The President of the United States has some modest authority to use Executive Orders to direct how the Federal government behaves, so long as such orders are lawful. For example, the President could in theory order that all Federal employees must wear pink on Fridays, unless or until the Legislative Branch (Congress) passed a law forbidding such, or the Judicial Branch (the Supreme Court) declared such an order to be un-Constitutional.
This power, however, also allows the President to influence broad areas of America indirectly by directing how Federal contractors must behave if they are going to be qualified to bid on Federal projects. This is an incredible amount of implicit power, as a very large number of American companies are Federal contractors, or else wish to bid on Federal contracts. Wikipedia has an impressive list of the top-100 Federal contractors, and the total number of employees among these companies are in the millions. Take a look at the list – is your company on it? Mine does tens of millions of dollars of Federal work every year, and we probably are barely in the top-1000.
The total number of Federal contractor employees is not public data, and I struggled with a variety of half-baked sources and WAGs, often from Tea Party “conspiracy” sites. As best as I can tell, there are perhaps 7-10 million employees working for companies which are performing on Federal contracts, and perhaps 20-30 million employees of companies which have pursued Federal contracts. If you add this to the number of employees in the Federal government itself (4.3 million), we have somewhere between 11 to 44 million employees in the United States who would be potentially impacted by any Executive Order impacting Federal contractors.
Given that the total size of the employed United States workforce is about 144 million, and you can see that at a minimum we’re talking about 8%, and at most 31% of the American workforce is potentially impacted by an Executive Order.
So now that I’ve bored you with some statistics, now to the heart of the matter: to be blunt, President Obama has within his authority the ability to declare that all government contractors must have a strict non-discrimination policy in hiring, firing, and worker treatment to protect gender identity and gender expression, sexual preference, and sexual identity. In short, overnight President Obama could potentially make the lives of a very large percentage of the transgender community better overnight!
An order such as this would help get unemployed transgender persons off the streets and into the workforce, allowing them to start living better lives. It would protect the innumerable closeted transgender persons, who live in fear every day of being outed at work and losing their livelihoods. And it would change the entire dialog and force the issue to be confronted among many employers who aren’t even currently Federal contractors. As the size of our Federal government grows the attraction of the money available for private companies will increase, leading more and more discriminatory companies to throw in the metaphorical towel and enact their own anti-discrimination policies on their own.
However, according to the Washington Blade (link below), the Obama Administration is giving some mixed signals on whether or not they will use an Executive Order to do what the House of Representatives refuses to do – enact ENDA in any way, shape, or form.
I won’t spin the story below – it speaks for itself. There appears to be some confusion over where in the process of “consideration” an ENDA Executive Order lies. This sort of confusion is hardly new – President Obama’s staff have been historically much better at keeping secrets than past Administrations, so I don’t really think one can say for certain what will happen. President Obama may be concerned about the November elections, as the possibility of losing seats in the Senate, and more in the House, is a clear and present danger due to dissatisfaction over the Affordable Care Act (a/k/a “Obamacare”).
I hope that President Obama does enact an Executive Order ENDA soon, so precedent can build to help create change. The 2016 Presidential election is entirely up in the air, and a backlash from the masses sending in a Conservative President could easily result in a repeal of any Executive Orders which were thought to be “too Liberal.”