Obama to bypass Congress with executive order banning LGBT bias

Under pressure from LGBT activists, President Barack Obama plans to sign an executive order banning federal contractors from discriminating against employees because of sexual orientation or gender identity.

The White House announcement came ahead of Obama’s Tuesday night appearance at the Democratic National Committee’s LGBT fundraiser. Politico reports the administration appears to be countering Thursday’s planned march in support of traditional marriage in Washington, D.C. The executive order will reportedly ban discrimination from both contractors and subcontractors, with at least 14 million employees affected. Contractors could include a diverse array of companies—janitors, Obamacare website builders, construction workers, or humanitarian workers abroad.

The announcement has predictably elicited praise from LGBT activists but has caused a lot of confusion. Most analysts believe Obama is responding to House inaction on the Employment Non-Discrimination Act (ENDA), which the Senate passed in November. Conservatives say such rules open employers to costly legal proceedings. Under the sidelined bill, people could cite grievances for something as vague as being “adversely affected.”

Until the order is written, though, what types of organizations will be affected—and even what discrimination means—isn’t clear. Since the issue is as much about conduct as identity, it could directly conflict with worldview-based conduct policies for supervisors—especially those regarding sexual and marital fidelity. Obama-allied LGBT groups vigilantly monitor and protest sponsors of pro-family organizations like the National Organization for Marriage, so it’s not clear if exercising free speech on family could bring federal discipline.

Leanna Baumer, a legislative assistant with the Family Research Council, said she didn’t yet know what effect the executive order might have. Because Obama is bypassing the legal process, it won’t be clear until the new order becomes a binding regulation. But this federal mandate is just the latest in a series of new orders rewriting laws or otherwise bypassing Congress to establish sexual orientation and gender identity as equivalent to race in the eyes of the law.

In mid May, the Department of Health and Human Services issued an order requiring some grant recipients to recognize same-sex marriage. It has implications for adoption, foster care, and some inner-city ministries. Baumer said the original order disappeared from the website, while similar orders have surfaced for different programs and sectors of HHS. The department’s order concerning Head Start and Early Head Start daycare programs goes further than others, instructing grantees to be “inclusive and supportive” of guardians’ LGBT behaviors. “HHS isn’t even itself entirely clear on what this means as to what it applies to,” Baumer said.

And HHS isn’t the only one confused by the administration’s tactics. Obama’s Department of Education has quietly attempted to rewrite Title IX, a law prohibiting sex discrimination in federally funded education programs and activities. Collegiate athletics is perhaps its most well-known function, but it also applies to issues like housing and sexual harassment investigations. Despite its inability to change the law’s text, the DOE now says anti-discrimination rules apply to “gender identity or failure to conform to stereotypical notions of masculinity or femininity.” Many students at Christian colleges are dependent on federal student loans and grants, creating a potential showdown over the new rules.

On Thursday, the Justice Department will issue a report detailing how it has “broadly interpreted” last year’s U.S. Supreme Court ruling striking down part of the Defense of Marriage Act, a decision that played into the LGBT lobby’s strategy. How far those interpretations will chip away at religious liberty has no precedent.

“The debate is not settled on whether or not sexual orientation and gender identity are … analogous to race,” Baumer said. “Making them analogous in law would introduce a whole host of problems for constitutional liberties, including freedom of religion, freedom of association, free speech, and freedom of contract.”

The Associated Press contributed to this report.