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Future Uncertain for LGBTQ Employment Protections

In July 2014, President Barack Obama signed Executive Order 13672 that prohibits federal contractors from discriminating on the basis of sexual orientation and gender identity. Obama's action amended Lyndon Johnson's executive order (EO) from 1965, which barred discrimination on the basis of race and sex, color, religion and national origin. Obama's 2014 EO forms part of what many have called his historic legacy on LGBTQ rights.

Prior to taking office, Donald Trump proclaimed he would protect LGBTQ Americans and stated publicly that the Supreme Court's ruling on same-sex marriage was "settled." However, just hours after he took the oath of office, LGBTQ content was removed from federal websites. And on Monday, in response to a direct question about whether Trump would undo Obama's 2014 executive order, Press Secretary Sean Spicer said, "I don't know on that one."

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This uncertainty is troubling to advocates and policy experts. When asked what he anticipates the next move of the administration will be, Human Rights Campaign Government Affairs Director David Stacy said, "We don't know. We don't have an answer. It is something they have talked about in broad terms, repealing all of Barack Obama's executive orders [and] reducing regulation by 75 percents."

Regarding the EO, Stacy said, "We think it serves the government's interests. We don't think this is a burdensome regulation at all." In fact, non-discrimination policies were already in place at many of the largest government contractors before Obama's 2014 EO was signed.

For Stacy, there is a longstanding consensus among the government and private sector alike that an employer "hires people based on their ability to do the job," and that it is appropriate for the federal government to "attach strings" to contracts in order to ensure employment equity. A reversal of Obama's 2014 EO, according to Stacy, would be out of step with what most believe to be right: "It's not what the average American thinks the government should be doing."

Further, that particular EO is significant because of the current legal landscape for LGBTQ employees. "It provides real protections that are enforceable in a way much of the American workforce does not have access to," Stacy said.

According to Christy Mallory, Senior Counsel at the Williams Institute at UCLA School of Law, "There are no explicit federal-level protections, [and] the majority of states do not offer employment non-discrimination protections." Only 22 states offer sexual orientation protections, and 20 of those protect gender identity.

An assessment by the Williams Institute found that "EO 13672 applies to 28 million workers (22 percent of the U.S. workforce), and approximately 11 million of those workers were not protected from discrimination under a state law or corporate policy before EO 13672 was issued." The EO applies to LGBTQ and heterosexual workers alike, as it protects anyone who may experience discrimination because they are perceived to be a sexual or gender minority. If Trump does decide to rescind Obama's EO, Mallory said, "Those 11 mill workers will no longer be protected. Corporations, when they enter into federal contracts, no longer have to agree to [non-discrimination]."

A reversal of Obama's EO would not leave employees without any recourse. "The [Equal Employment Opportunity Commission] has recognized that sexual orientation and gender identity discrimination are forms of sex discrimination, allowing employees to file administrative complaints under Title VII's prohibition of sex discrimination. Several federal courts have similarly interpreted Title VII to prohibit discrimination based on sexual orientation and gender identity," Mallory explained. However, success of employees' claims would depend on the courts' interpretation of Title VII's provisions.

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For Stacy, undoing EO 13672 would send a "horribly negative signal to average Americans, LGBT Americans, that the President was not serious during the campaign about being a pro-LGBT president. It was an attempt to pander."

Movement on this issue might also portend a more socially conservative administration than many anticipated. Obama's EO was the target of conservative politicians such as Marco Rubio in 2015, and Rep. Steve Russell, who tried unsuccessfully to include an amendment in the recently passed National Defense Authorization Act (NDAA) to override Obama's EO. Citing Trump's vocal support of the First Amendment Defense Act (FADA) and reinstatement of the "Global Gag Rule," Stacy said, "What [undoing EO 13672] would indicate to us is that the social conservatives have the upper hand in the Trump administration."

"Whatever happens to the EO will provide an early and important window into how these congressional fights over LGBT issues are going to go," Stacy said.

NBC Out reached out to the White House Press Office but did not immediately receive a response.

Julie Moreau is a Post Doctoral Research Fellow in the Department of Women's, Gender and Sexuality Studies at Washington University in St. Louis. She tweets at @JEMoreau.

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