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72 lawmakers to Obama: Sign ENDA exec order

House members say directive would lay groundwork for bill’s passage

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A group of 72 U.S. House members is calling on President Obama to take administrative action to institute federal non-discrimination protections for LGBT people in the workplace.

In a letter dated April 2, the lawmakers ask Obama to issue an executive order requiring companies doing business with the U.S. government to have non-discrimination policies inclusive of sexual orientation and gender identity.

“This order would extend important workplace protections to millions of Americans, while at the same time laying the groundwork for Congressional passage of the Employment Non-Discrimination Act (ENDA), a goal that we share with you,” the lawmakers write.

The executive order is similar in its goal to the Employment Non-Discrimination Act, legislation that would bar job bias. The directive has sometimes been referred to as the “ENDA” executive order, although the order would be more limited in scope because it only affects federal contractors.

Reps. Lois Capps (D-Calif.) and Frank Pallone (D-N.J.) (Blade photo by Michael Key)

Reps. Frank Pallone (D-N.J.) drafted the letter and circulated it among House members. Rep. Lois Capps (D-Calif.) and retiring gay Rep. Barney Frank (D-Mass.) were two other original signers.

The letter recalls that President Johnson in 1965 issued Executive Order 11246, which similarly banned discrimination among federal contractors for workers based on color, religion, sex and national origin, and says this order “continues to stand as an important protection.”

“The opportunity to expand protections against workplace discrimination to members of the LGBT community is a critical step that you can take today, especially when data and research tell us that 43 percent of LGB people and 90 percent of transgender people have experienced workplace discrimination,” the lawmakers write.

Lawmakers also make the case for the executive order by citing data that the majority of the 25 largest federal contractors have already adopted these policies and polling shows a majority of American people support such action.

“The majority of the 50 largest corporations in America, for example, say that adopting inclusive workplace practices — such as adding sexual orientation and gender identity to corporate non-discrimination statements — helps attract the best talent, reduce employee turnover, and overall is a plus to their bottom lines,” the letter states.

The letter also notes that the military contractor DynCorp agreed to adopt an LGBT-inclusive non-discrimination policy after media reports were published about a straight employee who allegedly endured anti-gay harassment working there and an online petition demanding the company make the change received 50,000 signatures.

Multiple sources, speaking on condition of anonymity, have told the Blade the Labor and Justice Departments have cleared such a measure. The White House hasn’t said whether it will issue the executive order and didn’t immediately respond to a request to comment on the letter.

Tico Almeida, president of Freedom to Work and chief advocate of the executive order, commended Pallone and other House members for who signed their names in support of the executive order.

“Now that more than 110,000 people have signed the Freedom to Work online petition, more than 70 members of Congress have signed Mr. Pallone’s letter, and 73% of the American people have expressed support for this policy in recent polling, it is clear that ‘We Can’t Wait’ any longer for the president to sign the executive order adding LGBT workplace protections to millions of American jobs,” Almeida said.

Among the signers are the four openly gay members of Congress: Frank, Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.). The letter marks the first time that Frank, Baldwin and Cicilline have publicly articulated support for the directive.

In an interview with the Washington Blade shortly after he announced his retirement in November, Frank said the executive order is a “reasonable thing to keep pushing for.” Still, he said at the time the president’s authority has limits and racial discrimination is “embodied in the Constitution” unlike discrimination against LGBT people, so the president has more power to take action on issues related to race.

Polis said in an interview in March 2011 with the Washington Blade that he backs the idea of Obama issuing an executive order — making him the first public official to go on the record in support of the directive.

Other notable signers are Rep. George Miller (D-Calif.), the ranking Democrat on the House Education & the Workforce Committee, the House panel that has jurisdiction over ENDA. Another signer is Rep. Rob Andrews (D-N.J.), the ranking Democrat on the Subcommittee on Health, Employment, Labor & Pensions, the House subcommittee with jurisdiction over ENDA.

Other House who signed are Rep. Judy Chu (D-Calif.), chair of the Congressional Asian Pacific Caucus; as well as Reps. Raúl Grijalva (D-Ariz.) and Keith Ellison (D-Minn.), co-chairs of the Congressional Progressive Caucus. Rep. Chris Van Hollen (R-Md.) is also a signer.

But prominent members of House Democratic leadership aren’t among the signers. The names of both House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) aren’t on the letter.

Pelosi endorsed the executive order when asked about it by the Blade during a news conference in July. Drew Hammill, a Pelosi spokesperson, said the Democratic leader doesn’t typically sign group letters because of “longstanding custom since she has been in leadership.”

Still, Pelosi has penned her name to LGBT-relevant petitions before. She was among 69 lawmakers who signed a letter calling on the Obama administration to issue explicit guidance saying bi-national same-sex couples will be included in policies that aim to take low-priority cases out of the deportation pipeline. Pelosi was also among 133 House members who signed an amicus brief supporting litigation contesting the constitutionality of the Defense of Marriage Act.

Daniel Reilly, a Hoyer spokesperson, said Friday his boss is “reviewing the letter” and noted that Hoyer is an ENDA co-sponsor. Hoyer also signed the amicus brief against DOMA.

Another notable absence is Rep. Debbie Wasserman Schultz (D-Fla.), chair of the Democratic National Committee. Her office didn’t immediately respond to the Blade’s request for comment on the letter.

No Republicans signed the letter. It begins with a paragraph praising Obama — thanking him for his leadership on LGBT issues and saying his administration will be “long-remembered for its efforts to build an America that is fully inclusive of all people, regardless of their sexual orientation or gender identity” — which Republicans would likely find unpalatable.

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Virginia

Two anti-LGBTQ bills die in Va. Senate

Democrats maintain 21-19 majority in chamber

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The Virginia Capitol (Washington Blade photo by Michael Key)

Two anti-LGBTQ bills died in the Virginia Senate on Thursday.

A Senate Education subcommittee voted against state Sen. Travis Hackworth (R-Tazewell County)’s Senate Bill 20, which would have eliminated the requirement that school districts must implement the Virginia Department of Education’s transgender and non-binary student guidelines.

The Senate General Laws and Technology Committee in an 8-7 vote tabled state Sen. Mark Peake (R-Lynchburg)’s Senate Bill 177, a religious freedom measure that critics contend would have allowed anti-LGBTQ discrimination in housing.

Virginia’s statewide nondiscrimination law includes sexual orientation and gender identity. Peake’s bill would have removed “the provision of the exemption for religious organizations under the Virginia Fair Housing Law that denies such exemption where the membership in such religion is restricted on account of race, color, national origin, sex, elderliness, familial status, sexual orientation, gender identity, military status, or disability.”

The General Assembly’s 2022 legislative session began on Jan. 12 with Republicans in control of the House of Delegates. Republican Gov. Glenn Youngkin took office three days later.

Democrats, who maintain a 21-19 majority in the state Senate, have vowed to block any anti-LGBTQ bill.

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Federal Government

Department of Education investigating BYU LGBTQ+ discipline policy

“They’ve wronged marginalized communities at BYU and they need to be held accountable for it” ~ former gay student at BYU

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Bradley Talbot, a former gay student at BYU (Photo courtesy of Bradley Talbot)

PROVO, Ut. – The U.S. Department of Education has opened an investigation into policies at Brigham Young University (BYU) that discipline LGBTQ students, aiming to determine whether or not the private religious school, owned by the Church of Jesus Christ of Latter-day Saints (LDS), is violating their civil rights. 

The Education Department is investigating a complaint that came after BYU removed rules banning “homosexual activity” from its honor code in 2020, only to clarify weeks later that same-sex partnerships were still prohibited.

The probe, which opened in October of last year, will focus on Title IX, a law prohibiting universities from discriminating against students and others based on gender. 

Last year, President Joe Biden signed an executive order mandating every federal agency, including the Education Department, clarify that civil rights laws protect LGBTQ people from discrimination. However, religious schools have Title IX exemptions, making federal scrutiny rare.  

“It’s really significant that investigators are stepping in now,” Michael Austin, a BYU alumnus and vice president at the University of Evansville, told the Salt Lake Tribune. “It means there’s some reason to think the university has gone beyond the religious exemptions it has and is discriminating even beyond those.”

The investigation, headed by the Office of Civil Rights within the department, seems to be about whether faith-based exemptions apply even if the behavior is not directly related to education or expressly written in the honor code. BYU also bans alcohol, beards and piercings, among other things. 

BYU did not respond to the Blade’s request for comment. But a spokesperson told the Associated Press that the school does not anticipate any further action because “BYU is exempt from application of Title IX rules that conflict with the religious tenets” of the LDS.

Though the LDS has softened some of its rules around LGBTQ issues, the church remains opposed to same-sex marriage and sex outside of marriage. 

In a November 2021 letter to the Education Department, Kevin Worthen, president of BYU, argued that religious exemptions do apply to the school. The letter adds that all BYU students, faculty, administrators and staff “‘voluntarily commit to conduct their lives in accordance with the principles of the gospel of Jesus Christ.’”

The Department of Education responded to the letter, affirming that the university has some religious exemptions, but the department had to investigate if the complaint falls under those exemptions. 

An Education Department spokesperson confirmed the investigation to the Blade but declined further comment. 

Queer students at BYU celebrated the school’s removal of the anti-LGBTQ language in the honor code. Yet, the university announced weeks later that there was “some miscommunication” as to what the changes meant, clarifying that “the principles of the Honor Code remain the same.”

Bradley Talbot, a former gay student at BYU, was on campus during the apparent reversal, saying it “instilled a lot of fear and a lot of students.” 

“There are still a lot of feelings of betrayal and apprehension around it,” he told the Blade.

At BYU, students who hold hands or kiss someone of the same sex can face punishment, including expulsion. LGBTQ+ students face harsher discipline than heterosexual couples at the school. 

Talbot said he knew of “quite a few people” who lost their degrees and were kicked out during his time at BYU because of the gay dating ban. “People were turned in by roommates. Some people were turned in by their own parents,” he added. 

Courtesy of Bradley Talbot

The university’s clarification frustrated LGBTQ students, according to Talbot. In response, he organized a demonstration in March of 2021, lighting the “Y” that sits above BYU’s campus – one of the school’s oldest traditions – in rainbow Pride colors on the one year anniversary of the university’s letter sent to students that clarified the LGBTQ dating policy. 

“We did it to reclaim that traumatic day and spin in a positive light of support, love and unity to create more visibility and awareness,” said Talbot. “And also to take a stand that we weren’t going to put up with just being tossed around by BYU. We deserve to be a part of the BYU community and a part of the LGBTQ community.”

The school has since updated its policies, banning protests and other demonstrations on Y Mountain, where Talbot staged his demonstration, in December of last year. 

“Demonstrations should be consistent with BYU’s faith-based mission, intellectual environment and requirements described in the policy,” a statement added. 

Still, Talbot, who is now graduated, has hope that the Education Department’s investigation will “finally change” things at BYU. “This has been something that’s been going on for decades,” he said. “They’ve wronged marginalized communities at BYU and they need to be held accountable for it.”

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National

LGBTQ advocates fight on for trans athletes, but they may be losing the battle

Transgender women competing in women’s sports remains unpopular in polls

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From left, Lia Thomas, Caitlyn Jenner and Michael Phelps. (Screen capture of Thomas via YouTube, Washington Blade photo of Jenner by Michael Key, photo of Phelps by kathclick via Bigstock)

In the wake of the NCAA changing its policies regarding transgender athletes and state legislatures advancing new legislation against trans inclusion in school sports, LGBTQ advocates continue the fight to ensure athletes can compete consistent with their gender identity, although they may be losing the battle.

As public polling has demonstrated, transgender athletes competing in sports — especially trans women in women’s sports — remains unpopular even among pro-transgender people. Key figures have emerged in recent days opposing transgender inclusion amid the focus on Lia Thomas, a recently transitioned swimmer at the University of Pennsylvania who has been smashing records in women’s aquatics.

Nonetheless, LGBTQ advocates charged with fighting for transgender rights are continuing the efforts. After a coalition of LGBTQ advocates sent a letter to the NCAA urging the organization to include a non-discrimination provision in its updated constitution, the Human Rights Campaign condemned the organization for refusing to keep the language, which appears to have the effect of allowing the sports division to decline to allow transgender athletes to compete consistent with their gender identity, and sent an action alert to supporters.

Joni Madison, interim president of the Human Rights Campaign, said in a statement the NCAA “needs to show us their playbook for protecting LGBTQ+ and specifically transgender athletes from discrimination” as state legislatures advance legislation against transgender kids in sports.

“The NCAA has so far proven to be an unreliable ally to LGBTQ+ athletes across the country who depend upon the organization to protect them from discrimination and now they owe these athletes answers,” Madison said.

Instead of reaffirming non-discrimination protections, the NCAA announced a change in policy that goes in different directions but appears aimed at limiting participation of transgender women without taking full responsibility for it. On one hand, the NCAA delegates to the bodies governing individual sports the policies for transgender participation, but on the other hand requires transgender women to document having limited testosterone levels over a certain period of time.

The fight now continues in state legislatures as sports bills are among the latest crop of measures seeking to limit access for transgender people. After South Dakota Gov. Kristi Noem made a push for legislation against transgender kids in sports at the start of the year, the state legislature responded by advancing such a measure. On Wednesday, a South Dakota House committee favorably reported out legislation already approved by wide margins in the Senate that would make biological sex the standard for sports in an attempt to limit transgender participation.

Sam Ames, director of advocacy and government affairs at The Trevor Project, said in a statement upon the committee vote the legislation “has nothing to do with fairness — and everything to do with South Dakota politicians using transgender youth as pawns on a political chessboard.

“Proponents of this blanket ban are hard-pressed to find examples of transgender students making South Dakota sports less fair or safe,” Ames said. “Research from The Trevor Project makes clear that many already opt out of sports due to fear of bullying and discrimination.”

Although the issue of transgender women in sports has emerged in recent years as conservative activists found a way to challenge LGBTQ rights in a way that was palatable to the public, the fervor peaked as Thomas made headlines for breaking records in the pool.

After having previously competed in men’s aquatics, Thomas — after she transitioned — began competing in women’s events and was beating her competitors by wide margins. In one event in December, Thomas came in first in the 1,650-yard freestyle and 38 seconds ahead of her closest competitor. The NCAA rules would appear to have the effect of barring Thomas from further competition.

Public polling, which has shown strong support for LGBTQ rights in general, continues to show the sentiment is against transgender women competing in sports, although the outcome of the poll can change considerably depending on the wording of the question. One Gallup poll last year found only 34 percent of those surveyed supported transgender athletes participating on teams consistent with their gender identity, while 62 percent said transgender people should have to compete with other athletes of their gender designated at birth.

One LGBTQ strategist, who agreed to speak on condition of anonymity, said the time may have come for LGBTQ advocates to admit a fait accompli if they want to seek broader civil rights protections in employment, housing and public accommodations with the Equality Act or other federal legislation.

“Advocates should just admit this is a very different issue than a trans person applying for a job or finding an apartment,” the strategist said. “Equality principles differ by situation — that’s why we have separate men’s and women’s sports in the first place. The same public opinion overwhelmingly supportive of the Equality Act is also clearly skeptical of a one size fits all federalization of all sports everywhere.”

Adding fuel to the fire are recent comments from key figures in athletics.

Caitlyn Jenner, who before she transitioned was an Olympic champion in the 1970s, has been among the more prominent voices to speak out against transgender women in sports and said on a recent appearance on Fox News it represents “a woke world gone wild.”

Jenner, who came out against transgender participation in sports during her unsuccessful gubernatorial campaign last year in the California recall election, said the NCAA “just kicked the can down the road” on the transgender sports issue and had choice words for Thomas.

“When you do transition and you do go through this, you have to take responsibility and you have to have integrity,” Jenner said. “I don’t know why she’s doing this.”

Michael Phelps, the decorated Olympic swimmer, also declined to support transgender athletes fully when asked about the issue during an interview on CNN, bringing up doping in sports in comparison.

“I don’t know what it looks like in the future,” Phelps said. “It’s hard. It’s very complicated and this is my sport, this has been my sport my whole entire career, and honestly the one thing I would love is everybody being able to compete on an even playing field.”

To be sure, advocates for allowing transgender people to compete in sports consistent with their gender identity also have their supporters in the sports world, including tennis legend Billie Jean King. On Monday, Dorian Rhea Debussy, who’s non-binary and one of 54 facilitators in the NCAA Division III LGBTQ OneTeam program, resigned in protest over recent NCAA actions.

“I’m deeply troubled by what appears to be a devolving level of active, effective, committed, and equitable support for gender diverse student-athletes within the NCAA’s leadership,” Debussy said. “As a non-binary, trans-feminine person, I can no longer, in good conscience, maintain my affiliation with the NCAA.”

Arguably, schools complying with the new NCAA policy and states enacting anti-transgender laws would be violating Title IX of the Education Amendment of 1972, which prohibits discrimination on the basis of sex in education, especially after the U.S. Supreme Court’s ruling in Bostock v. Clayton County finding anti-transgender discrimination is a form of sex discrimination.

One federal court last year blocked a West Virginia state law against transgender participation in sports on that legal basis. No litigation, however, appears to be in the works at this time challenging colleges or the NCAA policy.

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