National
9 U.S. senators to Harkin: Time to move on ENDA
Bipartisan group calls for vote on non-discrimination bill
A bipartisan group of nine senators is backing the idea of having the Senate panel with jurisdiction over the Employment Non-Discrimination Act advance the legislation to the floor by a committee vote.
The group is asking for Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee, to hold a markup on ENDA in the wake of the panel’s hearing on the legislation last week and the senator’s remarks to the Washington Blade immediately afterward that he wanted “to poll the committee”Ā about moving the bill forward.
In the week after the hearing, the Blade solicited statements from the offices of all 22 members of the Senate panel on whether they want to see the committee move the legislation to the Senate floor. Those who responded affirmatively were spokespersons for Sens. Jeff Merkley (D-Ore.), ENDA’s lead sponsor, as well as Sens. Barbara Mikulski (D-Md.), Patty Murray (D-Wash.), Bernard Sanders (I-Vt.), Bob Casey (D-Pa.), Al Franken (D-Minn.),Ā Michael Bennet (D-Colo.), Richard Blumenthal (D-Conn.) and Mark Kirk (R-Ill.), the only Republican on the panel who responded to the Blade’s inquiry.
All 12 Democrats on the panel ā as well as Kirk, an original co-sponsor of the bill ā are among the 41 total co-sponsors of ENDA, so the bill should have no trouble moving out of committee. The legislation would bar employers in most situations in the public and private workforce from discriminating against workers because of their sexual orientation or gender identity.
Sanders’ office accompanied his call for a committee vote on ENDA with a statement saying the time is now to pass ENDA to end workforce discrimination against LGBT people.
āAs Iāve said many times before, discrimination of any kind is not what America is supposed to be about,” Sanders said. “Yet only 16 states, including my own state of Vermont, and D.C. currently prohibit discrimination based on sexual orientation and gender identity. I will fully support Sen. Merkley and Chairman Harkin in their efforts to move the Employment Non-Discrimination Act out of committee, because no Americans should have to live with the fear of losing their jobs simply because of who they are.ā
The support that Murray’s office conveyed to the Blade echoes the sentiment she expressed about moving the legislation forward during the committee hearing last week.Ā Murray was explicit in calling for a markup, saying she wants to see ENDA pass out of committee āexpeditiously.ā In response, Harkin said, āI hope so.ā
But speaking to the Washington Blade after the hearing, Harkin was non-committal about holding a markup, saying he wants to speak with panel members before moving forward.
āIām going to poll my committee and see,” Harkin said. “Right now, Iām kind of up to here in getting [Food & Drug Administration] bill through, as you know. We got it through the Senate; weāve got to work with the House on that trying to get that put to bed, and then Iām going to poll the committee and see what we want to do.ā
The Senate HELP Committee didn’t respond to a request for comment on the possibility of holding a markup on ENDA. It’s unclear whether the seven senators who expressed support for a markup to the Blade’s solicitation is enough support for Harkin to schedule a markup.
Tico Almeida, president of Freedom to Work, said a markup would enable the committee to make technical changes to the bill before taking it to the Senate floor for final passage.
āSenate rules allow leader Reid to bring ENDA to the floor of the Senate without a committee vote, but a committee mark-up would present a good opportunity for Chairman Harkin to make technical improvements to ENDA, for example, by fixing the legal loophole created by a bad Supreme Court decision called Gross vs. FBL Financial,” Almeida said. “Mr. Harkin recently introduced legislation to fix the same loophole in the age discrimination statute, and ENDA needs the same fix to be incorporated into the bill.”
Ian Thompson, legislative representative for the American Civil Liberties Union, also backed the idea of a committee markup as a way to advance ENDA.
“The Senate HELP Committee should move forward with a markup of thisĀ critical and long overdue legislation that will allow American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs to also stand on the same equal footing under the law,” Thompson said.
Thompson added the committee should make modifications to the bill when it comes up for consideration: (a)Ā narrowing the legislationās exemption so that it doesn’t provide religious organizations “with a blank check” to discriminate against LGBT people forĀ anyĀ reason and not just religious teachings, andĀ (b) removing a provision that expands the Defense of Marriage Act and allows employers in states where same-sex couples can legally marry to treat married gay employees as unmarried for the purposes of employee benefits.
Reporting the legislation to the floor would be similar to what Sen. Patrick Leahy (D-Vt.) did for the Respect for Marriage Act, legislation that would repeal the Defense of Marriage Act. In November, Leahy held a markup on the bill in the Senate Judiciary Committee, passing the bill via a party-line vote.
A committee markup may be the furthest extent to which ENDA can advance during the 112th Congress. The 41 co-sponsors of the legislation fall significantly short of the 60 votes needed to overcome a Senate filibuster. Additionally, it’s highly unlikely that the Republican-controlled House would consider ENDA as long as House Speaker John Boehner (R-Ohio) is the presiding officer of that chamber.
The office of Sen. Jeff Bingaman (D-N.M.) reiterated the senator’s support for ENDA in response to the Blade inquiry without explicitly calling for a markup. Jude McCartin, a Bingaman spokesperson said, “Sen.Ā BingamanĀ is a cosponsor of the bill and as such intends to vote for it.” McCartin didn’t respond to follow up inquiries to clarify whether this means Bingaman wants to see a markup.
But some of the committee members who responded affirmatively to the idea of a markup ā Merkley, Murray, Casey and Kirk ā went further and volunteered they also want to see a floor vote on the legislation despite the lack of assured passage of the legislation. Even a vote that failed would demonstrate where senators stand on the bill ā and which lawmakers ENDA supporters should work to expel on Election Day.
Merkley expressed support for the idea of a markup and floor vote in response to a question from the Washington Blade during a conference call with reporters following the ENDA hearing last week.
“I support any effort that takes this issue forward whether it’s a markup in committee or it going straight to the floor,” Merkley said. “I’ll defer to the leadership of the committee on the most effective legislative strategy, but I think it is long past time for the Senate as a whole to debate and vote on this bill.”
In a statement to the Blade, Casey expressed support for a Senate vote on ENDA in a statement accompanying his backing a markup of the bill.
āI hope that the Senate moves quickly toward bipartisan passage of the Employment Non-Discrimination Act,” Casey said. “This common-sense legislation ensures that employees are judged on their skills and abilities in the workplace and not on their sexual orientation or gender identity and I am hopeful that it will see swift passage.ā
Kirk’s support for both a markup and floor vote on ENDA puts him ahead of many Democrats on where he wants to take the legislation. Kate Dickens, a Kirk spokesperson, said, “Sen. KirkĀ is supportive of committee passage and floor consideration of ENDA.”
Christian Berle, deputy executive director of the Log Cabin Republicans, said his organization supports Kirk’s call to advance the legislation as far as possible in the Senate.
āJobs and the economy must be the first priority for Congress, and the freedom to work is fundamental to getting all Americans back to work,” Berle said. “Log Cabin Republicans support Sen. Mark Kirkās effort to secure a markup both in committee and on the floor. Sen. Harry Reid remains the majority leader and could easily schedule a vote to maintain his commitment to equality and should not delay in doing so.”
Support for a floor vote on ENDA echoes a letter that Freedom to Work sent to Senate Majority Leader Harry Reid (D-Nev.) calling for a floor vote this summer on the legislation. The letter notes that Reid said during a 2009 Human Rights Campaign dinner in Utah a floor vote on ENDA would take place “soon” ā but has yet to happen ā as well as the Blade’s questioning of then-White House Press Secretary Robert Gibbs at the start of this Congress.
In response to a question on whether the administration sees values in passing ENDA in one chamber of Congress, Gibbs acknowledged, āthereās no doubt that whenever you get something done in one [chamber], youāre closer to certainly seeing it come to fruition.ā
A number of LGBT groups ā including the Human Rights Campaign and the National Gay & Lesbian Task Force ā had previously called for a markup of ENDA as they sought a Senate hearing on the legislation. But the call for a full Senate vote on ENDA wasn’t as unified.
Fred Sainz, HRC’s vice president of communications, wasn’t explicit in calling for a floor vote when asked by the Blade if his organization wants to see the Senate take the legislation that far during this Congress.
“HRC supports advancing the bill in the smartest, most strategic fashion and at the most opportune time,” Sainz said. “We will continue to work with our ally organizations as well as fair-minded members of both houses of Congress to find that time.”
Stacey Long, the Task Force’sĀ director of public policy and government affairs at the National Gay and Lesbian Task Force, said her organization wants to see a Senate vote, but only after the committee has first marked up the bill.
“We want it to follow the procedure ā first voted out of committee, then sent to the Senate floor, followed by a full Senate vote,” Long said.
But Almeida insisted that a Senate floor vote on ENDA is the best possible route for the bill in the immediate future regardless of what action the committee takes.
āThe most opportune time for a Senate vote on ENDA is right away,” Almeida said. “We should not accept excuses for further delay on a Senate vote for legislation supported by super-majorities of the American people. … ENDA now has Republicans calling for a full Senate vote, and that is consistent with the White Houseās position that right now the administration prefers a congressional vote on ENDA rather than an executive order that is waiting for the presidentās signature.”
Almeida was referring to the proposed executive order barring federal contractors from discriminating against workers based on sexual orientation and gender identity. In April, the White House announced it wouldn’t issue such a directive at this time.
U.S. Supreme Court
Supreme Court declines to hear case over drag show at Texas university
Students argue First Amendment protects performance
The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.
The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.
When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.
The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows āderisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”
The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that āit is not clearly established that all drag shows are inherently expressive.”
Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on ātext, history and tradition.”
Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.
Federal Government
EXCLUSIVE: USAID LGBTQ coordinator visits Uganda
Jay Gilliam met with activists, community members from Feb. 19-27
U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.
Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.
Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.
Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.”
“I really wanted to meet with community members and understand the impacts on them,” he said.
Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.”
The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.
“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.
“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.
Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.
“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.
Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.
Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.Ā Ā
US sanctioned Ugandan officials over Anti-Homosexuality Act
The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.
The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act āfurther increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.ā The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act.
Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.
Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act.
Gilliam noted authorities have arrested and charged Ugandans under the law.Ā
Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.
The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.
“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”
The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.”
“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.”
Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.
“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.
Texas
Pornhub blocks Texas accessing site over age verification law
Court battle forced statute to take effect
Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.
Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.Ā
A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā
āApplying rational-basis review, the age-verification requirement is rationally related to the governmentās legitimate interest in preventing minorsā access to pornography,ā the three judge panel of the 5th Circuit explained. āTherefore, the age-verification requirement does not violate the First Amendment.ā
While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtās injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements.
The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as āineffective, haphazard, and dangerous.ā The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.
Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.
The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMVās Wallet app, which contains a mobile driverās license.
Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateās digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driverās licenses or other methods.
The Associated Press reported this past October that an adult entertainment groupās lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.
Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.
āAs you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.ā
āMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā the statement continues. āAs weāve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā
āUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā the message ends with.
The company previously blocked Utah on May 7, 2023. CNN reported at the time:
Affected users are shown a message expressing opposition toĀ Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.
āAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā the message said. āWhile safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.ā
Courthouse News reportedĀ that after Virginiaās bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.Ā Ā
āWe passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,āĀ Lucas saidĀ on X, formerly Twitter. āWe will continue our work to keep pornography out of the hands of minors ā¦ but we will also work to ensure that this Governorās error does not put the privacy of Virginians at further risk.ā
Beyond the U.S. in the European Union, Pornhub and two more of the worldās biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUās Digital Services Act.
According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as āvery large online platformsā subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EUās executive branch.
They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.
In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.
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