With a record six out LGBT members of the US House of Representatives and the first openly lesbian or gay member of the Senate — Wisconsin’s Tammy Baldwin — the 113th Congress, which begins its term in January, should, by all rights, provide a striking impetus for progress on issues of concern to queer Americans.
Even though it’s the high water mark for lesbian and gay visibility on Capitol Hill, however, seven members represent less than one and half percent of the 535 who comprise the House and Senate — and all of them are Democrats. With Republicans still in control of the House, even after a very good day for Democrats on November 6, legislators and advocates broadly agree the GOP is nowhere close to entertaining an ambitious gay agenda — or much of any at all.
Barney Frank, the veteran gay Massachusetts Democrat who is retiring at the end of this year, was characteristically the most blunt in his assessment of the Republican House majority.
“They are deeply anti-gay,” he told Gay City News last week. “And they don’t care that there is a lesbian senator or more LGBT House members.”
While others left some opening for evolution on gay issues in Republican ranks — particularly in light of what the National Gay and Lesbian Task Force’s (NGLTF) Stacey Long called the election’s “resounding message that they need to pay attention to full diversity” — Frank said, “There is zero chance that the Republicans will move on ENDA,” the Employment Non-Discrimination Act, which he has pushed as lead sponsor for years.
Supporters of the LGBT community are more optimistic that another lesson from Election Day — about the GOP’s weakness among Latino voters and other people of color communities — could lend momentum to the drive for comprehensive immigration reform, under which same-sex couples in which one member is a foreign national could win the same status as married couples for purposes of permanent residency and citizenship. Even Frank acknowledged an opportunity for progress on that score.
In the absence of hope for significant gains in Congress, advocates look for leadership where they have ever since the Republicans recaptured the House in the 2010 elections — the Obama administration. Since taking office, the president and his team have taken a number of significant executive steps — in rule-making, in enforcement of existing law, and even in declining to defend the 1996 Defense of Marriage Act (DOMA) from constitutional challenge — to advance LGBT political goals. The community, of course, is pressing for more action, and a key priority is an executive order requiring contractors doing business with the federal government to demonstrate they do not discriminate on the basis of sexual orientation and gender identity.
With marriage equality now a fact in nine states plus the District of Columbia, Don’t Ask, Don’t Tell an historical relic, and the possibility that binational couples could win a reprieve from being separated should Congress move on broadly comprehensive immigration reform, it is startling to realize that America’s LGBT community has not yet won basic nondiscrimination protections in the workplace.
In fact, the situation is such an anomaly given all the progress the community has made in recent decades that NGLTF’s Long, the group’s director of public policy and government affairs, pointed to “the widespread but erroneous notion that we already have job protections.”
According to the Human Rights Campaign (HRC), however, it is still legal in 29 states to fire workers based on their sexual orientation. Transgender and other gender-nonconforming workers are at risk in 34 states, including New York.
The lack of progress on ENDA is all the more striking since it was developed two decades ago as a compromise alternative to a more comprehensive civil rights measure — introduced in the 1970s by the late Congresswoman Bella Abzug and her Manhattan House colleague Ed Koch — that would have outlawed discrimination in housing, public accommodations, and other areas as well. ENDA has never won a favorable vote in the Senate and was passed by the House only once — in 2007, when the Democratic majority approved a version providing protections based on sexual orientation but not gender identity and expression.
Jared Polis, a gay Colorado Democrat who begins his third House term in January, will pick up ENDA sponsorship from Frank and offered a view on the bill’s prospects under GOP Speaker John Boehner only slightly less dire than the Massachusetts Democrat’s.
“We would need to see a sea change in the attitudes of the House Republican majority in order for ENDA to become a priority for them in the coming Congress,” Polis spokesman Chris Fitzgerald wrote in an email message. “To date, it does not seem that the speaker or his colleagues have been in any way influenced by the results of the 2012 election or the shifting attitudes of voters.”
David Cicilline, a gay Rhode Islander just elected to his second term in the House, tempered his pessimism by noting the positives that came out of the election.
“Unfortunately, House Republican leaders have continued to obstruct progress towards equality by defending the Defense of Marriage Act in court and preventing any vote on ENDA,” Cicilline wrote in an email message. “I am encouraged, however, by the progress that was made last week in the first statewide approvals of marriage equality, the first openly LGBT candidate elected to the Senate, and a record number of LGBT individuals elected to Congress.”
Cicilline said that the six out House members would “play an important role in pushing ENDA forward.”
Two House Democrats from Manhattan, who are not gay but have been longtime advocates for LGBT rights, offered critiques of the Republican leadership that argued their intransigence on ENDA and other issues would increasingly work to their political detriment.
“The Republicans suffered a pretty glowing defeat,” Representative Jerry Nadler told Gay City News. “I think the Republicans are beginning to realize — or they are shortsighted if they don’t — that their political base is shrinking. They will be reduced to irrelevance if they don’t grow their base.”
Noting the generational divide on gay rights issues, Nadler said the GOP “is clearly going to be floundering” with young voters “if they don’t move on” equality issues. Then, saying “it is quite possible that some Republicans will want to change,” he acknowledged, “I wouldn’t be confident” that Boehner and Majority Leader Eric Cantor are prepared to lead on such an evolution.
Congresswoman Carolyn Maloney, citing the marriage equality ballot wins and the election of Baldwin in Wisconsin as well as out gay Sean Patrick Maloney to a House seat in the Hudson Valley, said that November 6 represented “a very important election for gay rights.”
She acknowledged that “Boehner will probably waive the GOP flag and ENDA will probably not move,” but she warned that GOP inaction on the bill was creating the same sort of problems for Republicans as is their refusal to accept the Senate reauthorization provisions in the Violence Against Women Act that protect LGBT domestic abuse victims. Citing women’s concerns, gay rights demands, and growing support for immigration reform, Maloney told Gay City News, “I think the Republicans, to be a viable party, need to understand that the voters care about these social issues.”
The other Maloney from New York — newly elected Sean Patrick Maloney — was the only gay House newcomer who responded to Gay City News’ request for comment on their expectations for LGBT progress. A veteran of the Clinton administration in Washington and the Spitzer and Paterson gubernatorial staffs in Albany, Maloney voiced greater faith in bipartisan progress than did his Democratic colleagues, saying, “I’ve worked across the aisle for the LGBT community my entire career, and I look forward to continuing that work in Congress. While the challenges are great, we can’t stop for one minute our fight for equality for all Americans.”
A senior House Democratic staffer offered Gay City News the party leadership’s guarded assessment of any prospects for progress under continued Republican control. While voicing the hope that some of the new GOP representatives are “not Neanderthals like in the past,” that staffer noted that neither ENDA nor other LGBT issues played a key role in any House race. Judy Biggert, a Republican incumbent defeated in a swing district in the Chicago suburbs, voiced support for ENDA during her campaign, “but only when she was pressed during a debate,” the staffer noted.
Brian Moulton, who as legal director at the Human Rights Campaign is at the center of the community’s advocacy drive in Washington, also focused on the make-up and posture of specific GOP House members. While saying, “Everyone has some hopes that given how the elections went, the Republicans might look at their positions on ENDA or other LGBT issues,” he added that “the generic anti-LGBT coalition is about the same size.”
In fact, he noted, the numbers of House Republicans persuadable on gay rights may in fact have declined with the defeat of moderate incumbents such as Biggert and New Hampshire’s Charlie Bass.
Given the consensus among LGBT and LGBT-friendly Democrats as well as advocates about the long odds ENDA continues to face, it’s not surprising that considerable effort is focused on moving the president on an executive order. On November 14, the Congressional LGBT Equality Caucus held a briefing on employment issues, with speakers that included NGLTF’s Long, HRC’s Moulton, and others, including Tico Almeida from the Freedom to Work Advocacy Fund and Harper Jean Tobin, the policy director at the National Center for Transgender Equality (NCTE).
In April, top administration officials told a group of advocates that the president would not be moving forward with an executive order regarding nondiscrimination policies required of federal contractors. The president’s spokespeople have consistently argued that ENDA is a more comprehensive and durable solution to the job discrimination problem.
At that time, Almeida was particularly critical of White House inaction, saying, “This is a political calculation that cannot stand.”
However, NCTE’s executive director, Mara Keisling, said that the expectation Obama would move before the November election was “a made-up time frame.” While stating clearly that her group wanted to see action sooner rather than later, she emphasized that many advocates all along anticipated the president would wait until after his reelection to move on such an order.
“The answer from the White House was not ‘no,’ it was ‘not now,’” she told Gay City News.
In the election’s aftermath, Almeida makes the same point.
“In every statement that administration officials have made since they punted in the spring, they have been very specific that their position was that they would not now sign the order,” he told Gay City News. “I am optimistic that it will be signed sooner rather than later.”
He noted that the executive order was the subject of the first congressional briefing on gay rights after the election and that for all leading LGBT lobby groups in Washington, it represents “a top-line priority.”
Almeida said a nondiscrimination requirement for federal contractors would affect nearly one in four American workers.
Obama now clearly faces intensifying pressure to live up to Keisling and Almeida’s expectations. Every member of Congress contacted by Gay City News supports action by the administration.
A spokesman for Senator Jeff Merkley, an Oregon Democrat who is his chamber’s lead ENDA sponsor, said “the lessons of this election have the potential to create new momentum” for ENDA, but he also noted the “roadblocks” in the House majority.
“To fill as much of the gap as possible until legislation is passed, Senator Merkley does support an executive order to create fairness among federal contractors,” his office wrote in an email message.
“I think the president should move forward on an executive order as quickly as possible,” Carolyn Maloney told Gay City News.
Nadler also urged quick action but added that success there is no substitute for demanding action on ENDA.
“Congress should be moving to enshrine it all in legislation, but I always think you should help people as soon as you can,” he said. “Administrative action is good but that doesn’t take away the need to pass the legislation.”
For now, the great hope for LGBT progress on Capitol Hill is on immigration. Nadler, who for years has led the charge to end the break-up of binational same-sex couples due to existing immigration law, is the lead sponsor of the Uniting American Families Act. He has collaborated with Chicago’s Luis Gutiérrez, the key player among House Democrats on immigration reform overall, to ensure that any bill that moves forward addresses the hurdles facing same-sex couples.
“I’ve worked for a long time to get that commitment and I did get it,” Nadler said. “That commitment still stands. I would do everything I can to make sure that commitment holds.”
Nadler acknowledged that Republicans, if they are willing to move on immigration at all, would love to undo that unity, a point underscored by HRC’s Moulton.
“We have seen Republicans who see need for immigration reform but are uncomfortable with binational couples,” he told Gay City News. “They’re not hiding the ball on that one, and its hard to see that a lot of them will not have that view.”
The Democratic House leadership staffer, however, argued that common purpose among all advocates is critical to success on immigration issues, LGBT and otherwise. Referring to DOMA’s bar on recognition of same-sex marriages, that staffer told Gay City News, “Yes, there will be Republicans who see any advancement on binational couples as undermining that. But, we’ve got to overcome that. You gotta keep everything together or the Republicans will do exactly what they want on reform.”
As usual, Barney Frank cast the coldest eye on the prospect for offering binational same-sex couples relief. Saying he is “mildly optimistic” that the Supreme Court will throw out DOMA when it takes up several legal challenges this term, he predicted that absent that fix, the best shot for progress is winning approval for a DOMA carve-out that would allow legal same-sex immigrant spouses to stay in the US.
“A broader provision allowing domestic partners to come in is unlikely to win,” he said of existing proposals to keep binational couples and families together.