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White House Backs Clinton Order on ‘Sexual Orientation’ 4/16/2004 Undercuts special counsel’s effort to follow law written by Congress.
Bush administration spokesman Trent Duffy on April 8 said the president supports a Clinton-era policy of treating “sexual orientation” like civil rights categories listed by Congress in federal workplace law.
Special Counsel Scott J. Bloch announced on February 27 that he would suspend enforcement of cases based on “sexual orientation” pending a legal analysis. Bloch noted that “sexual orientation” is not mentioned in current federal workplace law, nor is it included in the statute under which the Office of Special Counsel operates. He ordered the removal of “sexual orientation” references from the agency’s Web site.
The White House issued a statement on March 31 declaring that federal government policy “prohibits discrimination against federal employees based on sexual orientation” and that President Bush “expects federal agencies to enforce this policy.”
"Sexual orientation is not a protected class in any of the civil rights statutes,” said Concerned Women for American Chief Counsel Jan LaRue. “The very fact that Bill Clinton issued the directive in 1998 is further proof of that. Mr. Bloch is on solid legal ground and the president would be well-advised to follow Bloch's counsel."
The White House statement came just hours after Democratic members of Congress called for Bloch’s resignation or removal from office unless he reversed his actions. At a press conference at the U.S. Capitol, Sen. Barbara Boxer (D-California) and four House members, including open homosexuals Rep. Barney Frank (D-Massachusetts) and Tammy Baldwin (D-Wisconsin), called on Bush to repudiate Bloch’s action.
In 1998, Bill Clinton signed an executive order adding “sexual orientation” as a protected category in federal executive agency civil rights policies. Critics at the time said that Congress did not include “sexual orientation” in the list of specially protected classes, and that courts have not recognized “sexual orientation” as a legitimate minority class.
Rep. Joel Heffley (R-Colorado) introduced a bill that would have overturned the executive order, but the measure failed to pass.
According to the relevant statute, it is unlawful for federal agencies to discriminate “on the basis of conduct which does not adversely affect the performance of the employee or the applicant or the performance of others,” according toThe Washington Times. Former Special Counsel Elaine Kaplan, a Clinton appointee, broadly interpreted that passage as prohibiting discrimination based on “sexual orientation.”
“Sexual orientation is not protected under federal law, whether you are straight or homosexual,” said CWA’s LaRue. “This is supposed to be about conduct. Why did she bring 'sexual orientation' into conduct? It’s the behavior, and that applies to ‘gays’ and straight. They’re trying to bootstrap sexual orientation into behavior and into protected status under civil rights law. If an applicant or employee, whether straight or homosexual, is engaging in sexual behavior that reflects badly on the executive branch, that conduct should be grounds for dismissal of the employee or the applicant.”
At a March 31 press conference, New York Rep. Elliot L. Engel (D) called on Bush to order Bloch to “enforce decades of federal employment policies, or fire Mr. Bloch,” the Times reported. The policy had been in effect only since 1998.
When he announced his action in February, Bloch said, “It is critical that this agency be especially careful not to engage in the kind of extralegal enforcement actions that we prosecute on a daily basis,” the Times reported.
Jeremy Sewall, a Patrick Henry College senior majoring in government, assisted with this report.
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