April 24, 2014 | by Chris Johnson
New VAWA guidance asserts limited LGBT workplace rights
domestic violence, gay news, Washington Blade

New guidance on the Violence Against Women Act includes employment protections for LGBT people. (Photo courtesy Bigstock)

Guidance handed down from the Justice Department spelling out LGBT protections under the Violence Against Women Act contains explicit non-discrimination rules for employment, marking the first time the Obama administration has acknowledged federal LGBT workplace protections under the law.

The Q&A from the administration, highlighted on Thursday by LGBT advocacy groups praising the guidance, clarifies non-discrimination requirements under VAWA reauthorization applies to employment at organizations accepting federal grants for domestic violence programs. The law was signed by President Obama last year.

Even though the reauthorization of the Violence Against Women Act itself makes no specific reference to employment in terms of non-discrimination, the Justice Department asserts domestic violence programs receiving federal money “may not discriminate” on categories including sexual orientation and gender identity “in employment practices.”

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The guidance, dated April 9, marks the first time the Obama administration has advanced employment protections based on sexual orientation and gender identity for workers outside of memoranda for employees working within the federal government itself.

Tico Almeida, president of Freedom to Work, said the regulations are a welcome development, but President Obama should follow up with an executive order barring LGBT workplace discrimination among federal contractors.

“This is great news, and we applaud the Obama administration for ensuring taxpayers do not subsidize anti-LGBT workplace discrimination through the funding of VAWA grants,” Almeida said. “It’s now time to extend the same commonsense principle to federal contracts, and we urge President Obama to keep his campaign promise of creating LGBT workplace protections at the companies that profit from taxpayer-funded contracts.”

The guidance is handed down as LGBT advocates are pressuring the Labor Department to extend non-discrimination protections to transgender workers under Executive Order 11246, which prohibits discrimination on the basis of gender, in the aftermath of Macy v. Holder — a decision reached by the independent U.S. Equal Employment Opportunity Commission that found transgender protections under Title VII of the Civil Rights Act of 1964.

Labor Secretary Thomas Perez says his department is conducting a review on whether it can extend those protections to transgender workers under the existing executive order. The Labor Department didn’t immediately respond to a request for comment on whether the VAWA regulations would inform the review.

Almeida said interpretation of the existing executive order to protect transgender workers would be consistent with the Obama administration’s implementation of VAWA.

“It makes no sense to hold back LGBT protections only in the context of federal contracting while moving forward with good and pro-LGBT interpretations of law in other contexts,” Almeida added.

But the general sense from LGBT advocacy groups is praise for the guidance on the grounds that implementation of the law will help ensure LGBT people receive fair treatment at organizations that work to help victims of domestic violence.

The VAWA non-discrimination rules apply to all programs administered by the Justice Department’s Office on Violence Against Women, which governs grant programs related to arrest polices, domestic violence reduction, legal assistance to victims as well as the multi-disciplinary STOP (Services, Training, Officers, and Prosecutors) Program.

In a joint statement, six groups — the National Coalition of Anti-Violence Programs, the National Gay & Lesbian Task Force, the Human Rights Campaign, the National Center for Transgender Equality, the GLBTQ Domestic Violence Project and FORGE — called the document “strong implementing guidelines.”

“This guidance is a significant step forward because it makes clear that federal tax dollars under VAWA can’t be used to discriminate against LGBT people,” the statement says. “If a grantee receives any funding under VAWA, all activities of that entity are covered by the non-discrimination mandate (including employment), as well as activities that aren’t related to or funded by the Department of Justice.”

Another notable provision in the guidance says faith-based organizations aren’t given an exemption to the non-discrimination rule if they receive federal funds under VAWA.

“Faith-based organizations, like all other recipients of funding subject to the VAWA nondiscrimination grant condition, accept the obligation, as a condition of the grant award, not to discriminate in the delivery of services or benefits supported by covered grants, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, or disability,” the guidance says.

Moreover, the guidance spells out the protections under the law based on gender identity, saying it defines the term in the same way as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and is “a person’s internal view of the individual’s gender.”

“Transgender can be used to describe a person whose gender identity is different from the individual’s assigned sex at birth,” the guidance states. “Male, female, and transgender are all examples of gender identities for purposes of the nondiscrimination grant condition.”

The six LGBT advocacy organizations praising the regulations called them “historic” because it marks the first time a federal agency has determined non-discrimination rules for transgender people entitle them to equal access to services simply according to their self-identified gender.

“The guidance makes clear that transgender people can’t be turned away or treated differently just because another client complains about being around a transgender person, and that staff cannot ask invasive personal questions to get a transgender person to ‘prove’ their gender,” the guidance says.

The guidance indicates victims should file a complaint with the Justice Department’s Office for Civil Rights, which “has authority to investigate complaints alleging a violation of the VAWA nondiscrimination grant condition.”

Obama signed the Violence Against Women Act reauthorization into law last year after the LGBT-inclusive measure was approved by Congress. The Republican-controlled House passed the measure following significant pressure from women’s rights groups, marking the first time that an LGBT-inclusive bill was passed under the leadership of House Speaker John Boehner (R-Ohio).

But the six LGBT advocacy organization say work isn’t done because other federal agencies must follow suit and the Justice Department must “formalize this historic guidance in binding regulations” as is standard practice with other civil rights law.

“We look forward to other federal agencies following the lead of the Department of Justice and applying similar interpretations of other laws and regulations prohibiting discrimination based on sex, sexual orientation, and gender identity,” the advocacy groups said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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