BY PAUL SCHINDLER | Too cerebral. Unwilling to engage in bare-knuckles political war with his Republican enemies. Naïve, in fact, about his ability to find common ground with a GOP determined to undermine, even delegitimize him from Day 1.
Those are the typical knocks – especially from progressives – aimed at Barack Obama, the first Democratic president to win a majority of votes twice since Franklin Roosevelt and the one who finally delivered on Harry Truman’s pledge nearly 70 years ago to reshape health care in America. That goal achieved even as he brought the nation back from its worst economic slump since the Great Depression – to an unemployment rate just over 4.5 percent as he leaves office.
These common critiques have been paralleled by dissatisfaction among LGBTQ activists, especially during the president’s first term. The White House equivocated on the push to end Don’t Ask, Don’t Tell, intending a military review of that policy to forestall the need for immediate repeal. The failure to push the Employment Non-Discrimination Act (a measure the community now agrees was insufficient, anyway) at the same time missed the slim window of Democratic congressional control. Obama hesitated on marriage equality, only pushed over the line in advance of his reelection by his loquacious vice president.
Journalists and historians will weigh all these questions for a long time to come – and activists can rightly claim credit for keeping pressure on their ally/ president to turn the poetry of campaigning into meaningful governing prose.
But with just weeks to go until Barack Obama leaves the White House, one thing cannot be denied: he was our president in ways no one ever had been before.
To be sure, despite candidate Obama’s lofty 2008 rhetoric, specific action on LGBTQ issue came slowly. Still, after more than a decade’s delay, the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act was signed in 2009, and the new administration ended a policy dating back to 1993 that barred entry and immigration into the US by HIV-positive non-citizens.
Even as the administration moved too cautiously for advocates on DADT repeal, it took the first of what in time would be many significant steps to advance the community’s interests through administrative actions. Hospitals receiving Medicare or Medicaid funding – essentially all of them – were required to grant visitation rights to patients’ same-sex partners. In the early ramp-up of Obamacare, the Department of Health and Human Services made clear it would work to end discriminatory barriers to transgender people receiving appropriate health care. In global affairs, Hillary Clinton, while secretary of state, told the world that gay rights are human rights.
In its earliest response to lawsuits challenging the Defense of Marriage Act, the administration stumbled badly, relying on discredited, even offensive justifications for the 1996 law. But when given the opportunity of a case in a federal judicial circuit that had no existing precedent on how sexual orientation discrimination claims should be evaluated, Obama and his attorney general, Eric Holder, came through. Faced with Edie Windsor’s suit in the New York-based Second Circuit, the Justice Department analyzed the issue from scratch and determined that the statute merited heightened scrutiny, a demanding judicial standard it could not survive. From that point forward, the administration would not defend DOMA in court.
It is hard to overestimate the significance of the US solicitor general declining to defend a law before a federal appeals court or the Supreme Court. By the time DOMA arrived at the high court in 2013, it was left to the House Republican leadership to argue on its behalf.
By then, of course, Obama had endorsed marriage equality, and when the underlying question of same-sex couples’ right to marry reached the Supreme Court two years later, the Obama administration was once again on the side of our community. On the evening of June 26, 2015, when the marriage victory was handed down, the White House was bathed in rainbow lights.
In his second term, Obama endorsed the framework for a more comprehensive nondiscrimination measure – going beyond employment to incorporate all the protections of the 1964 Civil Rights Act – though the new Equality Act has been stymied in the GOP Congress. But by then, the president had issued an executive order barring sexual orientation and gender identity discrimination by businesses contracting with the US government.
As in other areas, Obama became increasingly bold in using executive action to advance important policy goals on our community’s behalf. The Department of Health and Human Services has been in court defending its regulation that discrimination under Obamacare based on gender identity is illegal sex discrimination, a position pioneered by presidential appointee Chai Feldblum at the Equal Employment Opportunity Commission, an agency that has affirmatively litigated to establish the precedent that both gender identity and sexual orientation discrimination are already protected under the 1964 Civil Rights Act’s sex discrimination prohibition.
The Education Department, applying that analysis, informed public schools they must allow transgender students access to bathrooms consistent with their gender identity. The Justice Department sued the state of North Carolina for its notorious HB2, an action announced in a dramatic press conference where Attorney General Loretta Lynch said, “Let me also speak directly to the transgender community itself… No matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
And that is where Barack Obama brought his presidency over the course of eight years. The cautious ally had, in fact, become the fierce advocate he once pledged to be. As we prepare to battle the anti- LGBTQ officials Donald Trump has named to helm the agencies mentioned above – which have recently worked so hard for our well-being – let’s always remember that there is another way.