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  • The Endurance Test: Executive Power and the Civil Rights of LGBT Americans

    Presidents, using their executive power, play a central role in the advancement of civil rights in America. One of the most noteworthy acts in this regard was President Harry S. Truman’s decision to end racial segregation of the U.S. military, which took place before the Supreme Court decided Brown v. Board of Education in 1954, and before Congress passed the Civil Rights Act of 1964. President Truman accomplished this, not through legislation, but through an executive order. His executive order, in turn, built on an earlier one signed by President Franklin Delano Roosevelt, prohibiting racial discrimination in the defense industry. Both presidents nudged the federal government closer towards the goal of greater racial equality at a time when it was extremely difficult to move affirmative civil rights legislation through the Congress. Only after these executive orders did Congress pass important civil rights legislation—landmark bills to prohibit discrimination on the basis of race, religion, national origin, gender, and disability in employment, public accommodations, housing, and education, ensuring equal opportunities to millions of Americans. For lesbian, gay, bisexual, and transgender (LGBT) individuals, whose efforts to achieve equal opportunity and protection from discrimination are only measurably advanced in recent decades, the trajectory is arguably similar. Executive branch actions to expand civil rights preceded legislative advances, but that was not always the case when it came to equal opportunity for LGBT individuals. During the mid-twentieth century, as executive power was employed to prohibit discrimination on the basis of race, executive branch action did not remove barriers for equality to LGBT individuals. On the contrary, it erected them. In 1953, President Dwight D. Eisenhower signed Executive Order 10,450, entitled “Security Requirements for Government Employment.” This executive federal positions or federal employees to ensure that their employment was not inconsistent with the interests of national security. Disqualifying conduct included “sexual perversion,” a term that included homosexuals. The executive order, therefore, made it extremely difficult for gay men and lesbians to obtain or hold federal jobs or obtain federal contracts. It was not until 1975 that the bar to federal service for homosexuals was removed, and executive branch action turned a corner and began to protect gay men and lesbians from discrimination. During the forty years since executive branch action first began providing hope and protection to LGBT Americans, Congress failed to pass any significant pro-equality legislation for LGBT individuals until very recently.