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Year in Review: EEOC issues landmark decision banning trans bias

Transgender activists said it would be hard to overstate the significance of the EEOC decision

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Equal Employment Opportunity Commission seal, gay news, Washington Blade

The U.S. Equal Employment Opportunity Commission (EEOC) ruled in April that job discrimination against employees due to their gender identity is equivalent to sex discrimination under existing federal law.

Transgender advocates joined legal experts in calling the ruling a historic development that provides transgender people in the public and private sector workforce with full coverage under Title VII of the U.S. Civil Rights Act of 1964.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” said the commission in its 5-0 ruling.

The decision was handed down as part of its resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who charged that she was denied a job as a ballistics technician with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ lab in Walnut Creek, Calif.

Macy alleged that ATF officials were in the process of hiring her but claimed the job was no longer available due to budget cuts after she informed them she was transitioning from male to female. She learned later that ATF gave the job to someone else.

Masen Davis, executive director of the Transgender Law Center, said it would be hard to overstate the significance of the EEOC decision.

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”

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Federal Government

Adm. Levine, Admin. Guzman visit LGBTQ-owned dental and medical practices

Officials talked with the Blade about supporting small businesses

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Second from left, Dr. Robert McKernan, co-founder of Big Gay Smiles, U.S. Small Business Administration Administrator Isabel Guzman, HHS Assistant Secretary for Health Adm. Rachel Levine, Big Gay Smiles Co-Founder Tyler Dougherty, and SBA Washington Metropolitan Area District Director Larry Webb. (Washington Blade photo by Christopher Kane)

The Washington Blade joined Assistant Secretary for Health Adm. Rachel Levine of the U.S. Department of Health and Human Services and Administrator Isabel Guzman of the U.S. Small Business Administration as they toured two LGBTQ-owned small businesses on Tuesday in Washington, D.C. — Big Gay Smiles and Price Medical.

The event provided an “amazing opportunity” to “talk about the different synergies in terms of small businesses and the SBA, and health equity for many communities,” including the LGBTQ community, Levine told the Blade.

Representation matters, she said, adding, “that’s true in dental care and medical care,” where there is a tremendous need to push for improvements in health equity — which represents a major focus for HHS under her and Secretary Xavier Becerra’s leadership, and in the Biden-Harris administration across the board.

“Small businesses identify needs in communities,” Guzman said. With Big Gay Smiles, Dr. Robert McKernan and his husband Tyler Dougherty “have clearly identified a need” for “dentistry that is inclusive and that is respectful of the LGBTQIA community in particular.”

She added, “now that they’re a newly established business, part of the small business boom in the Biden-Harris administration, to see their growth and trajectory, it’s wonderful to know that there are going to be providers out there providing that missing support.”

The practice, founded in 2021, “is so affirming for the LGBTQIA community and we certainly wish them luck with their venture and they seem to have a great start,” Levine said. “They’re really dedicated to ending the HIV epidemic, providing excellent dental care, as well as oral cancer screenings, which are so important, and they’re really providing a real service to the community.”

Big Gay Smiles donates 10 percent of its revenue to national and local HIV/AIDS nonprofits. McKernan and Dougherty stressed that their business is committed to combatting homophobia and anti-LGBTQ attitudes and practices within the dental field more broadly.

“We try to align our practices here within this dental office to align with the strategic initiatives being able to help reduce HIV transmission, reduce stigma, and help to ensure people have the knowledge and [are] empowered to ensure that they’re safe,” Dougherty said.

McKernan added, “With the Academy of General Dentistry, we’ve done a lot of discussions around intersex, around trans affirming care, in order to help educate our fellow dental providers. It’s very important that every dentist here in the [D.C. area] provide trans affirming care and gender affirming care because it’s very important that someone who comes to a medical provider not be deadnamed, not get misnamed, and have an affirming environment.”

Trans and gender expansive communities face barriers to accessing care and are at higher risk for oral cancer, depression, and dental neglect. Levine, who is the country’s highest-ranking transgender government official, shared that she has encountered discrimination in dental offices.

After touring the office, Levine and McKernan discussed the persistence of discrimination against patients living with HIV/AIDS by dental practices, despite the fact that this conduct is illegal.

“I’ve traveled around the country,” the assistant health secretary told the Blade. “We have seen that many FQHCs [federally qualified health centers] or community health centers as well as LGBTQIA community health centers have had dentists, like Whitman-Walker, to provide that care because many people with HIV and in our broader community have faced stigma and have not been able to access very, very important dental care.”

Prior to opening his practice, McKernan practiced dentistry at Whitman-Walker, the D.C. nonprofit community health center that has expertise in treating LGBTQ patients and those living with HIV/AIDS. Big Gay Smiles is a red ribbon sponsor for the organization’s Walk & 5K to End HIV.

After their visit with Big Gay Smiles, Levine and Guzman headed to Price Medical, a practice whose focus areas include internal medicine/primary care, HIV specialty care, immunizations, infectious disease treatment, and aesthetics like Botox.

There, the officials talked with Dr. Timothy Price about his office’s work advancing health equity and serving LGBTQ patients including those living with HIV/AIDS, as well as the ways in which small businesses like his have benefitted from access to electronic health records and telemedicine.

Levine, Dr. Timothy Price of Price Medical, and Guzman 

“People being able to access medical care from the comfort of their home or workplace can be very important,” Price said, with technology providing the means by which they can “ask questions and get an answer and have access to a health care provider.”

Often, LGBTQ patients will have concerns, including sexual health concerns, that need urgent attention, he said. For instance, “we’ve had patients need to access us for post-exposure prophylaxis for HIV,” in some cases when “people are vacationing and they have something that might be related to their health and they can reach us [via telemedicine] so that’s the way it’s really helped us and helped the patients.”

Access to technology for small businesses is an area in which the SBA can play a valuable role, Guzman noted.

“The Biden-Harris administration has focused on a whole-of-government approach to making sure we can support the community, and that includes in entrepreneurship,” she told the Blade.

“There’s a surge in [small] businesses starting and that includes” those founded by members of the LGBTQ community “and so you see that there’s products and services that need to be offered,” and the administration is “committed to making sure that we can fund those great ideas.”

Guzman said she sees opportunities for future collaboration between her agency and HHS to help encourage and facilitate innovation in the healthcare space. “Small businesses are innovators creating the future of health tech,” she said.

Levine agreed, noting “we have been talking about that, about different ways that we can work together, because as we think about the social determinants of health and those other social factors that impact health, well, economic opportunity is absolutely a social determinant of health,” and small businesses are certainly a critical way to broaden economic opportunity.

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Mass. startup streamlining name changes for trans, non-binary residents

‘No. 1 legal need that trans folks have is identity documents’

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Kelsey GrunstraTre’Andre Carmel Valentine, MG Xiong, and Luke Lennon.

A guy in America wants to buy a truck. They save money. They have built up good credit. They find a truck in their price range. They go to the dealership to buy it, but when the dealership puts the guy’s name through the system no credit shows up.

The problem? That guy is trans and had recently changed their name. “Due to the name change, I was credit invisible,” Luke Lennon explained. “This can happen often for trans and non-binary folks who change their name.” The kicker? “That piece is not the same for folks that change their name due to marriage.” 

This is structural, not accidental, explains Lennon, who uses he/they/any pronouns. While name changes for marriage are accommodated by financial systems, “if you’re trans, you have to notify each creditor of your name change individually.” It is an equity problem: “For a community that already faces huge barriers to wealth building, this is a major issue.”

Lennon opted out of the truck. Without the financing options made available by good credit, the vehicle was outside of their price range. “I was getting just near predatory rates for loans at that point,” he says.

Truck dreams deferred. But he worried about people whose financial needs couldn’t be deferred, like needing a loan for medical care or housing. “For many, that could be a more high-stakes situation. It could put them in financial peril and result in more serious consequences.” 

Lennon had already thought about leveraging his tech and business background toward helping his community with name changes, but the experience in the car dealership cemented how vital the service was. So, they launched Namesake Collaborative, a program to ease the burden of name changes for the trans community.

Getting his name changed at all was a grueling process in Lennon’s home state of Massachusetts, one of the most trans-friendly states in the country. Paperwork was long, confusing, and expensive — a big difference from the Boston FinTech scene he worked for where digital health startups were automating “complex paper-heavy processes to make them easier for end users.” When he sought out that type of service for name changes, they were only for cis women changing their names because of marriage. 

Lennon’s instinct was in line with what trans advocates identified as one of the biggest needs in the state. MG Xiong, the program director at Massachusetts Transgender Political Coalition, shared that “the number one legal need that trans folks said that they have is their identity documents.” This comes from MTPC’s 2019 Comprehensive Needs Assessment Survey, but its need is mirrored nationally

“Filling out court forms is incredibly inaccessible to folks who are not looking at these types of forms on a regular basis or who do not have the knowledge of bureaucratic processes of court processes or legal language,” said Xiong. This stress does not include the fees, which can sometimes exceed $400 in Massachusetts. There is a patchwork of differing systems, forms, and expectations across jurisdictions, as Paisley Currah writes in his seminal book on the topic “Sex Is as Sex Does,”“the same individual has Fs on some state-issued documents and Ms on others.” 

All this trouble means that only 11% of trans people in the U.S. have all identity documents that correctly reflect their name and gender, per the National Center for Trans Equality. The discrepancy is not just annoying or disheartening — it can be outright dangerous. 

While MTPC’s small team raised money to aid in filing fees and led workshops to help, there was always more of a need than they could meet. So, when Lennon pitched a process that streamlined inaccessible forms, they jumped at the opportunity to collaborate. “It was a strategic decision for me to not try to take the traditional startup path,” he explained.

And their path was far from traditional. Instead of pitching to Venture Capital, the startup and non-profit duo drove around Massachusetts. Xiong explains that they and Luke went to “different community centers, bringing the services [directly] to the spaces that people are already in.”

Lennon had actually met the MTPC team at one of their workshops and appreciated the community building they fostered. He trusted the organization that had helped him with his name change to make sure the technology he was building would reach the trans community effectively.

After a beta period in 2021, Namesake launched as a website in 2022with input from community assessments. Despite being a tech startup, they kept it lower-tech. “We decided to operate on a no-code platform to be able to build something more quickly,” said Lennon. Since then, more than 500 transgender Massachusetts residents have used the program to complete gender and name changes. 

A huge part of the program was built on lessening the load of process: getting different forms in one location and being able to fill them all out online in one standardized process. But it also met the need in terms of access in other ways. “We are getting gratitude for the simplicity of it.” Xiong said. “That it uses common and accessible language. It defines what certain court language or legal language means.”

Namesake is on the cusp of a new iteration, which will make it more user-friendly through an app version. Lennon has partnered with Computost, a worker-owned software consulting co-op that understood Namesakes’ values.  

While always working to make the product more usable, Lennon is careful about keeping it more trans than tech. Lennon explains that the variability in the community is “often at odds with technology’s reductive approach to an ideal user profile or persona.”

The longer they work with Namesake, the more they are convinced, “I don’t think tech should ever be heralded as THE solution to anything, really.” He explains that their method of development is “using community-sharing knowledge in order to augment that technology.” 

Lennon explains that he is more concerned with making a community than a traditional tech product. “A strong community also requires breaking the binary of ‘giver and receiver,’ which runs counter to much of the startup folklore around serving customers.” However, they “have compassion for any trans or queer person trying to solve a real problem for our communities through tech.”

Looking forward, Lennon explains that Namesake is “focused on creating something more fluid and communal, something that will ideally evolve with the community and help folks feel less alone throughout the process.” 

(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)

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U.S. Supreme Court

Supreme Court rules to preserve access to abortion medication

Case is Alliance for Hippocratic Medicine v. FDA

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The abortifacent drug mifepristone is marketed under the brand name Mifeprex (Photo courtesy of Danco Laboratories)

The U.S. Supreme Court ruled Thursday in a much-anticipated decision against efforts by conservative doctors and medical groups challenging access to mifepristone, one of two pharmaceuticals used in medication abortions. As a result of the high court’s decision, access to the drug won’t change.

Associate Supreme Court Justice Brett Kavanaugh, writing for the court, reversed a lower court decision that would have made it more difficult to obtain the drug, which is used in about two-thirds of U.S. abortions. The ruling however was narrow in scope as it only addressed what is known as legal standing in a case.

SCOTUSblog senior court reporter Amy Howe noted that Kavanaugh acknowledged what he characterized as the challengers’ “sincere legal, moral, ideological, and policy objections” to elective abortion “by others” and to FDA’s 2016 and 2021 changes to the conditions on the use of the drug.

But the challengers had not shown that they would be harmed by the FDA’s mifepristone policies, he explained, and under the Constitution, merely objecting to abortion and the FDA’s policies are not enough to bring a case in federal court. The proper place to voice those objections, he suggested, is in the political or regulatory arena.

“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Kavanaugh wrote.

“We are pleased with the Supreme Court’s decision in this incredibly important case. By rejecting the Fifth Circuit’s radical, unprecedented and unsupportable interpretation of who has standing to sue, the justices reaffirmed longstanding basic principles of administrative law,” said Abigail Long, a spokesperson for Danco. “The decision also safeguards access to a drug that has decades of safe and effective use.”

The White House released a statement from President Joe Biden on Supreme Court Decision on FDA v. Alliance for Hippocratic Medicine:

“Today’s decision does not change the fact that the fight for reproductive freedom continues. It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom. It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.
 
It does mean that mifepristone, or medication abortion, remains available and approved. Women can continue to access this medication – approved by the FDA as safe and effective more than 20 years ago. 
 
But let’s be clear: attacks on medication abortion are part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide. Since the overturning of Roe v. Wade, Republican elected officials have imposed extreme abortion bans in 21 states, some of which include zero exceptions for rape or incest. Women are being turned away from emergency rooms, or forced to go to court to plead for care that their doctor recommended or to travel hundreds of miles for care. Doctors and nurses are being threatened with jail time, including life in prison, for providing the health care they have been trained to provide. And contraception and IVF are under attack.
 
The stakes could not be higher for women across America. Vice President Harris and I stand with the vast majority of Americans who support a woman’s right to make deeply personal health care decisions. We will continue to fight to ensure that women in every state get the health care they need and we will continue to call on Congress to restore the protections of Roe v. Wade in federal law — that is our commitment.”

U.S. District Court for the Northern District of Texas Judge Matthew Kacsmaryk in Amarillo, Texas, in a ruling a year ago, waved aside decades of scientific approval, ruled that the U.S. Food and Drug Administration improperly approved mifepristone more than 20 years ago in 2000.

Kacsmaryk, appointed to the federal bench by former President Donald Trump, in his 67 page opinion wrote that the FDA’s two-decade-old approval violated a federal rule that allows for accelerated approval for certain drugs and, along with subsequent actions by the agency, was unlawful.

The suit, Alliance for Hippocratic Medicine v. FDA, was originally filed in the U.S. District Court for the North District of Texas in mid-November by Alliance Defending Freedom, an anti-abortion, anti-LGBTQ+ legal organization.

Applauding Kacsmaryk’s ruling, Erik Baptist, speaking for the Alliance Defending Freedom said in a statement: “By illegally approving dangerous chemical abortion drugs, the FDA put women and girls in harm’s way, and it’s high time the agency is held accountable for its reckless actions.”

Erin Hawley, a senior attorney for the conservative group Alliance Defending Freedom who argued the case at the Supreme Court, said the opinion was “disappointing,” but told reporters in a press gaggle after the ruling that the explicit mention of conscience protections was a victory.

“The Supreme Court was crystal clear that pro life doctors do have federal conscience protections, even in emergency situations,” Hawley said. “So that’s a huge win for the pro-life cause. The Supreme Court clearly said that our doctors are entitled to those federal conscious protections that are based on their religious beliefs.”

The case now returns to the lower courts, and the dispute over access to the drug likely is not over. 

SCOTUSblog also reported that Nancy Northrup, the president and CEO of the Center for Reproductive Rights, praised the decision but conceded that the dispute could continue even after Thursday’s ruling. She, too, noted that the three states “could still attempt to keep the case going, including taking it back up to the Supreme Court,” and she warned that access to mifepristone “is still at risk nationwide.”

The Hill notes that for instance, the same district court in Texas that originally ruled against the FDA said a group of three red states—Missouri, Idaho and Kansas— can intervene in the lawsuit.

“I would expect the litigation to continue with those states raising different standing arguments than made by our doctors,” ADF’s Hawley told reporters.

Equality California, the nation’s largest statewide LGBTQ+ civil rights organization, emailed the Blade the following statement from Executive Director Tony Hoang in response to a unanimous ruling by the United States Supreme Court:

“We appreciate today’s unanimous decision to uphold access to the abortion drug mifepristone, authored by a conservative Justice. This ruling reinforces the critical importance of maintaining accessible reproductive healthcare and highlights the necessity of safeguarding these rights from baseless legal attacks.

However, it is imperative to recognize that the Court should never have accepted this case. The so-called Alliance for Hippocratic Medicine lacked the standing to initiate this challenge. Moreover, federal conscience exemptions already exist for healthcare providers who object to offering abortion-related care. 

Medication abortions involving mifepristone constitute the majority of abortions in America, including those sought by LGBTQ+ people. Our community understands the necessity of bodily autonomy and the right to make decisions regarding our own medical care, including reproductive care. Patients deserve access to the medications they need, and providers should be able to deliver that care without unwarranted interference from extremist courts or politicians.   

Attacks on abortion do not end with this decision; millions of people nationwide are still unable to get abortion care and abortion opponents remain focused on their end goal of a nationwide abortion ban. 

Equality California will continue to work with our legislative partners in Sacramento and Washington, D.C., as well as organizational allies, like Planned Parenthood, to help protect and expand access to abortion and reproductive healthcare.”

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