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Lesbian judicial nominee pledges fairness on the bench

Chen takes questions on judicial modesty, but LGBT issues don’t come up

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Pamela Ki Mai Chen, federal judge nominee, lesbian, attorney, New York, Senate Judicial Committee
Pamela Ki Mai Chen, federal judge nominee, lesbian, attorney, New York, Senate Judicial Committee

Pamela Ki Mai Chen (Washington Blade photo by Michael Key)

A lesbian federal court nominee faced questions during her nomination hearing on Wednesday about her history in party politics and judicial temperament, but sexual orientation or LGBT issues didn’t come into play.

Pamela Ki Mai Chen, whom President Obama nominated in August for a seat on the U.S. District Court for the Eastern District of New York, took questions during her hearing before the Senate Judiciary Committee on a panel of five judicial nominees.

If confirmed, Chen would join four other openly gay judges currently sitting on the federal bench and be the first Asian-American member of the LGBT community to sit on the federal court.

Perhaps the most pointed question came from Sen. Charles Grassley (R-Iowa), the ranking Republican, who asked about her work in party politics. The senator said that there wasn’t anything wrong with a judicial nominee having this history, but questioned whether it would interfere with her ability to rule impartially on cases.

“Absolutely, I can assure you that politics will play no role in my decision making were I fortunate enough to be confirmed,” Chen said. “The assurances I can give you are based on my career as a public servant and working for the Department of Justice. No one accused me of ever making a decision based on any kind of political ideology, and I think my record speaks for itself over the last 20 years.”

No questions came up during the hearing about sexual orientation or how she’d rule if presented with an LGBT-related case. Those issues are also largely absent from the questionnaire she submitted to the committee, which largely discusses her casework as a federal prosecutor and her focus on prosecuting human trafficking. The only LGBT reference found in the questionnaire was her membership in the National LGBT Bar Association.

Sen. Charles Schumer (D-N.Y.), who recommended the Chen nomination to Obama, introduced the nominee to the committee as he chaired the panel in the absence of Sen. Patrick Leahy (D-Vt.). Schumer made a special mention of Chen’s partner, Amy Chester, as well as her partner’s sister, Sara Glasser.

Schumer touted Chen’s work as a U.S. attorney for the Eastern District of New York, where she has served since 1998 — now as chief of the office’s civil rights litigation unit. The senator said she’s prosecuted “all manner of public corruption, gang, narcotics, and terrorism cases,” but he particularly praised her work against human trafficking, saying she’s become “internationally renowned for her tough and important prosecutions.”

“Ms. Chen is, all in all, not just a career prosecutor – although that in itself is a high calling – but a person whose lifelong dedication to justice, and to simply doing the right thing, bespeaks a perfect temperament for the bench,” Schumer said. “Anyone who knows her whom you talk to in New York will attest to this quality, and I look forward to many more years of Ms. Chen’s public service.”

Keeping her opening remarks concise, Chen recognized her partner seated behind her and family watching via the webcast in addition to thanking Obama for nominating her for the position.

To each of the nominees, Schumer asked how their experience would impact their decisions as judges and their views on judicial moderation. In response, Chen said she believes being a federal prosecutor has prepared her for a role on the court and taught her the importance of the rule of law, fairness and impartiality. She added judicial modesty means to her “understanding the limited role of the judiciary” and following precedent.

A Chinese-American, Chen’s parents were both born in China, but met after they both moved to the United States. Prior to working as a U.S. attorney, Chen was a trial attorney in the Special Litigation Section of the Civil Rights Division at the U.S. Justice Department. She began her legal career in D.C., at the criminal defense firm of Asbill, Junkin, Myers & Buffone and at the law firm of Arnold & Porter after receiving her law degree in 1986 from the Georgetown University. Chen received a rating of “unanimously qualified” from the American Bar Association.

Sen. Mike Lee (R-Utah) questioned Chen about the criteria by which she’d interpret statutes and asked if she’d be more swayed by the words themselves or her perception of the subjective intent of the legislators who create the laws. As he asked the question, Lee noted Chen was smiling, saying, “I can tell you’re excited about that. That’s good. It speaks well of your enthusiasm to the task.”

“Certainly the former, rather than the latter,” Chen replied. “The plain text of a statute is the first thing, the primary source of interpretation. If the meaning is plain on the face of the statute, then the interpretation process stops there. If there’s any ambiguity about the meaning of the plain language of the statute itself, then I would refer to precedent, and interpretations of the statute that are controlling in my district, which would be the Second Circuit of the Supreme Court. If there was no directly controlling precedent, I would look for interpretations of analogous statutes or precedent in those circuits that would be guiding in some way or helpful. And then lastly, if all else fails, looking again at legislative history would be another source to divining the meaning of a statute.”

Sen. Al Franken (D-Minn.) asked nominees about the importance of the federal government providing resources to localities to confront domestic violence and sex trafficking, citing the need to pass pending reauthorization of the Violence Against Women Act. The Senate version of the the legislation contains explicit protections for the LGBT community against domestic violence, but this language isn’t found in the House version of the bill.

Chen affirmed the importance of localities participating in these efforts, saying, “The importance of local law enforcement and local advocacy agencies — I can attest personally, because of their nature of the crime being so hidden — it’s essential that first responders and people within these communities are able to help identify victims of trafficking, help provide support to them and help bring them to the attention of the local authorities. We’ve done that in countless cases.”

The Senate is poised to adjourn at the end of this week to allow the senators to run their campaigns, so the committee vote on the nomination couldn’t come up until the lame duck session of Congress after Election Day. Given Senate Republicans’ history of obstructing judicial nominees, whether she’ll get a vote in the Senate or have enough votes for confirmation remains to be seen.

 

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National

Trump threatens Rosie O’Donnell’s citizenship

Comedian responds with post linking him to Epstein

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Rosie O'Donnell (Screen capture via The Late Late Show/YouTube)

Donald Trump threatened to revoke Rosie O’Donnell’s U.S. citizenship last weekend amid his administration’s pattern of targeting people with whom he has publicly disagreed.

The actress and comedian, known for her roles in major motion pictures like “A League of Their Own” and “Harriet the Spy,” was singled out by the president on his social media app Truth Social, where he called the lesbian entertainer a “Threat to Humanity.”

“Because of the fact that Rosie O’Donnell is not in the best interests of our Great Country, I am giving serious consideration to taking away her Citizenship,” Trump also posted. “[She] should remain in the wonderful Country of Ireland, if they want her. GOD BLESS AMERICA!”

In response to the post—which reignites a decade-old feud between the two—O’Donnell shared a collage of photos from her time in Ireland, along with an old photo of Trump with convicted child sex offender Jeffrey Epstein.

“The president of the usa has always hated the fact that i see him for who he is – a criminal con man sexual abusing liar out to harm our nation to serve himself,” the former talk show host posted on Instagram. She continued, “this is why i moved to ireland – he is a dangerous old soulless man with dementia who lacks empathy compassion and basic humanity – i stand in direct opposition [to] all he represents – so do millions of others – u gonna deport all who stand against ur evil tendencies – ur a bad joke who cant form a coherent sentence.”

Trump’s threat is both irregular and constitutionally unsound. The Supreme Court has ruled over multiple decades that stripping someone of their citizenship violates the Constitution—and the 14th Amendment.

Three Supreme Court cases in particular—Trop v. Dulles (1958), Afroyim v. Rusk (1967), and Brandenburg v. Ohio (1969)—have all affirmed that once legally obtained, citizenship is not something that can simply be revoked, even if the president disagrees with what a person says or does. In Afroyim v. Rusk, the Supreme Court wrote: “In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.”

This authoritarian threat echoes Trump’s broader efforts to undermine birthright citizenship, which has been a foundational part of the U.S. Constitution since the ratification of the 14th amendment.

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National

Trump administration sues California over trans student-athletes

Lawsuit claims state policy violates federal law on school sports

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Attorney General Pam Bondi and Education Secretary Linda McMahon (Screen capture via The Justice Department/YouTube)

President Donald Trump is making good on his threat to punish California officials for allowing transgender female student-athletes to compete with cisgender girls in school sports. 

On Wednesday, the U.S. Department of Justice announced it is suing the state’s Department of Education, claiming California’s policy to allow trans students to compete with other girls violates Title IX, the federal law that bans discrimination in education based on sex. The DOJ’s suit says California’s rules “are not only illegal and unfair but also demeaning, signaling to girls that their opportunities and achievements are secondary to accommodating boys.”

As the Washington Blade reported in June, this lawsuit follows a warning by the Trump administration to end the trans participation policy within 10 days or face referral to the DOJ as well as the loss of federal education funding.

And California may merely be the first to face legal action, according to U.S. Attorney General Pam Bondi, who warned that the 21 other states which permit trans girls to compete in female athletics could also face challenges by the federal government.

“If you do not comply, you’re next,” she said in a video posted on the DOJ website. “We will protect girls in girls sports.” Bondi was joined by Secretary of Education Linda McMahon. 

The DOJ suit named California’s Education Department and the California Interscholastic Federation, the governing body for high school sports. A spokesperson for the CIF told the Associated Press the organization would not comment on pending litigation.

A spokesperson for Democratic Gov. Gavin Newsom deferred to the CIF and the Department of Education in declining to comment on the lawsuit since the governor was not named a defendant. But Newsom’s office told the AP that the Trump administration’s attacks on its policies protecting transgender athletes are “a cynical attempt” to distract from the federal government’s withholding of funds for all students who benefit from after-school and summer programs.

Newsom, however, has come under criticism — most notably by the Human Rights Campaign — for remarks he made in March, that allowing transgender athletes to compete in women’s sports was “deeply unfair,” as the Blade reported. 

For more than a decade, California law has allowed students to participate in sex-segregated school programs, including on sports teams, and use bathrooms and other facilities that align with their gender identity.

But headlines about AB Hernandez, an out trans female high school student-athlete who won titles in the California track-and-field championships last month, drew condemnations from Assistant U.S. Attorney General Harmeet Dhillon, and President Trump himself. 

Following the meet, Dhillon wrote in a letter to the California Interscholastic Federation that it violated the Equal Protection Clause of the Constitution by allowing trans girls to compete against other female athletes.

As for the lawsuit, DOJ claims California’s policies “ignore undeniable biological differences between boys and girls, in favor of an amorphous ’gender identity.’”

“The results of these illegal policies are stark: girls are displaced from podiums, denied awards, and miss out on critical visibility for college scholarships and recognition,” the suit says.

Last week, the U.S. Supreme Court agreed to hear two cases challenging state bans on trans student-athletes, as the Blade reported. More than 20 states have limited trans girls from participating on girls sports teams, barred gender-affirming surgeries for minors and required parents to be notified if a child changes their pronouns at school. More than two dozen states have laws barring trans women and girls from participating in certain sports competitions. Challenges to some of those policies are still being decided by courts across the country. 

Back in February, the president signed an executive order that bans trans girls and women from participating in sports that match their gender identity, as the Blade reported.

Supporters of banning trans girls and women from competing include the conservative California Family Council, which has posted a petition online, arguing a ban would restore fairness in athletic competitions. Opponents like Equality California say bans are an attack on transgender youth.

“Local schools and athletic associations are the ones who should be handling these issues, and they are already creating policies that protect transgender youth and ensure a level playing field for all students. A federal ban that overrides those rules could require young girls to answer inappropriate personal questions or even be subjected to genital inspections by strangers if they want to participate in sports,” the organization said in a statement in February.

“The head of the NCAA, himself a former Republican Governor, recently told a U.S. Senate panel that he knew of less than 10 out transgender athletes among the 510,000 currently competing in college sports—less than .002 percent of all NCAA athletes.

“Studies confirm that participation in sports provides kids with invaluable life skills such as teamwork, leadership, discipline, and cooperation—fundamental lessons that every young person deserves the chance to experience. Beyond the field, sports also contribute significantly to students’ overall well-being, fostering better mental health, boosting academic performance, and enhancing self-esteem and confidence.”

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Federal Government

Treasury Department has a gay secretary but LGBTQ staff are under siege

Agency reverses course on LGBTQ inclusion under out Secretary Scott Bessent

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U.S. Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A former Treasury Department employee who led the agency’s LGBTQ employee resource group says the removal of sexual orientation and gender identity (SOGI) from its discrimination complaint forms was merely a formalization of existing policy shifts that had already taken hold following the second inauguration of President Donald Trump and his appointment of Scott Bessent — who is gay — to lead the agency. 

Christen Boas Hayes, who served on the policy team at Treasury’s Financial Crimes Enforcement Network (FinCEN) from 2020 until March of this year, told the Washington Blade during a phone interview last week that the agency had already stopped processing internal Equal Employment Opportunity (EEO) complaints on the basis of anti-LGBTQ discrimination. 

“So the way that the forms are changing is a procedural recognition of something that’s already happening,” said Hayes. “Internally, from speaking to two EEO staff members, the changes are already taking place from an EEO perspective on what kind of cases will be found to have the basis for a complaint.”

The move, they said, comes amid the deterioration of support structures for LGBTQ workers at the agency since the administration’s early rollout of anti-LGBTQ executive orders, which led to “a trickle down effect of how each agency implements those and on what timeline,” decisions “typically made by the assistant secretary of management’s office and then implemented by the appropriate offices.”

At the end of June, a group of U.S. House Democrats including several out LGBTQ members raised alarms after a Federal Register notice disclosed Treasury’s plans to revise its complaint procedures. Through the agency’s Office of Civil Rights and EEO, the agency would eliminate SOGI as protected categories on the forms used by employees to initiate claims of workplace discrimination.

But Hayes’s account reveals that the paperwork change followed months of internal practice, pursuant to a wave of layoffs targeting DEI personnel and a chilling effect on LGBTQ organizing, including through ERGs. 

Hayes joined Treasury’s FinCEN in 2020 as the agency transitioned into the Biden-Harris administration, working primarily on cryptocurrency regulation and emerging technologies until they accepted a “deferred resignation” offer, which was extended to civil servants this year amid drastic staffing cuts. 

“It was two things,” Hayes said. “One was the fact that the policy work that I was very excited about doing was going to change in nature significantly. The second part was that the environment for LGBTQ staff members was increasingly negative after the release of the executive orders,” especially for trans and nonbinary or gender diverse employees. 

“At the same time,” Hayes added, “having been on the job for four years, I also knew this year was the year that I would leave Treasury. I was a good candidate for [deferred resignation], because I was already planning on leaving, but the pressures that emerged following the change in administration really pushed me to accelerate that timeline.”

Some ERGs die by formal edict, others by a thousand cuts 

Hayes became involved with the Treasury LGBTQ ERG shortly after joining the agency in 2020, when they reached out to the group’s then-president — “who also recently took the deferred resignation.”

“She said that because of the pressure that ERGs had faced under the first Trump administration, the group was rebuilding, and I became the president of the group pretty quickly,” Hayes said. “Those pressures have increased in the second Trump administration.”

One of the previous ERG board members had left the agency after encountering what Hayes described as “explicitly transphobic” treatment from supervisors during his gender transition. “His supervisors denied him a promotion,” and, “importantly, he did not have faith in the EEO complaint process” to see the issues with discrimination resolved, Hayes said. “And so he decided to just leave, which was, of course, such a loss for Treasury and our Employee Resource Group and all of our employees at Treasury.”

The umbrella LGBTQ ERG that Hayes led included hundreds of members across the agency, they said, and was complemented by smaller ERGs at sub-agencies like the IRS and FinCEN — several of which, Hayes said, were explicitly told to cease operations under the new administration.

Hayes did not receive any formal directive to shutter Treasury’s ERG, but described an “implicit” messaging campaign meant to shut down the group’s activities without issuing anything in writing.

“The suggestion was to stop emailing about anything related to the employee resource group, to have meetings outside of work hours, to meet off of Treasury’s campus, and things like that,” they said. “So obviously that contributes to essentially not existing functionally. Because whereas we could have previously emailed our members comfortably to announce a happy hour or a training or something like that, now they have to text each other personally to gather, which essentially makes it a defunct group.”

Internal directories scrubbed, gender-neutral restrooms removed

Hayes said the dismantling of DEI staff began almost immediately after the executive orders. Employees whose position descriptions included the terms “diversity, equity, and inclusion” were “on the chopping block,” they said. “That may differ from more statutorily mandated positions in the OMWI office or the EEO office.”

With those staff gone, so went the infrastructure that enabled ERG programming and community-building. “The people that made our employee resource group events possible were DEI staff that were fired. And so, it created an immediate chilling effect on our employee resource group, and it also, of course, put fear into a lot of our members’ hearts over whether or not we would be able to continue gathering as a community or supporting employees in a more practical way going forward. And it was just, really — it was really sad.”

Hayes described efforts to erase the ERGs from internal communication channels and databases. “They also took our information off internal websites so nobody could find us as lawyers went through the agency’s internal systems to scrub DEI language and programs,” they said.

Within a week, Hayes said, the administration had removed gender-neutral restrooms from Main Treasury, removed third-gender markers from internal databases and forms, and made it more difficult for employees with nonbinary IDs to access government buildings.

“[They] made it challenging for people with X gender markers on identification documents to access Treasury or the White House by not recognizing their gender marker on the TWAVES and WAVES forms.”

LGBTQ staff lack support and work amid a climate of isolation 

The changes have left many LGBTQ staff feeling vulnerable — not only because of diminished workplace inclusion, but due to concerns about job security amid the administration’s reductions in force (RIFs).

“Plenty of people are feeling very stressed, not only about retaining their jobs because of the layoffs and pending questions around RIFs, but then also wondering if they will be included in RIF lists because they’re being penalized somehow for being out at work,” Hayes said. “People wonder if their name will be given, not because they’re in a tranche of billets being laid off, but because of their gender identity or sexual orientation.”

In the absence of functional ERGs, Hayes said, LGBTQ employees have been cut off from even informal networks of support.

“Employees [are] feeling like it’s harder to find members of their own community because there’s no email anymore to ask when the next event is or to ask about navigating healthcare or other questions,” they said. “If there is no ERG to go to to ask for support for their specific issue, that contributes to isolation, which contributes to a worse work environment.”

Hayes said they had not interacted directly with Secretary Bessent, but they and others observed a shift from the previous administration. “It is stark to see that our first ‘out’ secretary did not host a Pride event this year,” they said. “For the last three years we’ve flown the rainbow Pride flag above Treasury during Pride. And it was such a celebration among staff and Secretary Yellen and the executive secretary’s office were super supportive.”

“Employees notice changes like that,” they added. “Things like the fact that the Secretary’s official bio says ‘spouse’ instead of ‘husband.’ It makes employees wonder if they too should be fearful of being their full selves at work.”

The Blade contacted the Treasury Department with a request for comment outlining Hayes’s allegations, including the removal of inclusive infrastructure, the discouragement of ERG activity, the pre-formalization of EEO policy changes, and the targeting of DEI personnel. As of publication, the agency has not responded.

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