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Obama cements legacy as ‘fierce advocate’

But supporters look for more advances after stand against DOMA, Prop 8

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Citizens Metal, Barack Obama, gay news, Washington Blade
Citizens Metal, Barack Obama, gay news, Washington Blade

LGBT advocates applaud Obama’s Prop 8 brief, but still want more. (Washington Blade file photo by Michael Key)

The relationship between the LGBT community and President Obama has arguably never been stronger in the wake of the administration’s decision to participate in the lawsuit challenging California’s Proposition 8 — but advocates want him to continue that momentum on other LGBT issues.

On one hand, LGBT rights supporters are pleased with the Justice Department’s friend-of-the-court brief because it marked the first time the administration argued that a ban on same-sex marriage is unconstitutional. On the other hand, some advocates continue to clamor for advances in other areas — in particular by signing an executive order barring LGBT workplace discrimination for federal contractors.

Fred Sainz, vice president of the Human Rights Campaign, was among those who said the brief signaled that Obama continues to lead on issues facing the LGBT community.

“In ways big and small, he continues to distinguish himself as a leader on issues important to our community.” Sainz said. “So, the truth is, I think the president has by filing this brief cemented his legacy as a ‘fierce advocate’ for LGBT people.”

Following calls from LGBT advocates, U.S. Solicitor General Donald Verrilli filed the Justice Department’s brief last week before the Supreme Court. It applies the administration’s reasoning for why the Defense of Marriage Act is unconstitutional — namely that laws related to sexual orientation should be subject to heightened scrutiny – to California’s Prop 8.

While the brief focuses on the constitutionality of Prop 8, which is the question before the Supreme Court, the filing also has language suggesting that same-sex marriage bans in other states are unconstitutional. The brief observes that eight states including California have bans on same-sex marriage while offering domestic partnerships to same-sex couples with the same benefits of marriage.

During a news conference at the White House on Friday, Obama himself said the reasoning presented against Prop 8 in the brief may apply to other cases.

“Now, the court may decide that if it doesn’t apply in this case, it probably can’t apply in any case,” Obama said. “There’s no good reason for it. If I were on the court, that would probably be the view that I’d put forward. But I’m not a judge, I’m the president. So the basic principle, though, is let’s treat everybody fairly and let’s treat everybody equally.”

Richard Socarides, a gay New York advocate who was pushing for Obama to speak out against the constitutionality of Prop 8, said the brief reiterates Obama’s views that laws against gay people should be subject to heightened scrutiny, but extends the president’s views further.

“It’s having the president of the United States say for the first time in a legal brief to the Supreme Court that gays and lesbians have historically been discriminated against, and that they’re entitled to heightened constitutional scrutiny, and that in this particular case, they’ve been discriminated against,” Socarides said. “I do think it was a big victory for the community, so I think it was an important milestone and definitely a step forward.”

In addition to filing the brief, the Justice Department has asked the Supreme Court to grant the solicitor general speaking time during the oral arguments in the Prop 8 case – a move that wasn’t publicly called for by LGBT advocates. The Supreme Court has yet to respond to the request.

And the moves in the Prop 8 case are coupled with the Obama administration’s active involvement in the litigation against the Defense of Marriage Act. In recent weeks, the administration has taken action elsewhere.

The Pentagon has started the process for implementing certain partner benefits for gay troops. That action comes in the wake of the inaugural address in which Obama issued a national call to advance the rights of “our gay brothers and sisters.”

John Aravosis, editor of AMERICAblog, said Obama deserves credit for filing the Prop 8 brief, but also criticized the White House for refusing to talk to about it before submitting it to the Supreme Court and filing it on the last possible day.

“Obviously, there was a hiccup in actually getting this brief,” Aravosis said. “It sort of appeared at the last minute. … Had they decided earlier to file a brief, they could have just gotten credit for it, but instead it became a controversy. They got credit at the end, but it still felt like it was begrudging support.”

In the wake of the filing, advocates say they continue to want more from Obama on LGBT issues and at the top of the list is signing an executive order barring federal contractors from discriminating against LGBT workers.

HRC’s Sainz was among those saying the directive is next on the plate for LGBT advocates in terms of administrative action.

“The non-discrimination executive order definitely remains our top priority, so that is where we turn our attention to next,” Sainz said.

Socarides said he wants Obama to sign the executive order, but also wants Obama to push ahead with the Employment Non-Discrimination Act amid promises from Sen. Tom Harkin (D-Iowa) and Senate Majority Leader Harry Reid (D-Nev.) to advance the legislation this year.

“It’s past time for the president to sign the executive order extending non-discrimination provisions to federal contractors,” Socarides said. “I’m hoping that he will do that soon, and at the same time, continue to fight and actually fight more aggressively for ENDA, for federal legislation, and I think that we can flip the House Democratic in the next mid-term election, we could have a pretty good chance of getting ENDA in two years.”

Other requests include the appointment of an openly LGBT Cabinet member and holding in abeyance the marriage-based green cards for married bi-national couples until the Supreme Court makes a final determination on DOMA.

Shin Inouye, a White House spokesperson, said Obama remains concerned about LGBT issues and will continue to work on them.

“President Obama is proud of the strong record he’s established on LGBT rights, and he looks forward to building on that progress in the months and years to come,” Inouye said.

Aravosis said predicting whether the administration will follow the brief with other actions that benefit the LGBT community is difficult — but that doesn’t mean advocates should stop pushing for them to happen.

“People who aren’t necessarily working on your issues don’t understand that one fix does not address every problem, and they get sort of annoyed sometimes when we keep asking for more,” Aravosis said. “We keep asking for more because we don’t have our equal rights yet. Once we get full and equal rights, then you can complain that we’re asking for too much, but we have less than everybody else right now.”

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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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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.

In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.

The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”

In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.

The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.

He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”

Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”

Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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