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Fired gay employee sues Library of Congress

Lawsuit says boss cited anti-gay biblical passages before terminating staffer

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Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

A gay man has charged in a lawsuit filed on Friday that he was fired in April from his job at the Library of Congress after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit, filed in U.S. District Court for the District of Columbia, charges that management analyst Peter TerVeer, 30, suffered employment discrimination based on his gender, gender stereotyping and his religious beliefs in violation of Title VII of the U.S. Civil Rights Act of 1964.

The lawsuit charges that his supervisor John Mech and library official Nicholas Christopher, Mech’s immediate supervisor, further violated Title VII by retaliating against TerVeer when he attempted to challenge their actions in an internal library complaint.

“Mech imposed his sex stereotypes and fundamentalist religious beliefs on homosexuality upon the plaintiff, resulting in a hostile working environment,” the lawsuit alleges.

In addition, the suit charges the library with violating TerVeer’s Fifth Amendment rights to due process and equal protection; violating an internal Library of Congress policy banning discrimination based on sexual orientation and religious beliefs; and violating the Library of Congress Act, a federal law that calls for the library to consider decisions related to employees “solely” on an employee’s “fitness” for his or her job duties.

Library of Congress spokesperson Gale Osterberg said the library has no immediate comment on the lawsuit. She said the library’s official response would come in the form of a legal brief filed in court that addresses each of the allegations made in the lawsuit. Under court rules, the Library of Congress has 60 days to file its response from the time TerVeer’s attorneys serve the library with an official copy of the lawsuit.

In April, when TerVeer and his attorney disclosed that TerVeer had filed a complaint against Mech and other officials with the library’s Equal Employment Opportunity office, which adjudicates employment discrimination cases, Osterberg said TerVeer’s case was a personnel matter and the library never comments on personnel matters pertaining to an individual employee.

She told the Blade at that time that under library rules, neither Mach, an accountant and lead auditor for the library’s Office of the Inspector General, where TerVeer worked, nor any other library employee familiar with TerVeer’s case, would be permitted to comment on the case.

When asked about a Library of Congress internal policy adopted in the 1990s that bans employment discrimination based on sexual orientation, Osterberg said only that, “We adhere to Title VII, period.”

She was referring to the provision in the U.S. Civil Rights Act of 1964, which prohibits employment discrimination based on race, religion, national origin, sex, and other criteria but not on sexual orientation.

Arthur Spitzer, legal director of the ACLU’s Washington, D.C. office, said TerVeer’s lawsuit’s claim that Mech and other Library of Congress officials violated Title VII by discriminating against TerVeer based on his sex and religious beliefs could make him eligible for relief under Title VII.

Spitzer noted that a U.S. District Court judge in D.C. ruled in 2008 that the Library of Congress illegally discriminated against a transgender woman on grounds of sex discrimination. Spitzer’s ACLU office represented the transgender woman, Diane Schroer, in the case along with the ACLU’s LGBT Rights Project.

The ACLU called the judge’s action “a groundbreaking decision that found that discriminating against someone for changing genders is sex discrimination under federal law.”

Spitzer said TerVeer’s case could potentially result in expanding the scope of Title VII, the federal civil rights statute, to cover gay people if the court issues a favorable decision on TerVeer’s lawsuit.

But Spitzer noted that unless the case is appealed by the library and an appeals court upholds the lower court decision, the favorable ruling would only apply to TerVeer.

Schroer was a retired and highly decorated Army colonel assigned to the Army Airborne Rangers before she applied for a Library of Congress job as a terrorism research analyst. The library hired her before reversing its decision and turning her down for the job when it learned she was transitioning from a man to a woman.

In its ruling against the library, the court ordered the library to pay Schroer nearly $500,000 in compensation for the discrimination it found the library to have committed. Schroer chose not to take the job there.

TerVeer is being represented for his lawsuit by attorneys Christopher Brown and Glen Ackerman of Ackerman Brown, PLLC; and Thomas Simeone of Simeone & Miller. (Ackerman Brown, PLLC also represents the Washington Blade in legal matters.)

The lawsuit says that when TerVeer began his job in February 2008 as a management auditor in the auditing division of the Library of Congress Office of the Inspector General, his work was well received and he soon received promotions.

The lawsuit says Mech and TerVeer had a cordial, professional relationship until Mach discovered TerVeer was gay in August 2009.

“Mech facilitated an introduction to his single daughter, Katie Mech, and the two became ‘friends’ on the social networking website Facebook in January 2009,” the lawsuit says.

It says that in August 2009 TerVeer missed noticing that Facebook changed its privacy settings, enabling Facebook friends to see certain postings on his site that previously could not be seen by people other than those he allowed to see them. One of the postings was a page linked to a group that supports gay fathers and advocates for ending discrimination against gay parents.

When Katie Mech apparently saw the “gay” link on TerVeer’s Facebook page she wrote him a message saying, “Don’t tell me you’re weird like that,” the lawsuit says. It says TerVeer responded offline by confirming that he was gay but noting that he was not “weird,” the lawsuit says.

According to the lawsuit, from that time going forward John Mach dramatically changed his attitude toward TerVeer in a negative way, leading TerVeer to believe Katie Mach told her father he was gay.

“Now, at the beginning of almost every work-related conversation, Mech would engage in a religious lecture to the point where it became clear that Mech was targeting TerVeer by imposing his conservative Catholic beliefs on TerVeer throughout the workday,” the lawsuit says. “TerVeer proclaims a Christian faith, but one that is accepting of his sexual orientation,” says the lawsuit.

The lawsuit says that on June 21, 2010 Mech called TerVeer into an unscheduled meeting and delivered a stern lecture to “educate” TerVeer on “hell” and the sin of homosexuality.

Mech began reciting Bible verses to TerVeer, the lawsuit says, telling him, “I hope you repent because the Bible is very clear about what God does to homosexuals.” The lawsuit says Mech went on to quote the biblical passage of Leviticus that says, “If a man lies with a man as one lies with a woman…they must be put to death.”

TerVeer charges in the lawsuit that Mech, with help from Mech’s supervisor, Nicholas Christopher, “continued to manufacture a negative paper trail” to downgrade TerVeer’s work performance ratings. The lawsuit says this was an effort to justify Mech’s alleged goal of orchestrating TerVeer’s termination from his job.

“TerVeer was subjected to a hostile work environment and continued harassment from Mech based upon religious affiliation, sex stereotyping, and sexual orientation,” the lawsuit says. Christopher, Mech, and other supervisors failed to inform TerVeer of his right to file a discrimination claim and retaliated against TerVeer because he sought to and ultimately did file a discrimination claim, the suit says.

“The work environment became too hostile for TerVeer to continue working under Mech or Christopher’s supervision, and his requests for transfer were denied,” the lawsuit says. “TerVeer was constructively terminated on April 6, 2012 because he was unable to return to a workplace where he had to confront constant discriminatory treatment from Mech and Christopher.”

The suit calls for injunctive relief, including reinstatement and an “order restraining defendant from engaging in further discriminatory conduct…”

It calls for back pay, compensatory and punitive damages, including for emotional distress, and reimbursement for attorneys’ fees and other court related costs. The suit doesn’t seek a specific dollar amount for damages and compensation and other costs, saying the amounts would be determined at trial.

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Biden names civil rights veteran to U.S. Education Dept.

Catherine Lhamon’s portfolio will include LGBTQ rights, sexual misconduct, racial discrimination

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Nominee for Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education Catherine Lhamon. (Photo public domain))

The White House announced Thursday that President Joe Biden has nominated Catherine Lhamon to serve as the Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education.

Lhamon currently serves as a Deputy Assistant to the President and Deputy Director of the Domestic Policy Council for Racial Justice and Equity at the White House, where she manages the President’s equity policy portfolio. She is a former attorney for the American Civil Liberties Union, (ACLU) and served as chair of the U.S. Commission on Civil Rights from 2017 to 2021.

She has also served as Legal Affairs Secretary to California Governor Gavin Newsom.

Her portfolio at Education, where she previously served in the same position under former President Barack Obama, will include LGBTQ rights, sexual misconduct and racial discrimination in the nation’s K-12 schools, universities and colleges. Lhamon was Assistant Secretary for Civil Rights at the Department of Education, to which President Obama nominated her and the Senate confirmed her in 2013.

“I am thrilled that President Biden is nominating Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights at the U.S. Department of Education. Catherine has devoted her career to ensuring equity is at the core of all her work,” U.S. Secretary of Education Miguel Cardona said in a statement released by his office Thursday.

“She has a strong record of fighting for communities of color and underserved communities, whether as the current Deputy Director of the Domestic Policy Council, the former chair of the U.S. Commission on Civil Rights, or as a civil rights educator at Georgetown University. We are thrilled to have Catherine serving as Assistant Secretary for Civil Rights and know she will continue to fight for fairness, equity, and justice for all of America’s students.”

Lhamon has also litigated civil rights cases at National Center for Youth Law, Public Counsel Law Center, and the ACLU Foundation of Southern California.  Lhamon taught federal civil rights appeals at Georgetown University Law Center in the Appellate Litigation Program and clerked for the Honorable William A. Norris on the United States Court of Appeals for the Ninth Circuit.

“Catherine Lhamon is the right choice to lead the Department of Education’s civil rights division at such a critical time for the country and the agency. There is much work to do in order to roll back the harmful policies and legacies of Betsy DeVos, from her attacks on transgender students to her unconscionable revocation of discriminatory discipline guidance and rewrite of Title IX rules,” Adele Kimmel, Director of the Students’ Civil Rights Project at Public Justice told the Blade in an email.

“During her previous tenure in the same job, Catherine embraced equality, enforced Title IX and ensured students had an ally inside the federal government. She will do so again, and the Senate should move to quickly confirm her so she can begin the work of restoring the Department’s commitment to protecting the civil rights and dignity of students and implementing the Biden Administration’s pledge to undo the damage that DeVos has done,” Kimmel added.

Born in Virginia and raised in California, Lhamon graduated from Amherst College and Yale Law School. Lhamon and her husband and two daughters are transitioning between California and Maryland.

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Family of transgender woman who died in ICE custody sues federal government

Roxsana Hernández passed away in N.M. in 2018

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A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

 

The family of a transgender woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018 has sued the federal government.

The Transgender Law Center and two immigration lawyers — Daniel Yohalem and R. Andrew Free — in 2020 filed a lawsuit in U.S. District for the District of New Mexico against five private companies who were responsible for Roxsana Hernández’s care.

The lawsuit named Management and Training Corporation, LaSalle Corrections, Global Precision Systems, TransCor America and CoreCivic as defendants. The Transgender Law Center, Yohalem and Grant and Eisenhofer Law on Wednesday petitioned the court to add the federal government to the lawsuit.

“This amended complaint adds the United States, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the United States Department of Homeland Security (DHS) to the list of entities who had a direct role in Roxsana’s death,” said the Transgender Law Center in a press release.

Hernández, who was from Honduras, entered CBP custody on May 9, 2018, when she asked for asylum at the San Ysidro Port of Entry in San Diego. She arrived at the Cibola County Correctional Center, a facility in Milan N.M., that CoreCivic operates, a week later.

Hernández was admitted to Cibola General Hospital in Grants, N.M., shortly after she arrived at the privately-run detention center. Hernández died at Lovelace Medical Center in Albuquerque, N.M., on May 25, 2018.

The lawsuit, among other things, alleges Management and Training Corporation personnel “denied Roxsana and her fellow detainees food, water and restroom access throughout their transfer” from California to a facility in San Luis, Ariz., that LaSalle Corporations operates. The lawsuit also states Hernández did not receive necessary medical care from LaSalle Corporations, Global Precision Systems and TransCor personnel as they transported her to the Cibola County Correctional Center.

CoreCivic officers, according to the lawsuit, delayed Hernández’s medical care once she was hospitalized.

An autopsy the New Mexico Office of the Medical Investigator performed concluded Hernández died from Castleman disease associated with AIDS.

A second autopsy that former Georgia Chief Medical Examiner Kris Sperry performed at the Transgender Law Center’s request concluded the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The second autopsy also found “evidence of physical abuse” that included bruising on Hernández’s rib cage and contusions on her body.

“Defendants’ discriminatory, negligent, and reckless acts and omissions: (a) caused Roxsana to suffer severe emotional and physical distress; (b) created an unreasonable risk that Roxsana’s condition would deteriorate, especially in light of her known HIV-positive status; (c) caused Roxsana’s condition to deteriorate; (d) diminished the opportunity for Roxsana’s condition to improve; (e) caused her to lose her chance to survive and participate in the federal immigration process; and (f) ultimately, caused her death,” reads the motion the Transgender Law Center filed on Wednesday.

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” said Hernández’s sister, Jenny Hernández Rodríquez, in the Transgender Law Center press release. “The tragic fact that she is no longer with us is a direct result of that discrimination and neglect.”

A spokesperson for the Department of Homeland Security — which oversees ICE and CBP — with whom the Washington Blade spoke on Thursday declined to comment.

The Cibola County Correctional Center in Milan, N.M. (Photo courtesy of U.S. Immigration and Customs Enforcement)

Hernández’s death sparked widespread outrage among immigration advocates. Her case also intensified calls for ICE to release all trans women in their custody.

The Transgender Law Center, the Rapid Defense Network and the Ballard Spahr law firm in April 2020 filed a class action lawsuit that demanded the release of all trans people in ICE custody.

More than 40 Democratic members of the U.S. House of Representatives in January 2020 called for ICE to release all trans people in their custody. Illinois Congressman Mike Quigley on Thursday during a House Appropriations Committee hearing asked Acting ICE Director Tae Johnson about the treatment of trans people in his agency’s custody.

“We have made some efforts on sort of improving our training and identifying specific facilities which would focus on housing these individuals in a less restrictive environment but there’s always more work we can do,” said Johnson. “We’re looking at all aspects of our vulnerable population to include transgender, and this is going to continue to be a priority for us as we move forward in assessing our detention framework.”

A unit for trans women in ICE custody opened at the Cibola County Correctional Center in 2017. It closed in 2020.

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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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