The Limitations of Executive Orders: Anti-LGBT Discrimination Continues on All Fronts

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Commentary Human Rights

The Limitations of Executive Orders: Anti-LGBT Discrimination Continues on All Fronts

Dianna Anderson

Tyler Brandt being forced to wear a nametag with a homophobic, ableist slur is but one example of the problems that face LGBT people every day in the workforce, despite President Obama's attempts to address workplace discrimination of LGBT people on a federal level.

When 16-year-old Tyler Brandt got his job at a Taco John’s in Yankton, South Dakota, he thought it was a good opportunity to make some extra cash for the summer. But that job opportunity quickly turned into a nightmare.

Brandt’s manager became verbally abusive, culminating in an act of discrimination on June 23, when, Brandt says, he was called into his manager’s office, handed a nametag, and asked to wear it throughout the night.

The nametag read “Gaytard.”

The ableist slur combined with “gay” became his name for that night. Brandt, who is openly gay, says he was hurt and embarrassed and spent the shift trying to hide the tag behind the counter. But to no avail—even with the tag hidden, his manager would shout the slur across the restaurant at him, in front of customers. Brandt resigned the next day, but refused to turn in the nametag. He is now seeking legal representation with the American Civil Liberties Union of South Dakota and working with the Center for Equality in Sioux Falls for support. (Full disclosure: I volunteer with the center.)

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What happened to Brandt is but one example of the problems that face LGBT people in the workforce every day.

South Dakota is one of 29 states where you can be fired for your sexual orientation, and one of 34 states where you can be fired for your gender identity and expression. President Obama recently issued an executive order barring federal contractors from such firings, but executive orders can only go so far. Repeated attempts to add sexual orientation and gender identity to anti-discrimination laws have fallen apart before making it to the signing desk.

There’s a mistaken impression throughout the U.S. political scene that the achievement of marriage equality is the end-all, be-all of LGBT rights. Once gay people can get married and pay taxes like all other married couples, the reasoning seems to say, the fight for civil rights will be over.

But that’s not the case. Marriage equality is just the beginning. Homelessness, violence, workplace discrimination, and job loss are just a few of the problems facing the LGBT community—none of which will be solved by marriage equality.

This is not to say we should not celebrate each victory as federal judges rule same-sex marriage bans unconstitutional—those victories matter. But we also cannot sit back on our haunches and declare ourselves done simply because gay people with stable jobs can now get tax breaks. These are legitimate steps toward equality, but they don’t mean we’re there.

I’m very open about my queer sexuality in my writing online—it’s not something I choose to hide for any reason. But I’m also self-employed as a writer and therefore have sidestepped any issue of discrimination. I worry that if/when I re-enter the “regular” workforce, my openness will come back to bite me. A quick Google search may put my job prospects at risk, especially here in South Dakota, where the first legal challenge to our marriage ban only happened a few months ago.

The widespread lack of workplace protections can easily hamstring people who are of a minority sexual orientation or gender identity. It’s no mistake that LGBT people are more likely to be homeless. Openly gay teens get kicked out of their parents’ houses, trans* people get evicted from their apartments, and many queer people have trouble finding clients and sustainable employment.

According to a 2011 report by the Williams Institute at the University of California, Los Angeles, 38 percent of LGB people who are open about their sexuality in the workplace have faced some form of discrimination. Transgender people reported a significantly higher level of workplace discrimination, with 78 percent of respondents having faced harassment or mistreatment, and 47 percent having been discriminated against for promotions, retention, and hiring. Large percentages of the transgender population are either unemployed or have significantly lower incomes than the national average.

Indeed, in many areas, workplace protections—protections that would have made it illegal to force a 16-year-old openly gay boy to wear a “Gaytard” nametag—are going in the other direction. In the name of religious freedom, the South Dakota legislature debated a bill that would have made it illegal to sue a business for discrimination based on sexual orientation and gender identity.

Had the bill (SB 128) become law, regardless of whether you were a customer or an employee in South Dakota, you would have been unable to sue a business for refusing to serve you or hire you because of your orientation or gender identity. Instead of making LGBT identities a protected class, the South Dakota legislature sought to protect those who would harm this already vulnerable population.

Luckily, SB 128 failed in the legislature. But South Dakotans fear this is just the beginning. Many Republican-led legislatures in states across the country are coordinating efforts to protect religious liberty by enshrining anti-LGBT discrimination into law. Arizona, Mississippi, Ohio, Georgia, Kansas, Maine, Oregon, and Tennessee all had similar “religious freedom” bills in various iterations.

But the stories from all over the United States indicate a need for more workplace discrimination protections for LGBT individuals. As the American Progress reported in 2011, Vandy Beth Glenn, a trans woman, lost her job with the Georgia General Assembly because of her gender identity. Police officer Michael Carney in Springfield, Massachusetts, was denied reinstatement after he came out as gay. And Tyler Brandt of Yankton, South Dakota, can now add his name to the ever-growing list of LGBT people discriminated against in the workplace.

The argument that many make for continuing to support discrimination against LGBT people extends out of the concept of “religious freedom.” If places have to abide by such hiring practices on orientation, could churches be forced to hire people living a “lifestyle” they don’t support? In seeking to protect legitimately religious institutions, legislature and workplace policies have leapt into action to protect any business owner who claims religious reasons for discrimination. Religious leaders are even going so far as to ask President Obama to amend his executive order to protect their religious freedom to discriminate.

Indeed, the Supreme Court’s ruling in the Hobby Lobby case creates enough leeway for employers to deny access to important forms of health care to transgender, lesbian, and bisexual people. Employers being asked to cover transition-related health care for employees who are trans men, for example, may use this decision as precedent to deny such health care as a “substantial burden.” For many trans people, insurance already does not cover transition-related care, as it is incorrectly ruled as “cosmetic” in many cases (Medicare, however, can now cover transition-related surgery).

The tying of health care into an employer’s religious belief creates yet another barrier for LGBT individuals within the job market. Southern Baptist employers who work in private business but support the Southern Baptist Convention’s resolution on transgender people in the church could use the Hobby Lobby decision to deny employment to trans* people, even if federal protections are implemented in the future. The continued tension between religious beliefs and employers who serve the public is a fraught battle on both sides, but one with immense personal risk for LGBT individual.

Such tension will not be resolved simply by making it legal to marry. Young openly gay teens will still be asked to endure a manager calling them slurs at the risk of losing their jobs. Hiring managers will still reject people for being transgender. And the income and housing losses that occur as a result of the lack of workplace protections will continue. Executive orders only go so far.