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DOJ slammed for ducking on trans exclusion in ADA

Obama administration says resolution to case based on Title VII the right approach

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scales of justice, gay news, Washington Blade

The Justice Department ducked on whether the trans exclusion in ADA is unconstitutional. (Photo by Mbiama via Wikimedia Commons)

As civil rights advocates celebrate the 25th anniversary enactment of the Americans with Disabilities Act, one New England-based LGBT group is criticizing the Obama administration for ducking on the issue of whether the transgender exclusion in the law is unconstitutional.

Gay & Lesbian Advocates & Defenders took the Justice Department to task in a statement last week for declining to weigh in on the explicit transgender exclusion written into the 1990 law.

The ADA prohibits discrimination on the basis of disability in employment, public accommodations and other areas, but the law explicitly states it doesn’t include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism [and] gender identity disorders not resulting from physical impairments or other sexual behavior disorders.”

Jennifer Levi, director of GLAD’s trans rights project, said the Justice Department’s decision to avoid the trans exclusion in a statement of interest filed on July 21 is “surprising and disappointing.”

“Given the rank animus behind it, the exclusion serves to marginalize and stigmatize a minority group that the DOJ has recognized needs and deserves legal protections,ā€ Levi said.

Kate Lynn Blatt, a transgender employee at the hunter gear Cabela’s Retail, filed a discrimination claim against her employer under both Title VII of the Civil Rights Act of 1964, on the grounds the store discriminated against her based on her sex; and the ADA, on the basis the store refused to reasonably accommodate her by denying her use of a restroom consistent with her gender identity and the ability to wear a nametag with her correct name. Blair also endured harassment from supervisors and co-workers and was abruptly terminated in 2007.

In a four-page statement of interest signed by trial attorney Emily Nestler, the Justice Department asks the court to hold off on determining the constitutionality of ADA’s trans exclusion until the challenge on the basis of Title VII is resolved.

ā€œThe United States respectfully requests that the Court defer ruling upon Plaintiffā€™s constitutional challenge to the GID Exclusion until after the Title VII claims are resolved, as disposition of Plaintiffā€™s Title VII claims could resolve this case without the need to reach the constitutionality of the GID Exclusion,” the filing says. “Should the Court later determine that the constitutional issue cannot be avoided, the United States respectfully reserves the right to intervene or file a supplemental statement of interest at that time.”

In 2012, the U.S. Equal Employment Opportunity Commission determined in the case of Macy v. Holder the gender provision under Title VII applies to workplace discrimination against people for being transgender. In a statement in December, the Justice Department followed suit, saying the U.S. government would no longer deny the law covers gender-identity discrimination.

Levi added the filing has two silver linings: the reassertion that Title VII prohibits workplace discrimination against transgender people and language that enables the Justice Department to revisit the trans exclusion at a later time.

“While we acknowledge these bright spots, the problem created by the ADA exclusion remains,” Levi said. “Congress excluded transgender people from the protections of the ADA because of the stigma associated with gender dysphoria. As long as the transgender exclusion remains within the law, the ADA fails in its promise to create a level playing field in employment for all people capable of doing the job.ā€

The U.S. Justice Department deferred to its filing in the case in response to the Washington Blade’s request to comment on GLAD’s criticism.

Representing Blatt is Sidney Gold, Neelima Vanguri and Brian Farrell of the Philadelphia-based Sidney L. Gold & Associates. Along with Law Professor Kevin Barry of Quinnipiac University, GLAD and other trans rights groups filed a friend-of-the-court brief in January arguing by maintaining the trans exclusion, the ADA perpetrates the kind of discrimination it seeks to dismantle.

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The White House

Trump bars trans women and girls from sports

The administration reversed course on the Biden-Harris policy on Title IX

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President Donald Trump (Washington Blade photo by Michael Key)

President Donald Trump on Wednesday issued another executive order taking aim at the transgender community, this time focusing on eligibility for sports participation.

In a signing ceremony for ā€œKeeping Men Out of Womenā€™s Sports” in the East Room of the White House, the president proclaimed “With this executive order, the war on womenā€™s sports is over.”

Despite the insistence by Trump and Republicans that trans women and girls have a biological advantage in sports over cisgender women and girls, the research has been inconclusive, at best.

A study in the peer reviewed Sports Medicine journal found ā€œno direct or consistent researchā€ pointing to this conclusion. A different review in 2023 found that post-pubertal differences are ā€œreduced, if not erased, over time by gender affirming hormone therapy.ā€

Other critics of efforts to exclude trans student athletes have pointed to the small number of people who are impacted. Charlie Baker, president of the National Collegiate Athletic Association, testified last year that fewer than 10 of the NCAA’s 522,000+ student athletes identify as trans.

The Trump-Vance administration has reversed course from the Biden-Harris administration’s policy on Title IX rules barring sex-based discrimination.

ā€œIf youā€™re going to have womenā€™s sports, if youā€™re going to provide opportunities for women, then they have to be equally safe, equally fair, and equally private opportunities, and so that means that youā€™re going to preserve womenā€™s sports for women,” a White House official said prior to the issuance of the order.

Former President Joe Biden’s Title IX rules, which went into effect last year, clarified that pursuant to the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), sex-based discrimination includes that which is based on the victim’s sexual orientation or gender identity.

The White House official indicated that the administration will consider additional guidance, regulations, and interpretations of Title IX, as well as exploring options to handle noncompliance by threatening federal funding for schools and education programs.

White House Press Secretary Karoline Leavitt told reporters that Trump ā€œdoes expect the Olympic Committee and the NCAA to no longer allow men to compete in womenā€™s sports.ā€

One of the first legislative moves by the new Congress last month was House Republicans’ passage of the “Protection of Women and Girls in Sports Act,” which would ban trans women and girls from participating in competitive athletics.

The bill is now before the U.S. Senate, where Republicans have a three-seat majority but would need 60 votes to overcome the filibuster.

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Congress

House Dems urge OPM not to implement anti-trans executive order

Authors were Dem. U.S. Reps. Mark Takano (Calif.), Jamie Raskin (Md.), and Gerald Connolly (Va.)

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Rep. Mark Takano (D-Calif.) (Washington Blade photo by Michael Key)

Three House Democrats including Congressional Equality Caucus Chair Mark Takano (Calif.) issued a letter on Wednesday urging the Office of Personnel Management to not implement President Donald Trump’s anti-trans executive order, “Defending women from gender ideology extremism and restoring biological truth to the federal government.”

Also signing the letter were U.S. Rep. Jamie Raskin (Md.), ranking member of the House Judiciary Committee, and U.S. Rep. Gerald Connolly (Va.), ranking member of the House Oversight Committee.

The lawmakers wrote the order “unlawfully attacks the civil rights of transgender Americans” while the White House’s corresponding memo and guidance “implements unlawful discrimination by the federal government against transgender people in the civil service and the provision of federal services.”

Specifically, they call unconstitutional the directive for agencies to “end all programs, contracts, grants, positions, documents, directives, orders, regulations, materials, forms,
communications, statements, plans, and training that ‘inculcate’ or ‘promote’ ‘gender
ideology’ā€”which the Executive Order defines broadly to encompass acknowledging the simple
existence of transgender people and gender identity.”

ā€œWe are deeply alarmed by these and other actions the Trump Administration has taken in its first few weeks to eliminate all government support for the transgender community, including efforts designed to enforcing the rights and support the health of transgender individuals,” the congressmen wrote.

They added, “We are also appalled by the Administrationā€™s attempts to weaponize federal agencies to target the transgender community for discrimination and exclusion. These actions contradict federal law, Supreme Court precedent, and most importantly the Constitutionā€™s guarantee of equal protection under the law.ā€

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Africa

Suspension of US aid forces PEPFAR-funded programs in Africa to close down

Funding freeze is ‘matter of life and death’

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(Bigstock photo)

The suspension of nearly all U.S. foreign aid has forced a number of programs that the President’s Emergency Plan for AIDS Relief funds in Africa to shut down.

Secretary of State Marco Rubio on Jan. 24Ā directedĀ State Department personnel to stop nearly all U.S. foreign aid spending for 90 days in response toĀ an executive orderĀ that President Donald Trump signed after his inauguration. Rubio later issued a waiver that allows PEPFAR and other ā€œlife-saving humanitarian assistanceā€ programs to continue operating after bowing to pressure.

A message on the U.S. Agency for International Development’s website notes “all USAID direct hire personnel will be placed on administrative leave globally, with the exception of designated personnel responsible for mission-critical functions, core leadership, and specially designated programs.” The announcement is scheduled to take place on Friday at 11:59 p.m. ET.

One of the PEPFAR-funded healthcare programs in Kenya still impacted by the funding freeze, despite Rubio’s waiver, is the Fahari ya Jamii (“joy of the community” in Swahili) initiative that began in 2022. The University of Nairobi was jointly implementing the project.

The Sh4.2 billion ($32,558,139.52) project sought to coordinate and manage high quality, cost-effective, and accessible HIV services in Nairobi, neighboring Kajiado County, and other parts of Kenya. Fahari ya Jamii was scheduled to end in May 2026, but it has closed indefinitely because of a lack of U.S. funding.

More than 700 staff, mostly healthcare workers, on Jan. 31 were placed on unpaid leave for three months, or until Washington decides whether to unfreeze funding. More than 150 Fahari ya Jamii clinics that offer HIV treatment to at least 72,000 people on antiretroviral drugs have also shut down.

The initiativeā€™s target groups include children, adolescents, and adults living with HIV; young people, men, and women at risk of HIV; and key populations that include men who have sex with men and female sex workers.  Fahari ya Jamii since 2022 has offered HIV tests to more than 257,500 people, connected 94 percent of those who tested positive to treatment, distributed condoms and lubricants, and disseminated safter sex messages to their target groups.

Faith Ndungā€™u, advocacy manager for Kenya’s Health NGOs’ Network (HENNET) said the Trump-Vance administration should have used a humane approach to engage with countries that benefit from U.S. funding, instead of abruptly suspending it.

ā€œWe are feeling the magnitude of the suspension in the health sector because these are lives; these are people,” said Ndung’u. “When such an abrupt decision is made, we are talking about more than one million people living with HIV being affected.ā€

HENNET is an umbrella group with 112 members from local and international NGOs, faith-based organizations, and research institutions that focus on health-related issues inĀ Kenyaā€™s 47 local governments.

ā€œThis is now a wakeup call for Kenya and Africa to invest in the health sector by funding it more not to be in a similar crisis when a donor pulls out or forfeits his commitment,ā€ Ndungā€™u said.  

Local governments that also rely on USAID to run PEPFAR programs have suspended their U.S.-funded activities and phased out the stand-alone comprehensive HIV care centers by integrating treatment and care into general health care services. This move has forced hundreds of health care workers to go onto unpaid leave and wait for further guidance.

Pema Kenya, a Mombasa-based queer lobby group, said the decision to suspend funding means “uncertain times” for the LGBTQ community and Kenyans at large who depend upon U.S.-funded groups for their health care.

ā€œMany queer organizations rely heavily on USAID funding for vital services such as HIV/AIDS prevention and treatment, mental health support, and legal aid,ā€ Pema Kenya stated.

Pema Kenya noted the suspension of U.S. aid could severely cripple queer organizations and leave vulnerable people with limited access to crucial resources.

ā€œThis would be a significant setback in the fight against HIV/AIDS and other health crises disproportionately affecting the LGBTQ+ community,ā€ Pema Kenya stated.   

GALCK, a coalition of 16 Kenyan LGBTQ rights groups, was even more blunt.

“This isn’t just a policy decision; it’s a matter of life and death,” it said in a statement.

OUT and Engage Man’s Health ā€” two South African organizations that provide HIV services to MSM, transgender people, sex workers, and other vulnerable groups through PEPFAR ā€” have also been impacted by the U.S. funding freeze.

OUT and Engage Manā€™s Health, which provides HIV services to MSM, announced on Jan. 27 that it will stop offering services ā€œuntil further noticeā€ due to a lack of funding. The organization asked its clients to seek services from the nearest public health facilities.

ā€œWe deeply value our clients and remain committed to safeguarding your health,” said the announcement. “We sincerely apologize for the inconvenience and disruption this may cause. Unfortunately, we are unable to provide further details at this time.ā€

Kenya and most other African countries have said a permanent suspension of U.S. aid will adversely impact progress made in the health sector, particularly the fight against HIV/AIDS. Botswana and some other nations on the continent that use their national budgets to purchase antiretroviral drugs, have assured their citizens the supply of these medications will not be interrupted.

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