Politics
Religious exemption inspires heated debate at ENDA panel
Wolfson challenges current language in LGBT anti-discrimation bill
NEW YORK — The appropriate scope of the religious exemption in the Employment Non-Discrimination Act continues to stir debate as a prominent marriage equality advocate on Thursday made a surprise endorsement of narrowing the broad provision in the bill.
Evan Wolfson, president of Freedom to Marry, said he shares the “grave concerns” expressed by the American Civil Liberties Union over the religious exemption — which he said would “carve coverage by certain kinds of entities for LGBT people” — during a panel as part of Freedom to Work’s premier “Situation Room” in New York City.
“I do have grave concerns about the specific language in the specific bill,” Wolfson said. “That’s one of the points of difference I have with Freedom to Work on this current bill.”
Currently, ENDA has a religious exemption that provides leeway for religious organizations, like churches or religious schools, to discriminate against LGBT employees. That same leeway isn’t found under Title VII, which prohibits religious organizations from discriminating on the basis of race, gender or national origin.
Wolfson and Tico Almeida, president of Freedom to Work and proponent of the religious exemption, were the lone speakers on the second panel of the day. Wolfson’s main purpose on the panel was to talk about the lessons the campaign to pass ENDA can learn from the marriage equality fight.
Almeida initially responded by saying the religious exemption has value in allaying concerns from Republican lawmakers who are undecided on ENDA.
“I would say that in a bunch of Republican meetings we spend a majority of the time talking about the religious exemption and exactly how it will apply, what the case law is,” Almeida said.
Almeida co-wrote the current version of the religious exemption when working as a staffer for Rep. George Miller (D-Calif.). It was passed as an amendment on the U.S. House floor in 2007 to a gay-only version of ENDA by a vote of 402-25.
But Almeida qualified his support for the religious exemption by saying he believes religious organizations shouldn’t be able to receive federal funds if they discriminate against LGBT people. But, Almeida continued, the mechanism to prohibit this discrimination isn’t ENDA; rather, it should be a workplace non-discrimination executive order signed by President Obama.
“I think there’s complete uniformity that we are all pushing for a federal policy that if you take and profit from federal dollars, you must follow American values, you must pledge not to discriminate against LGBT folks — and if you get caught, there should be consequences,” Almeida said.
But Wolfson quickly retorted as the panel developed into a heated debate between him and Almeida that seemed to become almost hostile as the session closed.
“We have a body of laws across the country that include sexual orientation and gender identity as prohibited discriminatory classifications alongside race, sex and others — and they have all followed generally a certain kind of exemption — as had Title VII and the Civil Rights Act, and so on,” Wolfson said. “The problem with this current draft of ENDA is that exemption goes far beyond what that body of experience has taught us is the right balance.”
Wolfson added the argument in favor of ENDA to undecided lawmakers should be to look at existing law throughout the states as opposed to enshrining “new and unnecessary and dangerous exemptions from non-discrimination law.”
“By the way, calling them religious exemptions implies that there’s some religious problem to be solved,” Wolfson said. “There is no religious problem to be solved: what these are are licenses to discriminate.”
Almeida, a Catholic, responded by saying he thinks attitudes should change within the church by action from members of that particular faith.
“I don’t believe civil rights statute in the form of Title VII and ENDA should be used to force the Catholic Church to make a change to its policies,” Almeida said. “I think we will push them, and it may take decades, and it may take more than my lifetime, but we will push them in other ways.”
Almeida added he doesn’t understand the argument the religious exemption in ENDA is a new approach because he said he “literally copied and pasted it from Title VII.”
Besides, Almeida also said groups that oppose ENDA’s religious exemption missed an opportunity to propose an amendment when the Senate Health, Education, Labor & Pensions Committee voted on the bill in July. Also, he challenged them to make public the language they would prefer instead.
“I would love for those organizations to publicly communicate to the LGBT community and to Congress what is their proposal,” Almeida said. “They made a big fuss …, and they didn’t seek an amendment at markup. They didn’t ask any of our progressive champions, and there are very progressive champions on that committee, or if they asked, then they got rejected.”
Wolfson countered by saying Almeida’s proposal to change the Catholic Church from within is “completely irrelevant” to the conversation of putting a “license to discriminate” in a statute.
“Nobody is saying that the Catholic Church should be sued or told what to do as a matter of law when it comes to doctrine or the church, or ministers,” Wolfson said. “That’s misleading language that might confuse people in a way that you didn’t intend.”
Additionally, Wolfson said Almeida was mischaracterizing the religious exemption in ENDA by saying it’s lifted from Title VII. Almeida conceded that point on the panel.
“To say that something has some degree of religion in it, but now that it’s in the marketplace, it can now fire not just the priest, but the janitor, that’s an exemption that doesn’t exist in Title VII or any other parts of law,” Wolfson said.
Concluding his argument, Wolfson said the religious exemption issue must be resolved because it’s giving fuel to the anti-LGBT forces seeking to thwart ENDA passage.
“The religious exemption language thing is mostly a distraction, it’s a non-and-wrong solution to a non-problem, but becomes important if it get put into law,” Wolfson said.
Ian Thompson, legislative representative for the ACLU, told the Blade after the panel he commends Wolfson for endorsing a narrower religious exemption for ENDA, calling the news “a great development.”
“As a leader of the freedom to marry movement, he knows as well as anyone the importance of rejecting overly broad religious exemptions,” Thompson said.
Further, Thompson responded to Almeida’s claims that narrower language on religious institutions hasn’t been proposed by pointing to existing law.
“The alternative to ENDA’s unprecedented religious exemption has been and remains crystal clear,” Thompson said. “Just as our civil rights laws have never permitted blank checks to discriminate based on race, sex, national origin, age, and disability, they must not now do so based on sexual orientation and gender identity.”
Discussion of the religious exemption also came up during the first panel of the day, which consisted of six speakers from a bipartisan group of LGBT organizations. Paul Schindler, editor-in-chief of Gay City News, asked the panel if they were comfortable with the language.
Gregory Angelo, executive director of the National Log Cabin Republicans, started off the discussion by saying he was “comfortable” with the current wording because it’s hard enough selling the bill as it is.
“Without naming names, there are meetings that I have had with Republicans — both in the House and the Senate — where there’s some Republicans who don’t feel those religious protections go far enough,” Angelo said. “We’re pushing back against that. I think the protections as they exist now are strong, they’re solid.”
Melissa Sklarz, a transgender Democratic activist from Stonewall Democrats of New York City, seemed to support the exemption on a temporary basis as a way to win support for the bill, saying it won’t hold up in court and is just “a barrier to try to win allies” on the Republican side.
“It’s a good idea,” Sklarz said. “We watched them fight LGBT equality in ‘Don’t Ask, Don’t Tell’ and we’ve watched it in marriage. As they keep throwing things at ideas that prevent equality, they will not stand up. If this is going to win allies among the moderate and right-wing so we can get it to the floor, then great.”
Asked by Schindler whether under the current religious exemption he could be fired at a Catholic hospital or a Mormon book store, Almeida replied, “It depends.”
“It depends on the facts,” Almeida said. “Law has very few bright line tests, and neither the Title VII religious exemption, nor the ENDA religious exemption, list types of organizations. So, courts have created factors that are considered.”
Almeida said courts have established that for-profit businesses are eligible for the religious exemption under existing law. But he acknowledged that organizations like the Catholic Church and Catholic Charities will be able to continue to discriminate against LGBT people in hiring and firing decisions.
“By tying the ENDA religious exemption explicitly to the Title VII religious exemption, that gives us the most clarity, and as a byproduct, and for me it’s just a byproduct, it’s going to be the one to help us win,” Almeida said.
Congress
Sens. Butler, Smith introduce Pride in Mental Health Act to aid at-risk LGBTQ youth
Bill is backed by Democrats in both chambers
U.S. Sens. Laphonza Butler (D-Calif.) and Tina Smith (D-Minn.) introduced the Pride in Mental Health Act on Thursday, legislation that would strengthen resources in mental health and crisis intervention for at-risk LGBTQ youth.
“Accessing mental health care and support has become increasingly difficult in nearly every state in the country,” said Butler, who is the first Black LGBTQ senator. “Barriers get even more difficult if you are a young person who lacks a supportive community or is fearful of being outed, harassed, or threatened.”
“I am introducing the Pride in Mental Health Act to help equip LGBTQ+ youth with the resources to get the affirming and often life-saving care they need,” she said.
“Mental health care is health care,” said Smith. “And for some LGBTQ+ youth, receiving access to the mental health care they need can mean the difference between living in safety and dignity, and suffering alone through discrimination, bullying, and even violence.”
The Minnesota senator added that data shows LGBTQ students are experiencing “an epidemic” of “anxiety, depression and other serious mental health conditions.”
For example, a 2023 study by The Trevor Project found that 54 percent of LGBTQ youth reported symptoms of depression, compared to 35 percent of their heterosexual counterparts.
Joining the senators as cosponsors are Democratic U.S. Sens. Ed Markey (Mass.), Bob Casey (Penn.), Peter Welch (Vt.), Alex Padilla (Calif.), Jeff Merkley (Ore.), Cory Booker (N.J.), and Tammy Baldwin (Wis.). Baldwin was the first LGBTQ woman elected to the House in 1999 and the first LGBTQ woman elected to the Senate in 2013.
Leading the House version of the bill are LGBTQ Democratic U.S. Reps. Sharice Davids (Kan.), Eric Sorensen (Ill.), and Ritchie Torres (N.Y.), along with 163 other House members.
Organizations that have backed the Pride in Mental Health Act include the Human Rights Campaign, GLSEN, American Academy of Pediatrics, National Education Association (NEA), National Center for Transgender Equality, Seattle Indian Health Board, PFLAG National, The Trevor Project, American Psychological Association, Whitman-Walker Institute, InterACT: Advocates for Intersex Youth, National Alliance on Mental Illness, American Federation of Teachers (AFT), Mental Health America, and Center for Law and Social Policy.
Congress
Before TikTok, the U.S. took action over national security concerns with Grindr
House voted to pass TikTok ban on Wednesday
In a bipartisan vote of 352-65 on Wednesday, the U.S. House of Representatives cleared a bill that would force a divestiture of TikTok by its Chinese parent company ByteDance or ban the video sharing platform’s use in the U.S.
While the legislation faces an uncertain path to passage in the U.S. Senate, Wednesday’s vote provided additional evidence of the extent to which lawmakers are concerned about U.S. national security risks that could stem from TikTok.
More specifically, as recent years have seen relations between the U.S. and China become more fraught than they have been since the two countries first established diplomatic ties in 1979, questions have been raised about the access government leaders in Beijing might have to data from America’s 150 million TikTok users who are active on the platform each month.
Concerns have also been raised about whether and how the platform’s content moderation policies, algorithmic recommendation engine or other features might be manipulated to advance Chinese interests — including, potentially, by sowing political strife in the U.S. or manipulating or undermining American elections.
Many of these claims are speculative, lacking the type of evidence that might be required if they were presented in a court of law. Nevertheless, for purposes of forcing a divestiture through an act of Congress or a decision by the Committee on Foreign Investment in the United States, they are sufficient.
CFIUS is a nine-member interagency panel that adjudicates questions of whether business transactions between foreign buyers and U.S. targets may raise national security concerns. Since 2020, the committee has investigated TikTok because the platform was created by ByteDance’s 2017 purchase of U.S. startup Musical.ly.
The probe led to negotiations over a deal in which American user data from TikTok would be sold to U.S. based multinational computer technology company Oracle, which would vet and monitor the platform’s algorithms and content moderation practices — but Axios reported on Monday that talks between TikTok and CFIUS have stalled for months.
Parallels to Grindr case
As directed by CFIUS, in 2020, Grindr, the location-based app used primarily by gay and bisexual men and transgender or gender diverse communities, was sold by the Chinese-based Beijing Kunlun Tech to San Vicente Acquisition, a firm that was incorporated in Delaware.
According to Reuters, Kunlun’s failure to notify CFIUS when the company purchased Grindr in 2018 was likely one of the reasons the committee decided to force the divestiture and thereby unwind an acquisition that, by that point, had been consummated for two years.
While CFIUS does not share details about the specific nature of national security risks identified with transactions under its review, reporting at the time suggested concerns with Grindr had to do with the Chinese government’s potential to blackmail Americans, potentially including American officials, with data from the app.
Cooley LLP, an international law firm with attorneys who practice in the CFIUS space, notes that the committee uses a “three-part conceptual framework” to assess national security threats:
- What is the threat presented by the foreign person’s intent and capabilities to harm U.S. national security?
- What aspects of the U.S. business present vulnerabilities to national security?
- What would the consequences for U.S. national security be if the foreign person were to exploit the identified vulnerabilities?
The firm writes that “issues that have raised perceived national security risks range from the obvious (e.g., foreign acquisitions of U.S. businesses with federal defense contracts) to the seemingly benign (e.g., foreign minority investments in offshore wind farm projects or online dating apps.)
Cooley additionally notes that CFIUS considers vulnerabilities such as “whether the U.S. business deals in ‘critical technology,’ ‘critical infrastructure’ or ‘sensitive personal data'” and threats such as “the foreign buyer’s/investor’s track record of complying with U.S. and international laws (e.g., export controls, sanctions and anti-corruption regimes.)”
Some critics argue CFIUS has been overzealous in enforcing investment restrictions against Chinese buyers, but assuming this may be true — and putting aside questions of whether U.S. national security concerns are best served by this approach — China’s foreign direct investment has “declined considerably,” according to another global law firm with a substantial CFIUS practice, Morgan Lewis & Bockius LLP.
The firm notes heightened scrutiny has been applied particularly in cases of “Chinese investment in the U.S. biotechnology industry,” while Akin Gump Strauss Hauer & Feld highlighted CFIUS’s expanded jurisdiction over Chinese investments in U.S. real estate — noting, however, that the committee’s increased authority is “unlikely to satisfy members of Congress and state legislators who want to prohibit investments in agricultural and other land by investors from ‘countries of concern’ such as China.”
Two years after the finalization of Grindr’s divestiture in 2020, the company went public on the New York Stock Exchange and enjoyed a 400 percent rise in its stock price. Its current value is $1.75 billion.
TikTok is privately owned, but Angelo Zino, a vice president and senior equity analyst at CFRA Research, told CNBC that the platform’s U.S.-only business “could fetch a valuation north of $60 billion” if Congress passes the bill to force its divestiture from ByteDance.
Congress
AOC’s announcement of new bill quotes a group with history of anti-LGBTQ advocacy
NCOSE still has ties to extremists
A press release issued on March 7 by the office of U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.) included quoted remarks from the CEO of the National Center on Sexual Exploitation, a group with a history of anti-LGBTQ advocacy that was previously named Morality in Media.
The release concerns a bipartisan, bicameral bill that was introduced by Ocasio-Cortez to fight the proliferation of non-consensual, sexually explicit “deepfake” media — created by “software, machine learning, artificial intelligence, or any other computer-generated or technological means” — by establishing a federal civil right of action for victims.
“Rep. Ocasio-Cortez is leading a bipartisan bill to stop nonconsensual deepfake pornography that centers survivors’ civil right of action,” the congresswoman’s chief of staff, Mike Casca, said in a statement to the Washington Blade on Saturday. “Organizations from left, right, and center support it.”
Separately, in a discussion about these topics on X, Casca said, “I disagree that quoting a group in a release is an endorsement of that group, especially at a time when gop support is required to pass anything in the house & the senate, nonetheless ‘partnering’ with them.”
Remarks by NCOSE CEO Dawn Hawkins that were included in the announcement from Ocasio-Cortez’s office are inoffensive and germane to the legislation. For instance, she said “it is past time that our laws catch up and hold the perpetrators of this abuse accountable,” calling the measure “a critical step forward” in securing “justice for survivors through civil remedies.”
Primarily focused on opposing pornography, NCOSE has sought to distance itself from the avowed anti-LGBTQ positions that were held by the organization and its leadership in the past, but there is ample reason to doubt the narrative that the group underwent an ideological evolution.
Hawkins authored a statement on behalf of her organization in December 2023 that promised to fight against the sexual exploitation of LGBTQ victims and expressed “deep regret that there were moments in our organization’s history prior to our leadership change in 2011, when remarks were made that were indeed anti-LGBTQ+.”
The statement also noted that “our former namesake, Morality in Media (MIM), was associated with actions that starkly contrast with our current values,” including possible advocacy against Disney’s extension of benefits to employees’ same-sex partners and a press statement “arguing that homosexuality is connected to crime.”
Casting doubt on the sincerity of these statements, along with Hawkins’ proclamation that “we do not tolerate statements and actions by current employees that spread harmful misinformation and hate towards any particular group or individual,” are the following facts:
- NCOSE’s current general counsel Benjamin Bull previously served as chief counsel of the far-right legal advocacy group Alliance Defending Freedom, which the Southern Poverty Law Center has designated an anti-LGBTQ hate group. The attorney also served as executive director for ADF International.
- During an interview with former Fox News host Bill O’Reilly, Bull praised a 2013 decision by the Supreme Court of India that re-criminalized LGBTQ sex.
- Amherst College professor Hadley Arkes, a conservative political scientist with longstanding ties to NCOSE — he was listed as a board member on the group’s 2022 990 form — supports the discredited practice of conversion therapy, which is banned in 20 U.S. states. When delivering public remarks in 2021, he said, “We’ve had many people who, with therapy and conversion, just have come out away from that life.”
- Arkes also opposes same-sex marriage. During the same event in 2021, he compared the decision by gay and lesbian couples to wed with the choice to shoot heroin. Close to the end of his two-hour lecture, the professor conceded that, “I think I’ve said enough to offend everybody tonight.”
- Hawkins organized a conference in South Africa in 2022 whose keynote address was delivered by Errol Naidoo, an anti-LGBTQ minister who has blamed abortion and the “homosexual agenda” for”a culture of death” in his country and was quoted in a Nigerian newspaper as saying “I hate gays. It runs against God’s wishes.”
- Also delivering a presentation during the conference was Sharon Slater, president of Family Watch International. The SPLC lists the organization as an anti-LGBTQ hate group, noting that Slater has claimed LGBTQ people are more prone to disease, more promiscuous, and likelier to engage in pedophilia.
- Slater has also defended the criminalization of LGBTQ conduct by African countries like Uganda and forged close relationships with proponents of these policies like Ugandan pastor Martin Ssempa, who supported the law passed last year that imposes prison sentences for homosexuality (and the death penalty, in certain cases).
Along with the bill introduced last week by Ocasio Cortez, the DEFIANCE Act, NCOSE is a major supporter of the Kids Online Safety Act — another bipartisan legislative effort to combat the sexual exploitation of minors along with other harms facilitated by Big Tech and social media companies.
Earlier iterations of KOSA drew opposition from LGBTQ and civil rights groups over concerns that, for instance, the law might suppress affirming or pro-LGBTQ online content or prevent queer youth from accessing online communities.
On Feb. 15, however, a coalition of seven national LGBTQ organizations wrote a letter to U.S. Sen. Richard Blumenthal (D-Conn.), who introduced KOSA along with Republican U.S. Sen. Marsha Blackburn (Tenn.), informing him that they would no longer oppose the bill.
Signed by GLAAD, GLSEN, the Human Rights Campaign, PFLAG National, the National Center for Lesbian Rights, the National Center for Transgender Equality, and The Trevor Project, the letter thanked Blumenthal for “hearing our concerns” and “updating the legislation to address potential adverse consequences for LGBTQ+ youth.”
For years, Congress has sought to pass legislation to curb the power of market-dominant tech platform companies and hold these firms accountable for harms they have facilitated. More recently, many lawmakers have agreed on the need for a bipartisan federal privacy law and regulations targeting emerging technologies like artificial intelligence — but so far have failed to pass any.
Support among Republicans and Democrats for bills like KOSA and the DEFIANCE Act were bolstered by the Senate Judiciary Committee’s hearing on online child sexual exploitation at the end of January, where the senators grilled the CEOs of TikTok, Discord, Snap Inc. (Snapchat), X (formerly Twitter), and Meta (which owns Facebook and Instagram).
Meanwhile, the Republican-controlled U.S. House is preparing to vote on a bill that would force the divestiture of TikTok by its Chinese parent company ByteDance or ban the popular video sharing platform in the U.S.
While the measure would have to overcome opposition from Senate Democrats to pass, bipartisan support comes because of the national security risks presented by TikTok along with concerns about the harms suffered by American users — even though the evidence for some of these claims is scant, unclear, or disputed.
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