Ten years ago, a firestorm ignited in the LGBT community over a vote in the U.S. House that many transgender people remember vividly because it excluded them in favor of advancing employment non-discrimination protections to lesbian, gay and bisexual people.
The vote on the “gay-only” version of the Employment Non-Discrimination Act on Nov. 7, 2007, rocked the LGBT movement and prompted protests against the Human Rights Campaign and gay former Rep. Barney Frank (D-Mass.), who backed the bill, arguing it was the best that could be done at the time. The 10th anniversary of the vote is Tuesday.
But the omission galvanized transgender rights advocates to such an extent that for the next 10 years the LGBT movement committed to moving forward only legislation that included the full community — both at the state and federal level — and today advancement of a sexual-orientation only bill is impossible to imagine.
Dana Beyer, a Chevy Chase, Md.-based transgender activist who’s running for state Senate in Maryland, said the vote on the gay-only version of ENDA was “a landmark” for trans inclusion in the LGBT movement.
“Whenever I discuss the progress that we’ve made, which has been remarkable, I begin there because that was basically the first real battle for the trans community on the national stage and over the succeeding decade, we’ve made incredible progress,” Beyer said.
Beyer added from that time forward after the creation of United ENDA — an unprecedented coalition of more than 400 organizations that emerged to fight against trans exclusion —there have been with few exceptions “no instances of any gay activism or legislation that did not include trans people.”
Rebecca Juro, a New Jersey-based transgender activist and radio show host, said the reaction to the vote on the sexual-orientation only version of ENDA was a significant turning point.
“The reason why Barney Frank was able to introduce and get the kind of support he did in Congress was because there was a feeling [of] who cares, nobody knows about these people,” Juro said. “What that did was it said, ’No, no, no,’ you’re wrong.’ and people are going to call you out and it’s going to cost you politically and people are going to show up at the Human Rights Campaign galas and make it difficult for you to solicit money for your campaign.”
In the year Democrats assumed control of the U.S. House after more than a decade of Republican majorities, then-House Speaker Nancy Pelosi (D-Calif.) brought the gay-only version of ENDA to the floor after Frank determined an initial version of the bill that included protections based on gender identity wouldn’t get a majority vote in the chamber.
That version of ENDA would pass on the House floor by a vote of 235-184. (Among those voting in favor of the bill was Rep. Paul Ryan (R-Wis.), although he also voted in favor of a motion to recommit that would have killed the legislation.)
Voting “no” on the legislation were 25 Democrats, many of whom — such as Rep. Jerrold Nadler (N.Y.), former Rep. Anthony Weiner (N.Y.) and former Rep. Michael Michaud (Maine) — rejected the measure on the basis it lacked protections for transgender people. Then-Rep. Tammy Baldwin (D-Wis.), now a U.S. senator and still the only out lesbian in Congress, proposed an amendment to insert gender identity, but withdrew the measure before it could come to a vote.
Joe Solmonese, president of the Human Rights Campaign at the time of the vote, backed ENDA and 10 years later stood by his decision as a means to develop the legislation, citing “no hope of passing any legislation into law” with George W. Bush as president.
“It was a tactical decision to take a step in the direction of getting what we ultimately wanted, which was maybe a non-inclusive bill in the House, and inclusive bill in the Senate that would end up as a fully inclusive bill or that would end up as a fully inclusive bill by the time Obama became president,” Solmonese said.
Recalling a “great deal of debate within the community and the House” about whether sufficient votes for transgender inclusion were present, Solmonese said lawmakers pledged to LGBT activists support for a trans-inclusive bill before, then told Pelosi not bring such a measure to the floor.
“They sort of wanted it both ways,” Solmonese said. “They knew what they were supposed to do, but they didn’t want to do it.”
Frank said the vote on ENDA was “very important” because it paved the way for legislative victories on hate crimes protections and “Don’t Ask, Don’t Tell” repeal.
“One of the problems we’ve had historically — we don’t have it anymore — is members being afraid to vote for us because they thought they could be defeated, that it would be a tough vote,” Frank said. “So, here we had members voting for a bill that was a broad protections for LGB people and nobody lost because of it. That was very helpful in setting the foundation.”
In his book “A Life in Politics,” Frank recounts the deliberative process that went into bringing the gay-only version of ENDA to the House floor, maintaining Republicans would have sought to amend the bill to remove the transgender protections.
Baldwin disagreed with moving forward without transgender inclusion, Frank wrote, even though she ultimately voted for the bill. (Baldwin’s office didn’t respond to a request to comment for this article.)
“As we approached the final vote, Tammy did her own informal whip count and concluded we would have enough Democratic votes,” Frank wrote. “Speaker Pelosi, a strong supporter of the bill, asked Tammy for her count, checked it herself with the members, and decided that Tammy had been too optimistic — a conclusion that [former Rep. George Miller and I, based on our own work, fully agreed with. We did not have the votes for the inclusive-bill. It was sadly but unmistakably clear to Pelosi, Miller and me that we could pass ENDA only in its earlier form, covering only lesbian, gay and bisexual workers.”
Backing that move was the Human Rights Campaign, which continued to support the gay-only measure as one of five co-signers in a letter to Congress dated Nov. 6, 2007 organized by the Leadership Conference on Civil & Human Rights.
“With each significant step toward progress, the civil rights community has also faced difficult and sometimes even agonizing tradeoffs,” the letter said. “We have always recognized, however, that each legislative breakthrough has paved the way for additional progress in the future. With respect to ENDA, we take the same view.”
That vote sent a shockwave through the transgender community, which quickly marshaled opposition to the bill and protested any further advancement without their protections. Many angrily accused the Human Rights Campaign and Frank of abandoning the transgender community.
Mara Keisling, executive director of the National Center for Transgender Equality, said the vote was “one of the most important things that happened in the movement in the last 20 years.”
“We wanted everything to be about setting up for what the movement was after this vote happened, after the bill died for the year,” Keisling said. “What were the lessons the movement was going to learn, what was the lesson HRC was going to learn, what was the lesson Barney Frank was going to learn?”
The night before the vote, Keisling said, she received a call from Frank’s office and was informed “it was over” a for trans-inclusive version of ENDA. Together with Dave Noble, then policy director of the National LGBTQ Task Force, Keisling said she planned to write a letter to Baldwin in hopes she could influence the vote, but was told the gay-only ENDA would move forward.
That night, Keisling and Noble reached out to the National Center for Lesbian Rights and other groups to form a coalition against the trans omission. By morning more than 60 organizations had joined United ENDA, Keisling said, a coalition that refused to support the gay-only bill and pledged to work with lawmakers to support a trans-inclusive measure.
Keisling said other groups “were calling up slightly annoyed that they hadn’t been asked to sign on” and soon the coalition grew to several hundred members.
“It essentially was because Barney Frank and HRC had totally lost touch with what the community was,” Keisling said. “So they did not understand that this would not be alright with the community and we all found out very quickly in a matter of hours that it really was not, that the movement had really become an LGBT movement and it wasn’t going to fly to take trans people out. So not only were we against the vote happening, we were the leaders of being against the vote happening.”
The gay-only version of ENDA never reached Bush’s desk for his veto, nor did any version of the bill — trans-inclusive or otherwise — come up in the U.S. Senate even though Democrats controlled both chambers of Congress.
Had ENDA been brought to the floor for a vote in the Senate, the sponsor would likely have been the late Sen. Edward Kennedy, who was one of the rare champions of LGBT rights at the time.
Solmonese said he didn’t immediately remember why ENDA never came up in the Senate and said it “may have had to do with timing,” but said Kennedy would only have moved forward with a trans-inclusive bill, not a gay-only ENDA, as part of the strategy for the House vote.
“He understood and supported the rationale of having an overarching strategy,” Solmonese said. “George Bush is the president. This thing’s not going to get passed into law. You do one version in the House, an inclusive version in the Senate, the leadership of both chambers is such that the conference committee would likely end up with something that was fully inclusive, right?”
Keisling, however, said “there was no Senate plan” because the Democratic majority in the chamber was seen as too marginal to advance ENDA, nor did Kennedy ever express an aversion to the gay-only version of the bill.
“The plan was that Barney Frank and HRC thought that it was worth passing the gay-only bill through the House, just move the ball forward and get members on the record as Barney said many times,” Keisling said. “Everyone else believed that since it would never become law that year, we shouldn’t exclude anyone.”
Do the backers of the bill at that time have any regrets? Solmonese acknowledged a few even though he stood by his decision to support ENDA in 2007.
“I regret that I saw it one way, which was a step in building towards what all of us ultimately wanted and by no means a signal that that was the legislation that anybody would ultimately support, but the fact that many people didn’t see it that way and many people simply saw the symbolism around the act as one that was divisive to the community, that was never the intention of HRC or my intention, but I certainly regret that that’s the way that it unfolded,” Solmonese said.
Frank said his “regret was we didn’t have the votes” when asked about his approach and blustered at the suggestion anything else could have been done.
“I think to do nothing at all — that was the argument, if you can’t include everybody, you can’t include anybody — in the first place, that’s not the history of the civil rights movement,” Frank said. “I voted to help protect African Americans and immigrants and women. The civil rights movement…you move as much as you can as soon as you can and you build on that. So do I regret not trying hard to get votes? No, I tried as hard as I could to get the votes.”
‘The pendulum is all the way the other way’
Over the course of 10 years since that vote, it’s hard to imagine Congress — or any other legislative body — passing legislation that excluded transgender people. Each successful version of ENDA introduced and advanced in Congress has been trans inclusive and its supporters have defended that language against any objection it. The Equality Act, the successor to ENDA that would ban anti-LGBT discrimination in employment and in all aspects of civil rights law, has consistently been trans inclusive.
Keisling said the commitment to trans inclusion among LGBT groups is “almost total.”
“Most of the big LGBT organizations, including the legal organizations, the lion’s share of their work now is trans work and, no, I don’t think any of them would intentionally do work to cut trans people out. In fact, there are times that we have to talk people into doing things because they’re afraid trans people will think it means cutting them out when it doesn’t. So, yeah, the pendulum is all the way the other way, and then probably some extra.”
Drew Hammill, a Pelosi spokesperson, pointed to enactment of the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act and his boss’ support for the Equality Act as evidence of her support for trans inclusion.
“Leader Pelosi was proud to lead the Congress as speaker in passing a fully inclusive hate crimes bill signed into law by President Obama in October of 2009,” Hammill said. “A top priority for the leader is the Equality Act, comprehensive legislation to amend the Civil Rights Act and protect LGBT Americans from discrimination on the basis of sexual orientation, gender identity and sex. The leader believes that this legislation would pass the Congress now should Speaker Ryan allow a vote.”
Times have changed for the Human Rights Campaign as well. In 2014, Chad Griffin, the current president of the Human Rights Campaign, apologized on behalf of his organization at the Southern Comfort transgender conference for having “done wrong by the transgender community in the past.”
Transgender work has become a major component of the LGBT group’s work. In recent years, the organization has opposed a gay-only non-discrimination bill in Michigan, worked to thwart the anti-trans House Bill 2 in North Carolina and successfully blocked an anti-trans bathroom bill in Texas. The organization has also opposed non-discrimination measures in Pennsylvania and Charlotte, N.C., without public accommodations protections, which were seen as a backdoor way of leaving out transgender people because of controversy over bathroom use.
Sarah McBride, who’s transgender and press secretary for the Human Rights Campaign, said in the past 10 years the organization is “proudly and unequivocally continuing to fight for trans-inclusive protections” and will only back legislation that is fully inclusive.
“From Michigan to North Carolina to Birmingham, HRC has forcefully and aggressively blocked laws and policies that don’t protect every LGBTQ person from discrimination while fighting to extend robust protections across the country,” McBride said. “We are also working to accelerate the pace of progress in other ways, from raising the visibility of the transgender community, to incentivizing trans-inclusive healthcare through our Corporate Equality Index, to shining a spotlight on the epidemic of anti-transgender violence which is taking the lives of so many trans women of color.”
But 2007 wasn’t the last time there would be fighting within the LGBT community over ENDA. In 2013, major LGBT groups (again with the exception of the Human Rights Campaign) dropped support from a version of ENDA over the scope of its religious exemption, which would have provided leeway for religious institutions, like churches or religious schools, to discriminate against LGBT workers in non-ministerial positions even if the bill were to become law. In a reversal from 2007, the Senate passed the legislation, but it didn’t come up for a vote in the Republican-controlled House.
Although ENDA has never become law, a growing consensus has emerged in the courts that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, also applies to anti-trans discrimination. Four federal appellate courts — the First, Sixth, Ninth and Eleventh circuit courts of appeals — have determined employment discrimination against transgender people is barred under Title VII, as has the U.S. Equal Employment Opportunity Commission.
Keisling cautioned against too much reliance on laws against sex discrimination because “things are in flux,” noting U.S. Attorney General Jeff Sessions’ withdrawal of support for transgender protections under Title VII and President Trump’s appointment of anti-LGBT judges.
“We’re still convinced that the courts are on our side, cases and decisions have been building up to support us and actually [the idea] trans people are supported by sex discrimination is better supported than that gay people are,” Keisling said. “We just don’t exactly know how that’s going to maintain. We do know that there’s a handful of both sexual orientation and gender identity cases moving up through the court system, so what I say now might not be true a month from now and certainly will be changed somewhat in a year.”
Confidence in the legal landscape for trans protections under Title VII is at such a point that a pending petition filed by Lambda Legal before the U.S. Supreme Court seeking a nationwide ruling for gay protections under the law, but not explicit trans protections, hasn’t registered as trans exclusion. The petition was filed on behalf of lesbian plaintiff Jackie Evans after the U.S. 11th Circuit Court of Appeals ruled against her.
Beyer said she’s not bothered by the petition and it should only upset transgender activists “who don’t bother to parse the specifics” and recognize the transgender victories in lower courts.
“We could have easily won [trans protections] nationwide first,” Beyer said. “In this case, sexual orientation has been viewed differently and most courts haven’t wanted to touch it until the Hively case in the 7th Circuit took it, and now we’ve got Evans. That’s beginning to change. I’m certainly not at all offended by that because this is the way you go. You have a case and the case can’t equally be broadened to include different classifications simply because the community would like it.”
The social scene, in contrast to advocacy groups and the legal landscape, may not be as advanced in accepting transgender inclusion despite the explosion over ENDA 10 years ago. Transgender rights advocates noted a distinction between the LGBT community at large in accepting transgender people and advocacy groups.
Beyer said she doesn’t see transgender inclusion at the social level “anywhere near as advanced” as the current legal landscape.
“Acceptance, affirmation in the general culture is one thing, but the fact that, say, 35 percent of Americans do know a trans person, doesn’t mean that people are that much more comfortable with trans people,” Beyer said. “I think on balance they are, but not overwhelmingly so.”
Efforts to resist trans inclusion in the movement on occasion still emerge, although they’re rare and don’t represent mainstream LGBT views. In 2015, a petition was posted on Change.org titled “Drop the T” urging major LGBT organizations to “disassociate themselves from the transgender movement and return to representing their base support of gay men and lesbians.” The petition, signed by 3,227 people, had no impact on transgender advocacy at LGBT groups.
But transgender advocates also saw a generational divide in the approach to trans inclusion on the social scene that meets what is now seen at the advocacy level.
Juro said college-aged LGBT activists just beginning to come into the movement have a much different view of trans inclusion than their LGBT elders.
“They’re all like, no, you cannot separate, we’re all in this together and trying to say we’ll get rights for gay people without trans people is unacceptable,” Juro said. “And our youth, let’s be honest, are the ones who are driving the community. There the ones who get out there with the signs and the marches. People my age, 55, and old farts, we’re not always as active as we used to be and these are the kids who are driving the movement.”
In some respects, the transgender movement has evolved in strength to take on challenges on its own. Just recently, the National Center for Transgender Equality formed a 501(c)(4) political arm and the Breakthrough Fund, a political action committee and offshoot of the Trans United Fund run by transgender activists, launched with the goal of electing transgender people to public office.
Beyer said the transgender movement is rising to the occasion now that transgender issues have become the focus after many victories on gay rights.
“I think the grassroots trans community has seized the initiative simply because after marriage, after Obergefell, it seemed like the air went out of the gay balloon,” Beyer said. “On a local level, there are still black trans women being murdered. There’s still difficulty getting jobs for many trans people, particularly the younger ones. So, there’s a lot of work that needs to be done.”
With the LGBT movement changing dramatically, Keisling said “the LGBT movement is quickly becoming a trans movement,” and now she’s concerned “we’re sending signals to the gay community that trans work is more important than gay work.”
Nonetheless, Keisling cited concerns about insufficient trans presence in places where existing infrastructure is based on gay rights, such as states that have state LGBT equality groups, but no trans groups.
“That’s fine as long as the LGBT movement is strong, but after marriage, if the movement’s weakening…that means trans people don’t have enough support from the LGBT group because it’s weakening but they don’t have the ability to have a strong trans group because there’s an LGBT group,” Keisling said. “I think that’s a conversation we have to start having more explicitly.”
Former Ambassador Daniel Baer explains it all on Ukraine crisis
Expert downplays strategic thinking behind Putin’s move
Daniel Baer, who worked on LGBTQ human rights and transatlantic issues as one of several openly gay U.S. ambassadors during the Obama administration, answered questions from the Washington Blade on Ukraine as the international crisis continues to unfold.
Topics during the interview, which took place weeks ago on Jan. 27, included Putin’s motivation for Russian incursions, the risk of outright war, predictions for Russia after Putin and how the crisis would affect LGBTQ people in Ukraine.
Baer was deputy assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor and U.S. ambassador to the Organization of Security & Cooperation in Europe.
The full interview follows:
Washington Blade: What’s your level of engagement with this affair? Are you doing any consulting work? Is the administration reaching out to you at all?
Daniel Baer: I actually think the White House is doing a pretty good job of recognizing that they need to not only have press conferences, but also talk to other people who are trying to figure out how to be constructive critics, idea generators from the outside.
Blade: OK, so you’re being solicited and engaging on this issue. My next question for you is why do you think Putin is doing this at this time?
Baer: So, I guess taking a step back from the whole thing, one of the things about a problem like this is that everybody is searching for the right answer assuming that there is a like comfortable or compelling or intellectually accurate answer, and I actually think we’re just in a really hard moment.
I don’t know why he’s doing it now. And in fact, I think that one of the puzzles that we haven’t solved yet is that all the things that he says are the reasons that he’s doing it — that he feels encirclement by NATO, … or that the situation in Ukraine is untenable — none of those things have changed. Setting aside the fact that they’re spurious, it’s not like there’s been some new move in the last 12 months that has precipitated [a reaction] on any of those fronts that you can say, “Oh, well, he’s responding to the recent meeting where Ukraine was offered membership in NATO, or he’s responding to a change in government in Ukraine that it’s clearly anti-Russia, or any other move that we’ve done.” The explanation just doesn’t hold water, and so I think we need to look for alternative ones.
The best I can come up with is actually just a broad — it doesn’t actually explain this particular moment, but I think you could look at the timing of his life. He has, I don’t know, 10 years left. And during those 10 years, it’s unlikely that Russia is going to grow more powerful; it’s much more likely that it’s going to become at least relatively and probably nominally less powerful. And so, if you’re unhappy with the status quo, and you feel like you’re a declining power, and you don’t have endless time, there’s no time like the present. And you’ll make up whatever reasons you need to in order to justify it.
I also think there’s a tendency on our part to attribute far more “strategery” to Putin than there necessarily is. I mean, he’s a bully and a thug. I think the whole Putin’s playing chess and we’re playing checkers is actually completely inverted. We’re in our own heads that there’s some kind of nuanced position that would mollify him. He’s just a gangster and he’s taking a punch because he has one. And I don’t think it gets much more complicated than that. And so, I guess the answer to why he’s doing this now, because the international conditions are such that he feels like the United States is focused domestically, the Ukrainians are not moving forward with succeeding to build — they’re kind of in stasis on building a European state— and he has, you know, he has the space to take a punch, so he’s contemplating doing it, or he’s already decided to do it. And he’s just extracting as much as possible before he takes it.
Blade: That leads me to my next question: What is your judgement of the risk of out and out war?
Baer: I don’t know because I have two hypotheses that cut both ways. One is that I think Putin is vastly underestimating the degree of resistance. On the other hand, I think that nothing short of domination is satisfactory. And so, I don’t know. I guess I think there’s a 90 percent chance that he does something, and I think there’s a 75 percent chance that what he does is not an all out invasion or ground invasion, at least not at first, but rather something that is aimed at confusing us. So some sort of hybrid or staged or false flag kind of attack in tandem with a political coup in Kiev, where he works to install a more Russia-loyal leader.
The thing with the ground invasion is that Russian soldiers’ moms are one of the only, like, powerful political forces in civil society in Russia. I just don’t see any way that a ground invasion doesn’t involve massive Russian casualties, even if they will be dominant. The people who are going to impose the consequences on him will be the Ukrainians, not the rest of us, and he should not invade, and if he does, we should, frankly, work hard to make it as painful and difficult for him as possible.
Blade: What will that look like?
Baer: I think we should at that point continue — we shouldn’t pause, we should continue to send the defensive equipment and backfill as much as possible their ability from an equipment basis to resist.
Blade: So if we were to look at a model for past U.S. engagements. I’m thinking Greece under President Truman, which was so successful that nobody really knows about it, I don’t think. Is there any model we should be looking toward, or not looking toward?
Baer: No, I guess. I’m not sure there’s any good historical model because obviously, any of them you can pick apart. I do think that one thing that has gotten lost in a lot of the analysis — and this goes back to Putin being a gangster thug, and not being such a genius — is there’s a moral difference between us. The reason why Putin gets to control the dialogue is because he’s willing to do things that we aren’t willing to do — as gangsters are, as hostage-takers are — and so yes, they get to set the terms of what we discussed, because we’re not holding hostages. We’re trying to get hostages released. And the hostage-taker has an upper hand and asymmetry because they are willing to do something that is wrong.
We shouldn’t lose the kind of moral difference there. Nor should we lose sight of the fact that Ukraine is being menaced. And I’m not saying it’s our obligation [to intervene militarily], certainly not our obligation. They aren’t a treaty ally. We have neither a political obligation nor a moral one to necessarily risk our own lives, our own soldiers in defense of Ukraine. But if Ukraine wants to defend themselves, there’s a strong moral case to be made that anything, short of risking our own lives, is something that is morally good. We generally believe that self-defense from lethal threat is a reasonable moral cause and assisting others in defending themselves is too — I think there’s a lot of back and forth that get glossed over whether that’s a provocation or whatever, and I want to say to people stand back, look at this: we’ve got one party that is attacking another. And the question is, does the other have a right to defend itself? Yes. And if they have a right to defend themselves, and they also have a right to have whatever assistance people will offer them in defending themselves.
That doesn’t mean that they get to demand that we show up and fight in the trenches with them, of course, and I don’t think there’s any serious people who are recommending that but it’s a good thing to help them. It’s not like a technical thing. It’s a good thing to help
Blade: Getting into that moral background, one thing I want to ask you was about the significance of what would happen in this concept of democracy versus autocracy. First of all, how much is Ukraine a functional democracy, in the sense that if we’re defending Ukraine, we are defending a democracy, and what signal do you think it would send if that Ukrainian government fell to Russian autocracy?
Baer: I think the institutions of government that the Ukrainian people have are not worthy of the Ukrainian people’s own demonstrated commitment …
They are not worthy of the Ukrainian people’s own demonstrated commitment to the idea of democratic institutions. So the answer is today’s Ukrainian government is a mixed bag and it’s very hard to build, on the rot of a Russian fiefdom, a functioning democracy, so I think it’s a mixed bag. I don’t want to sound like I’m minimizing [the changes], or that they’ve completely bungled an easy project. It was always going to be a hard project, and it was never going to be linear.
But I think that what we’ve seen from the Ukrainian people — by which I mean not Ukrainian people, but people of Ukraine — is that there is a broad part of society that a) does not want to live under a Russian thumb and b) sees its future in kind of European style democracy. And so I think that if there was, there’s no question that the Russian attack would be in part about subjugating the people of Ukraine and forcing them to live under some sort of new Russian satellite. And I think that there’s little space for serious argument that that’s something that the people of the country wish to have.
Blade: But I’m just kind of getting at — you’re kind of minimizing that this is a strategic move by Putin, but if he were to successfully dominant Ukraine it becomes a Russian satellite isn’t that saying like, “Well, ha ha West, you thought the Cold War was over and there’s going to be just be a unipolar world in the future but no, we’re gonna we have this we’re back and we’re gonna create a multipolar world for the future.”
Baer: Yeah, I mean, my answer to the Russians who always raise the multipolar world to me is, “Fine, it’s going to be a multipolar world. What makes you think that Russia is one of the poles?” Poles by definition draw people to them, they are compelling and a pole attracts, magnetically or otherwise, and there is nothing attractive about the model that Russia is pursuing. And if the only way that you can be a pole is by subjugating, to force your neighbors, you are proving that you are not one.
I think the benefits for Russia are far smaller than Putin thinks and I think the consequences for the rest of the world of allowing a violation of international order to go forward are much larger than many people recognize.
Blade: But that was their approach when they were the Soviet Union. They were subjugating the Eastern Bloc through Russian force. They did have, in theory, the concept of their worldview of you know, of socialism, or whatever you want to put it charitably, was going to be the right way to go. Is there really that much of a difference?
Baer: Yeah, however disingenuous it was, they did have an ideology . So you’re right, that was a key distinction. The other thing is that the Soviet Union in relative size — its economy and population etc. — was much larger than Russia is today. And Russia is shrinking, and its economy is less diverse than the Communist one was. I think it’s a delusion to think that they’re going to kind of rebuild an empire, even if yes, because of their willingness to do awful things, they could potentially for a time politically control through violence, their neighbors. I just don’t — in a multipolar world, I don’t see Russia being one of the poles, at least not on its current path.
Blade: How would you evaluate the U.S. diplomatic approach to this issue?
Baer: There’s been very clear over-the-top effort to include the Europeans at every step — meetings with them before each meeting and after each meeting, to force conversations into fora that are more inclusive and stuff like that. And I think that Secretary Blinken is rightly recognizing the need to kind of play a role of kind of keeping everybody on the side while we test whether diplomacy whether there’s anything to do, whether there’s any promise with diplomacy.
I think there’s kind of, sometimes kind of, two camps in U.S. foreign policy circles. One is like: We should give the Russians what they want because it just doesn’t matter that much. War is much worse than anything that we would give them. And another is that we can’t give them an inch and we have to punch them in the face whenever we can. And I think both of those are kind of knee-jerk positions that have become a bit religious for people and neither of them is paying attention to the practical challenge that’s in front of the administration, which is like this guy’s threatening to invade and we need to identify whether there’s any opportunity for a functional off ramp, and that doesn’t mean we do that in a vacuum and ignore the long-term consequences, but our problem is not a religious one, it’s a practical one. And I think they’re doing a pretty good job of threading the needle on that and being not too far forward and not too far back.
Blade: Do you see any significant daylight between the United States and Europe?
Baer: No, I mean, no more than the minimum that is possible. There’s a lot of talk about Germany these days. Look, I think some of the things they say are not particularly helpful, but I don’t actually think that in the long run, if Putin invaded, I don’t think that they would hold up sanctions or anything like that. So I think they’re on our side, even if they’re talking out of both sides, in some cases.
Blade: I am wise to the fact that this is a nuclear power. It might be a little old school, but could escalation get that far?
Baer: There can’t be war. There can’t be war between NATO and Russia. It should be avoided. Obviously, there can be, but it should be avoided.
Blade: How committed do you think President Biden is to protecting Ukraine?
Baer: Reasonably so. I think he’s enough of an old school trans-Atlantist that he understands that this isn’t just about Ukraine.
Blade: I was wondering because he had those comments from his press conference about “minor incursion” and I’m just wondering if you’re reading anything into that or not.
Baer: No, I think that was that was a — I think broadly speaking, everything he says is in line with the kind of view that you would expect. And of course, one sentence can catch [attention]. That wasn’t what he meant. What he meant was that he didn’t want to draw a “red line” that would prejudge policy in response to something short of the most extreme scenario.
I think it is a good caution to not obsess over a single sentence and to look at the broad considered policy statements.
Blade: What do you think if you were looking for developments, like what would you be looking out for is significant in terms of where we are going to be going in the near future? This is one thing to keep an eye out for but is there anything else that you are kind of looking out for in terms of the near future?
Baer: I guess I would look out for whether or not the United States joins meetings of the so-called Normandy Format, which is the France, Germany, Ukraine and Russia grouping, which has so far been unsuccessful, but I think can only be successful as the United States joins it, but the Russians, I think have misgivings with the idea of our joining it.
Blade: I’m not at all familiar with that. What makes this forum particularly so —
Baer: So it was started in the summer in like June of 2015, on the margins of some meeting between Merkel and Hollande. The French and the Germans are very committed to the idea that they might be able to mediate peace between Ukraine and Russia. It was supposed to implement the Minsk Agreement, and it just hasn’t been productive so far. I don’t think that the Russians will do anything — I don’t think the Ukrainians feel comfortable negotiating anything without the Americans at the table. And I don’t think the Russians feel like anything is guaranteed without the Americans at the table. So I just, I’m fine with France and Germany taking the lead, but I think the U.S. has to be there.
And there was a meeting of this group in Paris yesterday, and which the U.S. was supportive of, and so I’m watching to see whether or not the United States gets added in some ad hoc way, whether there are future meetings. I guess the reason I would watch it, if the U.S. were to join future meetings that would signal to me that it’s actually there’s some diplomacy happening there.
That’s meant to be focusing mainly on the existing Russian invasion, the occupation of the Donbas, so that’s not about the threat of the new invasion, but it would be interesting to me if there was forward movement on other parts of Ukraine. The announcement of the American ambassador is one. I think that last week movement of troops into Belarus was a game changer for the U.S., because there are all kinds of new implications if you’re using a third country as your launchpad for war, and so it complicates things and it also looks more serious if you’re starting to deploy to third countries and stuff like that. So I think that was that last week, you noticed a difference in the U.S. tone and tenor in response to that.
So things like that. But in general, like what I would do and I don’t think people always catch this is because there’s a boiling frog aspect to it. There are statements coming out from the White House or State Department. Almost every day on stuff related to this and like last week, there was a noticeable change in the tenor as the U.S. became less, I think more pessimistic about the prospects of diplomacy and those I don’t have anything better to look for in those statements as tea leaves, in terms of what the U.S. assessment is of the prospects of the escalation are, so it’s bad.
Blade: Right. That’s very sobering.
There’s a lot of talk, and I’ve just been seeing some like about in terms of, there’s like comparisons to Afghanistan and making sure that all Americans are able to get out of Ukraine. Is that comparing apples to oranges?
Blade: And could you unpack that a little bit? I mean, I can kind of guess the reasons why. How is that apples to oranges?
Blade: Well, the level of development in Ukraine in terms of infrastructure and transport and stuff like that is not comparable to Afghanistan. I think it would be– if there were a Russian invasion–you would definitely want to, obviously, for safety reasons, it’s not safe to be in a war zone, so you would want people to be able to evacuate and you’d have to plan for that.
A major concern [in Afghanistan] was also that there were tens of thousands, if not hundreds of thousands of locals who had worked for the Americans. The Americans that are in Ukraine are not a departing occupying power. There’s just not the same footprint there — the Americans are in Ukraine or there as business people or young [people working on] democracy assistance or whatever. And it’s just it’s a different context.
Blade: Why do you think the Russians put up with Putin? I mean, this is a country that was a world power and I would think has some economic potential just given its sheer size, first of all, and they do have oil to offer people. So why aren’t the Russians like angry at him for obstructing their participation in the global order as opposed to just putting up with him for years and years and years.
Baer: Successful instrumentalisation of cynicism. The lack of a belief in an alternative will keep you from fighting for it.
Blade: That’s pretty succinct.
Baer: I mean, I don’t think there’s any question that the people of Russia could be better off or different in terms of kitchen table issues, and ease of navigating the world, prospects for their future for their children’s future. The amount of money that Putin has invested into military modernization that Russia can ill afford, while he’s cut pensions and social services and health care. It’s just it’s objectively true that the average Russian person would be better served by a different leader. But he’s done a very good job of effectively selling off the country for profit and persuading people through repression and propaganda that there is no alternative.
Blade: And Putin won’t be around forever. Once he finally goes, is an alternative going to emerge, or will it be the next guy in Putin’s mold?
Baer: I think it’s far from clear that what comes after Putin isn’t worse and bloody. Regimes like this don’t reliably have stable transitions.
Blade: Wow, okay.
Baer: Yeah, we shouldn’t… we should be careful about wishing… wishing for his demise.
Blade: That’s good to know. It’s kind of a frightful note for me to end my questions. But actually before I sign off, there’s one more thing too because I do kind of want to talk about the intersection about your old job in democracy and human rights and then a Venn diagram of that with your experience in Eastern Europe in particular. Do you have a sense of what’s at stake for LGBTQ people in Ukraine or if they’re in more danger right now than they would be otherwise?
Baer: That’s a good question. I mean, my knee jerk reaction is yes. That — as mixed of a picture as Ukraine has been in the last seven years, or eight years — there have been meaningful steps forward, and certainly, in terms of visibility.
I guess, in the sense that Ukraine is better than Russia today, if you’re gay, if Russia is going to occupy or control Ukraine we can expect that it will get worse because it will become more like Russia.
Trump ribbed Pence for thinking ‘it’s a crime to be gay,’ new book says
Former president openly wanted gay Fox News analyst for Supreme Court
Donald Trump, in the days before he took office after the 2016 election, openly contemplated naming an openly gay Fox News contributor to the U.S. Supreme Court amid concerns from social conservatives about his potential choices and ribbed former Vice President Mike Pence for thinking “it’s a crime to be gay,” according to the new book “Insurgency” detailing the former president’s path to the White House.
The key moment between Trump, Judge Andrew Napolitano and Pence took place during the transition period after the 2016 election when Trump invited the other two for a meeting at Trump Tower. That’s when Trump reportedly took the jab at Pence.
“During their meeting, for part of which Mike Pence was present, Trump ribbed Pence for his anti-gay rights views,” the book says. “Addressing Napolitano, Trump gestured toward the archconservative vice-president-elect and said, ‘You’d better be careful because this guy thinks it’s a crime to be gay. Right, Mike?’ When Pence didn’t answer, Trump repeated himself, ‘Right, Mike?’ Pence remained silent.”
The potential choice of Andrew Napolitano, who was fired last year from Fox News amid recently dropped allegations of sexual harassment from male co-workers, as well as other TV personalities Trump floated for the Supreme Court, as detailed in the book, were among the many reasons conservatives feared he wouldn’t be reliable upon taking the presidency. Ironically, Trump would have been responsible for making a historic choice for diversity if he chose a gay man like Napolitano for the Supreme Court, beating President Biden to the punch as the nation awaits his selection of the first-ever Black woman for the bench.
The new book — fully titled “Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted” and written by New York Times political reporter Jeremy Peters, who is also gay — identifies Trump’s potential picks for the judiciary as a source of significant concern for conservatives as the “Never Trump” movement was beginning to form and expectations were the next president would be able to name as many as four choices for the Supreme Court. Among the wide ranges of possible choices he floated during the campaign were often “not lawyers or judges he admired for their legal philosophies or interpretations of the Constitution,” but personalities he saw on TV.
Among this group of TV personalities, the books says, were people like Fox News host Jeanine Pirro, whom Trump “regularly watched and occasionally planned his flight schedule around, directing his personal pilot to adjust the route accordingly so the satellite signal wouldn’t fade.” Trump told friends Pirro “would make a fine justice,” the books says.
Trump potentially making good of his talk about naming Napolitano as one of his choices for the Supreme Court “would have been doubly unacceptable to many on the religious right,” the book says. Napolitano, a former New Jersey Superior Court judge, was friendly with Maryanne Trump Barry, Trump’s sister and a federal judge with a reputation for liberal views, such as a ruling in favor of partial-birth abortion, and is also gay, both of which are identified in the book as potential concerns by the religious right.
Napolitano and Trump were close, the book claims. Napolitano, as the book describes, had a habit of telling a story to friends about Trump confiding to him the future president’s knowledge of the law was based on Napolitano’s TV appearances. Trump told Napolitano: “Everything I know about the Constitution I learned from you on Fox & Friends,” the book says.
The book says the meeting with Trump, Pence and Napolitano when the former president took a jab at Pence in and of itself suggested Trump “was indeed serious about giving the judge some kind of position in the government.” Napolitano, known for making outlandish claims as a Fox News contributor —such as the British government wiretapped Trump Tower — never took a post in the Trump administration.
The new book isn’t the only record of Trump ribbing Pence for his anti-LGBTQ reputation. A New Yorker profile in 2017 depicted a similar infamous meeting with Trump and Pence in which the former president joked about his No. 2’s conservative views. Per the New Yorker article: “When the conversation turned to gay rights, Trump motioned toward Pence and joked, ‘Don’t ask that guy— he wants to hang them all!'”The incident described in “Insurgency” was similar to the meeting detailed in the New Yorker profile.
Trump ended up making a list of names he pledged he’d limit himself to in the event he was in the position to make a selection to the Supreme Court and made good on that promise based on his selection. By the end of his presidency, Trump made three picks to the bench who were each confirmed by the U.S. Senate: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
But Trump limiting his options to the list of potential plans was not a fool proof plan for conservatives. To the surprise of many, Gorsuch ended up in 2020 writing the majority opinion in the case of Bostock v. Clayton County, a major LGBTQ rights decision by the U.S. Supreme Court, which determined anti-LGBTQ discrimination is a form of sex discrimination and illegal under federal civil rights law.
The Washington Blade has placed a request in with Trump’s office seeking comment on the meeting with Pence and Napolitano as described in “Insurgency.” Napolitano couldn’t be reached for comment.
Human Rights Campaign’s ex-president sues over termination, alleges racial discrimination
Alphonso David alleges he was terminated unfitly
Alphonso David, the former president of the Human Rights Campaign terminated by the board after he was ensnared in the Gov. Andrew Cuomo scandal, sued the nation’s leading LGBTQ group on Thursday, arguing he was fired as a result of racial discrimination “amid a deserved reputation for unequal treatment of its non-white employees” and was explicitly told he was paid less because he’s Black.
David, speaking with the Washington Blade on Thursday during a phone interview, said he came to the decision to file the lawsuit after practicing civil rights law for 20 years and “never thought that I would be a plaintiff.”
“But I’m in this chair, I was put in this position,” David said. “And as a civil rights lawyer, I couldn’t look the other way. It would be anathema to who I am and it would undermine my integrity and purpose for the work that I do. And so I have to go through and make a very, very difficult personal decision to file this lawsuit.”
The lawsuit, filed Thursday in the U.S. District Court for the Eastern District of New York, accuses the Human Rights Campaign of violating new state and federal laws for terminating David, who was the organization’s first person of color and Black person to helm the LGBTQ group in its 40-year history. The lawsuit also contends the Human Rights Campaign contravened equal pay law in New York by paying David less than his predecessor, Chad Griffin.
After a public dispute with the board in September amid an independent investigation of his role in the Cuomo affair, the Human Rights Campaign boards unceremoniously fired David and shortly afterward announced a still ongoing search for a new president. David was named nearly a dozen times in the damning report by New York Attorney General Letitia James, suggesting David assisted in efforts by Cuomo’s staff to discredit a woman alleging sexual misconduct in Cuomo’s office. David has consistently denied wrongdoing.
But the lawsuit is broader than the termination and describes an environment at the Human Rights Campaign, which has faced criticism over the years for being geared toward white gay men, as a workplace where “non-white staffers were marginalized, tokenized, and denied advancement to high-level positions.” After a speech David gave on issues of race and indifference in the context of HRC’s mission, the lawsuit claims a board member complained about him referring too much to being Black, but faced no penalty from the organization.
Specifically named in the report is Chris Speron, Senior Vice President of Development, who expressed concern about “alienating” white donors and specifically “white gay men” after David issued a statement on the importance of Black Lives Matter after the killing of George Floyd by Minneapolis police officers. The lawsuit claims Speron pushed David to “stop mentioning in his public statements and remove from his bio the fact that he was HRC’s first Black President in its history.” Speron also was critical of hiring a Black-owned consulting firm and “criticized a Black staff member for attending a meeting with the consulting firm without a white person present,” the lawsuit claims. Speron couldn’t immediately be reached for comment to respond to the allegations.
In terms of equal pay, the lawsuit says HRC’s co-chairs informed David he was underpaid compared to his predecessor because he’s Black. But the lawsuit also acknowledges in 2021, just before news broke about the Cuomo report, the Human Rights Campaign in recognition of David’s work renewed his contract for five additional years and gave him a 30 percent raise.
David, speaking with the Blade, said he was in “shock” upon experiencing these alleged incidents of racism, maintaining he had kept quiet at the time out of concern for the greater good of the aims of the Human Rights Campaign.
Asked whether as president he considered implementing racial sensitivity trainings for his subordinates, David said “yes,” but added many trainings aren’t effective and said the power in organizations like the Human Rights Campaign is often spread out.
“There are people within the organization that have a fair amount of board support because they bring in the money because they are responsible for overseeing the money,” David added.
Joni Madison, interim president of the Human Rights Campaign, said in a statement after the lawsuit was filed the organization is “disappointed that Alphonso David has chosen to take retaliatory action against the Human Rights Campaign for his termination which resulted from his own actions.”
“Mr. David’s complaint is riddled with untruths,” Madison said. “We are confident through the legal process that it will be apparent that Mr. David’s termination was based on clear violations of his contract and HRC’s mission, and as president of HRC, he was treated fairly and equally.”
Madison adds the individuals accused of racism in the lawsuit “are people of color and champions of racial equity and inclusion who provided support and guidance as Mr. David led the organization,” without naming any specific individual. The boards for the Human Rights Campaign and the Human Rights Campaign Foundation who made the decision to terminate David, were comprised of seven independent directors, five of whom were Black.
The racist environment, the lawsuit says, culminated for David in September 2021 amid an independent investigation of his role in the Cuomo affair conducted by the law firm Sidley Austin LLP at the behest of the organization. According to the lawsuit, the board co-chairs contacted David late at night before Labor Day weekend to tell him to resign by 8 a.m. the next morning or be terminated for cause. When David asked whether the Sidley Austin investigation had made any findings against him, or if a report would be issued explaining what he was accused of doing wrong, the board co-chairs refused to say, the lawsuit says.
As is publicly known, David declined to resign and took to Twitter to complain about the board, which subsequently issued a statement disputing his claims. He was then fired “for cause” under his contract.
The termination, the lawsuit says, signified differential treatment of David because he is Black, taking note the Human Rights Campaign under his predecessor had “endured repeated, serious, scandals — many of which involved HRC’s mistreatment of Black and other marginalized individuals,” but Chad Griffin was never terminated “for cause.”
Both the Human Rights Campaign Foundation board and the Human Rights Campaign board voted to terminate David. A source familiar with the vote said no one voted “no” in either case. The campaign board vote was unanimous and there were two abstentions in the foundation board vote, the source said.
The source familiar with the vote said David never told the Human Rights Campaign he was helping Cuomo during his time as HRC president nor did he disclose he was talking to the New York attorney general. The first board members heard about it was when it hit the press, the source said.
Meanwhile, the lawsuit says David “performed extremely well as HRC president, by any measure,” navigating the organization through the coronavirus epidemic and boosting fundraising by 60 percent. (The Blade has not yet verified this claim.) It should be noted the Human Rights Campaign cited coronavirus as the reason it laid off 22 employees, as reported at the time by the Blade.
David, asked by the Blade how he sees the alleged racist culture at Human Rights Campaign infused in his termination, said “Black and Brown people are treated differently and have been for years in this organization,” citing a “Pipeline Report” leaked to the press in 2015 documenting an environment in which employees of color were unable to thrive.
“And so, the fact that I’m being treated differently now, in the fact that a different standard is being applied to me is just simply consistent with what they’ve always done,” David said. “You know, we go back to the Pipeline Report: Imagine if I was leading the organization at the time, and there was a report that was issued, that said that anti-Semitic remarks were being made within the organization, and that women were being discriminated against within the organization or some other marginalized group and that one of the senior vice presidents used a derogatory remark. Do you think I would still be at the organization or would they have fired me?”
David concluded: “There’s a different standard and a double standard that they’ve applied for decades, and I’ve just now been one casualty — another in a long series of casualties based on their systemic bias and discrimination.”
Among the requests in the prayer for relief in the complaint is a declaration the Human Rights Campaign’s actions violated the law; restoration of David to his position as president; an award of the compensation he would have received were he still on the job as well as punitive damages. Asked by the Blade whether any settlement talks have taken place, David said that wasn’t the case and pointed out the lawsuit was recently filed.
Legal experts who spoke to the Blade have doubted the validity of a review by Sidley Austin on the basis it was among the legal firms agreeing in 2019 to help with the Human Rights Campaign entering into litigation to advance LGBTQ rights, an agreement David spearheaded upon taking the helm of the organization.
David, in response to a question from the Blade, said the independent investigation into his role in the Cuomo affair “is a sham and I believe it was a sham,” citing the lack of transparency of findings.
“One of the first instances that caused me concern,” David said, “is I suggested to the organization that we conduct an independent review, and they came back to me and said, ‘Here’s our press release history,’ and the press release never mentioned that I actually suggested that they do this review. And when I challenged them on that, they told me that they thought it would be better for the press to review a complaint or receive a statement that showed that they were bringing this investigation as opposed to I’m recommending and push back even more. And then they said ‘Well, we will put in the statement that you are cooperating.’ So from the very beginning, they were not honest about what they were actually doing.”
Representing David in the lawsuit is the Chicago-based employment law firm Stowell & Friedman, Ltd. and and Chicago-based attorney Matt Singer. The case has been assigned to U.S. District Judge Eric Vitaliano, a George W. Bush appointee, an informed source familiar with the case said.
The lawsuit was filed in New York as opposed to D.C. because David is a New York resident and much of the discriminatory behavior took place in New York, the source said. The pay disparity alleged in the lawsuit is expressed in percentages as oppose to hard numbers pursuant to rules for the judiciary in New York, the source added.
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