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Perez says ENDA executive order under consideration

Labor sec’y says extending existing directive to protect trans workers ‘under review’

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Thomas Perez, Civil Rights Division, Justice Department, gay news, Washington Blade
Labor Thomas Perez said the administration continues to "contemplate" the issue of an ENDA executive order (Washington Blade file photo by Michael Key).

Labor Thomas Perez said the administration continues to “contemplate” the issue of an ENDA executive order. (Washington Blade file photo by Michael Key).

Labor Secretary Thomas Perez said Wednesday the issue of an executive order prohibiting anti-LGBT discrimination among federal contractors is something “we continue to contemplate and work on” as he declined to comment on whether his department could implement the order.

Under questioning by the Washington Blade, Perez said during a surprise appearance at the regular White House news briefing that he’s aware of the long-sought directive to protect workers on the basis of sexual orientation and gender identity.

“I can’t get into what ifs,” Perez said. “I’m certainly aware of the executive order that was proposed that you’re talking about, and the president takes a back seat to no one in his commitment for equal access to opportunity for people regardless of race, religious, sexual orientation or gender identity. And it’s an issue that we continue to contemplate and work on.”

Sources close to the administration have already told the Washington Blade the Labor Department, as well as the Justice Department, have already green-lighted the executive order for the White House.

Also during the briefing, Perez was asked by the Blade whether the Labor Department would apply Executive Order 11246 — the existing directive that prohibits gender discrimination among federal contractors — to transgender workers in the wake of the U.S. Equal Employment Opportunity Commission’s decision two years ago in Macy v. Holder.

“That issue is under review in the aftermath of the Macy decision,” Perez said. “I’ve asked my staff to expedite that review so that we can bring that issue to a conclusion at the Department of Labor.”

Asked when the process of review would come to an end, Perez said, “I’m hoping it will to come to an end as soon as possible.”

As Buzzfeed notes, his comments indicate the Labor Department isn’t currently implementing the existing executive order to protect transgender workers in the same way that Title VII is enforced — even though that law governs the enforcement of the executive order.

Ever since the decision two years ago in Macy v. Holder, which interpreted Title VII of the Civil Rights Act to protect transgender workers from discrimination, the Labor Department previously hasn’t responded to requests for comment on whether it will implement Executive Order 11246 to protect transgender workers.

Buzzfeed published a series of reports saying the Labor Department has refused to comment on whether it would extend the protections via executive order. Most recently, a Buzzfeed reporter was blocked from accessing a news conference with Perez on Monday reportedly because officials didn’t believe he would ask questions relevant to the veterans event.

With regard to a new executive order for both sexual orientation and gender identity, Perez’s remarks that the administration continues to “contemplate” the issue is consistent with White House counselor John Podesta’s remarks that the directive is “under consideration” as well as other hints the order is coming.

But when Reuters’ Jeff Mason followed up during the same briefing on Perez’ “contemplate” comments, White House Press Secretary Jay Carney attempted to tamp them down and reiterated support for legislation known as the Employment Non-Discrimination Act. However, Carney spoke generally about discussions taking place.

“I think what I can say is what I’ve said in the past is that I don’t have updates for you on obviously the discussion in Washington and beyond about that kind of executive action,” Carney said. “What our position is and has been is that we strongly support the Employment Non-Discrimination Act. We note the progress made in the Senate, there’s been movement in the Senate, against some of the conventional wisdom, we’ve seen movement on this.”

Carney concluded, “I just don’t have any update on the discussion around other hypothetical EOs, and I think that’s what Secretary Perez has indicated.”

Asked by Reuters for clarification about whether the media should read any shift from the administration in Perez’s remarks, Carney spoke broadly about “opportunities” under examination.

“I think broadly speaking, the administration looks at all opportunities to advance an agenda that expands opportunity that levels the playing field that sustains the equal opportunity for all that is part of the president’s vision,” Carney said. “That’s a broad matter. On specific, would the president do this executive action or that executive action? That list could be endless, and I don’t have any update for you that kind of proposition.”

Workplace protections issues weren’t the only LGBT matter that came up during the briefing. CBS News’ Major Garrett asked for an update from the White House on Missouri defensive lineman Michael Sam, who recently came out as gay, seeking placement on a team in the NFL.

Carney said since the last White House briefing he talked to President Obama about the development, but didn’t convey whether Obama called Sam as he did with NBA player Jason Collins.

“I don’t have any details on the president’s conversations or phone calls,” Carney said. “I can tell you that I have spoken about this with him and he, like the first lady, like so many others, admires Michael Sam’s courage and believes that the action he’s taken is an important step and looks forward to seeing him playing in the NFL.”

A transcript of the exchanges on workplace issues follow:

Washington Blade: Speaking of executive orders, there’s been a lot of discussion recently about a potential executive order that would bar federal contractors from discriminating on the basis of sexual orientation and gender identity. If the President were to sign such an executive order, could the Labor Department implement it?

Secretary Tom Perez: Well, I can’t get into what-ifs. I’m certainly aware of the executive order that was proposed that you’re talking about. And the President takes a backseat to no one in his commitment for equal access to opportunity for people regardless of race, religion, sexual orientation or gender identity. And it’s an issue that we continue to contemplate and work on.

Blade: On a related note, there’s also been talk about implementing existing order — Executive Order 11246, which prohibits discrimination on the basis of gender, and apply that to transgender workers to prohibit discrimination against them in the wake of Macy v. Holder. Will the Labor Department take that step?

Perez: That issue is under review in the aftermath of the Macy decision. And I’ve asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor.

Washington Blade: When will the review come to an end?

Perez: I’m hoping it will come to an end as soon as possible.

Reuters: Jay, two questions. One, I’d like to follow up on something that Secretary Perez said in response to Chris’s question. Is the administration contemplating executive action on LGBT workplace non-discrimination? That was the word that he used.

Jay Carney: Well, I think what I can say to that is what I’ve said in the past, is that I don’t have any updates for you on obviously the discussion in Washington and beyond about that kind of executive action. What our position is and has been is that we strongly support the Employment Non-Discrimination Act. We note the progress made in the Senate, the fact that there’s been movement in the Senate on this, and I think against some of the conventional wisdom we’ve seen movement on this.

On the broader range of issues around LGBT rights, we’ve seen dramatic progress, and we’re going to keep pressing Congress to catch up with the country on these issues. Turning the Employment Non-Discrimination Act into law would be a huge step forward by Congress, and the President looks forward to that happening. But I just don’t have any update on the discussion around other hypothetical EOs, and I think that’s what Secretary Perez was indicating.

Reuters: It wasn’t a hypothetical, so I just wanted to clarify, should we read into that any sort of a shift in the position of maybe going away from just a congressional push back to the possibility of an executive order?

Jay Carney: I think broadly speaking, the administration looks at all opportunities to advance an agenda that expands opportunity, that levels the playing field, that sustains equal opportunity for all that is part of the President’s vision. That’s as a broad matter. On specific — would the President do this executive action or that executive action, I mean, that list could be endless, and I don’t have any update for you on that kind of proposition.

What I can tell you is that it is our policy position that the House ought to and the Congress ought to send the Employment Non-Discrimination Act to the President’s desk so he can sign it into law.

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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

“It is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. “This legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.”

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Biden administration shifts monkeypox vaccine approach amid shortage

Health experts sees new guidance as mixed bag

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The Biden administration has changed its guidance on monkeypox vaccines to enhance availability amid the shortage.

The Biden administration, amid criticism it was slow to act on the monkeypox outbreak and still not meeting the demand for vaccines as the number of cases continues to grow, has announced a shift in guidance for implementation of the shot in an effort to enhance availability.

As the estimated number of monkeypox cases in the United States reaches 8,900, top health officials announced the new move on Tuesday as part of a decision by Secretary of Health & Human Services Xavier Becerra to issue a determination under Section 564 of the Federal Food, Drug and Cosmetic Act to justify emergency use authorization of vaccines. The announcement follows up on the Biden administration’s announcement last week declaring the monkeypox outbreak a public health emergency.

Becerra said in a conference call with reporters the 564 determination and change in approach to vaccines would “boost and strengthen” the Biden administration’s response to monkeypox, which has overwhelmingly affected gay and bisexual men, and “safely accelerates and multiplies our supply of effective vaccines by up to fivefold.”

“Today’s action also reaffirms HHS and this administration’s commitment to using all available resources and capabilities to end the monkeypox outbreak and provide the best possible care to those suffering from the virus,” Becerra added.

The new vaccine approach, which may may be considered minor to non-medical observers, would change injections of the JYNNEOS vaccine from the subcutaneous route (delivery of the vaccine under the fat layer underneath the skin) to the intradermal route (delivery of the vaccine into the layer of skin just underneath the top layer). In theory, that would allow for greater accessibility of monkeypox vaccines as it increases the number of doses from each vial of vaccine.

The change was made amid criticism the Biden administration failed to meet the demand for vaccines during the outbreak and geographic inequity as certain metropolitan areas of the country have more access to vaccines than other places.

As The New York Times reported last week, the Biden administration has faced criticism for not moving quickly enough in acquiring and distributing vaccines, including bulk stocks already owned by the U.S. government manufactured in Denmark by Bavaria Nordic now being given to other clients.

“The government is now distributing about 1.1 million doses, less than a third of the 3.5 million that health officials now estimate are needed to fight the outbreak,” the Times reported. “It does not expect the next delivery, of half a million doses, until October. Most of the other 5.5 million doses the United States has ordered are not scheduled to be delivered until next year, according to the federal health agency.”

Biden officials, nonetheless, touted the numbers of vaccines and tests in response to monkeypox as a positive, acknowledging the 1.1 million vaccines being made available as well as delivery of more than 620,000 of those doses, deployment more than 15,000 courses of the monkeypox treatment and increasing the country’s capacity to administer tests on a weekly basis to around 80,000. Meanwhile, officials also promoted the change in approach in vaccines as means to allow greater accessibility to the shots.

Rochelle Walensky, director of the Centers for Disease Control & Prevention, promoted during the conference call the use of intradermal injections and said they’re “often used for TB skin tests and have been used for other types of vaccines.”

Although Walensky conceded some health care providers “may not be as familiar with intradermal administration” as they are with subcutaneous injection, she said CDC would make additional guidance materials available, including a clinician alert message to the Association of State & Territorial Health Officials, outreach to key clinician partners and an education resource video. The change in guidance, Walensky said, is for vaccine implementation in adults and children — where single digit monkeypox cases have been reported — would continue to receive vaccination in the traditional subcutaneous approach.

But health experts aren’t responding with overwhelming praise to the decision to change the guidance on vaccine implementation from subcutaneous injections to intradermal injections, expressing concerns the new approach may be insufficient.

Jennifer Kates, director of global health & HIV policy at the Kaiser Family Foundation, was among those saying the change in guidance on vaccine approach was a mixed bag and told the Blade more data is needed to emulate the effectiveness.

“As we saw with COVID, using these authorities in the context of public health emergencies is an important strategy,” Kates said. “In this case, this step will significantly expand access to vaccines for those most at risk. However, there remain questions about the effectiveness of this approach — real world studies are needed — and challenges to translating vaccines into vaccinations.”

Peter Marks, director of the Center for Biologics Evaluation & Research (CBER) at the Food & Drug Administration, was asked during the conference call with reporters to respond to concerns the change in guidance was insufficient and downplayed the novelty of implementing the vaccines through the intradermal route as “not at all new.”

“In fact, the reason why the Bavaria part of this equation comes from the fact that in Germany, this vaccine was given intradermally originally, in an effort to replicate the original version of the smallpox vaccine,” Marks said. “It’s been given to thousands of people intradermally, so this isn’t the first time it’s been done.”

Walkensky said the intradermal vaccine approach has been implemented amid policies among localities to implement a one-dose approach to the JYNNEOS vaccine through the subcutaneous route. (The D.C. government is one of the jurisdictions that had enacted a one-dose approach amid a vaccine shortage.) There is not data, Walkensky said, to support that approach and “in fact, if anything, there are data saying that that is not protective enough.”

“So by using this alternative strategy of intradermal dosing, not only do we have more doses, but we actually allow people to get two doses in a way that shows immunologic response that’s superimposable from the subcutaneous dosing,” Walkensky said. “So we have more doses, and in fact, we have the ability to doubly vaccinate people so that they get the protection that they need.”

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Pan Africa ILGA urges authorities to investigate anti-LGBTQ, anti-intersex murders

Sheila Lumumba’s death in Kenya in April among cases cited

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Pan Africa ILGA once again urged authorities across the continent to investigate the murders of LGBTQ and intersex people and to work to reduce violence based on sexual orientation and gender identity.

The organization — which comprises 268 groups that work for LGBTQ and intersex rights across Africa — in a report it issued in July noted a number of high profile murders that have taken place this year. They include Sheila Lumumba, a 25-year-old Kenyan woman who was murdered in April, Pinky Shongwe, a 32-year-old South African who was stabbed to death in March, and Obisike Donald Ibe, a 31-year-old doctor in Nigeria who was slain in January.

Lumumba, a lesbian who was reportedly targeted because of her sexual orientation, was raped before her murder. A South African court in April sentenced two men to life in prison for raping a 19-year-old lesbian woman in 2020

“LGBTIQ+ persons deserve to thrive without fear of being persecuted,” said Pan Africa ILGA Executive Director Nate Brown. “The recent murder of Sheila in Kenya reflects the realities of the LGBTIQ+ community in Africa. It bears mentioning that unfortunately, these are not isolated incidents. They are part of a pattern of attacks, violence and murders against LGBTIQ+ persons across the continent.” 

Pan Africa ILGA board co-chairs Star Rugori and Barbra Wangere at the same time said the organization is in the process of developing a crisis reporting center that will document human rights violations against LGBTQ and intersex people in Africa and advocate for increased protections and respect for them.

“The inhumane violations and slaughter of LGBTIQ+ persons should prompt thorough investigations, aimed at prosecuting those responsible,” said Rugori and Wangere in a joint statement. “Government needs to protect activists and the greater LGBTIQ+ community and to call a halt to the impunity that links this chain of vicious murders. LGBTIQ+ lives matter and should be protected at all costs just like the rest of our African citizens.”

Bishop Sithembele Sipuka of the Catholic Diocese of Mthatha in South Africa during an interview with the Catholic Information Service for Africa said people who identify as LGBTQ or intersex should be treated with dignity.

“The most we can do, for now, is to grapple with it, to try and understand, and to see how to continue treating these people with the dignity that they have because, despite their sexual orientation, they are still children of God, they have the same dignity,” said Sipuka. “I have known people, credible people, authentic people who are gay or lesbian, very intelligent, very integral people, very committed people, very loving people, and so it is difficult to say that there’s something wrong with this one, you know because some of them really are in terms of integrity full of admiration, the way they are as a person that is difficult for me to condemn them, and say that there is something wrong with them.”

Sipuka also touched the issue of marriage equality, which is usually a catalyst for homophobic statements.

“The process and teaching of the church so far is still that marriage is between a man and a woman, but on the other hand, it does not mean at all that we should despise or think of people who are gay and lesbian as any less than heterosexual people,” said Sipuka. 

I cannot say you can go ahead and get married because I don’t have the mandate to do that. I do things on the mandate of the church. I am open to hearing more on how pastorally to deal with this matter. I am also open for it to be discussed theologically. In the end, the teachings about the church are always about love even exactly everything that they touch is about love,” added Sipuka.

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