 and marks his most significant gay rights move since signing the repeal of "don’t ask, don’t tell."
The executive ENDA, if signed, could protect as many as 16 million workers, or one-fifth of the entire labor force, from discrimination based on sexual orientation or gender identity. The president has only delayed signing such an order to encourage Congress to pass a broader bill protecting all workers. With a federal ENDA stalled in the Republican-controlled House, however, an executive order is likely the best the president can do to expand nondiscrimination laws to gay and trans people.
It’s unclear whether the president plans to sign his executive ENDA immediately or attempt to use it as an incentive to push the House bill to a vote. John Boehner, the Republican speaker of the House, has thus far resisted bringing the federal ENDA to a vote, suggesting that existing laws already protect LGBT workers. On that front, he might actually be correct. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including discrimination based on sex stereotyping. Many legal analysts believe that anti-gay and anti-trans discrimination are really forms of sex discrimination and are thus already forbidden. Some courts have been receptive to this relatively novel (though pretty commonsensical) theory, which could render ENDA moot. Until the Supreme Court agrees that sex discrimination encompasses LGBT discrimination, however, ENDA will remain the best way to protect gay and trans workers. And an executive ENDA is clearly the only version of the law that can be passed in this political climate.