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White House still withholding ENDA executive order

Carney says administration will leave issue to Congress

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White House Press Secretary Jay Carney (Blade file photo by Michael Key)

White House Press Secretary Jay Carney said Wednesday that President Obama is not currently planning to revisit the idea of issuing an executive order barring federal contractors from discriminating against LGBT workers at the start of his second term.

Under questioning from the Washington Blade, Carney reiterated that the administration prefers a legislative solution to the problem — passage of the Employment Non-Discrimination Act — similar to the process that led to repeal of “Don’t Ask, Don’t Tell.”

“Our position on that hasn’t changed,” Carney said. “We point to, as you and I have discussed, the process that led to the effective repeal of “Don’t Ask, Don’t Tell” as a model for the way to approach these issues. I don’t have any updates for you on our approach.”

Carney reiterated Obama’s support for ENDA while noting that the proposed executive order does not provide expansive protections that would be afforded under the legislation.

“The president supports an inclusive ENDA that would provide lasting and comprehensive protections for LGBT people across the country regardless of whether they happen to work for a government contractor, and we look forward to continuing to support that process and that legislation,” Carney said.

In April, the White House announced it wouldn’t issue an executive order at this time requiring federal contractors to have non-discrimination policies inclusive of sexual orientation and gender identity. Amid the speculation President Obama was holding off on the order until after the election, LGBT advocacy groups such as the Human Rights Campaign and Freedom to Work renewed calls for the directive. Over the weekend, prominent gay Democratic lobbyist Steve Elemendorf was quoted by lesbian journalist Karen Ocamb as saying Obama “needs to do it in the first six months of the year.”

Asked whether his remarks rule out the possibility of the order within the first six months of next year, Carney said he isn’t “speculating on a hypothetical situation.”

“I would simply point to what our position has been and the avenue that we believe is the best to pursue broad-based protections for LGBT people,” Carney added.

Pressed on the difficulties of passing ENDA in a Republican-controlled House, Carney replied, “Many people said just that, even though it was in the prior Congress, about repeal of ‘Don’t Ask, Don’t Tell.’ We believe that the country has moved dramatically on issues like this, and that this president is committed to civil rights and to building on protections that are necessary for LGBT people as he is for all Americans.”

Under further questioning, Carney had no comment on whether Obama has met with victims of anti-LGBT workplace discrimination. Obama has met with Kylar Broadus, a transgender advocate who testified before the Senate about the workplace discrimination he faced at a major financial institution.

Tico Almeida, president of Freedom to Work, issued a statement to the Blade in response to the exchange with Carney and expressed continued optimism that Obama would issue the order.

“I share Steve Elmendorf’s optimism that the president will sign the executive order during the first part of 2013 because the Obama administration has built such a strong record of taking executive actions for LGBT fairness,” Almeida said. “Freedom to Work is among the organizations that believe the president should sign the order right away, and we’re optimistic he will sign it very soon.”

Almeida reiterated his call for a Senate vote on ENDA regardless of whether it’s short of the 60 votes needed to overcome a filibuster and made a new call for Obama to enumerate the need to pass the legislation as part of the upcoming State of the Union Address.

“The State of the Union Address would be a great opportunity for such a call to action, and it would give Majority Leader Reid the opportunity to demonstrate through his actions that he can provide stronger leadership than Speaker Boehner,” Almeida said.

A transcript of the exchange between the Washington Blade and Carney follows:

Washington Blade: Jay, I want to go back to something we haven’t talked about for a while. There’s been a renewed call for President Obama to issue that executive order barring federal contractors from discriminating against LGBT workers. Over the weekend, Steve Elemendorf, one of the president’s supporters during the election, said it needs to happen within the first six months of next year. Will President Obama revisit this idea as he begins his second term?

Jay Carney: Our position on that hasn’t changed. We point to, as you and I have discussed, the process that led to the effective repeal of “Don’t Ask, Don’t Tell” as a model for the way to approach these issues. I don’t have any updates for you on our approach. The president supports an inclusive-ENDA that would provide lasting and comprehensive protections for LGBT people across the country regardless of whether they happen to work for a government contractor, and we look forward to continuing to support that process and that legislation.

Blade: So that rules out the possibility of the order within the first six months of next year?

Carney: Again, I’m not speculating on a hypothetical situation. I would simply point to what our position has been and the avenue that we believe is the best to pursue broad-based protections for LGBT people.

Blade: Given that Republicans still control Congress after Election Day, isn’t leaving this up to the legislative process condemn LGBT people to lack of workplace non-discrimination protections for at least two years?

Carney: Many people said just that, even though it was in the prior Congress, about repeal of “Don’t Ask, Don’t Tell.” We believe that the country has moved dramatically on issues like this, and that this president is committed to civil rights and to building on protections that are necessary for LGBT people as he is for all Americans.

Blade: One last question.

Carney: I’ve given about all I can give.

Blade: President Obama said in May when he endorsed marriage equality that he spoken with service members who were discharged under “Don’t Ask, Don’t Tell” and with same-sex couples looking to be married. Has he ever spoken to a victim of LGBT workplace discrimination?

Carney: I don’t know that he has or hasn’t. I just don’t have a conversation to read out to you.

Blade: Can you get back to me on that?

Carney: I’m not going to ask him about every conversation he’s had.

 

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9 Comments

9 Comments

  1. brian

    December 6, 2012 at 9:22 am

    Yikes! Bad day, Jay Scrooge? Someone please bring Jay a hot toddie– with some good cheer!

    Let’s hope the WH staff doesn’t think that a dismissive, almost contemptuous response to the Blade serves our president well.

    First, DADT repeal is an ahistorical example in this instance. Jay ought to be reminded (gently, puh-leeze) that 1993’s DADT specifically prevented future presidents from issuing an EO to repeal it. President Obama could not have repealed DADT by EO had he wanted to.

    Also, is Carney seriously suggesting– as was the situation with DADT repeal– we have to wait until a Democratic president has an overwhelming majority in BOTH the Senate and the House– during a lame duck session, no less– to get full ENDA passage?

    Nonsense. It doesn’t even make crassly expedient political sense. That could be a 10, 20, or 30-year wait.

    And what is it about the tacit complicity of a president in federally subsidized anti-LGBT workplace discrimination that Jay Carney does not understand?

    Fact is that real LGBT people are suffering very real employment discrimination– *right now*– at the hands of contractors who are aided and enabled in their discriminatory practices by their federal government benefactors. That is the same said federal government whose top executive official is President Barack Obama.

    If the President of the United States won’t stand against discrimination, what evidence does his spokesperson have to think members of Congress– both Dems and GOPs– won’t simply follow the president’ bad example?

    Just as damaging for the president is Carney’s not credible, implied political calculus. It very much besmirches an attribute of the president’s well-known and admired ‘brand’ among voters and legislators alike.

    This is a president who has rightly touted his ability to compromise, to move the ball forward– and especially, to NOT let a *current good* fall victim to a *future perfect*.

    Sure, the Prez has fought his last personal campaign. However, President Obama does have the unique opportunity to lead on this issue– right now. An Obama EO can be framed to set a courageous example of non-discrimination for all employers. And– as part of an overall moral-high-ground effort, that will strengthen, not weaken, the efforts of our allies on the Hill to get full ENDA passage.

    A number of good presidents have ‘coasted’ after their re-election. But the great ones of history never stopped trying to improve their record.

    • Michael Bedwell

      December 6, 2012 at 6:04 pm

      While, of course, Obama could not have “repealed” DADT personally in ANY way, federal law 10 United States Code 12305, the denials of a few shills to the contrary, unequivocally empowered him to, despite ANY law, freeze discharges in the name of national security, Had he shown that courage, some 800 more gay and lesbian service members would not have been needlessly and cold-bloodedly thrown out and into unemployment lines while legislation and “implementation” proceeded.

  2. Chris Sanders

    December 6, 2012 at 4:05 pm

    Keep pushing for it and sign the petition to make your wishes known http://www.wh.gov/9ALQ.

  3. Patrick Howell

    December 6, 2012 at 9:07 pm

    We've been duped. Shame on us.

  4. Stephen Clark

    December 6, 2012 at 10:28 pm

    "[T]he process that led to the effective repeal of 'Don’t Ask, Don’t Tell'" included, as its most critical component, Democratic supermajorities controlling both houses of Congress. How, pray tell, does the administration anticipate following that "model"?

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National

West Virginia’s capital bans conversion therapy for LGBTQ kids

Conversion therapy is widely opposed by prominent professional medical associations including the American Medical Association

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The City of Charleston, West Virginia waterfront (Photo Credit: The City of Charleston)

CHARLESTON, W.Va. – The City Council of West Virginia’s capital city became the first municipality in the state to enact an ordinance banning the widely discredited practise of conversion therapy. In a 14-to-9 vote, the council passed the ordinance Monday to protect LGBTQ youth from the practise.

Conversion therapy is widely opposed by prominent professional medical associations including the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics. The proposed ordinance carries a fine of up to $1,000 for violations.

“All of Charleston’s children deserve love and respect for who they are, and no one should be in the business of trying to shame or humiliate teenagers out of being LGBTQ,” said Andrew Schneider, executive director of Fairness West Virginia. “Our city’s medical and faith communities came out strongly in support of this bill to ban the dangerous and discredited practice of conversion therapy, and I congratulate members of city council for bravely approving it.”

“The Trevor Project is thrilled to see historic action being taken in West Virginia to protect LGBTQ youth from the dangers of conversion therapy. This discredited practice is not therapy at all — it’s been debunked by every major medical organization and shown to increase suicide risk,” said Troy Stevenson, Senior Advocacy Campaign Manager for The Trevor Project. “We are hopeful that this victory will help catalyze the passage of state-wide protections in the Mountain State, ensuring that no young person in West Virginia is subjected to this fraud at the hands of mental health providers.”

 A total of 20 states, as well as the District of Columbia, the Commonwealth of Puerto Rico, and 94 municipalities (mostly located in Florida, Ohio, Pennsylvania, Wisconsin, Michigan, and Minnesota), have banned the practice of conversion therapy on minor clients. Minnesota and Michigan’s Governors earlier this year signed executive orders that prohibit state funds being expended on the practise.

Research Findings:

  • According to The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health, 13% of LGBTQ youth reported being subjected to conversion therapy, with 83% reporting it occurred when they were under age 18. LGBTQ youth who were subjected to conversion therapy reported more than twice the rate of attempting suicide in the past year compared to those who were not.
  • According to a peer-reviewed study by The Trevor Project published in the American Journal of Public Health, LGBTQ youth who underwent conversion therapy were more than twice as likely to report having attempted suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year.
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HRC sues Tennessee over bathroom bill as school year starts

“The state’s political leaders are making Tennessee a dangerous place for our daughter, & other children like her.”

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Estes Kefauver Federal Building & Courthouse, Nashville Tennessee (Photo Credit: U.S. Courts)

NASHVILLE – The Human Rights Campaign, (HRC) has filed suit in the U. S. District Court for the Middle District of Tennessee challenging the Tennessee law that denies transgender students, faculty, and staff access to the bathroom, locker rooms and other sex-segregated facilities consistent with their gender identity. 

The suit filed Tuesday by the Washington D.C. based LGBTQ advocacy group joined by the law firms of Linklaters and Branstetter, Stranch, & Jennings PLLC,  is on behalf of two Trans students currently enrolled in Tennessee schools and alleges that the law violates Title IX, the 1972 federal law that protects against sex discrimination in education.

HRC in a press release noted that its federal suit was brought on behalf of 14-year-old Alex* and his parents, Amy A. and Jeff S., as well as 6-year-old Ariel* and her parents, Julie and Ross B.

“Alex is excited to start high school this fall where he will be an honor student. His family relocated to Tennessee in 2018 to build their ‘forever home’ in an incredibly supportive and tight-knit neighborhood and Alex takes pride in being involved in his community and has created strong friendships among his peers at school.”

We didn’t know we had a trans child when we relocated to Tennessee—if Alex had come out to us before the move, we wouldn’t have come here. It makes me so angry that our elected officials have chosen to target trans kids. If lawmakers were to take the time to get to know my son, they would see that he is an amazing, smart, caring, creative person who has so much to offer. Alex just wants to be a regular kid. He should be able to look forward to starting high school without the added layer of anxiety about something as basic as using the bathroom

Amy and Jeff

He came out as transgender before the 7th grade, however, in 7th grade he was not allowed to use the boys’ restroom. Instead, Alex was forced to either use the school nurse’s private bathroom or the restroom that corresponded to his gender assigned at birth—not due to statewide legislation, but instead due to the school policy. Both options were alienating and isolating for Alex who instead stopped drinking liquids at school to avoid having to use the facilities.

Due to COVID-19 pandemic-related issues, Alex transferred to a private school for 8th grade that affirmed his gender identity, including permitting access to the boys’ restroom—Alex enjoyed a great year, without incident. He is also looking forward to starting high school at the public school near his home, but due to Tennessee’s anti-Trans bathroom law, He will again be forced into using restrooms that are stigmatizing or forgo using the bathroom altogether.

To protect Alex, Amy and Jeff are considering moving from their beloved community and leaving their ‘forever home’ behind out of fear for Alex’s safety at school and emotional wellbeing, the statement concludes.

In the case of the second plaintiff, HRC noted: Similar to Alex, Ariel’s family built their ‘forever home’ from the ground up in a neighborhood they fell in love with and that fills Julie, Ross, and Ariel with happiness and friendship.

Ariel began expressing her gender identity at 2 years old and when she was nearing 4 years old, Julie read the children’s book “I Am Jazz,” to Ariel that tells the story of a transgender girl. When the main character explains that she “has a boy body with a girl brain.” Ariel immediately lit up with excitement and eagerly told her mother, “that’s me, momma, I have a boy body with a girl brain.”

Since Ariel began her social transition at 4 years old, her classmates, their parents, teachers and school administrators have only known Ariel as her authentic self. When she was enrolled in kindergarten, her school was receptive and understanding of her gender identity and has largely protected Ariel from stigmatizing experiences.

In anticipation of Ariel starting 1st grade at a different school this fall, Julie reached out to the principal to discuss accommodations for her daughter.

Since Tennessee’s bathroom law is enacted, Ariel will have to use the boy’s restroom or the private nurse’s bathroom despite only ever using the girl’s restroom. Due to her young age, Ariel does not understand the law’s ramifications or why she is being told to use the boy’s bathroom.

The state’s political leaders are making Tennessee a dangerous place for our daughter, and other children like her. We are extremely worried about her future here, and the bills that are being passed have put us in panic mode. They are attacking children that cannot defend themselves for what appears to be political gain over a non-existent problem. We wish our leaders would take the time to speak with transgender youth and adults—instead, their fear of the unknown is unnecessarily leading their actions and causing irreparable harm to these children

Julie and Ross

Julie and Ross are also considering moving out of Tennessee due to these anti-transgender laws out of fear for their growing daughter, the statement concluded.

Under Title IX of the Education Amendments of 1972; Title IX expressly prohibits discrimination on the basis of sex in federally funded education programs. In June the U.S. Education Department announced it would expand its interpretation of federal sex protections to include transgender and gay students. The new policy directive means that discrimination based on a student’s sexual orientation or gender identity will be treated as a violation of Title IX.

The lawsuit also alleges that the law violates the Equal Protection and Due Process Clauses of the U.S. Constitution. Earlier this month, the U.S. Supreme Court’s decision to deny certiorari in Grimm v. Gloucester County School Board left in place a federal circuit court decision recognizing the rights of transgender students under the Equal Protection Clause and Title IX.

In July a federal judge blocked a new law in Tennessee that required businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government-prescribed warning sign.

“This law is bad for businesses in Tennessee, and most importantly, harmful to transgender people,” said Hedy Weinberg, ACLU of Tennessee executive director. “We are glad the court saw that this law is likely unconstitutional and hope that the state gives up the wasteful effort to defend discrimination and a violation of the First Amendment.”

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Federal prosecutors declined to prosecute 82% of hate crimes

DOJ report says ‘insufficient evidence’ was main cause

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U.S. Department of Justice

Federal prosecutors, who are referred to as United States Attorneys, declined to prosecute 82 percent of 1,864 suspects investigated for violating federal hate crime laws in all 50 states and D.C. during the years of 2005 to 2019, according to a newly released report by the U.S. Department of Justice’s Bureau of Justice Statistics.

The 15-page report, released on July 8, cites insufficient evidence as the reason suspects were not prosecuted in 55 percent of the federal hate crime cases. The report says “prioritization of federal resources” was the reason for a decision not to prosecute 15 percent of the suspects. 

It says 13 percent of the suspects were not prosecuted by U.S. Attorneys because the suspect was “subject to the authority of another jurisdiction,” and another 13 percent were not prosecuted because the federal government lacked legal jurisdiction to file a hate crime charge. 

The report, entitled Federal Hate Crime Prosecutions, 2005-2019, does not disclose the category of the victims targeted for a hate crime by the suspects whose cases were or were not prosecuted. 

In its annual hate crimes report as required under the U.S. Hate Crimes Statistics Act, the FBI provides information on hate crimes based on a victim’s race/ethnicity/ancestry; religious affiliation; sexual orientation; gender identity; disability; and gender.

The FBI’s most recent hate crimes report released in November 2020, and which covers the year 2019, shows that hate crimes based on a victim’s sexual orientation represented 16.8 percent the total number of hate crimes reported to the FBI for that year, the third largest category after race and religion. 

The FBI report shows that 4.8 percent of the total hate crimes reported to the FBI in 2019 were based on the victim’s gender identity. 

These figures suggest that at least some of the hate crimes cases that U.S. Attorneys declined to prosecute were cases involving LGBTQ people as victims. 

The Bureau of Justice Statistics report also does not disclose whether or how many of the suspects who were not prosecuted for a hate crime violation were prosecuted for the underlying criminal offense that was investigated by federal prosecutors as a possible hate crime.

Law enforcement officials, including D.C. police officials, point out that a hate crime is not a crime in and of itself but instead is a designation added to an underlying crime such as assault, murder, destruction of property, and threats of violence among other criminal offenses. Most state hate crimes laws, including the D.C. hate crimes law, call for an enhanced penalty, including a longer prison sentence, for a suspect convicted of a crime such as murder or assault that prosecutors designate as a hate crime. 

Tannyr M. Watkins, a spokesperson for the DOJ’s Bureau of Justice Statistics, told the Blade in response to a Blade inquiry that the bureau did not have access to data it received from U.S. Attorney’s offices throughout the country about whether hate crime suspects were prosecuted for an underlying crime when the U.S. Attorney’s declined to prosecute the suspect for a hate crime.

The Bureau of Justice Statistics report released last month says that out of the 17 percent, or 310, of the hate crime suspects who were prosecuted between 2005-2019, 92 percent, or 284, whose cases were brought before a U.S. District Court, were convicted. And 85 percent of those convicted received a prison sentence, the report says. 

“Forty percent of the 284 hate crime convictions during 2005-2019 occurred in federal judicial districts in six states – New York (30), California (26), Texas (19), Arkansas (15), Tennessee (13), and Pennsylvania (12),” the report states. It says that during this 15-year period all but 10 states saw at least one hate crime conviction. In addition, there were two federal hate crime convictions in D.C. during that period, according to the report.

The U.S. Attorney’s Office for the District of Columbia, unlike U.S. Attorneys in the 50 states, prosecutes criminal offenses under both D.C. law and federal law under D.C.’s limited home rule government. In the 50 states, most hate crimes are believed to be prosecuted by state and local prosecutors.

Former D.C. U.S. Attorney Jessie Liu has stated that the D.C. Office of the U.S. Attorney has prosecuted most criminal cases in which a hate crime arrest was made but the office dropped the hate crime designation due to lack of sufficient evidence. Liu said the office has continued to prosecute the suspect for the underlying charge, which often included a charge of assault or destruction of property.

The Bureau of Justice Statistics report says U.S. Attorneys use five federal hate crimes related statutes to prosecute suspects for hate crimes. Among them is the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, which is the only federal hate crimes law that includes protections for LGBTQ people.

LGBTQ activists hailed the Shepard-Byrd law as an important breakthrough because it authorizes federal prosecutors to prosecute anti-LGBTQ hate crimes in states whose hate crimes laws do not cover hate crimes based on the victim’s sexual orientation or gender identity.

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