From Persecution to Protection: Changing Federal Policies Towards Gay Employees

By Craig Howell and Randall Reade
members of Labor-GLOBE

On May 28, 1998, President Clinton issued Executive Order 13087, formally protecting gay and lesbian Federal civilian employees against arbitrary discrimination. The Executive Order was immediately denounced by a number of Congressional conservatives and their allies in the so-called Religious Right, who charged that the President had acted in defiance of Congressional and judicial decisions. The Hefly Amendment was introduced to overturn the President's directive, and a close vote was widely predicted. But for once the pro-gay forces in the House prevailed decisively, turning back the amendment on August 7 by 252-176.

To appreciate the full context of this historic Congressional vote, it is worthwhile to review the actual history of the Federal government's record regarding gay men and lesbians in the civil service. It is a story of a relentless policy of officially-mandated persecution that was painstakingly transformed into today's protective policy only by the heroic and often lonely efforts of a handful of people. (Please note that our focus will not include the tumultuous history involving gay people and security clearances, a fascinating story in its own right.)

The First Victim: Walt Whitman

On June 30, 1865, Secretary of the Interior James Harlan issued a terse order: "The services of Walter Whitman of New York as a Clerk in the Indian Office will be dispensed with from and after this date." With these few words, the "good, gray poet" Walt Whitman became the first known Federal employee to fall victim to anti-gay prejudice. Secretary Harlan was outraged by the overtly homoerotic verses that Whitman had woven into his poetry in Leaves of Grass and was not about to let the presence of such a pervert disgrace his own office.

In retrospect, Walt was quite fortunate that he was well-connected politically in those pre-civil service days; he was hired the next day by Attorney General James Speed. When the spoils system was thrown out and replaced in the 1880's by the civil service system, standards of conduct and suitability were established to detail the circumstances that might justify dismissal of a Federal employee. One of the grounds for termination was "immoral, infamous or notoriously disgraceful conduct." To our knowledge, no one has yet studied how this phrase might have been invoked against homosexuals (or others) between the 1880's and World War II. But in retrospect, this phrase was a virtual time bomb.

The McCarthy Era Hysteria

In 1950, the U.S. Senate triggered a crusade against gays in the Federal government. A particularly notorious Senate committee report issued in December of that year declared "that those who engage in acts of homosexuality and other perverted sex activities are unsuitable for employment in the Federal Government." There was virtually no dissent, and the Civil Service Commission (CSC) duly amended its suitability regulations to authorize immediate dismissal of any employee found to be engaging in "sexual perversion."

Today, even as most people are aware of and perhaps even regret the many Federal employees who were unjustly fired during the McCarthy Era hysteria because of their political affiliations, few if any realize that in all probability more gays were dismissed from government service than political left-wingers.

Fighting Against the Tide

Homosexuals dismissed from the Federal government nearly always left without resistance. Perhaps the first exception was Dr. Franklin E. Kameny, a Harvard-trained astronomer and World War II combat veteran working for what is today known as the Defense Mapping Service. Somebody informed agency officials in 1957 that Dr. Kameny was gay. Called in by his personnel office to comment on the allegation, Dr. Kameny instead said the issue was irrelevant and would neither affirm nor deny the report; he was terminated in December 1957. Though severely lacking in financial resources and outside assistance, Dr. Kameny contested his firing first through administrative channels, then through Congress, and ultimately all the way to the U.S. Supreme Court, which declined to hear the case in March 1961.

Thoroughly indignant at the contemptible conduct of his own government, Dr. Kameny quickly reinvented himself as a dynamic political activist and spokesperson for the homosexual community--which by and large was initially horrified by his aggressiveness and assertiveness. After founding the Mattachine Society of Washington in November 1961, he decided to use normal political and legal processes to overturn the homophobic policies of the U.S. government. He offered his services as counsel to any gay man or woman willing to challenge the ban on gay Federal employees in court. Within a few years, his efforts and those of a few others around the country began to pay off.

Officials at the Civil Service Commission and the Justice Department relied upon two main defenses. First, they said that other Federal employees would not tolerate working in the same place as a known sexual pervert, having to deal with the constant fear of "homosexual advances and solicitations." Second, they said that the general public would be scandalized to know that Federal agencies were allowing known sex perverts to work in their offices. In one brief, the government cited "the possible embarrassment to, and loss of public confidence in...the Federal civil service" should gay women and men be allowed to work for Uncle Sam. Thus, excluding homosexuals was just a simple necessity for promoting greater workplace efficiency and for enhancing public trust.

Labor Department Employee Fights Back

In the mid-1960's, Bruce Scott, an employee of the U.S. Department of Labor, was fired solely for being gay. He contacted Dr. Kameny and soon became active in the Mattachine Society of Washington. With the support of the Washington affiliate of the ACLU, he filed suit against the Civil Service Commission. He won the first major pro-gay victory in 1965 in Scott v. Macy, as the U.S. Court of Appeals overturned his disqualification. When the CSC still refused to accept him, he filed a second suit and won again in 1968.

An even bigger victory was secured in 1969 in the case of Norton v. Macy, where the Court of Appeals first formally required the government to establish a "nexus"--that is, a rational connection--between promoting "the efficiency of the service" and an employee's sexual orientation. For the first time, the government was required to show "some reasonably foreseeable, specific connection between an employee's potentially embarrassing conduct and the efficiency of the service." Even if a connection is made, the government must weigh that against the loss of service of a competent employee. The judicial recognition of this nexus standard set the Federal government's homophobic employment policy on the path to its ultimate extinction.

The "dagger in the heart" was delivered by the Ninth Circuit in 1973 in the case of Society for Individual Rights and Hickerson v. Hampton, a class action suit brought by a San Francisco gay organization. The Court not only overturned the Civil Service Commission's anti-gay exclusionary policy, it issued a injunction (still in effect to this day) against its further implementation.

CSC Surrenders on the Fourth of July

On July 3, 1975--by no coincidence the beginning of the long Fourth of July holiday, when few people would be paying attention to news out of Washington--the Commission officially threw in the towel and adopted new suitability regulations devoid of the previous language about "immoral" conduct or "sexual perversion." These regulations were tantamount to a complete surrender. For Dr. Kameny personally, it was a satisfying ending to an 18-year-long struggle. For gay men and lesbians working throughout the Federal government, it was a beginning. (One immediate, local consequence was that much of the gay and lesbian political leadership in the District of Columbia after the mid-1970's was composed of openly gay Federal workers.)

Congress enacted a complete overhaul of the Federal civilian personnel system by enacting the Civil Service Reform Act of 1978; among other provisions, this law replaced the old Civil Service Commission with the Office of Personnel Management (OPM). One of the lesser-known sections of this legislation effectively incorporated into law the same "nexus" standard that the courts had established in its rulings from 1965 through 1973. Specifically, the new law declared that "to discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others" would be considered a "prohibited personnel practice."

In 1980, the late Alan K. Campbell, as head of OPM, issued a memorandum declaring that this language in the 1978 law outlawed any kind of anti-gay employment practices in the Federal civil service.

While very little was done in the 1980's to pursue the advantages secured in the previous decade, neither was there any significant backsliding. A handful of court rulings, many of them in cases originating before 1975 involving gay Federal workers, left some gay and lesbian activists nervous about their potential impact. But these awkward rulings have had little if any long-term negative effects.

In summary, Executive Order 13087, far from being an arbitrary power grab, was the simple culmination of a trend solidly grounded in Congressional, Executive, and Judicial precedent. It reinforces the Federal government's conversion from one of the most intransigent anti-gay employers in the nation to one of the most protective.

The authors wish to thank Dr. Franklin E. Kameny for his assistance in preparing this article, as well as Martin Murray, President of the Washington Friends of Walt Whitman. Those interested in further details should consult Dr. Kameny's chapter, "Government vs. Gays," in the forthcoming anthology tentatively titled Creating Change: Public Policy, Civil Rights, and Sexuality, to be published for the National Gay & Lesbian Task Force.

Craig Howell, first employed at the Bureau of Labor Statistics in 1968,retired in 1994 after helping Labor-GLOBE (then GLOBAL) persuade then-Labor Secretary Robert Reich to issue a policy that banned discrimination against gay men and lesbians at DOL.

Randall Reade is an attorney with the Benefits Review Board and is a member of Labor-GLOBE and AFGE 12.

**This article was printed in spring issue of AFGE Local 12 (Department of Labor) publication, 12NOW