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HISTORIC: EEOC ruling protects trans workers from discrimination

Agency interprets Title VII to protect workers against gender identity discrimination

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In a historic ruling, the U.S. Equal Employment Opportunity Commission has determined that job bias against employees on the basis of gender identity amounts to sex discrimination under existing law.

The determination came about as part of the resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who allegedly was denied a job as a ballistics technician at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives’s laboratory in Walnut Creek, Calif., after she announced she was transitioning from male to female. The decision, made unanimously by the commission on a 5-0 vote, was made public Monday evening.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII,” the decision states.

EEOC is the federal agency that interprets and enforces federal non-discrimination laws. Its decision on transgender workers applies to both public and private employers throughout the United States, including in the 34 states where non-discrimination laws based on gender identity don’t exist.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Various courts have determined that transgender workers are protected against discrimination on the basis of this statute, but the decision on Monday marks the first time the EEOC has decided the law protects transgender workers.

Masen Davis, executive director of the Transgender Law Center, said the significance of the decision is “hard to overstate.”

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination, and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”

EEOC made the decision after the Obama administration was criticized by many in the LGBT community for deciding at this time against issuing an executive order requiring federal contractors to have non-discrimination policies based on sexual orientation and gender identity. The EEOC decision could provide a path to provide transgender workers seeking a remedy against discrimination in lieu of the executive order.

While still presenting as male, Macy, a veteran and former police detective, was told in January 2011 she would receive a position she wanted at the Walnut Creek crime laboratory. As evidence of her impeding hire, Aspen of DC, the contractor responsible for filling the position, contacted her to begin the necessary paperwork and said an investigator was performing a background check.

But after informing the contractor in March 2011 that she would transition from male to female, Macy received an email from the contractor stating that the position, due to federal budget constraints, had been cut. Later, she was told someone else was awarded the position.

Believing she had faced job discrimination, Macy on June 13 filed a formal complaint with the EO for the agency, noting “gender identity” and “sex stereotyping” as the basis of her complaint. After some back-and-forth between Macy and the agency over whether she could seek relief under Title VII, Macy appealed the case in December to EEOC, which determined the law offers her protection as well as protection to other transgender workers.

In a statement, Macy thanked the Transgender Law Center for its support and said she was “proud” to be part of the groundbreaking decision.

“Although the discrimination I experienced was painful both personally and financially, and led to the loss of my family’s home to foreclosure, I’m proud to be a part of this groundbreaking decision confirming that our nation’s employment discrimination laws protect all Americans, including transgender people,” Macy said. “I’m grateful for the help of Transgender Law Center, which believed in me from the start and helped guide me through this process. No one should be denied a job just for being who they are.”

Still, the case isn’t yet over for Macy. The case has been remanded to ATF for further processing in light of the decision. If Macy requests a final decision without a hearing, the agency must render a decision within 60 days of receipt of her request.

EEOC draws on previous decisions that courts have made on whether Title VII provides protections to workers who face discrimination on the basis of gender identity.

Among them is the 11th Circuit Court of Appeals’ ruling in Glenn v. Brumby, in which plaintiff Vandy Beth Glenn, a transgender woman who was fired from her position as proofreader from the Georgia General Assembly in 2007 filed a lawsuit after she announced she would transition from male to female. The court ruled that an individual “cannot be punished because of his or her perceived gender-nonconformity” and these protections must be afforded to transgender people.

Mara Keisling, executive director of the National Center for Transgender Equality, called the decision a “major victory” and said it would further the case of the Employment Non-Discrimination Act, legislation that would bar companies from discrimination against LGBT employees, and the sought-after executive order for federal contractors.

“As many as 90 percent of trans people still face tremendous discrimination in employment according to our National Discrimination Survey, and it will help so much that the EEOC agrees with what more and more courts have been saying — discriminating against trans people because of their sex, or their perceived sex, or what an employer thinks about their sex is clearly sex discrimination, illegal and wrong,” Keisling said.

Tico Almeida, president of Freedom to Work, said the decision expands upon Executive Order 11246, the existing directive prohibiting federal contractors from discriminating on the basis of gender.

“We call on Labor Secretary Hilda Solis and her staff to issue new guidance for federal contractors to inform them that they cannot discriminate against transgender Americans while profiting from taxpayer-funded contracts,” Almeida said.

However, Almeida said Solis won’t have the authority to expand these protections to gay and lesbian Americans working for federal contractors until Obama “corrects the mistake announced by White House staff a few weeks ago” and issues an executive order for all LGBT workers at these companies.

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Over 100 LGBTQ-themed books in a Florida school district labeled with advisory warning

They warn: “this book has been identified by some community members as unsuitable for students.”

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Advisory Notice (via Twitter)

A southwest Florida district put parental “advisory notice” on over 100 books, many of which are race or LGBTQ-themed. 

A great number of books in Collier County Public Schools, either digital or physical, now have warning labels writing “Advisory notice to parents,” according to an NBC report,

The label, tweeted by nonprofit free-speech-promoting group PEN American, states, “This Advisory Notice shall serve to inform you that this book has been identified by some community members as unsuitable for students. This book will also be identified in the Destiny system with the same notation. The decision as to whether this book is suitable or unsuitable shall be the decision of the parent(s) who has the right to oversee his/her child’s education consistent with state law.” 

Stephana Ferrell, co-founder of the Florida Freedom to Read Project, which means to fight book banning, told NBC that she had a call from Elizabeth Alves, the associate superintendent of teaching and learning for Collier County Public Schools. In the call, Alves told her that the district added the labels starting in February. 

These measures, which Alves described as a “compromise,” happened after the district’s legal representative talked with the Florida Citizens Alliance, a conservative group which initiated a “Porn in Schools Report” project last year. The report included a list of books that “promote gender self-identification and same-sex marriage” as well as titles that include “indecent and offensive material,” as the group explained. 

Chad Oliver, the Collier County Public Schools spokesperson, on the other hand offered a different story. 

Oliver sent an email to NBC News and said, “Based upon advice from the General Counsel, we placed advisory notices on books about which parents and community members had expressed concern and in accordance with the recently passed Parents’ Bill of Rights Law (HB 241).” 

The law referred by Oliver is also known as the “Don’t Say Gay” law.

According to PEN America, there are 110 labeled books in total, and the list greatly overlaps with the one Florida Citizens Alliance inquired about with Collier County Public Schools. 

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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

“It is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. “This legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.”

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Biden administration shifts monkeypox vaccine approach amid shortage

Health experts sees new guidance as mixed bag

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The Biden administration has changed its guidance on monkeypox vaccines to enhance availability amid the shortage.

The Biden administration, amid criticism it was slow to act on the monkeypox outbreak and still not meeting the demand for vaccines as the number of cases continues to grow, has announced a shift in guidance for implementation of the shot in an effort to enhance availability.

As the estimated number of monkeypox cases in the United States reaches 8,900, top health officials announced the new move on Tuesday as part of a decision by Secretary of Health & Human Services Xavier Becerra to issue a determination under Section 564 of the Federal Food, Drug and Cosmetic Act to justify emergency use authorization of vaccines. The announcement follows up on the Biden administration’s announcement last week declaring the monkeypox outbreak a public health emergency.

Becerra said in a conference call with reporters the 564 determination and change in approach to vaccines would “boost and strengthen” the Biden administration’s response to monkeypox, which has overwhelmingly affected gay and bisexual men, and “safely accelerates and multiplies our supply of effective vaccines by up to fivefold.”

“Today’s action also reaffirms HHS and this administration’s commitment to using all available resources and capabilities to end the monkeypox outbreak and provide the best possible care to those suffering from the virus,” Becerra added.

The new vaccine approach, which may may be considered minor to non-medical observers, would change injections of the JYNNEOS vaccine from the subcutaneous route (delivery of the vaccine under the fat layer underneath the skin) to the intradermal route (delivery of the vaccine into the layer of skin just underneath the top layer). In theory, that would allow for greater accessibility of monkeypox vaccines as it increases the number of doses from each vial of vaccine.

The change was made amid criticism the Biden administration failed to meet the demand for vaccines during the outbreak and geographic inequity as certain metropolitan areas of the country have more access to vaccines than other places.

As The New York Times reported last week, the Biden administration has faced criticism for not moving quickly enough in acquiring and distributing vaccines, including bulk stocks already owned by the U.S. government manufactured in Denmark by Bavaria Nordic now being given to other clients.

“The government is now distributing about 1.1 million doses, less than a third of the 3.5 million that health officials now estimate are needed to fight the outbreak,” the Times reported. “It does not expect the next delivery, of half a million doses, until October. Most of the other 5.5 million doses the United States has ordered are not scheduled to be delivered until next year, according to the federal health agency.”

Biden officials, nonetheless, touted the numbers of vaccines and tests in response to monkeypox as a positive, acknowledging the 1.1 million vaccines being made available as well as delivery of more than 620,000 of those doses, deployment more than 15,000 courses of the monkeypox treatment and increasing the country’s capacity to administer tests on a weekly basis to around 80,000. Meanwhile, officials also promoted the change in approach in vaccines as means to allow greater accessibility to the shots.

Rochelle Walensky, director of the Centers for Disease Control & Prevention, promoted during the conference call the use of intradermal injections and said they’re “often used for TB skin tests and have been used for other types of vaccines.”

Although Walensky conceded some health care providers “may not be as familiar with intradermal administration” as they are with subcutaneous injection, she said CDC would make additional guidance materials available, including a clinician alert message to the Association of State & Territorial Health Officials, outreach to key clinician partners and an education resource video. The change in guidance, Walensky said, is for vaccine implementation in adults and children — where single digit monkeypox cases have been reported — would continue to receive vaccination in the traditional subcutaneous approach.

But health experts aren’t responding with overwhelming praise to the decision to change the guidance on vaccine implementation from subcutaneous injections to intradermal injections, expressing concerns the new approach may be insufficient.

Jennifer Kates, director of global health & HIV policy at the Kaiser Family Foundation, was among those saying the change in guidance on vaccine approach was a mixed bag and told the Blade more data is needed to emulate the effectiveness.

“As we saw with COVID, using these authorities in the context of public health emergencies is an important strategy,” Kates said. “In this case, this step will significantly expand access to vaccines for those most at risk. However, there remain questions about the effectiveness of this approach — real world studies are needed — and challenges to translating vaccines into vaccinations.”

Peter Marks, director of the Center for Biologics Evaluation & Research (CBER) at the Food & Drug Administration, was asked during the conference call with reporters to respond to concerns the change in guidance was insufficient and downplayed the novelty of implementing the vaccines through the intradermal route as “not at all new.”

“In fact, the reason why the Bavaria part of this equation comes from the fact that in Germany, this vaccine was given intradermally originally, in an effort to replicate the original version of the smallpox vaccine,” Marks said. “It’s been given to thousands of people intradermally, so this isn’t the first time it’s been done.”

Walkensky said the intradermal vaccine approach has been implemented amid policies among localities to implement a one-dose approach to the JYNNEOS vaccine through the subcutaneous route. (The D.C. government is one of the jurisdictions that had enacted a one-dose approach amid a vaccine shortage.) There is not data, Walkensky said, to support that approach and “in fact, if anything, there are data saying that that is not protective enough.”

“So by using this alternative strategy of intradermal dosing, not only do we have more doses, but we actually allow people to get two doses in a way that shows immunologic response that’s superimposable from the subcutaneous dosing,” Walkensky said. “So we have more doses, and in fact, we have the ability to doubly vaccinate people so that they get the protection that they need.”

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