The New York Times reported this week President Trump will preserve intact President Obama’s LGBT order (Executive Order 13672) protecting applicants and employees from discrimination on the basis of sexual orientation and gender identity.  As published by the Times, a White House statement provides:

President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election… The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.

The LGBT Order amended Executive Order 11246, signed by President Johnson in 1965, but beyond its centerpiece anti-discrimination provisions does not require affirmative action from federal contractors. For example, the LGBT Order and regulations impose no outreach, data collection or analysis obligations.  Federal contactors must only include “sexual orientation” and “gender identity” in extended EEO taglines, but may continue to use an abbreviated tagline without such references.  Contractors must also post an OFCCP-supplement to the “EEO is the Law” poster, until the poster is updated.

By the time the Order was signed in July 2014, many contractors had already implemented EEO policies protecting gender identity and sexual orientation and many contractors have since enshrined these protections in their EEO Policy Statements and handbooks, going beyond the requirements of the LGBT Order.

President Trump’s decision on this Order is not, however, likely to be the last word on the topic. During the campaign, the candidate stated he would support the controversial First Amendment Defense Act (FADA).  If passed and signed by the President, FADA would essentially prevent the federal government from taking adverse action against people, businesses or institutions which discriminate based on sexual orientation according to a belief that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

We will provide an update if and when FADA is reintroduced in Congress.