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Carney: ENDA would make executive order ‘redundant’

LGBT advocates pounce on notion that directive unnecessary if law enacted

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White House Press Secretary, Jay Carney, Gay News, Washington Blade
Jay Carney, White House, gay news, Washington Blade

White House Press Secretary Jay Carney said he believes an executive order would be redundant with ENDA in place. (Washington Blade file photo by Damien Salas)

White House Press Secretary Jay Carney said Thursday he believes passage of the Employment Non-Discrimination Act would make “redundant” an executive order barring LGBT discrimination among federal contractors ā€” an assertion that advocates say is untrue as they continue to press for both legislation and the directive.

Carney made the remarks in response to a question from the Washington Blade on whether passage of ENDA ā€” which has already passed the Senate, but remains pending in the House ā€” would change the thinking of President Obama on the executive order, which he continues to withhold despite continued pressure from LGBT rights supporters.

“I think if the law passed ā€” and I’m not a lawyer ā€” and I haven’t read every sentence of the law, but I think if a law passed that broadly banned this kind of employment discrimination, it would make redundant an executive order,” Carney said.

Carney articulated his belief that an executive order would be “redundant” in the event ENDA became law after emphasizing the broad-based protections under the bill, which applies not just to federal contractors, but to many public and private employers.

“I think the employment non-discrimination legislation, the Employment Non-Discrimination Act, would broadly apply, and that’s one of the reasons why we support it,” Carney said. “Because it’s a broad solution to the problem, and it ought to be passed by Congress.”

When the Blade pointed out there are possible instances of LGBT discrimination that ENDA wouldn’t cover, but may be covered under the executive order, Carney called such potential acts of anti-LGBT job bias “hypothetical.”

“Well, that could be, hypothetically, but I think we’d like to see the legislation passed,” Carney said. “That would be a good thing.”

LGBT advocates disputed the notion that an executive order barring LGBT discrimination would be redundant if ENDA were law, saying both are necessary to enable greater legal protections for LGBT workers.

Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization is directly at odds with Carney’s assertion and blasted the White House spokesperson for being “completely out of step.”

“We couldnā€™t disagree more,” Sainz said. “Even if ENDA passed tomorrow, weā€™d still want the EO. His assertion is completely out of step with over 60 years of social change strategy related to enduring legal protections for race and gender and more recently for hate crimes and non-discrimination protections on the basis of sexual orientation and gender identity. What heā€™s asserting is the equivalent of saying that if ENDA passed tomorrow, we wouldnā€™t need non-discrimination laws in the majority of states that still donā€™t have them. Thatā€™s absolutely not the case.”

Other categories for individuals ā€” race, color, religion, sex or national origin ā€” are protected under current law by Title VII of Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission, and by Executive Order 11246, which is enforced by the Labor Department’s Office of Federal Contract Compliance. Both were put in place under former President Lyndon Johnson.

Ian Thompson, legislative representative of the American Civil Liberties Union, said both ENDA and an executive order are needed to provide “parallel protections” for LGBT people enjoyed by other categories of workers.

“Race discrimination, for example, is prohibited under both Title VII of the 1964 Civil Rights Act and Executive Order 11246,” Thompson said. “It’s certainly our opinion and our view that the same should apply to LGBT workplace discrimination as well. Even if ENDA were to be passed and signed into law tomorrow, we would still advocate for and want the executive order, and absolutely, definitely do not see it as redundant.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, also insisted that legislation and an executive order are necessary to provide full protections to LGBT workers.

ā€œWe need both,” Carey said. “We urge the president to use his power and act immediately with an executive order that protects millions of LGBT employees who work for federal contractors and we urge Congress to follow the lead of the Senate and pass ENDA. Rights delayed are rights denied.ā€

One difference between the executive order and ENDA would be the enforcement mechanism. If ENDA were law, anti-LGBT discrimination would be still be allowed by small businesses, or companies with fewer than 15 employees, as well as by religious organizations in a broader way than other groups because of ENDA’s religious exemption. But if an executive order were in place ā€” and modeled after the existing executive order barring discrimination among other groups ā€” companies exempt under ENDA could face penalties as long as they do $10,000 a year in business with the U.S. government.

According to Freedom to Work, under ENDA, a victim must first file a complaint with the EEOC before an investigation into anti-LGBT workplace discrimination can take place. But under the executive order, the Labor Department could proactively investigate a company for such discrimination ā€” even if no complaint were filed. In fact, the Labor Department regularly conducts audits of federal contractors to determine if they’ve engaged in discrimination under the current directive.

Tico Almeida, president of Freedom to Work, took Carney to task, saying he’s incorrect and apparently unfamiliar with the Obama administration’s work against employment discrimination.

ā€œWhen he calls the executive order ā€˜redundant,ā€™ Mr. Carney is wrong on the law, and surprisingly, heā€™s even wrong on the facts about the Obama administrationā€™s own successful record enforcing the existing executive order banning racial and sex discrimination at federal contractors,” Almeida said. “In order to have full equality under the law, LGBT Americans need both the statute and the executive order because they have distinct enforcement procedures, and more discrimination can be prevented when both policies work in tandem.”

Almeida added that Carney should consult with “dedicated public servants” at the Labor Department, which, among other victories, under Executive Order 11246 recently won a $2.2 million settlement with federal contractor Cargill in a set of hiring discrimination cases on behalf of nearly 3,000 African-American, Latino and female job applicants ā€” even with a law barring this discrimination in place.

“LGBT Americans deserve these same workplace protections that the Obama Labor Department has been enforcing for other hardworking Americans,” Almeida said. “There’s no good reason to leave only the LGBT community out of the workplace protections that have been applied by the Labor Department to everyone else.ā€

Also during the briefing, Carney responded to an email from Democratic National Committee Treasurer Andrew Tobias in which he told LGBT donors on an off-the-record listserv the executive order should be signed and its absence is “frustrating and perplexing.”

“I think that there are lot of strongly held views on these matters,” Carney replied. “The president believes very strongly in employment non-discrimination. That’s why he has urged Congress to act on the ENDA legislation. We’ve seen some progress on that. It needs to be completed. Those who oppose it are standing in the way of history and they’ll look foolish in the future as future generations look back at that stance and recognize it for what it is. I just don’t have any updates for you on the EO that you mentioned.”

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Congress

Sens. Butler, Smith introduce Pride in Mental Health Act to aid at-risk LGBTQ youth

Bill is backed by Democrats in both chambers

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U.S. Sen. Laphonza Butler (D-Calif.) speaks at the International LGBTQ Leaders Conference on Nov. 30, 2023. (Washington Blade photo by Michael Key)

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.

ā€œAccessing mental health care and support has become increasingly difficult in nearly every state in the country,ā€Ā said Butler, who is the first Black LGBTQ senator. ā€œBarriers 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.

ā€œMental 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.ā€Ā 

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.

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District of Columbia

D.C. mayorĀ honors 10th anniversary of Team Rayceen Productions

LGBTQ entertainment, advocacy organization praised for ā€˜vital workā€™

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Rayceen Pendarvis co-founded Team Rayceen Productions. (Washington Blade photo by Michael Key)

D.C. Mayor Muriel Bowser today issued an official proclamation declaring Monday, March 18, 2024, as Team Rayceen Day in honor of the local LGBTQ entertainment and advocacy organization Team Rayceen Productions named after its co-founder Rayceen Pendarvis.

ā€œWhereas Rayceen, along with Team Rayceen Productions co-founder, Zar, have spent 10 years advocating for the Black LGBTQI+ community using various forms including in-person events, social media, and YouTube,ā€ the proclamation states.

The proclamation adds that through its YouTube Channel, Team Rayceen Productions created a platform for ā€œBlack LGBTQIA+ individuals to discuss various topics including spotlighting nonprofit organizations and small businesses, voter registration and participation, the state of LGBTQIA+ rights and resources in D.C, gender equality and equity, and the amplification of opportunities to bring the community together.ā€

It also praises Team Rayceen Productions for its partnership with the Mayorā€™s Office of LGBTQ Affairs in helping to produce ā€œexciting events like the District of Pride talent showcase held each June and the iconic 17th Street High Heel Race celebrated in October.ā€

ā€œWhereas I thank Team Rayceen Productions for its vital and necessary work and am #DCProud to wish you all the best as you continue to support Black LGBTQIA+ residents across all 8 Wards,ā€ the proclamation continues.

ā€œNow, therefore, I, the Mayor of Washington, D.C., do hereby proclaim March 18, 2024, as TEAM RAYCEEN DAY in Washington, D.C. and do commit this observance to all Washingtonians,ā€ it concludes.

ā€œWe thank Mayor Bowser for this special proclamation, which highlights where it all began, with the Black LGBTQIA+ community of Washington, D.C,ā€ Team Rayceen Productions says in a statement. ā€œStarting with The Ask Rayceen Show, Reel Affirmation, and events with D.C. Public Library to Art All Night, Silver Pride by Whitman-Walker, and events with the Mayorā€™s Office of LGBTQ Affairs, we are #dcproud of what we have accomplished in the Nationā€™s Capital,ā€ the statement says. 

“For TEAM RAYCEEN DAY, we thank the diverse group of individuals who have made everything we have done possible by volunteering their time and talents over the past decade ā€“ as online co-hosts, event staff, performers, DJs, photographers, and more,ā€ says the statement.

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows ā€œderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that ā€œit is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ā€œtext, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

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