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Latino civil rights group endorses ENDA exec order

MALDEF becomes first non-LGBT civil rights group to support directive

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An organization known as the “law firm for the Latino community” has become the first non-LGBT civil rights group to announce support for an executive order that would require federal contractors to have LGBT-inclusive non-discrimination policies.

In a letter dated April 5, Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, or MALDEF, calls on President Obama to take administrative action to prohibit companies that do business with the U.S. government from discriminating on the basis of sexual orientation and gender identity.

“I write to urge you to build on your successful ‘We Can’t Wait’ initiative in one concrete way,” Saenz said. “Specifically, MALDEF asks that you sign an executive order to ban federal contractors from engaging in workplace discrimination against lesbian, gay, bisexual and transgender (LGBT) individuals, including LGBT Latinos.”

Saenz urges the president to issue the order because the Employment Non-Discrimination Act, legislation that would bar job bias against LGBT people, has stalled in Congress for years.

“In recent years, multiple Congresses have failed to pass the Employment Non-Discrimination Act (ENDA), which would ban workplace bias based on actual or perceived sexual orientation or gender identity,” Saenz writes. “MALDEF believes the time is now right to promote workplace fairness for LGBT individuals by taking strong executive action.”

Making the case for the order, Saenz recalls that previous presidents — from Franklin Roosevelt to Bill Clinton — have issued executive orders barring workplace discrimination. He also cites the military contractor DynCorp LLC, which  implemented an LGBT-inclusive non-discrimination policy after it came under scrutiny for anti-gay harassment on the job; and he notes that top government contractors, such as Lockheed Martin, Raytheon and Boeing already have such policies in place.

Since the executive order is similar in its goal to ENDA, the directive has sometimes been referred to as the “ENDA” executive order. However, the order would be more limited in scope because it only affects federal contractors.

Multiple sources, speaking on condition of anonymity, have told the Blade the Labor and Justice Departments have cleared such a measure, but the White House has remained silent on whether it will take such action. A White House spokesperson didn’t immediately respond to a request for comment on the letter.

Since its founding in 1968, MALDEF has aimed to promote social change in the areas of education, employment and immigrant rights. One victory came in 1982, when a MALDEF-backed lawsuit known as Plyler v. Doe prompted the Supreme Court to strike down a Texas law that allowed school districts to charge children tuition if their parents were undocumented immigrants.The organization has also won legal victories to make the drawing of Texas congressional districts more fair to the Latino community.

MALDEF has also taken part in helping advance LGBT rights. The organization has filed “friend-of-the-court” briefs in favor of overturning California’s Proposition 8 and is part of a coalition supporting the repeal of the Defense of Marriage Act. MALDEF has worked to support passage of the Uniting American Families Act, which would allow gay Americans to sponsor their foreign spouses for residency in the United States, and was among the first organizations to stand with Immigration Equality in calling for the passage of LGBT-inclusive comprehensive immigration reform legislation.

According to polling made public last week by the Human Rights Campaign, Latinos across America strongly support of the executive order. The poll, which found 73 percent of Americans support the directive, also found the order polls at 72 percent among likely Latino voters in the 2012 election.

Additionally, the letter comes on the heels of the publication Thursday of the Pew Hispanic Center’s 2011 National Survey of Latinos poll showing 59 percent of Hispanic voters believe homosexuality should “be accepted by society.” According to the report, the data is in line with the general public. Among the public at large, 58 precent say homosexuality should be accepted.

The letter makes the group the first non-LGBT civil rights organization to endorse the executive order, but not the first non-LGBT group. Last fall, the United Electrical, Radio and Machine Workers of America, which bills itself as an organization for “rank and file” workers adopted a pro-LGBT resolution that includes support for an executive order protecting LGBT people against workplace discrimination. Mary Kay Henry, a lesbian and president of the Service Employees International Union, endorsed the order in an interview with the Washington Blade in June during Netroots Nation.

Support for the idea of the executive order is building. Earlier this week, a group of 72 U.S. House members sent a letter to Obama calling on him to issue the directive, saying the measure 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 .” Rep Frank Pallone (D-N.J.), who drafted the letter, distributed it among colleagues.

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How a pro-transgender memo sneaked through the Trump administration

2020 memo an outlier amid otherwise hostile policy

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By the time the Trump administration ended, it had solidified a reputation for being hostile to transgender people — barring them from military service and reversing regulations aimed at ensuring non-discrimination protections regardless of gender identity — but one minor policy decision managed to sneak through affirming the acceptance of employees going through gender transition.

Top officials at the Defense Intelligence Agency, a company support agency for the U.S. government, outlined in a memo dated June 15, 2020 the process for employees and supervisors to “navigate transitioning while employed at the DIA.” The document, which was not previously made available to the public, was obtained earlier this month by the Washington Blade through an appeal of a request under the Freedom of Information Act.

“Transitioning in the workplace is a personal decision,” the memo says. “DIA encourages transitioning employees to openly communicate during the transitioning process; discuss plans for workplace transition with their supervisor or manager; and, as appropriate, include any steps that will prompt workplace changes (e.g., transitioning employees may begin using a different name or pronoun).”

Because the fundamental nature of a memo outlining steps to help employees in the workplace transition is contrary to the overwhelming anti-transgender outlook of the Trump administration, the DIA memo appears to have been an internal effort shielded from the White House at the time as opposed to a government-wide initiative.

The DIA guidance for transgender employees runs contrary to other sweeping Trump administration policies that sought to enable discrimination against transgender people, including the military policy former President Trump issued via Twitter in 2017 outright banning them from service “in any capacity.”

Other anti-trans actions include the Department of Health & Human Services rescinding an Obama-era regulation that barred health care providers and insurers from discriminating against transgender patients, including the denial of transition-related care, which was orchestrated by then-director of Office of Civil Rights Roger Severino and came just days before the DIA memo.

Both the military ban and the health care rollback have since been reversed under the Biden administration.

Another Trump-era policy at a comparable scope to the DIA memo to employees, however, was the U.S. Office of Personal Management deleting on a page on its website outlining the guidance for accommodating federal workers going through the transition process. The DIA memo, which facilitates those transitions within that one agency, contradicts the message sent by the deletion of the OPM resource.

Although two sources familiar with the document told the Washington Blade it was timed for Pride month (which would be consistent with the June publication date), it would also be consistent with the U.S. Supreme Court’s decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of illegal sex discrimination. After all, the Bostock decision came out on the same day as the date on the DIA memo.

A defense insider familiar with the DIA memo, who spoke on condition of anonymity, was among those who said the memo went out in recognition of Pride month and said it was intended to ensure there was guidance for transition at the agency.

“We had a number of different individuals who were going through the transition process and management needed to understand what the policy as they dealt with the individuals who were going through transition,” the insider said.

The insider said production of the memo “wasn’t part of any government wide effort” and completely within DIA. The memo, the insider said, wasn’t creating any new policy for the agency, but “looking at existing policy, and then providing our manager and our workforce clear guidance.”

Asked whether there was any backlash to the memo, the insider said, “No, I would say absolutely not.” Once the guidance went out, the insider said, he “didn’t hear anything from outside the organization” about it.

In response to a follow-up question on whether the White House or Pentagon under Trump expressed any objections to the guidance, the insider denied that was the case: “No one said anything to me about it.”

Other highlights of the memo include options for diversity training to better understand transition-related issues; instructions to refer to employees by the name and pronoun of their choice; a reminder the Defense Intelligence Agency has no dress code, therefore employees are allowed to wear attire in the manner they choose; and a guarantee employees shall have access to restrooms consistent with their gender identity. Employees may transition without prior coordination, the memo says, or may do so while creating a transition plan that includes the date the transition will begin, whether time off is needed and how to discuss the situation with colleagues.

“Employees can use the restroom and other facilities that best align with their gender identity and are not restricted to use of a single-user restroom,” the memo says. “Employees are not required to undergo or provide proof of any medical procedures to use restroom facilities designed for use by a specific gender.”

Additionally, the document outlines the process for administrative record updates, including making a request for a gender marker changer through human resources, updating personnel files, and changing DIA and intelligence community badges and identification cards.

A DIA spokesperson, in response to email inquiries from the Washington Blade on the document, confirmed the memo was issued to coincide with Pride month and remains in effect to this day.

“Released jointly to the DIA civilian workforce by the DIA Chief of Staff, Equal Opportunity and Diversity Office, and Office of Human Resources, the memo titled ‘Gender Transition in the Workplace for Civilian Employees’ serves to notify DIA civilian employees of the Agency’s position on supporting Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) employees, including those taking steps to align themselves more fully with their gender identities,” the DIA spokesperson said. “The memo was released in June 2020 to coincide with Pride Month and serves as active guidance.”

In many cases, regulations and guidance would have to go through the White House Office of Management & Budget or Office of Information and Regulatory Affairs, but not necessarily, especially an internal memo to supervisors and employees to reinforce policy that purportedly was already in place.

A Trump White House official said he was unaware of the document until the Blade brought it to his attention and said it would not have come to the White House because it was never published in the Federal Register. The Office of Management & Budget didn’t respond to the Blade’s request to comment on whether it ever was brought to the attention of the White House at the time of its publication in 2020.

While regulations within U.S. agencies go to the White House for review and consultations, government agencies as well as businesses often consult transgender groups for assistance in developing guidance for transitioning in the workforce, such as the National Center for Transgender Equality.

Mara Keisling, a transgender advocate who served as executive director of the advocacy group during the Trump administration, said she was completely unaware of the memo until the Blade brought it to her attention, although DIA would have been “required by law” to have such a policy for transgender workers after the Supreme Court’s decision in Bostock.

“We would have been happy to see it, but this was not the Trump administration doing something good,” Keisling said. “This was HR bureaucrats, I don’t mean bureaucrat in a bad way at all. This is HR bureaucrats following the law, and it clearly didn’t rise to the level of the White House.”

Keisling said she was unaware of any similar guidance for gender transition coming from a U.S. agency during the Trump administration. However, she disclosed her organization was able to work with federal workers to get “a couple of sneaky things done the White House didn’t know about” consistent with the DIA memo, although she didn’t elaborate.

“And super importantly, it’s the intelligence community and defense and intelligence, which Defense Intelligence Agency obviously is both,” Keisling said. “They have a little more autonomy than others anyway, so … if you told me there was something surprising from somewhere on a personnel issue, I would have guessed that it was somewhere in the intelligence report or Foreign Service community.”

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Texas to resume abuse investigations into families with trans children

“To be clear the Supreme Court has not directed Commissioner Masters & DFPS to continue investigating parents of trans youth for child abuse”

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In a statement issued Thursday, the Texas Department of Family and Protective Services (DFPS) agency announced that it will resume abuse investigations into families with transgender kids.

“DFPS treats all reports of abuse, neglect, and exploitation seriously and will continue to investigate each to the full extent of the law,” the statement read.

The Dallas Morning News reported that the DFPS statement, while not addressing the investigations into medical treatments for trans youth, indirectly indicated that these probes will now continue.

Current state law does not explicitly define gender affirming medical treatments, such as puberty blockers and hormone therapy as child abuse. A DFPS spokesman did not comment when asked if the agency plans to continue investigating such treatments as child abuse, the Dallas Morning News noted.

The Texas Supreme Court ruled last week that DFPS can continue to investigate families in the state who provide medically necessary care for their Trans children, excluding the parties in the litigation that brought the matter forward in a lawsuit filed in March.

In its decision, the court emphasized that neither Attorney General Paxton nor Governor Abbott has the power or authority to direct DFPS to investigate the provision of medically necessary lifesaving health care for transgender youth as child abuse. But the court limited the order blocking all investigations to the specific plaintiffs who filed suit.

Trans activist Landon Richie who has been deeply involved in the efforts to mitigate the anti-trans actions by Texas lawmakers and has led protests against the transphobic actions by Texas Governor Greg Abbott and Attorney General Ken Paxton told the Blade:

“To be clear, the Texas Supreme Court has not directed Commissioner Masters and DFPS to continue investigating parents of trans youth for child abuse. While the decision means now only the named plaintiffs in the lawsuit have protection, it reiterates that Attorney General Paxton’s opinion and Governor Abbott’s letter are not binding and not enforceable, meaning DFPS’s actions moving forward are at the discretion of Commissioner Masters only and not the state leadership’s directives. The Texas Supreme Court allowing for the district court to provide a temporary injunction is a good sign for people’s protection. 

It bears reminding families in Texas and around the country that today’s decision (and yesterday’s regarding gender-affirming care at UT Southwestern and Texas Children’s) reaffirms what we already know: opinions are only opinions and the people in power cannot abuse that power to abuse trans people. We know decisions can change at a moment’s notice and that this fight will take years, but to our families and communities under attack, please remain strong and take a moment to breathe. We’re in this together. “

An employee of DFPS who was a litigant in the lawsuit is represented by the ACLU of Texas.

Brian Klosterboer, an attorney with the ACLU of Texas who is on the team representing that unnamed employee, said the state’s decision to reopen the cases is unfortunate and unlawful. He said his team believes that the high court’s decision removes any responsibility for Texans to report trans youth getting treatments, the Dallas Morning News reported.

“We are going to be closely monitoring what the agency does. We would encourage families that have any reason to believe that they have an investigation to seek legal help,” Klosterboer said.

“Abbott’s letter and Paxton’s opinion did not change Texas law,” he added. “Gender affirming health care is still legal in all 50 states.”

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“Don’t Say Gay” student leader says school stopping run for student leadership

Jack Petocz organized a state-wide student protest against Florida’s “Don’t Say Gay” bill & annoyed administrators suspended him

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Jack Petocz (Center) at the Harvard Kennedy School of Government earlier this Spring (Courtesy of Jack Petocz/Facebook)

Jack Petocz, a Flagler Palm Coast High School junior, organized a state-wide student protest against Florida’s “Don’t Say Gay” bill this past March, and at his school, annoyed administrators suspended him.

On Tuesday, Petocz said that the school’s disciplinary action is now preventing him from running for senior class president.

“When I returned, the administration assured me that no further disciplinary action would be taken. A month later, they broke this verbal agreement and placed a level 3 referral on my record. Now, due to this high level of discipline, I am being prevented from running for senior class president. I am continuing to be punished for standing up for my identity and against widespread hatred.”

The suspension over the student walkout became a viral moment that propelled the 17-year-old into the national spotlight and into the national discourse over a spate of harsh laws targeting the LGBTQ+ community.

17-year-old Cameron Driggers, a student LGBTQ+ activist-organizer of the group Recall Flagler County School Board and co-leader of the walk-out, his friend’s suspension inspired him to create a petition on Change.org to pressure Flagler Palm Coast High School Principal Greg Schwartz to rescind his seemingly arbitrary decision to suspend Petocz.

One protest at the school over its suspension of Petocz brought together a grizzled and proud Out gay U.S. Marine Corps veteran accompanied by his fellow vets, who alongside with Driggers and the other young adolescent activists protested in a rally in front of the school at the same time Petocz and his father were inside meeting with Flagler Palm Coast High School Principal Greg Schwartz, hoping to get him to rescind his seemingly arbitrary decision to suspend Petocz.

Jack Petocz (with bullhorn) leads Flagler Palm Coast High School protest against DSG bill (Photo by Alysa Vidal)

Later on during the day Driggers posted to the Change.org petition the news that Principal Schwartz had backed off.

“Recall FCSB is pleased to announce that Jack’s suspension has ended and he is back on-campus. We are grateful for the thousands of people around the globe that shared, tweeted and protested in support of Jack, the organizer behind the state-wide Don’t Say Gay Walkout. Over 7500 signatures were collected on a condemnation of Principal Greg Schwartz’ conduct last Thursday. With Jack back on campus, Recall FCSB will continue to empower student leaders in and out of school,” Driggers wrote.

Principal Schwartz also committed to removing the ‘disciplinary action’ from Petocz’s school record.

On Tuesday, Petocz announced that Principal Schwartz and other school officials are barring him from running for an elected student office.

In response to the news, PEN America issued the following statement from Jonathan Friedman, director of the Free Expression and Education program:

“By going back on their word and imposing a red mark on Jack Petocz’s disciplinary record, the Flagler Palm Coast High School administration appears bent on retaliating against him for organizing the walkout against the ‘Don’t Say Gay’ bill. This is unconscionable. Jack exercised his right to protest as a citizen, and he led the walkout with the school’s approval. No student ought to be intimidated or punished by school authorities for their political speech, and the school already told him he would not be disciplined. This is especially troubling alongside news of other efforts to censor or intimidate students raising their voices for LGBTQ+ rights across Florida. The leaders of Flagler Palm Coast High School should remove this infraction from his record so that he can run for class president just like any other student.”

On Twitter, Petocz urged people to contact his school to get officials to reverse this latest decision.

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