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U.S. Attorney challenges use of civil rights law

Government defends Library of Congress in firing of gay employee

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Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show heā€™s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because heā€™s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didnā€™t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the libraryā€™s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeerā€™s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The governmentā€™s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

ā€œWe believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,ā€ said Charles Miller, a spokesperson for the Justice Departmentā€™s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congressā€™s in-house equal employment opportunity division, which investigated TerVeerā€™s allegations of discrimination and harassment and dismissed an in-houseĀ complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

ā€œThe Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,ā€ Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the governmentā€™s motion to dismiss the case ā€œrelies on legal precedent that excludes LGBT employees from protection under Title VII.ā€

Brown declined to comment further on the governmentā€™s arguments, saying TerVeerā€™s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the governmentā€™s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

ā€œI think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,ā€ Nevins said. ā€œSome court rulings have essentially said Title VII does not apply to sexual orientation.ā€

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeerā€™s lawsuit says he also was targeted for retaliation after he filedĀ his discrimination complaint with the libraryā€™s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

ā€œPlaintiffā€™s discrimination and retaliation claims fall short,ā€ Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

ā€œPlaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,ā€ the motion to dismiss says. ā€œBut the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employerā€™s actions.ā€

The motion to dismiss adds, ā€œ[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes ā€” generally relating to an employeeā€™s behavior, demeanor or appearance in the workplace ā€” and allegations to support the claim that this non-conformity negatively influenced the employerā€™s decision ā€¦ In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ā€˜he did not conform to the defendantā€™s gender stereotypes associated with men under Mechā€™s supervision.ā€™ā€

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorneyā€™s office was fulfilling its role in defending its client ā€” the Library of Congress ā€” and should not be faulted for arguing against TerVeerā€™s attempt to invoke protection from Title VII.

ā€œThe governmentā€™s argument that the complainant fails to allege sufficient facts to state a claim ā€¦ are typical argumentsĀ that theyā€™d make equally if the plaintiff were female or black rather than gay,ā€ the attorney said.

The governmentā€™s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeerā€™s specific allegations of discrimination and retaliation.

The governmentā€™s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeerā€™s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employeeā€™s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the libraryā€™s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeerā€™s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorneyā€™s office as ā€œExhibit D,ā€ was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeerā€™s attorney, which the U.S. Attorneyā€™s office submitted in court as part of Exhibit D.

ā€œBased on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainantā€™s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,ā€ Magnus said in her letter.

In what potentially could be damaging to TerVeerā€™s lawsuit, Magnus notes that the OIC investigation into TerVeerā€™s discrimination and retaliation complaint included interviews of and testimony by five of TerVeerā€™s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, ā€œeach of whom personally observed complainantā€™s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].ā€

Brown, TerVeerā€™s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The libraryā€™s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.

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Delaware

Sarah McBride wins Democratic primary, poised to make history

Del. lawmaker likely to become first transgender person elected to Congress

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Delaware state Sen. Sarah McBride (Washington Blade photo by Daniel Truitt)

Delaware state Sen. Sarah McBride is poised to become the first openly transgender person elected to Congress after she won her primary on Tuesday.

McBride defeated Earl Cooper by a 79.9-16.2 percent margin in the Democratic primary for the state’s congressional seat. McBride will face Republican John Whalen in November.

The LGBTQ+ Victory Fund in a press release notes McBride is “favored to win in the heavily Democratic state.”

ā€œVoters across the country are sick and tired of the divisive politics of the past ā€” thatā€™s why weā€™re seeing an increase in diverse, young candidates like Sarah McBride clearing their primaries,” said Victory Fund President Annise Parker. “Nobody is more qualified than Sarah to represent the values of Delaware in Congress. I look forward to celebrating Sarahā€™s election victory in November and seeing her get to work for her constituents in Washington.ā€ 

McBride is poised to succeed U.S. Rep. Lisa Blunt Rochester (D-Del.), who is running for retiring U.S. Sen. Thomas Carper (D-Del.)’s seat.

ā€œOf course, thereā€™s going to be discussion about the potential of this campaign to break this barrier and to increase diversity in Congress and to ensure that a voice that has been totally absent from the halls of Congress is finally there in an elected capacity,ā€ McBride told the Washington Blade during a 2023 interview after she declared her candidacy. ā€œWhile itā€™s not what this campaign is focused on, while itā€™s not what voters are focused on, it is certainly relevant to the young people who are feeling alone and scared right now.ā€

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District of Columbia

D.C. officials monitoring Mpox outbreak in Africa for possible local impact

New, more potentially fatal strain declared global health emergency

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(Photo courtesy of the Centers for Disease Control and Prevention)

The D.C. Department of Health and Whitman-Walker Health are closely monitoring an outbreak of a new, more virulent strain of Mpox in several African nations that prompted the World Health Organization on Aug. 15 to declare the outbreak a global health emergency.

LGBTQ health advocates in Los Angles have been working with that cityā€™s public health officials to ensure the LGBTQ community, especially gay and bisexual men, become vaccinated with the existing Mpox vaccine, which is deemed effective in preventing or lessening the severity of an Mpox infection.

In the 2022 Mpox outbreak in the U.S., men who have sex with men accounted for the largest number of Mpox cases, with more than 90 percent of the cases occurring in men who were gay, bi, or straight.

The U.S. Centers for Disease Control and Prevention, which closely monitored and took action to curtail the 2022 Mpox outbreak in the U.S., has said no cases so far of the more virulent strain in Africa, referred to as the clade 1 strain, have been documented in the U.S.

But CDC officials, along with officials with the D.C. Department of Health, referred to as D.C. Health, and Whitman-Walker Health, say they are taking steps to ensure they are prepared if the new strain surfaces in the U.S. and in the D.C. area.

International health officials expressed concern after at least one case of a person infected with the new more virulent strain was diagnosed in Sweden, marking the first case outside the African continent. Information surfacing from Africa in August showed that at least 500 people had died from Mpox in the current outbreak.

ā€œD.C. Health is monitoring the situation very closely and taking the necessary steps to ensure preparedness,ā€ according to a statement released by D.C. Health to the Washington Blade

ā€œWe have treated over 300 patients with Mpox, with most of the cases occurring in 2022,ā€ a statement released on Sept. 9 by Whitman-Walker Health says. ā€œWe continue to see sporadic cases, with 11 cases in the last year,ā€ the statement says. It says the most recent Mpox case it has treated occurred this July.

Dr. Kyle Benda, who serves as manager of Whitman-Walkerā€™s Sexual Medicine and Acute Rapid Treatment Clinic, said all of the Mpox patients Whitman-Walker has seen have had the less virulent strain of Mpox that surfaced in the 2022 outbreak in the U.S. and worldwide ā€”  referred to as clade 2 Mpox.

ā€œWe have not seen any cases recently or cases we believe to be due to the clade 1 outbreak occurring in Africa,ā€ Benda told the Blade. ā€œWe have been able to treat patients with Mpox through use of tecovirimat obtained from the CDC through their expanded access program.ā€

He was referring to the medication approved in 2022 by the U.S. Food and Drug Administration as an effective treatment for Mpox.

Similar to nationwide U.S. data, statistics released by D.C. Health about the demographic breakdown of the 2022-2023 Mpox outbreak in D.C. shows that men, especially African-American men, along with gay and bisexual men, made up the largest number of Mpox cases.

The D.C. data show that men made up 96.3 percent of the D.C. cases, with women making up 1.8 percent of the cases. The data show that gay men accounted for 54.8 percent of the cases, bisexuals accounted for 6.7 percent of the cases, and those whose sexual orientation was unknown accounted for 31.4 percent of the cases.

The CDC and other health experts have pointed out that Mpox is transmitted from skin-to-skin contact, including contact with someone who may have body sores and through bodily fluids, as well as from shared bedding or clothing. Sexual contact is one of the leading modes of transmission, the experts have said.

The most common symptoms, health officials have said, include pimples or blisters on the face, body, and genitals. Other symptoms include fever, chills, headaches, muscle aches, or swelling of the lymph nodes.

Benda said Mpox transmission from sexual relations, especially for gay and bisexual men, often occurs when the typical outbreak of sores or blisters on the skin occurs internally such as in the anal canal and is not immediately detectable in the early stage of the infection.

Like other health officials, LGBTQ health advocates say the most important steps to take for those at risk for Mpox, especially gay and bi men, is to get vaccinated. The vaccination requires one injection followed by a second dose injection 28 days later.

Benda said Whitman-Walker has the vaccination shots to give to anyone who feels they may be at risk for Mpox, including people who are not currently enrolled as a Whitman-Walker patient. The statement released by D.C. Health says the vaccinations are widely available throughout the city at most pharmacies and health and medical offices.

It says for those who may not have insurance coverage for the cost of the vaccination and who may be economically challenged, they can get vaccinated at the D.C. Health and Wellness center at 77 P St., N.E. 

ā€œWe encourage all of our patients who may have an increased risk of Mpox to get vaccinated, particularly patients who may have had only one does of the two-dose series or who have not been vaccinated at all,ā€ Whitman-Walkerā€™s Benda told the Blade.

Health experts, including officials with D.C. Health, have said the mostly widespread access to the Mpox vaccine is what resulted in the dramatic decline in the number of cases in the U.S. and the D.C. area in later 2023 and 2024.

When asked if a booster shot may be needed for those who have been fully vaccinated in the past two years, D.C. Health said in its statement, ā€œCurrently, there is no recommendation for more than two doses in most people.ā€ 

The statement adds, ā€œThose with an occupational risk, like research laboratorians who handle cultures or animals contaminated with Mpox virus directly, are recommended to receive booster doses at 2 ā€“ 10 years depending on the nature of their work.ā€

Data released by D.C. Health shows that out of the total number of vaccinations given in D.C. as of earlier this year, 83.4 percent of those vaccinated were men and 74.5 percent of those vaccinated were gay men. The data show 12.2 percent were bisexual, and 0.9 percent were lesbian. Women consisted of 6.5 percent of D.C. residents receiving the Mpox vaccine. 

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Maryland

Upper Chesapeake Bay Pride Festival returns to Havre de Grace

ā€˜There are thriving queer communities in rural areasā€™

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(Washington Blade file photo by Michael Key)

Concord Point Park in Havre de Grace, Md., will transform into the site of the 6th annual Upper Chesapeake Bay Pride Festival on Saturday, Oct. 5. The free, family-friendly festival will run from 2-6 p.m. and feature live music, drag performances, and vendors. 

About 3,500 people are expected to attend the festival, which is organized by the Upper Chesapeake Bay Pride Foundation and will be held at the Chesapeake waterfront. More than 120 artists, vendors, and community organizations will have booths, and a kidsā€™ area will offer activities such as face painting, magician performances, and storytelling. 

Along with drag performances, musical acts will perform throughout the day, spanning genres such as R&B, punk, and queer country. The foundationā€™s president, Kurt Doan, highlighted Ryan Cassata as a key headliner.  

ā€œRyan is a trans activist but also makes really vibrant music, so Iā€™m excited to bring that kind of music to Harford County,ā€ Doan said.

Festival goers will be able to choose from a variety of food options, including empanadas, Thai food, burgers, French-style desserts and ice cream. This year, the foundation is extending activities beyond the festival hours, including an after party and happy hour at one of the local breweries, and Sunday yoga session.  

ā€œWeā€™ve got lots of really super supportive queer-friendly businesses in Havre De Grace that are going to be offering different things,ā€ Doan said. 

The inaugural Upper Chesapeake Bay Pride Festival was held in 2019 to celebrate the local LGBTQ community in the rural Harford and Cecil counties. Since then, the foundation has grown in its scope: In addition to hosting the annual festival, it provides scholarships to local colleges and hosts monthly social activities. 

Doan emphasized the role the foundation plays in supporting the rural queer community, noting its impact in creating belonging and visibility.

ā€œI think people can very easily forget that queer people also live in rural areas, and when we talk about being queer in Maryland, it’s often about what’s going on in the outskirts of D.C. or in Baltimore or in Annapolis. But there are thriving queer communities in rural areas, we just don’t often have brick and mortar spots where we can gather,ā€ he said. ā€œI think it’s super important to have an organization like this.ā€

To support the festival or learn how to become an exhibitor, volunteer, or performer, visit ucbpride.com/2024-pride-festival/.

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