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Would President Romney undo pro-LGBT advances?

Array of regulatory changes could be in jeopardy under GOP administration

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Mitt Romney speaking before attendees at the 2012 Conservative Political Action Conference (Washington Blade photo by Michael Key)

Republican presidential candidate Mitt Romney (Blade file photo by Michael Key)

As President Obama and Mitt Romney articulate competing visions for the future in their presidential campaigns, most LGBT rights advocates agree the choice couldn’t be more stark given the advances the community has seen over the past three-and-a-half years and the anti-gay positions espoused by the Republican candidate.

On one hand, President Obama has endorsed marriage equality, capping off a first term of efforts at the legislative and regulatory levels aimed at benefitting the LGBT community. On the other, Romney signed a pledge with the anti-gay National Organization for Marriage to back a Federal Marriage Amendment and defend the Defense of Marriage Act in court. Last month, he backed off his earlier stated belief that adoption by same-sex couples is a right by saying he simply “acknowledges” the legality of such adoptions in many states.

Obama has made “forward” the theme for his 2012 campaign. The extent to which Romney has adopted anti-gay views and aligned himself with anti-gay groups raises a key question for LGBT voters: Under a Romney administration, how far “backward” could the LGBT community go?

Many of the pro-LGBT advances that have happened under the Obama administration occurred through changes made by the executive branch rather than through legislation. Changes that were made without the consent of Congress could be reversed under an administration that wanted to cozy up to the religious right.

The Washington Blade has identified five regulatory changes and 16 sub-regulatory changes enacted by the Obama administration that could be reversed if Romney were elected to the White House. These changes include giving greater recognition to same-sex couples, protecting federal LGBT workers against discrimination and ensuring the federal government recognizes the correct gender of transgender people.

Major changes that were made under the Obama administration at the regulatory level include a memorandum requiring all hospitals receiving Medicaid and Medicare funds to allow visitation rights for same-sex couples; lifting the HIV travel ban; and a Department of Housing & Urban Development rule prohibiting discrimination in federal public housing programs and federally insured mortgage loans.

Jerame Davis, executive director of the National Stonewall Democrats, predicted Romney would aim to roll back these policies if he takes the oath of office in January 2013.

“If Mitt Romney were to accede to the presidency, he would have no choice but to deliver on the regressive, ultra-conservative agenda he’s been promising the radical GOP machine,” Davis said. “It is without question that rolling back advances in LGBT equality would be at the top of the list.”

Romney has never pledged during the campaign to rescind any pro-LGBT regulatory changes made under the Obama administration. Although he said he doesn’t support same-sex marriage or civil unions with the same benefits as marriage, Romney said he favors some kind of domestic partner benefits for same-sex couples as well as hospital visitation rights. Rescinding this hospital visitation memorandum would appear to break a campaign promise.

Moreover, the Administrative Procedures Act — a law enacted by Congress in 1946 governing the way in which administrative agencies may propose and establish rules — prohibits a quick change in regulation if a hostile administration takes over. Instituting new final regulations repealing these policies would be a multi-year process and require a justification for overturning them other than for political reasons.

Christian Berle, deputy executive director of the Log Cabin Republicans, said he doubts that Romney would take away this progress based on the candidate’s tenure as Massachusetts governor and as a business executive.

“As governor of Massachusetts, Mitt Romney sustained executive orders providing for domestic partnership benefits including hospital visitation rights for gay and lesbian state employees,” Berle said. “This action directly builds upon his record in leading companies like Bain Capital and Staples, which had strong nondiscrimination policies and partner benefits. This history both as a chief executive in the business sector and as governor of Massachusetts give precedence for sustaining President Obama’s positions on matters including hospital visitation.”

But Romney did rescind some pro-LGBT changes as governor. According to MassEquality, Romney abolished the Governor’s Commission on GLBT Youth and rescinded an executive order prohibiting sexual orientation discrimination in the state workforce. Another Republican, former Gov. William Weld, had instituted those measures.

It’s the sub-regulatory initiatives where the most sweeping changes could be made. The time needed to change these would be shorter than the time needed to change more formal regulations, although it would vary from agency to agency and issue to issue. For many, an agency could rescind guidance issued by the Obama administration, issue a superseding directive or discontinue a certain program.

Among these sub-regulatory changes are revising standards to allow transgender people to change a gender marker on a passport; the Education Department’s guidance clarifying that student bullying may violate sex discrimination protections under federal law; the reinterpretation of the Family & Medical Leave Act to allow employees to care for their same-sex partner’s child; and the Census Bureau’s decision to release data on married same-sex couples along with other demographic information in the 2010 Census.

Davis said all the administrative changes — ranging from the regulatory to sub-regulatory level — would be in jeopardy if Romney wins the election.

“The bigoted wing of the GOP, which Romney has embraced with gusto, cannot stand the idea that same-sex relationships have been afforded near equal status in so many federal rules and regulations,” Davis said. “It grates against their very being that transgender Americans can get passports with the appropriate gender marker and there are more than a few who want to see the HIV travel ban put back into place.”

The Romney campaign didn’t respond to a request for comment on whether these changes would remain in place under a Romney administration. The Obama campaign and the Democratic National Committee declined to comment for this article.

Are there steps the Obama administration could take now to ensure the changes become more permanent?

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said the sub-regulatory changes could be, in a sense, upgraded to regulatory changes, but that process would be lengthy and cumbersome.

“Of course, advances made through regulations are more difficult to undo, but it is also more challenging to move new regulations through the process of review, public comment and approval,” Cole-Schwartz said. “Making LGBT inclusion part of the culture of federal government across departments and agencies is a big part of making these changes more difficult to roll back — and the administration has done a great deal to foster that inclusiveness.”

These changes don’t include the anti-gay promises that Romney has made. Romney has campaigned on resuming defense of DOMA, which would be a stark change from the Obama administration’s practice of filing legal briefs against the anti-gay law in court and sending Justice Department attorneys to litigate against the statute. Romney also pledged to set up a presidential commission on religious liberty to investigate the alleged harassment of opponents of same-sex marriage.

Cole-Schwartz said the array of ways in which a Romney administration could reverse the progress made on LGBT rights undescores the significance of the upcoming election.

“It further emphasizes the importance of re-electing a fair-minded president whose administration will continue to seek out ways to further LGBT equality,” Cole-Schwartz said.

Pro-LGBT policy changes under Obama

Regulations

The Administrative Procedures Act provides safeguards against politically motivated policy switches. Thus repealing the policies below would involve a multi-year process.

  • The Department of Health and Human Services (HHS) adopted a regulation ending the ban on HIV-positive visitors and immigrants.
  • President Obama issued Presidential Memorandum in April 2010 directing HHS to issue regulations requiring all hospitals receiving Medicaid and Medicare to prohibit discrimination in visitation against LGBT people. HHS issued a final regulation that went into effect in early 2011.
  • HUD issued final regulations in January 2012 prohibiting discrimination in federal public housing programs and federally insured mortgage loans.  HUD also requires its grantees to comply with LGBT-inclusive state and local housing discrimination protections.
  • The Office of Personnel Management published final regulations in the Federal Register expanding the eligibility for long-term care coverage to same-sex partners and sick leave to care for a same-sex partner.
  •  The federal Prison Rape Elimination Commission proposed national standards to reduce sexual abuse in correctional facilities, including standards regarding LGBT and intersex inmates. They were later instituted as a rule finalized by the Justice Department last month.

Sub-Regulatory Guidance/Policy Announcements

These are policy advances instituted by — and subject to the will of — the administration.

  • The Department of Health and Human Services revised its funding guidance around abstinence-only-until-marriage sex education programs, requiring that recipient programs are inclusive of and non-stigmatizing toward LGBT youth.
  • HHS, in partnership with the Department of Education and Department of Justice, launched stopbullyingnow.com.
  • The U.S. Immigration and Customs Enforcement agency recently released new 2011 Performance Based National Detention Standards.  These new standards provide guidance that aims to improve treatment of LGBT and HIV-positive people in detention facilities.
  • In summer 2011, ICE published a memo and clarifying guidance providing that an individual’s family relationships, including a same-sex relationship, would be considered as a factor in labeling certain deportations as low-priority deportations.
  • The U.S. Customs and Border Patrol announced a proposed regulatory change expanding the meaning of “members of a family residing in one household” for the purposes of the customs declaration form, which must be completed prior to re-entry to the United States.
  • The DOJ issued an opinion clarifying that the criminal provisions of the Violence Against Women Act related to stalking and abuse apply equally to same-sex partners.
  • The State Department revised the standards for changing a gender marker on a passport, making the process less burdensome for transgender people.
  • In September 2011, the Social Security Administration confirmed that it ended the practice of allowing gender to be matched in its Social Security Number Verification System (SSNVS). This resulted in the immediate cessation of SSA sending notifications that alert employers when the gender marker on an employee’s W-2 does not match Social Security records.
  • The State Department extended numerous benefits to the partners of Foreign Service officers, including diplomatic passports and access to emergency evacuation.
  • The State Department reversed a Bush administration policy that refused to use a same-sex marriage license as evidence of a name change for passports.
  • The Department of Education issued guidance clarifying when student bullying may violate federal law, distributed a memo outlining key components of strong state anti-bullying laws and policies and made clear to public schools that gay-straight alliances have a right to form and meet.
  • The Department of Education published guidance and, in coordination with the Department of Justice, has pursued Title IX complaints filed by LGBT students experiencing harassment based on sex or sex stereotyping.
  • OPM added gender identity to the equal employment opportunity policy governing all federal jobs.
  • The Department of Labor issued guidance clarifying that an employee can take time off under the Family and Medical Leave Act to care for a same-sex partner’s child.
  • The IRS clarified that domestic partners (and their children) can be designated beneficiaries for VEBA funding/payment purposes.
  • The Census Bureau overturned the Bush administration’s interpretation of the Defense of Marriage Act and agreed to release data on married same-sex couples along with other demographic information from the 2010 Census.

SOURCE: HRC

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Boston Children’s Hospital targeted by violent anti-LGBTQ threats

‘We condemn these attacks in the strongest possible terms’

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(Screenshot/YouTube WBZ)

Anti-LGBTQ far right extremists are targeting Boston Children’s Hospital, threatening its employees and medical staff after falsehoods and disinformation spread online recently about the healthcare facility’s treatment of transgender youth.

In a statement posted online, a spokesperson for Boston Children’s Hospital wrote: “In response to commentary last week critical of our Gender Multispeciality Service (GeMS) Program, Boston Children’s Hospital has been the target of a large volume of hostile internet activity, phone calls and harassing emails including threats of violence on our clinicians and staff fueled by misinformation and a lack of understanding and respect for our transgender community.”

The statement notes that the false information, with special attention being cast on the lies that Boston Children’s Hospital was performing hysterectomies (transgender care related) on minors. The age of consent for that gender-affirming procedure is 18.

“We condemn these attacks in the strongest possible terms, and we reject the false narratives upon which they are based,” the hospital continued. “We are working with law enforcement to protect our clinicians, staff, patients, families and the broader Boston Children’s Hospital community and hold the offenders accountable. We will continue to take all appropriate measures to protect our people.”

Journalist Martha Bebinger with WBUR,  Boston’s NPR news station, noted the campaign started last week with criticism of a video posted on the hospital’s website about hysterectomies. Several conservative social media accounts shared posts about the video on Twitter. The hospital performs hysterectomies on patients 18 and older, but not on children as some of the posts claimed.

The social media account Libs of TikTok, which has often promoted “groomer” discourse that falsely linked LGBTQ teachers and parents to pedophilia, began to make a variety of false claims. One allegation included the lie about Boston Children’s Hospital offering gender-affirming hysterectomies to children under 18 years old.

Surgeons at Boston Children’s Hospital have said they would consider performing other procedures, including phalloplasty, or penis construction, on 17-year-old male trans patients. But hospital staff say that hasn’t happened because no 17-year-old has met the required legal and other criteria.

Conservative journalist and anti-LGBTQ+ activist Christopher Rufo, who has helped incite white Christian nationalist right-wing uproar over the critical race theory being taught in the nations’ secondary schools and also fabricated a story that queer theory was also being taught to kindergarteners up through high school, took aim at Boston Children’s Hospital in a tweet Wednesday.

Then adding to the far-right extremist pile-on, Media Matters for America reported Wednesday that anti-trans pundit Matt Walsh also attacked the hospital.

Christina Buttons, a Nashville-based radical anti-LGBTQ far-right journalist for the Canadian anti-LGBTQ conservative publication, the Post Millennial, which features other transphobic writers, attacked NBC News reporter Brandy Zadrozny on Twitter over her reporting on Boston Children’s Hospital.

A spokesperson for Twitter told the Washington Blade Wednesday afternoon that the company support team was looking into the reports of harassment.

Zadrozny reported: Anti-trans activists also targeted the individual doctors who appeared in the YouTube videos from Boston Children’s Hospital, leaving vulgar and harassing comments on their social media accounts and flooding their online pages with negative reviews. Some hospital staff have since made their social media profiles private.

This isn’t the first time that far-right activists have targeted doctors and medical institutions — or even Boston Children’s Hospital.

Lee Leveille, co-director of Health Liberation Now, a trans rights advocacy group that investigates the effects of policy on trans health, said the hospital was also a target in May 2021 for providing gender-affirming care amid a similar wave of targeted harassment on medical facilities.

“The original organized network that jump started the clinic protests has been slowing down a bit and is more decentralized,” Leveille said over email. “Local pockets will still operate here and there, but they’re less connected to a central organized push than the original ones. Now we’re seeing new faces rallying the cause — including the likes of Matt Walsh and Libs of TikTok.”

A spokesperson for the Boston Police Department said the department is aware of the threats and is working with hospital staff.

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Dance parties: End-of-summer fun or monkeypox super-spreaders?

Health officials urge precautions as cases reach 12,689

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Health officials are urging precautions on monkeypox amid end of the summer gay dance parties. (Blade file photo by Daniel Truitt)

This is the time of year when gay men say farewell to summer with trips to the beach and resort towns for festivities, parties, and other revelry consisting of shirtless dancing and various forms of intimate contact — now a potential health risk as super-spreader events amid a monkeypox outbreak that continues to spread among men who have sex with men.

With the number of reported cases of monkeypox in the United States reaching 12,689 and demand for vaccines failing to keep up with supply, questions remain about taking precautions like those seen during the coronavirus epidemic as health experts and event organizers point to existing guidance to ensure a reasonable degree of safety.

Wes Combs, president of the CAMP Rehoboth board of directors, said his organization from the beginning of the monkeypox outbreak has been engaging with health officials at the state level in Delaware about what people should be looking for in terms of symptoms, as well as information about how people in high-risk categories can sign up to get vaccinations.

“As is everywhere in the country right now, where LGBTQ communities have big populations people are concerned, so we have received a number of calls about more information about monkeypox, about whether or not people can get vaccinated at CAMP Rehoboth,” Combs said.

A monkeypox town hall hosted by CAMP Rehoboth in conjunction with Delaware state health officials took place Tuesday, providing an opportunity to offer the latest information and answer questions about the monkeypox outbreak. CAMP Rehoboth announced it has been identified as one of two additional sites for vaccinations in addition to what the Department of Health provides from its health centers.

Rehoboth is among the many places in the United States where gay men are expected to flock to celebrate, along with Fire Island and Provincetown on the East Coast, making vaccinations against monkeypox in high demand at a time when the Biden administration is facing criticism for not making them more widely accessible. (Gay cruises for the summer, however, may not be among these events. A Carnival Cruise Line spokesperson said the charters team has no LGBTQ cruises coming up.)

Brad Perkins, chief medical officer at Karius, Inc., when asked about appropriate guidance for these end-of-summer events advised “trying to encourage community awareness and responsibility to isolate yourself and not infect others if you believe that you’ve been exposed or know that you’re infected.”

“But the longer game here is that we don’t want this disease to become endemic in the United States,” Perkins added. “And I think there’s a short-term threat, there’s a long term threat, both of them are really important [and] I think should weigh on decisions like the one you’re suggesting people need to make.”

Perkins said Karius, which works on advanced molecular technology for diagnosis of infectious diseases, is seeking to apply microbial cell-free DNA technology to create monkeypox tests earlier than options currently available, which require a sample from already developed skin lesions. The proposed testing has detected the virus in hospital patients, Perkins said, and following research over the course of the next few months may be available on an outpatient basis.

In Rehoboth, Combs said CAMP Rehoboth as a result of work with state officials is set to obtain 200 doses of JYNNEOS vaccine and, per guidance from the Centers for Disease Control & Prevention, plans to distribute them in a two-dose regimen, with the first dose set for Aug. 23 and second one on Sept. 28. As of Tuesday, Combs said CAMP Rehoboth has already scheduled appointments for 135 shots in the two-doze regimen, which is more than two-thirds of the total available shots.

“We are in talks with the state to [see] if they are able to get additional doses to create a larger vaccination site that’s capable of having more people vaccinated,” Combs added. “Right now, it’s one person every five minutes — over the span of from nine o’clock to three — and that’s the rate based on the number of doses. But if we can get more, we will do more, and we tell that to the state.”

Many of these end-of-summer events consist of gay men engaging in shirtless dancing in close proximity with each other as well as other intimate contact, creating ideal opportunities for a disease transmitted by skin-to-skin contact.

Be honest: While participants aren’t engaging in sexual activity as part of these events per se, they can lead to sexual encounters in the aftermath with a causal partner (or causal partners should these participants elect to have group sex to close out the night).

The CDC has guidance on its website for safer sex and social gatherings amid the monkeypox outbreak, which suggests festivals, events, and concerts where attendees are fully clothed and unlikely to share skin-to-skin contact are safer, as well as being mindful of activities (even kissing) that might spread monkeypox. Enclosed spaces, such as private and public sex parties where intimate and often anonymous sexual contact with multiple partners occurs, the CDC says, may have a higher likelihood of spreading monkeypox.

During the COVID epidemic, many group events required proof of vaccination and were even cancelled in an effort to mitigate the spread of the dangerous and potentially fatal disease. The same, however, cannot be said about events during the monkeypox outbreak, where the disease can be painful, but not fatal, and the availability of vaccines has not kept up with demand.

Combs said he’s unaware of any event being cancelled in Rehoboth due to monkeypox and, in fact, its biggest fundraiser of the year, the annual Sundance dance party is on track to happen over Labor Day weekend. Additionally, Combs said he cannot foresee a proof of vaccination requirement “largely because the availability of vaccines is so difficult to get right now, and there’s…high demand and low supply.”

“Certainly we understand what worked well with COVID, and that was getting information education out to the public about how this virus is transmitted and providing as much access to vaccines as possible,” Combs said. “So the one thing that is different is the number of vaccines available seems to be much lower, so I know that there’s lots of pressure being placed on the government at all levels to ensure that they get more supply to meet the demand that appears to be there.”

Perkins, asked whether precautions taken during COVID would be appropriate for monkeypox, drew a distinction between the two diseases, pointing out “the sort of positive take on monkeypox is that we’re somewhat prepared for this threat, mostly through efforts to prepare for smallpox.”

“Certainly, the most relevant one I think the community at this point is if you think you have been exposed, or, particularly if you’ve been exposed and you’re ill, getting vaccine, accessing the vaccine that’s available, or at least discussing being vaccinated as prophylaxis or at least, if not prophylaxis, prevention of infection, at least decreasing the severity of illness if it does occur,” Perkins said. “I think as is you know, it’s one of the good news stories of the efforts that have been taken to date.”

Although to date the transmission of monkeypox has been overwhelmingly among men who have sex with men, Perkins predicted that could change.

“In fact, we’re starting to see more cases outside that circle,” Perkins said. “I would expect that that will increase unless we control this epidemic. I think that will be a certainty moving forward that we’ll see a broader distribution of cases, because certainly the transmission of this infection, unlike HIV…includes routes of transmission that are non-sexual.”

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Court rules transgender people have legal protections under ADA

Judge writes gender dysphoria not excluded under law

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A federal appeals court has become the first to rule transgender people have protections under ADA.

Transgender people have additional protections from discrimination under federal law for having a disability if they experience gender dysphoria, the U.S. Fourth Circuit Court of Appeals ruled Tuesday in a consequential decision that marks a first for a federal appeals court.

A three-judge panel on the Fourth Circuit, which has jurisdiction over Virginia, North Carolina, and South Carolina, determined the Americans with Disability Act prohibits discrimination against people with gender dysphoria — despite explicit language in the law excluding “transsexualism” and “gender identity disorder” as protected classes.

U.S. Circuit Court Judge Diana Gribbon Motz, an appointee of Bill Clinton, wrote in a 56-page decision gender dysphoria doesn’t fall under the those two categories in the law because “gender dysphoria is not a gender identity disorder.”

“[T]he ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment,'” Motz writes. “But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.”

As a result, the appeals court remanded the case for additional review to the lower trial court, which had come to the opposite conclusion and determined transgender people aren’t covered under ADA.

The case was filed by Kesha Williams, a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center. Although she was initially housed in a women’s prison, she was transferred to a man’s prison when officials learned she was transgender and was faced with delays in getting transition-related care as well as harassment from fellow inmates and prison officials.

Among the group advocating in the case for additional protections under ADA were LGBTQ groups, including GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights, which filed a friend-of-the-court brief before the Fourth Circuit.

Jennifer Levi, GLAD’s transgender rights project director, said in a statement the decision is a “huge win” for transgender advocates because “there is no principled reason to exclude transgender people from our federal civil rights laws.”

“It’s incredibly significant for a federal appeals court to affirm that the protections in our federal disability rights laws extend to transgender people,” Levi said. “It would turn disability law upside down to exclude someone from its protection because of having a stigmatized medical condition. This opinion goes a long way toward removing social and cultural barriers that keep people with treatable, but misunderstood, medical conditions from being able to thrive.”

The idea transgender people are covered under ADA has been controversial even among transgender people. On one hand, reading the law to include transgender people gives them added legal protections. On the other hand, transgender advocates have been fighting for years to make the case that being transgender isn’t a mental disorder. The American Psychiatric Association removed “gender identity disorder” as a type of mental disorder with the publication of DSM–5 in 2013, replacing it with “gender dysphoria.”

Although the Fourth Circuit is the first federal appeals court to rule transgender people have protections under the Americans with Disabilities Act, other courts have come to the same determination. In 2017, a federal trial judge in Pennsylvania ruled transgender people are able to sue in cases of discrimination under ADA despite the exclusions under the law.

CORRECTION: An earlier version of this post misattributed and mischaracterized the change to DSM-5. The Washington Blade regrets the error.

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