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HISTORIC: Senate panel advances trans-inclusive ENDA

In first, committee reports out trans-inclusive LGBT anti-bias bill

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Mark Kirk, Tammy Baldwin, United States Senate, gay news, Washington Blade
United States Senate, gay news, Washington Blade, HELP Committee

Senate Health, Education, Labor & Pensions Committee approved a trans-inclusive ENDA on Wednesday (Washington Blade photo by Michael Key)

A Senate committee made history on Wednesday by approving for the first time a trans-inclusive version of the Employment Non-Discrimination Act and picking up key Republican support from Sens. Orrin Hatch (R-Utah) and Lisa Murkowski (R-Alaska).

Lawmakers on the Senate Health, Education, Labor & Pensions Committee reported out ENDA by a 15-7 vote after a short period of discussion. No amendments were offered except for a manager’s amendment, although Sen. Lamar Alexander (R-Tenn.) said he’ll reserve three that he planned for consideration on the Senate floor.

Senate HELP Committee Chair Tom Harkin (D-Iowa) noted the historic nature of the committee’s action prior to the vote and said it’s “time, long past time” for Congress to take action against LGBT workplace discrimination.

“Qualified workers should not be turned away or have to fear losing their livelihood for reasons that have nothing to do with their qualifications, skills or performance,” Harkin said. “Let’s not mince words: such practices are un-American. They should have no place in any American workplace.”

All 12 Democrats on the committee, including lesbian Sen. Tammy Baldwin (D-Wis.), are co-sponsors of the bill as well as one Republican, Sen. Mark Kirk (R-Ill.). They each voted in favor of ENDA during the final vote.

At the start of the markup, Kirk explained he has supported ENDA ā€” both in his capacity as a U.S. House member and a U.S. senator ā€” because gay people should “not have that cloud of potential discrimination” in the workplace.

Speaking with reporters afterwards, Kirk explained his support for ENDA derives in part from his work as an officer in the Navy Reserve.

“For me, as you guys know, I’m a military guy,” Kirk said. “We think about how blindingly idiotic it was for Adolf Hitler to discriminate against the Jews. When you think about all the Senate pieces of the Manhattan Project, we actually developed a war-winning weapon because we were protecting creativity and science, and we became a much stronger society that allowed us to prevail. The society that is more open will be stronger, in my view, probably economically and militarily.”

Tammy Baldwin, Mark Kirk, Senate Health, Education, Labor & Pensions Committee, gay news, Washington Blade

Sen. Mark Kirk (R-Ill.) and Sen. Tammy Baldwin (D-Wis.) (Washington Blade photo by Michael Key)

New support for ENDA also came from Republicans on the panel: Hatch and Murkowksi. Hatch voted “yes” by proxy and Murkowski voted “yes” in person. The Alaska senator is the third sitting Republican U.S. senator to come out in favor of marriage equality.

In a statement after the markup, Murkowski said she voted “yes” because ā€œdiscrimination should never be tolerated in the workplace.”

“I am a strong believer that individuals should be judged on whether they can do the job, not their sexual orientation ā€“ and I appreciate the hundreds of Alaskans who shared their thoughts with me and my staff as we considered this bill,” Murkowski said.

While she said improvements to the bill “might be in order in the form of floor amendments,” Murkowski added she’s pleased ENDA addresses “employersā€™ needs to run efficiently and reduce compliance costs” by prohibiting discrimination claims based on disparate impact.

In a statement provided to the Washington Blade, Hatch explained he was able to support ENDA because of the strong religious exemption in the bill.

ā€œI appreciate that the authors of the bill were willing to include a robust religious exemption in this bill,” Hatch said. “I voted for it because it prohibits discrimination that should not occur in the workplace, it protects the rights of religious entities, and minimizes legal burdens on employers.ā€

The bill now heads to full Senate for passage on the floor, where 60 votes will likely be necessary to overcome a Senate filibuster. During the markup, Harkin said he expects ENDA to come to the floor “sometime in the fall,” but not before lawmakers leave for August break.

Asked by the Washington Blade after the committee vote whether he’s confident that ENDA will find 60 votes on the Senate floor, Harkin replied, “Yeah, I think we’ll have 60 votes.”

“As you saw, we had some very key Republicans on the committee, and that will be very helpful,” Harkin said. “As I said, I think society is there, and the things that have recently happened with the Supreme Court decision and others, I think we’re ready to move on in a way that we haven’t been ready move on in the past. Keep your fingers crossed.”

But Senate Majority Leader Harry Reid (D-Nev.) is responsible for scheduling what comes to the floor in the Senate. His office didn’t immediately respond to a request for comment on when an ENDA floor vote would take place. In his Pride statement issued last month, Reid said he looks forward to bringing up ENDA “soon.”

White House Press Secretary Jay Carney issued a statement saying President Obama “welcomes” the bipartisan support ENDA received in committee and looks forward to further action.

“The President has long supported an inclusive ENDA, which would enshrine into law strong, lasting and comprehensive protections against employment discrimination on the basis of sexual orientation or gender identity,” Carney said. “We look forward to the full Senateā€™s consideration of ENDA, and continue to urge the House to move forward on this bill that upholds Americaā€™s core values of fairness and equality.”

It was the first markup of ENDA in the Senate since 2002 and the first time ever a committee in either chamber of Congress approved a version of ENDA that protects not only gay, lesbian and bisexual people from workplace discrimination, but also transgender people.

Mara Keisling, executive director of the National Center for Transgender Equality, said a trans-inclusive ENDA has been advancing all along, but committee approval of the bill with gender identity protections is “really amazing.”

“This is a life-or-death issue for trans people, and I think this shows that we’re moving, we’re going to get it done,” Keisling said. “Next, we’re going to get it passed in the Senate, and we’re going to try to figure out how to get it through the dysfunctional House of Representatives. But it’s really important and shows trans people everywhere that this is going to happen ā€” whether it’s this year or another year ā€” it’s going to happen. We are going to get relief from job discrimination.”

Transgender inclusion in ENDA has been a sensitive issue in the LGBT community. In 2007, gay former Rep. Barney Frank (D-Mass.) removed ENDA’s gender identity provisions before holding a House vote on the bill because he said the votes were lacking to pass the legislation with those protections on the House floor. The decision led to an outcry and ENDA advanced no further even though Democrats controlled both chambers of Congress.

Tico Almeida, president of Freedom to Work, praised the Senate committee approval of ENDA, calling the vote “fantastic.”

“It was a big, bipartisan win, and we’re going this ride momentum to 60 votes by September,” Almeida said. “We think we can get to 60 votes in the Senate in September ā€” possibly October if it takes that long. We could actually get between 60 and 65 votes in the end in the Senate, and that huge momentum will allow us to do some real campaigning with members of the House.”

Despite the support ENDA’s religious exemption has received from Republicans like Hatch, there are differing opinions on the language within the LGBT community.

Unlike existing employment discrimination law under Title VII of the Civil Rights Act, ENDA’s religious exemption provides leeway for religious organizations, like churches or religious schools, to discriminate against LGBT employees.

Some ENDA supporters, like the Center for American Progress, say ENDA’s religious exemption is politically necessary for the bill to pass Congress, while others, like the American Civil Liberties Union, say it allows for continued LGBT workplace discrimination. No action was taken on the religious exemption during the markup.

Ian Thompson, legislative representative for the ACLU, said after the markup he’s pleased with the progress on ENDA, but added the growing support for LGBT rights demonstrates the bill’s religious exemption may no longer be necessary.

“Todayā€™s vote clearly demonstrates that the tide has turned on LGBT rights,” Thompson said. “What was true five, 10, and 20 years ago is no longer the case. To that end, I think it is becoming increasingly clear that there is no reason to adopt an exemption that would needlessly dilute ENDAā€™s critical protections.”

Before final passage, the committee approved by unanimous consent a manager’s amendment that made technical changes to ENDA.

Some changes were made at the behest of GOP supporters who wanted clarification on certain issues. Among them is ensuring under ENDA disparate impact claims are not allowed; a plaintiff cannot recover for the same offense under both Title VII of the Civil Rights Act and ENDA; and an employer can amend an existing poster notifying employees of the non-discrimination policy, rather than creating a separate poster.

The manager’s amendment also updates ENDA in the wake of Supreme Court rulings on employment non-discrimination law. Following the Supreme Court’s decision in the 2009 case of Gross v. FBL Financial, the bill now includes language to ensure that the burden of proof in mixed motive cases is the same under ENDA as it is under Title VII.

Almeida, who had called for an update to ENDA in the wake of the Gross ruling, commended Harkin and his counsel for “fixing the loopholes and technical mistakes” that existed in the original version of ENDA.

“Some were on the left, and some were on the right,” Almeida said. “By making these corrections, Chairman has shown respect for Republicans on the committee and created a smarter, better Employment Non-Discrimination Act.”

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Lawmakers champion drug policy reforms at National Cannabis Policy Summit

Congressional leaders pledged their support for decriminalization

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U.S. Rep. Barbara Lee (D-Calif.), second from left (Washington Blade photo by Christopher Kane)

Speaking at the 2024 National Cannabis Policy Summit on Wednesday, congressional leaders pledged their support for proposals to remedy the harms of America’s War on Drugs while protecting cannabis users and cannabis businesses that are operating under a fast-evolving patchwork of local, state, and federal laws.

Overwhelmingly, the lawmakers who attended the conference at the Martin Luther King Jr. Memorial Library in D.C. or delivered their remarks virtually were optimistic about the chances of passing legislative solutions in the near-term, perhaps even in this Congress.

Participants included U.S. Sens. Raphael Warnock (D-Ga.), Jeff Merkley (D-Ore.), Elizabeth Warren (D-Mass.), and Senate Majority Leader Chuck Schumer (D-N.Y.), along with U.S. Reps. Eleanor Holmes Norton (D-D.C.), Earl Blumenauer (D-Ore.), and Barbara Lee (D-Calif.), who co-chairs the Congressional Cannabis Caucus and was honored at the event with the Supernova Women Cannabis Champion Lifetime Achievement Award. Republicans included an aide for U.S. Rep. David Joyce (R-Ohio) who was featured in an afternoon panel discussion about the cannabis policy landscape on Capitol Hill.

Each of the members have long championed cannabis-related policy reforms, from Merkleyā€™s SAFER Banking Act that would allow cannabis businesses to access financial services (thereby affording them the critically important protections provided by banks) to Leeā€™s work throughout her career to ameliorate the harms suffered by, particularly, Black and Brown communities that have been disproportionately impacted by the criminalization of marijuana and the consequences of systemic racism in law enforcement and the criminal justice system.

The lawmakers agreed America is now at an inflection point. Democratic and Republican leaders are coming together to support major drug policy reforms around cannabis, they said. And now that 40 states and D.C. have legalized the drug for recreational or medical use, or both, the congress members stressed that the time is now for action at the federal level.

Last summer, the U.S. Department of Health and Human Services issued a formal request to re-categorize marijuana as a Schedule III substance under the rules and regulations of the Controlled Substances Act, which kicked off an ongoing review by the Biden-Harris administration. Since the lawā€™s enactment in 1971, cannabis has been listed as a Schedule I substance and, therefore, has been subject to the most stringent restrictions on and criminal penalties for its cultivation, possession, sale, and distribution.

Merkley acknowledged that re-scheduling would remedy the Nixon administrationā€™s ā€œbizarreā€ decision to house marijuana under the same scheduling designation as far more harmful and addictive drugs like heroin ā€” and noted that the move would also effectively legalize biomedical research involving cannabis. However, the senator said, while re-scheduling ā€œmay be a step in the right direction, itā€™s not de-schedulingā€ and therefore would not make real inroads toward redressing the harms wrought by decades of criminalization. Ā 

Likewise, as she accepted her award, Lee specified that she and her colleagues are ā€œworking night and day on the legalization, not re-scheduling.ā€ And her comments were echoed by Warren, who proclaimed in a prerecorded video address that ā€œde-scheduling and legalizing cannabis is an issue of justice.ā€

Congressional Republicans have blocked legislation to legalize marijuana, the Massachusetts senator said, ā€œand that is why the scheduling is so important,ā€ as it might constitute a ā€œtool that we can use to get this done without Republican obstruction.ā€

Warren, Merkley, and Schumer were among the 12 Senate Democrats who issued a letter in January to the U.S. Drug Enforcement Administration requesting transparency into its re-scheduling process while also, more importantly, demanding that the agency fully de-schedule cannabis, which would mean the drug is no longer covered by the Controlled Substances Act.

However, in a possible signal of political headwinds against these efforts, their Republican colleagues led by U.S. Sen. Mitt Romney (R-Utah) responded with a letter to DEA Administrator Anne Milgram ā€œhighlighting concerns over HHSā€™s recommendation to reschedule marijuana from a Schedule I to Schedule III-controlled substance.ā€ The GOP signatories, all of whom serve on the Senate Foreign Relations Committee, also sought to ā€œunderscore the Drug Enforcement Administrationā€™s (DEA) duty under the Controlled Substances Act (CSA) to ensure compliance with the United Statesā€™ treaty obligations under the Single Convention on Narcotic Drugs.ā€

As Norton noted during her prepared remarks, elected Democrats are not necessarily always on the same page with respect to expanding access to economic opportunity facilitated by cannabis. For instance, though President Joe Biden had promised, during his State of the Union address this year, to direct his ā€œCabinet to review the federal classification of marijuana, and [expunge] thousands of convictions for mere possession,ā€ Norton blamed Biden along with House Republicans for provisions in the federal budget this year that prohibit D.C. from using local tax dollars to legalize cannabis sales.

A non-voting delegate who represents the cityā€™s 690,000 residents in the House, Norton called the presidentā€™s position ā€œdeeply disappointing,ā€ particularly considering his record of supporting ā€œD.C. statehood, which would allow D.C. to enact its own policies without congressional interferenceā€ and grant its residents voting representation in both chambers of Congress. She added that the majority of Washingtonians are Black and Brown while all are held responsible for ā€œthe obligations of citizenship including paying federal taxes.ā€

Norton said the city should also have the power to grant clemency for crimes committed in the District, including cannabis-related crimes ā€” power that, currently, can only be exercised by the president.

Some Republican lawmakers have been at the forefront of efforts to reform harmful cannabis regulations. For instance, a participant in a mid-afternoon panel pointed to the CURE Act, a bill introduced by U.S. Reps. Nancy Mace (R-S.C.) and Jamie Raskin (D-Md.) that would prohibit the federal government from denying security clearances based on applicantsā€™ past or current use of cannabis.

While securing statehood for D.C. and de-scheduling cannabis via legislation or administrative action are perhaps, at least for now, a heavy lift, Merkley pointed to promising new developments concerning his SAFER Banking Act.

The Oregon senator first introduced the measure, then titled the SAFE Banking Act, in 2019, and he said the legislationā€™s evolution into its current iteration was difficult. ā€œRegulators donā€™t want to be told what to do,ā€ Merkley said, and negotiations with these officials involved ā€œnitty-gritty arguments over every word.ā€

Pushback also came from one of Merkleyā€™s Democratic colleagues. In September, Warnock, who is Georgiaā€™s first Black U.S. senator, voted ā€œnoā€ on the 2023 version of the SAFER Banking Act, writing: ā€œMy fear is that if we pass this legislation, if we greenlight this new industry and the fees and the profits to be made off of it without helping those communitiesā€ most harmed by the War on Drugs ā€œwe will just make the comfortable more comfortable.ā€

Warnockā€™s statement followed his pointed remarks expressing concerns with the legislation during a Senate Banking Committee hearing.

ā€œLet me be very clear,ā€ he said, ā€œI am not opposed to easing or undoing federal restrictions around cannabis. And I would support all of the provisions and reforms in this legislation if paired with broader cannabis reforms that substantively address the issue of restorative justice. This bill does not do that.ā€

At this point, however, the latest version of the SAFER Banking Act has advanced out of committee and earned the support of Senate leaders including Schumer and much of the Republican conference.

ā€œThis is the moment,ā€ he said. ā€œLetā€™s not let this year pass without getting this bill ā€” the safer banking bill ā€” through the House, through the Senate, and on the presidentā€™s desk.ā€

In her remarks, Lee also discussed the importance of business and industry-wide reforms like those in Merkleyā€™s bill.

ā€œWe have to make sure that the cannabis industry is viewed by everyone, especially our federal government, as a legitimate business,ā€ Lee said. ā€œLegitimate, which deserves every single aspect of financial services that any legitimate business deserves and has access to.ā€

Like Warnock, the congresswoman also highlighted how these financial and business considerations intersect with ā€œequity issues,ā€ as ā€œthose who have been most impacted by this horrible War on Drugsā€ must ā€œbecome first in line for the businesses and for the jobs and for the economic opportunity the cannabis industry provides.ā€

Reflecting on her experience introducing the Marijuana Justice Act in 2019, which was Congressā€™s first racial justice cannabis reform bill, Lee remembered how ā€œeveryone was like, ā€˜why are you doing this? Itā€™s politically not cool.ā€™ā€ Her legislation sought to end the federal criminalization of marijuana, expunge the criminal records of those convicted of cannabis-related crimes, and reinvest in communities that have suffered disproportionately from the War on Drugs.

The congresswoman said she explained to colleagues how the bill addressed ā€œmany, many layersā€ of often-intersecting problems linked to federal cannabis policy, telling them: ā€œThis is a criminal justice issue, a racial justice issue, an issue of equity, a medical issue, a veteransā€™ issue, and an issue of economic security.ā€

Two years later, with a 220-204 vote, the House successfully passed the Marijuana Opportunity Reinvestment and Expungement Act, a comprehensive bill introduced by U.S. Rep. Jerry Nadler (D-N.Y.) and to the Senate by then-U.S. Sen. Kamala Harris (D-Calif.). The measure included Leeā€™s Marijuana Justice Act.

ā€œThis bill is the product of many, many years of advocacy for federal cannabis reform and equity,ā€ she said in a statement celebrating the billā€™s passage. ā€œMake no mistake: This is a racial justice bill. Itā€™s about the thousands of people of color who sit in jail for marijuana offenses while others profit. Itā€™s about finally repairing the harms of the War on Drugs on communities and families across the country.ā€

ā€œWe’ve come a long way,ā€ she told the audience on Wednesday. ā€œAnd now we have a long way to go.ā€

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First lady warns Trump is ‘dangerous to the LGBTQ community’ at HRC event

Jill Biden spoke in Arlington, Va., on Friday

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Human Rights Campaign President Kelley Robinson introduces the First Lady Dr. Jill Biden at the Human Rights Campaign's Equality in Action event on Friday, April 12, 2024 in Arlington, Va. (Kevin Wolf/AP Images for Human Rights Campaign)

Delivering a keynote address at the Human Rights Campaign’s Equality in Action event Friday, First lady Jill Biden warned former President Donald Trump is “a bully” who is “dangerous to the LGBTQ community.”

Her appearance at the three-day volunteer and board gathering at the Sheraton Pentagon City in Arlington, Va., comes as part of the Biden-Harris reelection campaign’s “Out for Biden” program, which aims to “mobilize LGBTQ+ voters, communities, and leaders across the country.ā€

“Today, this community is under attack,” Biden said. “Rights are being stripped away. freedoms are eroding. More and more state laws are being passed targeting this community. Just last month, we had to fend off more than 50 anti-gay amendments that Republicans tried to force into the government funding bill.”

“These were extreme measures aimed directly at this community ā€” measures that would have limited health care and weakened protections for same sex couples,” she said. “And they served only one purpose to spread hate and fear.”

In a nod to her long career as an educator, Biden said, “History teaches us that our rights and freedoms don’t disappear overnight. They disappear slowly. Subtly. Silently.”

She continued, “A book ban. A court decision. A ‘Don’t Say Gay’ law. One group of people loses their rights and then another. And another. Until one day you wake up and no longer live in a democracy … This is our chapter of history and it’s up to us how it ends.”

Biden then highlighted some of the advancements for LGBTQ rights secured under the Biden-Harris administration.

“Thanks to President Biden, marriage equality is now the law of the land,” she said. “He ended the ban on gay and bisexual men donating blood. He’s made it possible for trans Americans to serve openly and honorably in our military. And he’s standing firmly against conversion therapy.”

“Yes, there are forces outside these walls that are trying to erase these hard fought gains, trying to unwind all the progress that we’ve made,” Biden said. “They want to take our victories away, but we won’t let them. Your president will not let them ā€” I will not let them.”

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‘Out for Biden-Harris’ LGBTQ-targeted campaign is launched

Several events planned in coming weeks

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President Joe Biden delivers remarks at a Pride celebration, June 10, 2023, at the White House. (Official White House Photo by Adam Schultz)

The Biden-Harris campaign on Wednesday debuted “Out for Biden-Harris,” which is a “national organizing and engagement program to mobilize LGBTQ+ voters, communities, and leaders across the country.”

Out for Biden-Harris “will train supporters to organize within their own networks and leverage messengers from the community to ensure we are meeting LGBTQ+ voters where they are,” the campaign wrote in a press release announcement.

“From drag queens to elected leaders to LGBTQ+ faith leaders, Team Biden-Harris will use a wide range of validators to communicate whatā€™s at stake for the LGBTQ+ community in this election and why itā€™s critical that we vote for Joe Biden and Kamala Harris.”

The campaign also previewed some of the events and initiatives in coming weeks, which will include:

  • A virtual organizing call featuring actor Wilson Cruz, Congressman Robert Garcia, HRC President Kelley Robinson, to mobilize LGBTQ+ supporters;
  • A series of virtual relational organizing trainings focused on activating and reaching new volunteers targeting battleground voters. The campaign will be engaging trusted messengers, including high-profile and trusted messengers in the LGBTQ+ community, like Brita Filter, Danica Roem, Gina Ortiz Jones, and Rev.
  • Hosting a series of Out For Biden-Harris house parties and community events including events in Phoenix, Arizona, Ferndale, Michigan, Milwaukee, Wisconsin, Philadelphia, Pittsburgh, and Harrisburg, Pennsylvania, and Las Vegas, Nevada to mobilize supporters.
  • First Lady Jill Biden will be a featured speaker at the Human Rights Campaign Equality In Action Conference bringing together a network of 400 organizers and activists in Arlington, VA.

The campaign noted that LGBTQ voters will be “a key part” of its coalition, while 39 percent of voters consider LGBTQ equality a “make-or-break issue.”

“In 2020, nearly 11,000 LGBTQ+ volunteers mobilized to help elect President Biden and Vice President Harris,” the campaign wrote. “This year, Out for Biden-Harris will re-engage these supporters and build on their work. The program is designed around the idea that there is no better messenger to mobilize LGBTQ+ voters than their friends and neighbors to bring new supporters into our campaign.”

The Biden-Harris administration is the most pro-LGBTQ in history, and LGBTQ groups with a combined 3.8 million members have endorsed President Joe Biden’s reelection campaign.

However, “the fight for equality for all Americans is at stake this November as Trump and his allies plan to roll back the rights and freedoms of LGBTQ+ Americans,” the Biden campaign wrote. “Trump and his MAGA allies are running on an extreme, anti-LGBTQ+ agenda which would push to discriminate against the LGBTQ+ community, even going after the right to marry who you love.”

ā€œLGBTQ+ voters are a force to be reckoned with. They were critical to our victory in 2020, and they will be critical to winning again this November,” said Biden-Harris 2024 Campaign Manager Julie Chavez Rodriguez. “Thatā€™s why weā€™re thrilled to launch Out for Biden-Harris, which will harness the LGBTQ+ communityā€™s organizing prowess to reelect President Biden and Vice President Harris this November.ā€

Chavez Rodriguez continued, ā€œLGBTQ+ Americans couldnā€™t have more at stake this election: Donald Trump and his extremist allies are running to gut LGBTQ+ rights and erase history as their top priorities. LGBTQ+ Americans deserve leaders who will fight for every Americanā€™s freedom and dignity. Thatā€™s what President Biden and Vice President Harris have done throughout their time in office, and what they will do if reelected, including pressing Congress to pass the Equality Act.”

“There has never been a more critical time to protect the rights of all Americans, no matter who you love or how you identify, and Out for Biden-Harris will be critical to not just safeguarding, but strengthening the rights and voice of every single American,” she said.

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