White House Press Secretary Josh Earnest defended on Friday new guidance from the Obama administration requiring schools to allow transgender students to use the restroom consistent with their gender identity, saying it’s meant as “advice” and shouldn’t be considered a threat of loss of federal funds.
“The guidance does not add additional requirements to the applicable law,” Earnest said. “The guidance does not require any student to use shared facilities when schools make alternate arrangements. But what the framework does provide is advice for how school administrators can protect the dignity and safety of every student under their charge. And that advice includes practical, tangible, real-world suggestions to school administrators who have to deal with this issue.”
In response to criticism over the guidance from Lt. Gov. Dan Patrick, who called the instructions federal overreach, Earnest dubbed the official a “a right-wing radio host” turned politician.
Questions on the guidance made up nearly the entire one-hour White House press briefing on Friday, although some reporters asked about funding to confront the Zika virus, immigration raids and other topics.
The guidance was issued one day after Earnest announced the administration won’t cut federal funds from North Carolina over its anti-LGBT law, which prohibits transgender students from using the restroom consistent with their gender identity, as enforcement action of Title VII of the Civil Rights Act against the statute remains ongoing in courts.
Under questioning from the Washington Blade, Earnest denied the administration was sending mixed messages by making that determination and sending on the next day guidance assuring transgender students have access to school bathrooms.
“The situations are quite different,” Earnest said. “I think they do illustrate how consistent and forceful this administration has been about fighting against the idea that people could be discriminated against because of who they are. That’s a principle the President does feel strongly about. It’s obviously a principle that Attorney General Lynch spoke movingly about. And preventing discrimination and treating people fairly is a core principle that does guide a lot of the policy that’s made by the Obama administration.”
Earnest said President Obama was “regularly updated” as the Departments of Education and Justice prepared the guidance and the outcome of those efforts reflects his view.
Asked whether Obama thinks access for transgender students is a civil rights issue, Earnest said the case law is being built up and spoke about ending discrimination.
“But, look, I think the reading of this guidance I think is pretty common-sense,” Earnest said. “You can’t discriminate against people because of their gender identity. You can’t force people with a specific gender identity to use a different facility. That’s discriminating against them.”
The briefing marks the first time a White House official has publicly said the word “transgender” from the podium of the Brady Briefing Room, which Earnest acknowledged during the briefing.
“There was some discussion about whether or not the word ‘transgender’ had ever been uttered from the White House podium before,” Earnest said. “And I think that’s a pretty apt illustration of how this debate is changing and has emerged. So it’s new to our political debate, but this is not new when you consider what school administrators have had to do to ensure the safety and security of every student at their school. This is something that they have to deal with every day.”
President Obama has used the word “transgender” before, most notably in 2015 when he became the first U.S president to say the word — along the words “lesbian” and “bisexual” — during the State of the Union address.
A partial transcript of questioning on the guidance during the White House briefing follows:
Josh Earnest: Kathleen, would you like to start?
Q: Sure. Thank you. I’m going to start with the administration’s letter on transgender bathroom guidance for schools.
Earnest: I thought you might.
Q: I thought I’d give you a chance to respond to Texas’s – the lieutenant governor, Dan Patrick, who said that the letter — he called the letter “blackmail,” and said that the administration is doing everything it can to — or he said it’s going to divide the country and it has everything to do with keeping the federal government out of local issues.
Earnest: Well, I think this does underscore the risk of electing a right-wing radio host to a statewide elected office. So let’s just walk through the facts here. The first is, this was guidance that was issued by the Department of Education and the Department of Justice in response to requests for information and guidance from school administrators across the country.
Just last week, for example, the National Association of Secondary School Principals put forward a specific formal request to the Department of Education about how to create the kind of respectful, inclusive environment that school administrators across the country are seeking to maintain. These principals also are interested in making sure that they’re acting consistent with the law. And they sought guidance because they’re not interested in a political argument, they’re actually interested in practical suggestions about how they confront this challenge that they face every day.
So let’s just be clear about what’s included in the guidance. The guidance does not add additional requirements to the applicable law. The guidance does not require any student to use shared facilities when schools make alternate arrangements. But what the framework does provide is advice for how school administrators can protect the dignity and safety of every student under their charge. And that advice includes practical, tangible, real-world suggestions to school administrators who have to deal with this issue. They can’t rely on political arguments that are framed as a solution to a problem that nobody can prove exists. They actually have to deal with the responsibility that they have to promote an inclusive, respectful environment for all of their students.
And what the Department of Education has issued today is specific, tangible, real-world advice and suggestions to school administrators across the country about exactly they can do that.
Q: But you wouldn’t argue — or it seems as though the administration is also trying to paint this as a major civil rights issue, right? This isn’t just a pragmatic sort of everyday guidance to schools. Attorney General Lynch has compared this to racial segregation.
Earnest: Well, I think Attorney General Lynch was talking about a very specific enforcement action that the Department of Education announced — or the Department of Justice announced with regard to a specific law that was passed by the state of North Carolina. In this instance, this is not an enforcement action. As I pointed out, this does not add any additional requirements to any school district or state under the applicable law. This is in response to extensive requests for guidance and for information and advice that have been put forward by school administrators and teachers and, in some cases, even parents who are seeking practical solutions to this challenge.
And the challenge here is not to isolate anybody, it’s not to discriminate against anybody, it’s not to make anybody unsafe — it’s actually to ensure that our schools are as inclusive and respectful and safe as they can possibly be. And that’s why the guidance that we’ve put forward includes tangible, specific suggestions for how that can be achieved.
So let me just give you one example. There are some school districts across the country that have sought to enhance the privacy of their students by making relatively minor changes to shared-use facilities. In some cases, that means just putting up curtains so that people have more privacy when they’re changing their clothes or taking showers in what had previously been shared-use facilities. So that is something that benefits all students, and that’s what we’re looking for — solutions that protect the safety and dignity of every single student in the school.
Q: And if schools individually decide not to follow this guidance, there isn’t a threat that they could lose federal funding —
Earnest: Well, if there are schools — first of all, let me just state that it is my strongly held belief — and I’m pretty sure I’m going to be right about this — that the vast majority of schools and school districts and school administrators across the country will welcome this guidance and will implement it. For those that don’t, there’s an established process for them to raise any concerns that they may have. And there’s an established process for that, and we’ll go through it. But the vast majority of schools and school administrators will incorporate this advice as they confront the challenge of ensuring that they’re promoting the kind of respectful, safe learning environment that can ensure the success of all of their students.
Q: On the school bathroom issue, how concerned is the administration about the legal challenges? The Texas attorney general is saying that this oversteps the administration’s constitutional authority. And can you speak to — I mean, you said very clearly to Kathleen that you expect the vast majority of schools will implement the guidance. But for those that don’t, what happens with them? Is the administration actively going to follow up with them and punish them in some way?
Earnest: Well, there’s an established process for schools and the Department of Education to discuss guidance that they’ve been provided. I just want to reiterate — and this is important for people who are interested in the legal aspect of this — there’s no additional requirement under the applicable law that’s being imposed on schools. There’s just not, despite the claims of political opponents of the administration.
There is a strong desire on the part of some politicians to try and score some cheap political points by presenting a solution to a problem that they can’t prove exists. And what the administration has tried to do is to provide, at the request of school administrators, practical, real-world advice they can use in their school communities to address this challenge. That’s the practical offering that we have put forward here.
It’s a lot different than the argument that others are making. For example, is the Texas attorney general suggesting somehow that it would be practical to station a law enforcement officer outside of every public bathroom in an educational facility and check people’s birth certificates on the way in? That doesn’t sound like a practical application to me. It also doesn’t sound like small government to me. It certainly sounds like a government intrusion to me. But, again, that’s what’s hard to sift through in all of this. What exactly is the practical argument or suggestion that they’re making?
I recognize that they’ve got some sharp political arguments that were honed over years of morning drive-time radio in Houston, but school administrators don’t have the benefit of just talking. They actually have a functional responsibility to protect the safety and dignity of every student at their school. And the vast majority of school administrators take that responsibility quite seriously. And I think we’ll welcome and implement the guidance that’s been issued by the Department of Education today.
Q: A lot of times when a guidance or regulation or directive comes from a federal agency, it’s portrayed as a White House action. Could you address what this transgender bathroom issue — did this come from the White House? Was the White House consulted? How unitary is the unitary executive on things like this? I guess what I’m asking is, is the White House and the Obama administration synonymous, for all intents and purposes, to —
Earnest: Putting forward guidance like this is the responsibility of the Department of Education. And they have to consider a broad range of policy implications for schools all across the country. So this is the responsibility of the Department of Education, but you would expect the White House to be responsible for coordinating policy decisions that are made by agencies.
So of course the White House was aware of the policy deliberations that have been underway at the Department of Education for quite some time, but ultimately this is the responsibility and the function of the Department of Education, and they are the ones who received requests from schools all across the country, and they are the ones who are putting forward guidance for how schools can deal with this particular situation.
Q: What is the rationale that the administration has come to, to base this guidance on Title IX, just to be clear about that?
Earnest: Well, I’m happy to be overruled by an attorney at the Department of Justice or the Department of Education that you can consult after this hearing — or after this briefing, but let me try.
My understanding is that Title IX applies specifically to preventing sex discrimination in educational institutions. And the idea that individuals are discriminated against because of their gender identity is the basis for the guidance that we’re putting forward. Nobody should be discriminated against because of who they are. And our suggestion is that the rules should apply to everybody equally, and that’s the basis of this guidance — that every student should have access to facilities that every other student has access to. No one should be discriminated against because of who they are. And that’s the basis for this guidance.
That’s also why we say no student is forced to use shared facilities. And if there are alternate facilities available, that are made available by administrators, then every student should have access to those as well.
Q: But why shouldn’t local communities be making these very intimate decisions? How does the federal government know what’s best in so many different communities where there are different cultural sensitivities? Why is this not a local matter?
Earnest: It is a local matter. That is exactly the position of the Obama administration.
Q: But why is the federal government involved?
Earnest: The federal government is providing specific suggestions based on examples that we’ve collected from across the country. And the guidance is presented — it is not an additional requirement under the applicable law. It doesn’t provide any obligation to a student, for example, to use a shared facility. Rather, what it does is we have consulted with schools all across the country and surfaced good suggestions, good examples — in some cases, even best practices — for addressing this situation. That’s the essence of guidance that’s at the essence of the coordinating role that the Department of Education plays. At the same time, Ron, there’s a long history in our country of the federal government playing a very important role in ensuring that people aren’t discriminated against.
Q: With regard to the health care law and the new rule, what’s different? How does this apply to the transgender community specifically now? What’s different?
Earnest: So this is a good example of what I was just talking about. There is a new rule that is part of the Affordable Care Act, or the implementation of the Affordable Care Act, that prohibits discrimination based on race, color, national origin, sex, gender identity, age or disability, and it ensures that individuals with limited English proficiency can access language assistance when they’re seeking health care.
Again, a basic responsibility of the federal government — and this has been true throughout our nation’s history — is ensuring that people aren’t discriminated against. And that’s particularly true when it comes to health care as well. And that’s true of any potential sex discrimination, but that also is relevant to discrimination that could be targeted at people because of their race, because of a perceived disability, because somebody is pregnant, because somebody doesn’t speak English very well. We believe people should be treated the same and afforded the same kind of opportunities, regardless of these specific individual characteristics.
Q: Isn’t the mention of transgender patients — isn’t that specific? Isn’t that new? Isn’t that different?
Earnest: All of what I’ve laid out is a new part of the rule that’s been issued today.
Q: What was the harm, in terms of the transgender community? Was there some identifiable problem out there that required this clarification or this augmentation to the rule?
Earnest: Well, again, Ron, this is much broader than just applying to the transgender community. But the transgender community is included. In the same way that we want to prevent discrimination against pregnant women, we want to make sure that we’re preventing discrimination against transgendered women. In the same way that we’re preventing discrimination against people who don’t speak English very well or people who have a specific disability, we want to make sure that transgendered men are not discriminated against either.
Q: Specifically because there’s some concern in that community about access to transition drugs and medications and services, was that something that the administration was concerned about in terms of trying to, I guess you could say, refine this rule?
Earnest: Well, I guess in terms of the way that it has an impact on individual health care decisions, I’d refer you to Health and Human Services for answering that question. But, look, the idea behind this specific rule is to prevent discrimination against a wide range of groups.
Q: I had a couple questions on the gender guidelines you sent out last night. Given that North Carolina’s House Bill 2, that’s sort of part of this, is headed to the courts, why did the White House feel the need to put out this directive to the law?
Earnest: Well, this is a directive that is responsive to requests that we’ve received all across the country from school administrators and teachers and parents and others. So this is not a response to the ongoing legal dispute related to HB2. This is a response to requests that the Department of Education has received from teachers and administrators all across the country.
Q: But you’ve cautioned before about being careful of not putting your finger on the scale. Doesn’t this sort of suggest that you’re putting the White House’s finger on the scale?
Earnest: Well, we’ve been quite clear about the need to keep enforcement actions separate from any sort of political interference. This is not an enforcement action. This is a policy decision that was made by the Department of Education. And, yes, the White House was appropriately involved in coordinating that policy decision. But ultimately it’s the responsibility of the Department of Education to make this policy decision and to communicate it to the schools and administrators all across the country.
Notably, it’s not an enforcement action. It does not add a requirement to the applicable law. And it doesn’t pose any requirements on students for the use of shared facilities.
Q: One of the other questions I had for you. You mentioned — you were asked about the lieutenant governor’s comments on it, and you said that it runs the risk — or it underscores the risk of electing a right-wing radio host.
Earnest: To statewide office, yes.
Q: Yes, to statewide office. Yes.
Earnest: Yes. (Laughter.)
Q: Given that the White House last year when the Supreme Court ruled on same-sex marriage, the White House put the lights out on the fountain, how much of this was a political consideration in doing these guidelines.
Earnest: Well, I think as I pointed out before, the guidelines contain practical advice and suggestions for school administrators across the country that have to deal with this challenge inside their communities. They don’t have the luxury of relying on political arguments that are an attempt to try to score some political points that propose to address a solution to a problem that doesn’t actually exist. These are school administrators who are trying to do the right thing. They’re trying to promote an atmosphere of dignity and security for the students and their schools. And so what the Department of Education has put forward are practical suggestions for how exactly they can do that consistent with civil rights law.
Q: And the White House is not looking to score any political points on it, even though it’s been hailed by a number of organizations as a new frontier in same-sex law?
Earnest: Well, I’m not surprised to hear that there are people who agree that we shouldn’t discriminate against people because of who they are. I think most Americans agree with that notion. So that’s part of why I anticipate that school administrators across the country would welcome this guidance.
Look, I’ll also say, I think school administrators across the country who don’t agree with the politics of this administration will also welcome these suggestions, because they recognize that they have a challenge that they have to deal with and that, frankly, they don’t have the luxury of engaging in a partisan political argument with a right-wing radio host. In fact, what they have to do is they have to provide for the safety and dignity of the students who are under their care. And that’s exactly what this guidance does, is it gives them some useful tools for considering a range of options that they can use to do exactly that.
So this has very little to do with politics, except for our critics who want to make this entirely about politics. This administration is interested in providing workable, practical solutions to school administrators who are trying to provide for the safety and dignity of the students under their care.
Q: Josh, is it the intention of the administration that the guidance letter be seen as a threat to deny federal funds to school districts that don’t comply with the policy decisions as interpreted by DOE and DOJ?
Earnest: No, they should not view it that way. They should view this as guidance, as specific suggestions and a framework for dealing with a very straightforward challenge: How do school administrators, all across the country, ensure that they’re protecting both the safety and dignity of every single student at the school. It’s as simple as that. And what the Department of Education has done is they’ve drawn on their own internal expertise, and they’ve drawn on the creative solutions that have been implemented by school administrators all across the country to put all that good information in one place and provide some practical advice to school administrators who are trying to solve this problem. And that’s a good thing.
I think what is true, what is undeniably true is the foundation of this guidance is the principle that people shouldn’t be discriminated against just because of who they are. And school administrators don’t have a glamorous job. These are individuals who, I think in most cases, feel quite passionate about their work. They view their work as a calling. They’re looking to prepare the next generation of Americans to succeed. And they want to create a learning environment where every student can feel safe, where every student can feel included, where every student can feel respected. That’s what the vast majority of school administrators are interested in, and that’s why I think the vast majority of school administrators are going to use this guidance, they’re going to carefully consider the suggestions that have been put forward by the Department of Education, and they’re going to put forward a solution that works in their community. That’s the way this should work.
Q: Could you see how some might see the guidance letter as an implied threat of loss of federal funds, being that you mentioned that under the provisions of Title IX, schools that receive federal funds are obligated to comply with the provisions that are stated forth in the guidance letter?
Earnest: Look, there is a desire in the guidance to be as clear as possible about why this guidance is being issued. But look, it’s quite clear what we’re interested in here. The Department of Education is interested in providing guidance and suggestions to school administrators who are trying to do the right thing. And that right thing is to prevent people from being discriminated against, but also make sure that every single student in their school has their safety and their dignity protected.
Q: Thanks. Everyone is in my business today.
Earnest: I know, man. (Laughter.) You got to elbow those people out.
Q: Yesterday, you said that there was a determination, as a result of multiagency review, that there would be no loss of federal funds at this time to North Carolina as a result of possible suit. But at the same time, this guidance on transgender students is issued. Isn’t that sending a mixed message?
Earnest: Well, no, I don’t think it’s a mixed message. I think it’s important for people to understand what’s happening here. This guidance that was put forward by the Department of Education does not impose any new requirements under the applicable law. It’s guidance that’s issued to school administrators in school districts all across the country.
The conversation that we’ve been having over the course of this week has largely been centered on the state of North Carolina and what impact their law could have on their compliance with the Civil Rights Act. So it was related to a specific piece of legislation that was passed almost literally in the dark of night by the legislation that convened a one-day special session to pass this bill. It was signed the same day by the governor. And the rebuke from business leaders in North Carolina and business leaders who are contemplating doing business in North Carolina has been forceful. And I think it’s an indication that the legislation that was passed by the state legislature was much more — was much broader than just something that would apply in an educational setting.
So the situations are quite different. I think they do illustrate how consistent and forceful this administration has been about fighting against the idea that people could be discriminated against because of who they are. That’s a principle the President does feel strongly about. It’s obviously a principle that Attorney General Lynch spoke movingly about. And preventing discrimination and treating people fairly is a core principle that does guide a lot of the policy that’s made by the Obama administration. But the enforcement action that was announced by the Attorney General this week was enforcement action that was the decision of attorneys at the Department of Justice. That decision was not influenced by White House officials. The notification that was distributed by the Department of Education today is not an enforcement action; it was a policy decision that did include some White House involvement, but was the realm and responsibility of the Department of Education.
Q: But nonetheless, given that the major component of House Bill 2 is that transgender students in North Carolina are prohibited from using the restroom consistent with their gender identity, doesn’t that necessarily mean that even if schools not to follow this guidance that the Department of Education has put out, that they will not suffer a loss of federal funds?
Earnest: Well, what this says is — well, the way this works is that if there are schools — and I think they will be in the minority — but if there are schools across the country that do come forward and indicate that they do not intend to be in compliance with this guidance, then there is an established process for litigating those differences with the Department of Education. So there’s an established process for this. We don’t have to invent one.
Q: And was it planned to make the announcement that there would be no loss of federal funds for North Carolina at this time, in conjunction with the announcement from the Department of Education and Justice for this guidance for transgender students? Was that coincidental?
Earnest: No, these were separate actions. So, again, as it relates to North Carolina in consideration of HB2, the policy decision that was made, even as agencies were considering whether or not the passage and implementation of HB2 would put a range of federally funded programs at risk in the state of North Carolina, the decision that was made was to not withhold any funding until the enforcement action that was announced by the Department of Justice had made its way through the courts. So that was a very specific thing, and that was a response to developments that occurred this week with regard to the situation in North Carolina.
This guidance is guidance that has been in the works for years, but it is guidance that is broadly consistent with the kinds of principles that this President and this administration has long fought for.
Q: One last question. Even after you said yesterday, with regard to HB2, that there would be no loss of federal funds to the state as the enforcement action is ongoing in the courts, a Department of Education spokesperson said the review there is ongoing. Do you know why the spokesperson would have said that?
Earnest: I don’t. But this is a little complicated, so it may have just been a bit of a miscommunication. But as it relates specifically to HB2, no federal agencies will be making a decision to withhold funding as a result of HB2 until the DOJ enforcement process has worked its way through the courts.
Q: Josh, is this the extent of guidance like this? Or do you foresee similar directives to come from the administration?
Earnest: It’s certainly possible. I’m not aware of any guidance that’s likely to attract the amount of interest that this one has.
Q: I’m going to go back to an idea you were talking about here with Kathleen. Can you just clarify: Does the President see this as a clear-cut civil rights issue?
Earnest: Well, I think there obviously is a question of civil rights here. And there is a question of how can we ensure that the civil rights of every student is protected. There’s also a question of how do we ensure that the dignity and safety of every student is protected. And the guidance that we have put forward would do both. And again, I think that’s why we’re going to see a lot of school administrators come forward and announce their intent to implement this guidance, or they’re going just going to implement the guidance without announcing it. Or, like many school administrators, they’re already doing this kind of work to ensure the safety and dignity of every student at the school.
And this is the thing that I was mentioning before. This is something that over the last week or two has been a pretty loud part of the political debate. But this is something that school administrators all across the country have been dealing with for quite some time. So they don’t have the luxury of falling back on talking points. They’ve got to implement practical, real-world solutions that make a difference when it comes to the safety and dignity of students at their school. Posting a law enforcement officer outside of every bathroom, and checking the birth certificate of people who are walking through the door — that’s not a practical solution. That’s not going to enhance anybody’s safety. It’s not going to enhance anybody’s dignity. That’s impractical. It’s rooted in a political argument that has very little grounding in actual facts.
So I recognize that that is sort of something that politicians frequently do, which is make arguments that may sound good politically just to score some political points. But to do that at the expense of students all across the country is something I don’t think that they should do.
Q: And the question of civil rights, I mean, are you parsing here that it’s not a civil rights issue? I mean, is this because the courts still haven’t ruled on whether there is protection under the law of transgender persons as a protected class, as an extension of sex discrimination?
Earnest: Well, I think what’s undeniable is this is an issue where case law is still being built up. But, look, I think the reading of this guidance I think is pretty common-sense. You can’t discriminate against people because of their gender identity. You can’t force people with a specific gender identity to use a different facility. That’s discriminating against them.
What we should do is we should treat every student the same. We should protect every student’s safety. We should protect every student’s dignity. We should give every student access to individual-use facilities if that’s what they prefer and they’re available. That’s the cornerstone here of our argument.
Q: You’re saying the case law is still being built up, but you’re not going so far as to say that this is on shaky legal ground because we still haven’t seen the federal protection?
Earnest: I don’t mean to telegraph any lack of confidence in the legal conclusion that’s been reached here. The law is clear. And I think it should be notable that it’s not just the Department of Education that signed on to this, but the Department of Justice has too.
The point that I’m trying to make, Margaret, is that this is something that is relatively new. This is a relatively new policy consideration that school administrators are having to make. This is a relatively new element of our political debate.
I was thinking about Chris earlier today because there was some discussion about whether or not the word “transgender” had ever been uttered from the White House podium before. And I think that’s a pretty apt illustration of how this debate is changing and has emerged. o it’s new to our political debate, but this is not new when you consider what school administrators have had to do to ensure the safety and security of every student at their school. This is something that they have to deal with every day. And that’s why most of them don’t have a lot of tolerance for a bunch of cheap political rhetoric. They’re looking for solutions. And solutions are exactly what were provided by the Department of Education in their letter today.
Q: Thanks, Josh. You’re saying that this is a problem that school administrators are dealing with, but then it was also a problem that didn’t exist until it entered this political realm. How long has the administration been getting questions about this? And did the North Carolina law prompt this guidance or speed its timeline?
Earnest: It did not. This is guidance that had been in the works for years. This is relatively new to our political debate, but again, this is something that has been the source of questions that the Department of Education has received for a number of years now. And again, those questions to the Department of Education were not rooted in the desire of a high school principal to make a political argument. It was rooted in the desire of a high school principal to get some advice and to rely on the experts at the Department of Education to help him or her ensure the safety and dignity of every single student at their school. That’s what these principals are looking for.
Look, in most cases, principals aren’t making a whole lot of money. It’s not a glamorous job. But they do it because they care deeply about our children. They care deeply about providing a good, quality education to our kids. They care deeply about the future of this country. They care deeply about ensuring that a learning environment that they are responsible for managing is one that’s respectful, that’s inclusive, and that is safe. And that’s the kind of guidance that they were seeking from the Department of Education about how best to accomplish those goals.
Q: Doesn’t the administration think, though, or acknowledge at least, that there still is a very difficult process here? For example, the guidance says that when a student or the student’s parent or guardian, as appropriate, notifies the administration that the student will assert a gender identity that differs from their previous representations, the school will begin treating that student consistent with the gender identity. And then it goes on to say the gender transition can happen swiftly or over a long duration of time. If a principal is sitting in front of a student, there could be questions of clarity, sincerity. These are all things that are still not answered and out there, right?
Earnest: Well, I think this goes to Ron’s question. We acknowledge — and, in fact, this is what should happen: School administrators do have to make decisions about the best way to protect the dignity and safety of the students at their school. And, yes, these are complicated issues, and that’s setting aside even the kinds of arrangements that might be available to a school administrator. And so many of our schools are so wildly underfunded, right? So you face this question about are we going to build a new bathroom, or are we going to provide up-to-date textbooks in our science classrooms. These are practical questions that administrators are going to have to answer for themselves.
That’s why it would not be wise for the federal government to be imposing a solution or adding an additional requirement under the law. That’s, in fact, why we have not done that, because we believe in the value and the importance of local control of schools. So we want schools and we want school administrators to be reaching the kinds of conclusions and the kinds of solutions that are in the best interests of that community and that are in the best interests of the students who attend that school.
So that’s also why you’ve seen the U.S. Department of Education draw upon solutions that have been implemented by schools all across the country and surfacing those good ideas and sharing them with other school administrators that are trying to solve the same problem. That’s a pretty high-functioning U.S. Department of Education providing a valuable service to school administrators all across the country that are simply just trying to provide a safe and inclusive learning environment for their kids.
Q: Lastly, the administration has come out very strongly on these issues, with the action against North Carolina, with its guidance today. And those are domestic issues. Internationally, the United States still has relationships with and gives aid to countries that puts LGBT people behind bars, charges them and executes them. Is the U.S. going to exert its influence internationally on this
Earnest: Well, Rich, I would tell you that we do. The President strongly advocates for the rights of all people when he travels around the world. And we certainly have made direct statements — let me say it this way. The President has been crystal-clear both in public settings, but also in private settings, in his conversations with world leaders about our expectation and the priority that we place in this country on human rights.
Q: So we threaten funding?
Earnest: Well, I think that that has been a question that has been discussed in a number of other settings about whether or not significant human rights violations undermine the relationship that the United States has with other countries, or in some cases, could even interrupt funding that is provided by the United States to other countries.
There was an amusing situation a couple of years ago where there were questions about whether or not the United States was going to interrupt the federal aid that we provide to Egypt in the aftermath of a crackdown on political dissidents there. Now, that situation is not funny, but it did provoke an amusing response here as I tried to describe the way that funding is provided to individual countries and tranches, and so some people had some fun with that.
But it underscores that this is a policy priority of the President when he travels around the world. I’ve sat in rooms where the President is talking to world leaders, and the President of the United States respectfully but directly raises concerns about the treatment of minorities in their countries, including the rights of gays and lesbians, and the rights of political dissidents, the rights of women, the rights of journalists. And, look, as a country, these are values that we are deeply invested in and we use our influence around the world to try to advance those values. And the President makes that case rather forcefully, both in public and in private, on American soil and when he’s abroad.
Q: Quickly on the guidance. Do you expect lawsuits?
Earnest: Well, again, what I expect is that the vast majority of school administrators are going to take a look at this guidance and figure out a way to implement it in their schools.
Q: On the transgender question, can you help us untangle the President’s role himself? Like did he play a direct role in the guidance? Did he meet with his Attorney General in the last week or recent weeks to discuss this? Did he meet with his Education Secretary in the last week or the week before to discuss this? Did he encourage the issue himself of this guidance? And what in particular might have persuaded him that this was the right thing to do? So can you — a little bit more about what President Obama himself, what role he played in this?
Earnest: What I can tell you about the President is he was he was regularly updated as this policy process moved forward. So he was certainly aware of the policy that was under deliberation by the Department of Education. And I can tell you that the outcome does reflect his view that the Department of Education should be responsive to requests that they’ve received from school administrators and that the Department of Education has an obligation to put forward tangible, real-world suggestions for how this problem can be addressed in communities all across the country.
The President also agrees that imposing an additional requirement under the existing law is not something the Department of Education needs to be doing right now. So it’s possible, and in fact, important for the U.S. Department of Education to play an appropriate role in offering this guidance to school administrators that are trying to enhance the safety and protect the dignity of every student in their community.
Q: The suggestion is that he’s sort of a bystander to this guidance coming out — that it was part of a process, that it came out of the departments, and he didn’t really do much to encourage or discourage, it just sort of happened. Is that an appropriate interpretation? Or did he play a more active role?
Earnest: Well, obviously the President sets a longer-term vision for the priorities that his administration is going to pursue. I can’t speak to all of the conversations that President Obama has had with the Education Secretary about this or other matters. But I think it is fair to say — and I think it’s important — that this kind of announcement reflects the President’s strongly held view about the need to prevent discrimination, but also the need to protect the safety and dignity of every student in America.
So this does reflect the President’s view. But, at the same time, there’s an established policy process for considering these kinds of questions and ensuring that the outcome reflects the priorities that were set by the President of the United States. In this case, they were.
Top 10 Blade news stories by web traffic
COVID breakthroughs, Equality Act, and anti-trans attacks
Each year our staff gathers in late December to review the highest trafficked stories of the year and there’s more than a little bit of competitive spirit as we review the results. Here are the top 10 stories by web traffic at HYPERLINK “http://washingtonblade.com”washingtonblade.com for 2021.
#10: Mark Glaze, gun reform advocate, dies at 51
The sad, tragic story of Glaze’s death captivated readers in November.
#9: COVID breakthrough infections strike summer tourists visiting Provincetown
This one went viral in July after a COVID outbreak was blamed on gay tourists.
#8: Thank you, Kordell Stewart, for thoughtful response to ‘the rumor’
This opinion piece thanked the former NFL quarterback for writing a personal essay addressing gay rumors.
#7: Elliot Page tweets; trans bb’s first swim trunks #transjoy #transisbeautiful
The actor created excitement by posting his first photo in swim trunks back in May.
#6: Romney declares opposition to LGBTQ Equality Act
Mitt Romney disappointed activists with his announcement; the Equality Act passed the House but never saw a vote in the Senate.
#5: White House warns state legislatures that passing anti-trans bills is illegal
The year 2021 saw a disturbing trend of GOP-led legislatures attacking trans people.
#4: Lincoln Project’s avowed ignorance of Weaver texts undercut by leaked communications
The Lincoln Project’s leaders, amid a scandal of co-founder John Weaver soliciting sexual favors from young men, have asserted they were unaware of his indiscretions until the Blade obtained electronic communications that called that claim into question.
#3: FOX 5’s McCoy suspended over offensive Tweet
Blake McCoy tweeted that obese people shouldn’t get priority for the COVID vaccine.
#2: Transgender USAF veteran trapped in Taliban takeover of Kabul
Among the Americans trapped in the suburban areas of Kabul under Taliban control was a transgender government contractor for the U.S. State Department and former U.S. Air Force Sergeant. She was later safely evacuated.
#1: Amid coup chaos, Trump quietly erases LGBTQ protections in adoption, health services
And our most popular story of 2021 was about the Trump administration nixing regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.
CDC still falling short on LGBTQ data collection for COVID patients: expert
Despite requests since the start of the COVID pandemic for the U.S. government to enhance data collection for patients who are LGBTQ, the Centers for Disease Control & Prevention is still falling short on issuing nationwide guidance to states on the issue, a leading expert health on the issue told the Blade.
With a renewed focus on COVID infections reaching new heights just before the start of the holidays amid the emergence of Omicron, the absence of any LGBTQ data collection — now across both the Trump and Biden administrations — remains a sore point for health experts who say that information could be used for public outreach.
Sean Cahill, director of Health Policy Research at the Boston-based Fenway Institute, said Wednesday major federal entities and hospitals have been collecting data on whether patients identify as LGBTQ for years — such as the National Health & Nutrition Examination Survey, which has been collecting sexual orientation data since the 1990s — but the CDC hasn’t duplicated that effort for COVID even though the pandemic has been underway for two years.
“It’s not like this is a new idea,” Cahill said. “But for some reason, the pandemic hit, and all of a sudden, we realize how little systematic data we were collecting in our health system. And it’s a real problem because we’re two years into the pandemic almost, and we still don’t know how it’s affecting this vulnerable population that experiences health disparities in other areas.”
The Blade was among the first outlets to report on the lack of efforts by the states to collect data on whether a COVID patient identifies as LGBTQ, reporting in April 2020 on the absence of data even in places with influential LGBTQ communities. The CDC hasn’t responded to the Blade’s requests for nearly two years on why it doesn’t instruct states to collect this data, nor did it respond this week to a request for comment on this article.
Cahill, who has published articles in the American Journal of Public Health on the importance of LGBTQ data collection and reporting in COVID-19 testing, care, and vaccination — said he’s been making the case to the CDC to issue guidance to states on whether COVID patients identify as LGBTQ since June 2020.
Among those efforts, he said, were to include two comments he delivered to the Biden COVID-19 Health Equity Task Force in spring 2021, a letter a coalition of groups sent to the Association of State & Territorial Health Officers asking for states to collect and report SOGI in COVID in December 2020 as well as letters to HHS leadership and congressional leadership in spring and summer 2020 asking for them to take steps to encourage or require SOGI data collection in COVID.
Asked what CDC officials had to say in response when he brought this issue to their attention, Cahill said, “They listen, but they don’t really tell me anything.”
“We’ve been making that case, and to date, as of December 22, 2021, they have not issued guidance, they have not changed the case report form. I hope that they’re in the process of doing that, and maybe we’ll be pleasantly surprised in January, and they’ll come up with something…I really hope that’s true, but right now they’re not doing anything to promote SOGI data collection and reporting in surveillance data.”
Cahill, in an email to the Blade after the initial publication of this article, clarified CDC has indicated guidance on LGBTQ data collection for COVID patients may come in the near future.
“HHS leaders told us this fall that CDC is working on an initiative to expand SOGI data collection,” Cahill said. “We are hopeful that we will see guidance early in 2022. Key people at CDC, including Director Walensky, understand the importance of SOGI data collection given their long history of working on HIV prevention.”
In other issues related to LGBTQ data collection, there has been a history of states resisting federal mandates. The Trump administration, for example, rescinded guidance calling on states to collect information on whether foster youth identified as LGBTQ after complaints from states on the Obama-era process, much to the consternation of LGBTQ advocates who said the data was helpful.
The White House COVID-19 Health Equity Task Force has at least recognized the potential for enhancing LGBTQ data collection efforts. Last month, it published an implementation plan, calling for “an equity-centered approach to data collection, including sufficient funding to collect data for groups that are often left out of data collection (e.g….LGBTQIA+ people).”
The plan also calls for “fund[ing] activities to improve data collection…including tracking COVID-19 related outcomes for people of color and other underserved populations,” and specifically calls for the collection of LGBTQ data.
The importance of collecting LGBTQ data, Cahill said, is based on its potential use in public outreach, including efforts to recognize disparities in health population and to create messaging for outreach, including for populations that may be reluctant to take the vaccine.
“If we see a disparity, we can say: Why is that?” Cahill said. “We could do focus groups of the population — try to understand and then what kind of messages would reassure you and make you feel comfortable getting a vaccine, and we could push those messages out through public education campaigns led by state local health departments led by the federal government.”
The LGBTQ data, Cahill said, could be broken down further to determine if racial and ethnic disparities exist within the LGBTQ population, or whether LGBTQ people are likely to suffer from the disease in certain regions, such as the South.
“We have data showing that lesbian or bisexual women, and transgender people are less likely to be in preventive regular routine care for their health,” Cahill said. “And so if that’s true, there’s a good chance that they’re less likely to know where to get a vaccine, to have a medical professional they trust to talk to about it today.”
Among the leaders who are supportive, Cahill said, is Rachel Levine, assistant secretary for health and the first openly transgender person confirmed by the U.S. Senate for a presidential appointment. Cahill said he raised the issue with her along with other officials at the Department of Health & Human Services three times in the last year.
In her previous role as Pennsylvania secretary of health, Levine led the way and made her state the first in the nation to set up an LGBTQ data collection system for COVID patients.
“So she definitely gets it, and I know she’s supportive of it, but we really need the CDC to act,” Cahill said.
Although the federal government has remained intransigent in taking action, Cahill said the situation has improved among states and counted five states — California, Pennsylvania, Rhode Island, Nevada and Oregon — in addition to D.C. as among those that have elected to collect data on sexual orientation and gender identity of COVID patients.
However, Cahill said even those data collection efforts are falling short because those jurisdictions have merely been public about collecting the data, but haven’t reported back anything yet.
“Only California has reported data publicly, and the data that they’re reporting is really just the completeness of the data,” Cahill said. “They’re not reporting the data itself…And they’re also just asking people who tests positive. So, if somebody says positive COVID in California, a contact tracer follows up with that individual and asks them a battery of questions, and among the questions that are asked are SOGI questions.”
As a result of these efforts, Cahill said, California has data on the LGBTQ status of COVID patients, but the data is overwhelmingly more complete for the gender identity of these patients rather than their sexual orientation. As of May 2021, California reported that they had sexual orientation data for 9.5 percent of individuals who had died from COVID and 16 percent of people who tested positive, but for gender identity, the data were 99.5 percent.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
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