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ENDA’s religious exemption still concerning as vote nears

Brown says religious exemption should be same for LGBT workers as other categories

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Sherrod Brown, Democratic Party, Ohio, gay news, Washington Blade, United States Senate
Sherrod Brown, Democratic Party, Ohio, gay news, Washington Blade, United States Senate

Sen. Sherrod Brown believes the religious exemption in employment discrimination law should be the same for LGBT workers as with other categories (D-Ohio) (Photo public domain).

Shortly after filing cloture on the Employment Non-Discrimination Act, Senate Majority Leader Harry Reid (D-Nev.) held a 30-minute conference call with Nevada LGBT leaders late Thursday in anticipation of the bill coming to the Senate floor this week.

Among those on the call was Derek Washington, lead organizer for the LGBT group GetEQUAL Nevada, who said he raised with Reid concerns about ENDA’s religious exemption.

That language would provide leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if ENDA were to become law. It’s broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.

“I mentioned to him that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”

That account was corroborated by Faiz Shakir, a Reid spokesperson, who said the Democratic leader understands the concerns, but wants to get the bill passed first, then go back and address the exemptions.

“Sen. Reid’s first priority is to pass the strongest possible legislation which can garner 60 votes,” Shakir said. “He believes the current legislation meets that test.”

Washington was unfazed by Reid’s response that the religious exemption won’t see change before passage, insisting the Nevada Democrat is one of the greatest champions for the LGBT community, noting, among other things, he was the first elected official to endorse the National Equality March in 2009.

“I think it would a shame to write a story about any of this without mentioning that that man is a hero to us, and I don’t think people get that,” Washington said.

That symbolizes the situation with narrowing the broad religious exemption in ENDA before the Senate approves the bill. Despite concerns that it’s too expansive, the idea of limiting it at this time — such as the amendment process — isn’t getting a lot of traction either from LGBT advocates or lawmakers.

Instead, those with concerns over ENDA’s religious exemption have more modest aspirations: Get LGBT friendly lawmakers in the Senate to speak out against the language on the Senate floor.

Ian Thompson, legislative representative for the American Civil Liberties Union, is among those saying he’s not seeking an amendment to religious exemption on the Senate floor, but wants the provision addressed in some way.

“By doing that, it’s certainly our hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption, and I think we’ll see growing support for narrowing it moving forward,” Thompson said.

Thompson added he’s “definitely hopeful” that senators will speak out against the exemption of the floor, but declined to name any prospects for who would articulate concerns.

Heather Cronk, co-director of GetEQUAL, said her organization “didn’t anticipate” being able to change the religious exemption, but is looking for senators to speak out against the language.

“What we were hoping for for — which hasn’t happened yet because the senators haven’t gone to the floor yet — is for some of the more progressive senators to speak out from the floor against the religious exemption,” Cronk said. “So, we’ll wait and see what happens on the floor to see if we get those statements.”

GetEQUAL has petitioned four senators with a reputation for being champions of progressive values — Sens. Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio) and Al Franken (D-Minn.) — to speak out against the religious exemption. As of Sunday, the petition has just under 6,000 signatures.

It remains to be seen whether any senator will speak out in favor of limiting the religious exemption when ENDA comes to the Senate floor this week. Of these four senators, the only office who responded to the Washington Blade’s request to comment on the extent of the religious exemption was that of Brown.

Meghan Dubyak, a Brown spokesperson, said the senator’s focus is passing is ENDA, although he shares the belief the religious exemption for LGBT discrimination should be the same it is for other categories.

“Sen. Brown’s top priority is overcoming a likely filibuster and ensuring passage of ENDA,” Dubyak said. “He believes the religious exemption in ENDA should be consistent with the federal law that currently protects people against discrimination.”

In July, Gillibrand said during a Third Way event that said she’d go even further and amend ENDA to remove the religious exemption. However, her staffers have apparently backtracked from that statement as they’re now mum on the issue.

For its part, the White House is staying out the argument over the religious exemption. Shin Inouye, a White House spokesperson, reiterated in an email weeks ago President Obama supports ENDA, but is leaving the details to Congress.

“We look forward to lawmakers moving forward on this bill that upholds America’s core values of fairness and equality,” Inouye said. “While we defer to Congress on the specifics of the legislation, we believe lawmakers will be able to find a balance that protects LGBT workers and religious liberty.”

Since the introduction of ENDA this year, the ACLU has called for narrowing the religious exemption along with groups like GetEQUAL, the National Center for Lesbian Rights, Lambda Legal and the Transgender Law Center, the National Gay & Lesbian Task Force.

On the other hand, groups working on like Freedom to Work, the Human Rights Campaign and the Center for American Progress have endorsed the current exemption in ENDA.

Tico Almeida, president of Freedom to Work, co-wrote the religious exemption currently found in ENDA while working as a House staffer in 2007. Neither he nor HRC responded to multiple requests to comment for this article.

Winnie Stachelberg, vice president of external affairs for the Center for American Progress, said the religious exemption is necessary to enable bipartisan support to move the bill forward.

“The current religious language reflects a bipartisan compromise that represents a pragmatic balance between ensuring that LGBT workers have the protections they need and organizations,” Stachelberg said. “While the religious exemption is broader than other civil rights statutes it will ensure that LGBT workers have the protections they need.”

If anything, the movement in the Senate on ENDA’s religious exemption this week may be more toward expanding it even further.

Sen. Rob Portman (R-Ohio), seen as a potential supporter of ENDA, has said he’s behind the basic premise of the legislation, but has concerns about restrictions on religious liberties and wants to strengthen the bill to ensure they’re protected.

Prior to the committee vote on ENDA in July, Sen. Rand Paul (R-Ky.) had prepared an amendment that would replace the bill’s religious exemption with more comprehensive language for religious employers. It was never brought up before the committee. Paul’s office didn’t respond to a request to comment on whether the senator would introduce the amendment on the Senate floor.

Concerns over the existing religious exemption were ramped up last month when Tippi McCullough, formerly a teacher for 15 years at Mount St. Mary Academy in Little Rock, Ark., was forced to resign after the school learned she had married her same-sex partner in New Mexico. Because the school is a religious institution, it would not be subject to liability under ENDA.

Thompson said the consequences of passing ENDA with its current exemption in place are hard to predict, but said it would be “a dramatic, and from our view, and very troubling expansion of an exemption like this in our federal civil rights law.”

“I think that it wouldn’t be too into the future before we saw instances of employment discrimination occurring against workers who should be protected from employment discrimination and may find out that because the scope of the existing religious exemption that they may not be,” Thompson said.

LGBT advocates who oppose the religious exemption chose their words carefully about whether they want to see ENDA passed this year with the current language — as opposed to letting it die in Congress so that it could be passed with a narrow exemption at a later time.

Thompson said the ACLU has been a “longtime champion of ENDA” because of the protections in the bill “are critically important and long overdue.”

“We’ve endorsed it, so that’s a position that we’ve taken,” Thompson said. “We have consistently, also though, raised concerns about the scope of the religious exemption and said that that is should be appropriately narrowed ultimately before it ends up on the president’s desk, and that’s our view, but at the same time because of the protections that it would afford to LGBT people are so important and so needed, we also support the bill.”

Cronk said GetEQUAL neither supports nor opposes the bill and believes “any time that that pro-LGBT legislation comes up in Congress, we want that legislation to move forward.”

“Our organizers didn’t feel good about organizing in support of the bill because there wasn’t that change to the religious exemption and because the grassroots network we work with feel the impact of that everyday,” Cronk said. “They work in hospitals in the closet, or they teach at schools where they’re in the closet, and they have a really clear sense about who would be left behind by this legislation, and didn’t feel that was in line with our vision.”

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United Nations

UN officials reiterate calls for countries to decriminalize homosexuality

Volker Türk and Winnie Byanyima issued statement before global AIDS conference

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UNAIDS Executive Director Winnie Byanyima. (Screen capture via Kellogg Institute YouTube)

The U.N. human rights chief and UNAIDS’s executive director have reiterated their calls for countries to decriminalize consensual same-sex sexual relations.

“Laws criminalizing LGBTQ+ people must be consigned to history,” said Volker Türk and Winnie Byanyima in a statement they released on July 19.

The 25th International AIDS Conference began in Munich on Monday.

The statement notes Angola, Antigua and Barbuda, Barbados, Belize, Bhutan, Botswana, the Cook Islands, Dominica, Gabon, India, Mauritius, Mozambique, Namibia, Nauru, Palau, St. Kitts and Nevis, Seychelles, Singapore, and Trinidad and Tobago over the last decade have repealed laws that criminalized consensual same-sex sexual relations.

The Namibian High Court on June 21 struck down the country’s Apartheid-era sodomy laws. 

Dominica’s High Court of Justice in April ruled provisions of the country’s Sexual Offenses Act that criminalized anal sex and “gross indecency” were unconstitutional. Justice Kimberly Cenac-Phulgence in the decision said “the laws commonly known as buggery and gross indecency laws, contravenes the constitution of the Commonwealth of Dominica, namely the right to liberty, freedom of expression, and protection of personal privacy.”

Burkina Faso’s military government earlier this month said it plans to criminalize consensual same-sex sexual relations in the country. Ugandan activists continue to challenge their country’s Anti-Homosexuality Act.  

Activists maintain criminalization laws harm people with HIV/AIDS, among other groups. Türk and Byanyima in their statement say these statutes “harm public health.”

“Criminalization of LGBTQ+ people generates justified fear amongst people who need access to health services, and amongst the frontline workers who provide those services,” they said.

“In criminalizing countries, there is decreased provision and uptake of HIV prevention services, and decreased uptake of HIV care and treatment services,” added Türk and Byanyima.

They conclude the “decriminalization of LGBTQ+ people is vital for protecting everyone’s human rights and everyone’s health.”

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World

Out in the World: LGBTQ news from Europe and Asia

The South Korean Supreme Court last week upheld health benefits for same-sex couples

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(Los Angeles Blade graphic)

SOUTH KOREA
The South Korean Supreme Court delivered a victory for same-sex couples last week, upholding a lower court ruling that found same-sex couples must be given equal access to benefits under the country’s National Health Insurance Service.

The ruling is a landmark as the first legal recognition of same-sex couples in the East Asian nation.

The Supreme Court ruled that the NHIS refusal to provide spousal benefits to same-sex couples was unconstitutional discrimination. The ruling is final.

The case was filed by a gay couple, So Seong-wook and Kim Yong-min, in 2021 after the NHIS revoked So’s registration as a dependent of Kim and imposed a new premium. So and Kim had been a couple since 2017 and had held a marriage ceremony in 2019.

The NHIS allows married or common-law heterosexual couples to register as dependents in employer-backed insurance but had no policy recognizing same-sex couples.

The Seoul Administrative Court ruled for the NHIS in 2022, but the following year that decision was overturned by the Seoul High Court, which ruled for the couple that the denial was discriminatory.

“When I listened to the verdict, I was so moved that I couldn’t hold back my tears,” So told reporters outside the court. “It took four years to earn this dependent status. We need to fight harder to legalize same-sex marriage going forward.”

The advocacy group Marriage for All Korea said in a statement that the decision was just a first step.

“This decision brings hope to other same-sex couples living in Korean society and is a huge milestone toward marriage equality and equal citizenship for LGBTQ people. However, same-sex couples who are not legally recognized in their marriage still experience various forms of discrimination,” the statement says.

“The lengthy and arduous lawsuits that same-sex couples must endure to gain single rights as a spouse, as seen in this case, should no longer be necessary. Fundamentally, we will continue to push for a broader marriage equality movement to eliminate all institutional discrimination that hinders same-sex couples from legally marrying and fully enjoying their rights as spouses, and for LGBTQ people in Korea to enjoy equal citizenship.”

Several bills to recognize same-sex marriage or civil unions and to ban discrimination against LGBTQ people have been introduced by opposition members in South Korea’s parliament over the years, but none has progressed.

So Sung-uk and his partner Kim Yong-min. (Photo courtesy of marriageforall.kr)

LITHUANIA
A final attempt to pass a long-stalled civil union bill before the end of the current session of Parliament came to an anticlimactic end on July 18, as the government withdrew the bill from the agenda before the final day session began.

The civil union bill had long been a bone of contention in the fractious governing coalition whose largest party is the conservative Homeland Union and includes the more progressive Freedom Party, which had made the bill a priority.

The bill passed through two readings in parliament in part with the support of leftist opposition parties, but when the opposition withdrew their support of the bill — in part to deny the government a win on the issue — the coalition no longer had enough votes to get it passed, as a segment of the Homeland Union opposed it.

Over the past month, the Freedom Party had attempted to strong-arm the Homeland Union holdouts into supporting the bill, by threatening to block Lithuania’s appointment of a European commissioner unless the party supported the bill.

In the last few days of parliament’s session before the legislature is dissolved for October elections, it seemed that the parties had come to an agreement, and the civil union bill was going to be put on the agenda for a final vote on the final day of the session.

But the opposition Social Democrats refused to play ball, once again preferring to deny the government a victory on the file, even though the Social Democrats had campaigned on supporting civil unions in the past. Without their votes, the bill would be doomed to fail.

The government withdrew the bill from the agenda rather than allow it to fail. This will allow the bill to be brought back by the new parliament in October, rather than starting the process over again.

Despite the bill’s withdrawal, anti-LGBTQ protesters met outside the parliament and burned rainbow flags. Vilnius police said they are investigating potential charges of incitement to hatred.

The two-round parliamentary election is scheduled for Oct. 13 and Oct. 27, and polling shows the Social Democrats currently hold a wide lead.

Lithuania is one of only five European Union countries that do not recognize same-sex unions. The others are Romania, Bulgaria, Slovakia, and Poland, the latter of which has proposed a civil union bill that its government hopes to pass in the fall.

UNITED KINGDOM
The newly elected Labour government under Prime Minister Keir Starmer included a ban on conversion therapy in the King’s Speech that opened parliament on July 17, indicating that the bill will be a priority item during the session.

The King’s Speech is a tradition in UK politics, where the monarch reads a speech prepared by the government outlining its priorities for the upcoming session of parliament, usually lasting about a year.

During the election campaign, Starmer had pledged to back a transgender-inclusive ban on the abusive practice of conversion therapy, an issue which has become a political lightning rod in the UK over the past decade as a wave of anti-trans hysteria has gripped the media and much of the political class.

The previous Conservative government had pledged to ban conversion therapy six years ago but failed to bring a bill forward after floating the idea that the bill would allow conversion therapy for trans youth.

The UK LGBTQ advocacy group Stonewall praised the commitment to a conversion therapy ban in a statement.

“We welcome the new government’s commitment to banning conversion practices. Each day that these abusive practices remain legal, our communities are put at risk,” the statement says. “The government needs to urgently publish a comprehensive bill to ban these abhorrent practices once and for all.”

But the new government’s approach to trans issues is not entirely praiseworthy.

Two weeks ago, new Labour Secretary of State for Health Wes Streeting announced that his government was defending and extending a ban on puberty blockers for trans youth that was put in place by the Conservatives. That action has been denounced by trans activists and legal experts.

JAPAN
A trans woman is suing for the right to change her legal gender without first divorcing her wife, in a challenge to the nation’s laws surrounding both same-sex marriage and gender recognition.

The woman, who has not been identified, is in her 50s and has been in a long-term marriage to her wife, who is in her 40s, and neither partner wants to divorce. While she has legally changed her name to a woman’s name, her identification still lists her as “male,” which forces her to have uncomfortable conversations outing her trans status whenever she needs to show official documents.

Since 2003, it has been possible for trans people to update their legal gender in Japan, but only if they are unmarried. That essentially forces any married trans person to divorce their partner if they want to update their gender.

In 2010, the Japanese Supreme Court upheld the requirement that trans people be unmarried to update their legal gender, calling the situation “reasonable” and saying it did not violate the constitution.

But the woman’s lawyers believe the legal situation has changed.

Since 2021, several district courts across Japan have found that the ban on same-sex marriage is unconstitutional. While that has not yet legalized same-sex marriage, these cases will eventually be decided by the Supreme Court. If the court agrees with the lower courts that the ban on same-sex marriage is unconstitutional, then it should also find the divorce requirement for trans people to be unconstitutional.

Yoko Mizutani, one of the woman’s lawyers, says this case may also contribute to legalizing same-sex marriage.

“Many of those concerned have resigned to the notion that if same-sex marriages are not recognized, the unmarried requirement of the act will not change. If we win this petition, it could also help resolve the issue of same-sex marriage.”

SPAIN
The Constitutional Court has provisionally blocked an anti-LGBTQ law passed by the government of the Madrid Community that stripped a number of legal protections from LGBTQ people; citing constitutional, discriminatory, and jurisdictional issues.

Last year, the local government, which is led by the right-wing People’s Party and supported by the far-right Vox party, passed a bill that stripped legal recognition of trans youth, stopped allowing legal gender change without a medical diagnosis, allowed anti-LGBTQ discrimination and authorized conversion therapy.

Despite these legal protections being stripped at the local level, national laws still afforded LGBTQ people all of these rights and protections.

The national government, which is currently led by the left-wing People’s Socialist Party, filed for the injunction against the law, which it called unconstitutional, which the Constitutional Court has accepted.

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World

Philadelphia health providers bring trans-affirming surgery to Argentina

Temple University Hospital doctors recently traveled to Buenos Aires

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Buenos Aires, Argentina (Bigstock photo)

Philadelphia Gay News published this article on July 18. The Washington Blade is publishing it with permission.

BY LAUREN ROWELLO | Argentina is known for implementing some of the most comprehensive federal laws to protect and affirm transgender people. In 2012, the country became the first to pass legislation that gives its trans citizens the right to be recognized and treated in accordance with their gender identities — and the right to develop a sense of personhood associated with this experience.

This law gave Argentines the right to change their legal documents to display accurate gender markers and updated names — something many trans people in the U.S. are still unable to pursue because of differences in state laws regarding the matter. Among various other rights — including confidentiality — the legislation also grants trans people in Argentina the right to access comprehensive hormone therapies and gender-affirming surgeries.

But the right to pursue authenticity doesn’t mean trans-competent care is readily available. That’s why Dr. Alireza Hamidian Jahromi, MD, director of the gender affirmation surgery program at Temple University Hospital, is passionate about collaborating with providers across borders.

He recently traveled to Buenos Aires with Dr. Michael Metro, MD, director of reconstructive urology at Temple University Hospital, to jointly perform the first-ever penile inversion vaginoplasty in Argentina.

“A lot of teaching and training has to happen before you can perform a surgery,” Hamidian Jahromi underlined, noting that resources — including access to trans-specific training — can be limited in some areas, especially for genital reconstructions or “bottom” surgeries.

For instance, in 2012 — the year Argentina’s trans-affirming legislation was passed — the U.S. had only six surgeons performing genital reconstruction surgeries. A lack of surgeons greatly limits a surgery’s availability. Today, more doctors are starting to learn about and perform these procedures in the U.S. — but insurance does not always cover them and some state laws are attempting to further limit people’s ability to pursue them.

To overcome the unique hurdles and barriers that each country faces, Hamidian Jahromi — who is on the central committee for certification and mentorship at WPATH (World Professional Association for Transgender Health) — urged advocates to not only raise awareness of trans people and their needs but also to push for stronger and more accessible training and education for healthcare providers.

“[Surgeons] specifically have to go through a special training in order to know how to bring their skills together to be able to align them with the patient’s specific need,” Hamidian Jahromi said, adding that a specialization in gender-affirming surgery requires many years of training to develop expertise.

Exposure to and experience in a variety of related fields — such studying and collaborating closely with both urology and plastics — is necessary, and finding programs and professionals to study under can be an additional challenge.

The first trans-specific surgical fellowship in the U.S. didn’t open until 2017. It took more than nine years of education — along with additional surgical experience completed in Europe — for Hamidian Jahromi to become fellowship trained and specialized in trans-specific surgical interventions.

It takes a lot of time and intentional effort to build a comprehensive program that can competently and efficiently meet the needs of its patients. A lack of appropriate training can and has led to botched procedures, infections, and other disastrous outcomes.

Fortunately, there are more resources for learning and honing these skills across the United States than there were in the past. Hamidian Jahromi, who is the assistant professor of Plastic and Reconstructive and Gender Affirming Surgery at the Lewis Katz School of Medicine at Temple University, often trains surgeons, fellows and residents here in Philadelphia today.

Continued learning is not only key to the development of trans-specific programs and new providers. Trans-competent experts rely on information-sharing between professionals to constantly challenge themselves in new ways with the hope of improving their skills, advancing their understanding of best practices, and implementing new techniques in how to better care for trans people.

Because of this desire and ability to share and exchange skills, Hamidian Jahromi was able to observe the surgeries and study with colleagues at NYU — who pioneered a robotics-assisted peritoneal flap vaginoplasty, which is more minimally invasive than traditional methods. Temple is now one of just a handful of programs to offer surgeries using this technique.

It’s just one of various modalities used to help Hamidian Jahromi’s patients achieve their goals.

“A lot of [needs] could be different in every patient,” Hamidian Jahromi explained about the differing challenges, unique experiences and individual perspectives of each patient — who all have a different idea about what a positive outcome will look like for them. “And that’s actually a welcome part of these kinds of surgeries for me — because you have to see the patient, you have to see the world through their eyes, you have to try to understand.”

“I also have to mention that a lot of these surgeries need more than one surgeon at the time of the surgery. It’s multi-speciality,” he added, explaining that teams of experts in those related fields often work together to achieve the best outcomes. “So when I’m standing here in front of you, I’m standing on a pillar of different members of my team that all work together very closely in order to create a success story for each individual patient. It’s a whole team’s work.”

Hamidian Jahromi, who is cisgender, was drawn to trans healthcare because he appreciated the opportunity to make such a positive difference in the lives of patients and to develop longer relationships with each person he supports.

“When you put together the happiness and the help you’re providing for the patients, I’m very well-rewarded every day,” he added.

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