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U.S. agency to Congress: Pass law against LGBT workplace discrimination

U.S. Commission on Civil Rights details history of anti-LGBT discrimination

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ENDA, Employment Non-Discimination Act, GetEQUAL, U.S. Capitol, gay news, Washington Blade
GetEQUAL, Employment Non-Discrimination Act, ENDA, gay news, Washington Blade, LGBT workers

Employment Non-Discrimination protest in May, 2010. (Washington Blade file photo by Michael Key)

An independent, bipartisan U.S. agency is set to deliver to President Trump on Wednesday a report calling on Congress to “immediately enact a federal law” against anti-LGBT workplace discrimination, although lawmakers are unlikely to act any time soon given the current makeup of Congress and the long history of stalling on the issue.

The U.S. Commission on Civil Rights details in the 154-page report the history of discrimination against LGBT people and the lack of non-discrimination protections for LGBT people in federal law, citing a 2015 hearing the agency held on the issue.

“LGBT individuals often face lower wages, increased difficulty in finding jobs, promotion denials, and/or job terminations due to their sexual orientation or gender identity,” the report says. “Studies have found that anywhere from 21 to 47 percent of LGBT adults faced employment discrimination because they were gay or transgender.”

Twenty states and D.C., the report notes, have laws barring anti-LGBT employment discrimination and growing number of courts are interpreting the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 to apply to LGBT people. The U.S. Seventh Circuit Court of Appeals, the report notes, this year became the first federal appeals court to determine sexual-discrimination in the workplace amounts to sex discrimination under current federal law.

But the report concludes these measures are insufficient in comparison to an explicit federal non-discrimination law barring anti-LGBT discrimination in the workforce.

“Some federal courts have concluded that the existing federal statutory protection against discrimination based on sex, under Title VII of the Civil Rights Act of 1964, includes within its protection discrimination based on sexual orientation and gender identity,” the report says. “Other federal courts have disagreed. These inconsistent interpretations result in different protections available to individuals based on their jurisdiction, and it is not clear when the Supreme Court will resolve the dispute.”

Efforts to enact LGBT non-discrimination protections in the federal law have stalled for decades. In years past, LGBT advocates have sought to pursue federal non-discrimination protections through passage of the Employment Non-Discrimination Act. But since 2014, the Equality Act, which would amend the Civil Rights Act of 1964 to ensure more comprehensive protections for LGBT people, has been the chosen vehicle.

The report has five recommendations: Congress should “immediately enact a federal law” barring anti-LGBT discrimination in the workforce; U.S. agencies should issue guidance and policies outlining protections for LGBT workers, specifically transgender people; Congress should appropriate funds necessary to enforce civil rights laws; the religious exemption in any LGBT non-discrimination law should be the same as exemptions in existing civil rights law; and federal agencies, such as the U.S. census, should collect data on anti-LGBT workplace discrimination.

The United States Commission on Civil Rights is comprised of eight individuals who serve six-year terms: Four appointed are by the President, and four by Congress. The current chair is Catherine Lhamon, who was appointed by Obama and served during his administration as assistant secretary for civil rights at the Education Department. No Trump appointees serve on the commission.

The conclusions in the report aren’t unanimous. One of the congressionally appointed commissioners, Gail Heriot, a law professor at University of San Diego, disagrees with its conclusions. Another commissioners also appointed by Congress, Peter Kirsanow, a partner at Benesch, Friedlander, Coplan & Arnoff, argues LGBT issues aren’t within the commission’s jurisdiction.

The letter of transmittal indicates the report will be sent to Trump, Vice President Mike Pence, House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.). The Washington Blade sent a request to comment on report to the White House as well as Ryan and McConnell’s office.

In 2000, Trump said in an interview with The Advocate he supports amending the Civil Rights Act of 1964 to include sexual orientation. But Trump has never addressed whether he still supports that idea during his presidential campaign or his presidency, nor whether he’d also support amending the law to include transgender people.

Meanwhile, Trump’s administration has been hostile to LGBT workplace rights. The U.S. Justice Department has argued Title VII of the Civil Rights Act doesn’t apply to gay workers and rescinded an Obama-era memo asserting the law prohibits anti-trans discrimination.

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District of Columbia

Bowser’s highest-level adviser resigns after sexual harassment allegation

Female staffer accuses John Falcicchio of longstanding abuse

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John Falcicchio (Screen capture via WUSA9)

Lawyers representing a D.C. government employee shook up the city’s political establishment on Monday when they announced that the employee filed a sexual harassment complaint against John Falcicchio, the now former D.C. Deputy Mayor for Planning and Economic Development and Mayor Muriel Bowser’s longtime chief of staff.

The attorneys, Debra Katz and Kayla Morin, did not identify the city employee. 

The announcement by Katz and Morin in a press release came shortly after Mayor Bowser issued her own announcement at a news conference on the same day. The mayor confirmed that Falcicchio’s sudden resignation last Friday, March 17, followed her decision to launch an investigation into allegations against Falcicchio.    

But Bowser said issues surrounding her longtime adviser’s departure amounted to “a sensitive matter that includes privacy concerns” that prevented her from disclosing why she initiated the investigation and why Falcicchio abruptly resigned. 

She said the investigation was being conducted by the city’s Office of Legal Counsel, which is “following established policies and procedures” and that all relevant D.C. government staff members were fully cooperating with the investigation.

“I can also tell you that this investigation does not involve any allegations of improprieties related to business transactions,” Bowser told reporters attending the news conference, which was initially called to celebrate the completion of the city’s 9th Street, N.W. protected bike lane project and to discuss updates on the Capital Bikeshare program.

“I have every confidence in my new chief of staff, Lindsey Parker, and in our new Interim Deputy Mayor for Planning and Economic Development, Keith Anderson,” Bowser said at the news conference. “And I have immense confidence in the 37,000 employees of the D.C. government who will keep us moving forward,” she said.

Parker has served as the city’s chief technology officer since 2019 and as assistant city administrator since 2022. Anderson has served as director of the D.C. Department of General Services, which oversees the city’s buildings and properties.  

“We represent an employee of the District of Columbia who came forward to report serious allegations of sexual harassment by former Chief of Staff and Deputy Mayor for Planning and Economic Development John Falcicchio,” the statement released by attorneys Katz and Morin says.

“It is our understanding that this behavior is longstanding, and our client is cooperating fully with the investigation, which Mayor Bowser initiated immediately,” the statement continues. “Our client is courageous. She came forward to ensure accountability and protect other women,” it says. “Given the gravity of our client’s allegations – which involve unwelcome advances and sexual contact – we ask the media to respect her privacy,” the statement says.

It concludes by encouraging “everyone affected” to contact Maia Ellis, the Associate Director of the Mayor’s Office of Legal Counsel, who’s leading the investigation, at [email protected].

Katz is a founding partner and Morin is an associate of the D.C. law firm Katz Banks Kumin, which specializes in sexual harassment law, whistleblower law, and employment law, according to a write-up on its website.

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Maryland

Md. Senate approves transgender rights bill

Maryland House of Delegates passed similar measure on Saturday

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Md. state Sen. Mary Washington (D-Baltimore City) speaks at a press conference for the Trans Health Equity Act on Feb. 14, 2023. (Washington Blade photo by Linus Berggren)

The Maryland Senate on Monday approved a bill that would require the state’s Medicaid program to cover gender-affirming treatment for transgender people.

Senate Bill 460 or the Trans Health Equity Act passed by a 31-15 vote margin. 

“Requiring, beginning on Jan. 1, 2023, the Maryland Medical Assistance Program to provide gender-affirming treatment in a nondiscriminatory manner; requiring that the gender-affirming treatment be assessed according to nondiscriminatory criteria that are consistent with current clinical standards; prohibiting the issuance of an adverse benefit determination related to gender-affirming treatment unless a certain experienced health care provider has reviewed and confirmed the appropriateness of the determination; etc,” reads a summary of the bill.

The Maryland House of Delegates on Saturday passed a similar measure.

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United Nations

UN Security Council urged to focus on LGBTQ, intersex rights

U.S. Ambassador to the U.N. Linda Thomas-Greenfield chaired Monday meeting

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The United Nations (Washington Blade photo by Michael K. Lavers)

UNITED NATIONS — U.S. Ambassador to the U.N. Linda Thomas-Greenfield on Monday chaired a meeting at the United Nations that focused on the integration of LGBTQ and intersex rights into the U.N. Security Council’s work.

The U.S. Mission to the U.N. co-sponsored the meeting along with Albania, Brazil, Cyprus, the Czech Republic, France, Greece, Japan, Malta, Switzerland, the U.K. and the LGBTI Core Group, a group of U.N. countries that have pledged to support LGBTQ and intersex rights.

Thomas-Greenfield announced four “specific steps the U.S. will take to better integrate LGBTQI+ concerns into the U.N. Security Council’s daily work.”

• A regular review of the situation of LGBTQ and intersex people in conflict zones on the Security Council’s agenda that “includes regularly soliciting information from LGBTQI+ human rights defenders.

• Encouraging the U.N. Secretariat and other U.N. officials to “integrate LGBTQI+ concerns and perspectives in their regular reports” to the Security Council.

• A commitment “to raising abuses and violations of the human rights of LGBTQI+ people in our national statements in the Security Council.”

• A promise to propose, “when appropriate, language in Security Council products responding to the situation of LGBTQI+ individuals.”

“We are proud of these commitments,” said Thomas-Greenfield during Monday’s meeting. “They are just the beginning.”

U.S. Ambassador to the U.N. Linda Thomas-Greenfield speaks outside the U.N. Security Council on March 20, 2023. (Washington Blade photo by Michael K. Lavers)

Victor Madrigal-Borloz, the independent U.N. expert on LGBTQ and intersex issues, provided a briefing on LGBTQ and intersex rights around the world. 

“My mandate is based on one single fact: Diversity and sexual orientation and gender identity is a universal feature of humanity,” he said. “For too long, it has been made invisible in national level contributions to peace and security, including policies and programs and in the political and programmatic action of the United Nations.” 

María Susana Peralta of Colombia Diversa — an LGBTQ and intersex advocacy group in Colombia that participated in talks between the country’s government and the Revolutionary Armed Forces of Colombia that led to an LGBTQ-inclusive peace agreement then-President Juan Manuel Santos and then-FARC Commander Rodrigo “Timochenko” Londoño signed in 2016 — and Afghan LGBT Organization Director Artemis Akbary also took part in the meeting.

Peralta said Colombia’s peace agreement “has created a standard by which other countries can use,” but noted the country’s Special Justice for Peace has yet to prosecute anyone who committed human rights abuses based on sexual orientation or gender identity during the war.

Akbary noted the persecution of LGBTQ and intersex people in Afghanistan has increased since the Taliban regained control of the country in 2021. Akbary also said LGBTQ and intersex Afghans cannot flee to Iran and other neighboring countries because of criminalization laws.

“The whole world is watching as the rights of LGBTQ people are systematically violated in Afghanistan,” said Akbary. “LGBTQ people on the ground in Afghanistan need and deserve protection.”

Representatives of U.N. delegations from France, Brazil, Albania, Japan, Ecuador, Switzerland, the U.K., Malta, Colombia, South Africa, Ireland, Germany, the Netherlands and the European Union spoke in favor of the integration of LGBTQ and intersex rights into the Security Council’s work.

“A person’s actual or perceived sexual orientation, gender identity or gender expression or sex characteristics often increases the risk of of becoming the target in conflict and crisis situations,” said Luis Guilherme Parga Cintra of Brazil.

British Ambassador to the U.N. General Assembly Richard Crocker made a similar point.

“We know the conflicts have disproportionate impact on marginalized communities: Women and girls, persons with disabilities, members of ethnic and religious minority groups,” he said. “It is only right the Security Council is discussing this issue today.”

Ambassador Karlito Nunes, who is Timor-Leste’s permanent U.N. representative, read a statement in support of the Security Council discussions about LGBTQ and intersex issues. Representatives from China, Russia and Ghana who spoke said the Security Council is not the appropriate place to discuss them.

“Sexual orientation is an individual choice of every individual,” said the Russian representative.

The meeting took place less than 13 months after Russia launched its war against Ukraine. 

A Russian airstrike on March 1, 2022, killed Elvira Schemur, a 21-year-old law school student who volunteered for Kharkiv Pride and Kyiv Pride, while she was volunteering inside the Ukrainian city of Kharkiv’s regional administration building. Activists with whom the Washington Blade has spoken said LGBTQ and intersex people who lived in Russia-controlled areas of the country did not go outside and tried to hide their sexual orientation or gender identity because they were afraid of Russian soldiers.

A Pride commemoration in Kharkiv, Ukraine, on Sept. 25, 2022. (Photo courtesy of Sphere Women’s Association)

The Security Council’s first-ever LGBTQ-specific meeting, which focused on the Islamic State’s persecution of LGBTQ Syrians and Iraqis, took place in 2015. Then-U.S. Ambassador to the U.N. Samantha Power, who is now director of the U.S. Agency for International Development, and then-International Gay and Lesbian Human Rights Commission Executive Director Jessica Stern, who is now the special U.S. envoy for the promotion of LGBTQ and intersex rights, are among those who participated.

Stern, along with U.S. Reps. David Cicilline (D-R.I.) and Ritchie Torres (D-N.Y.), attended the meeting alongside OutRight International Executive Director Maria Sjödin, among others.

Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights abroad, center, speaks outside the U.N. Security Council on March 20, 2023. (Washington Blade photo by Michael K. Lavers)

The Security Council in June 2016 formally condemned the Pulse nightclub in Orlando, Fla. The U.N. Human Rights Council a few months later appointed Vitit Muntarbhorn as the first independent U.N. expert on LGBTQ and intersex issues. (Madrigal-Borloz succeeded Muntarbhorn in 2018.)

Then-U.S. Ambassador to the U.N. Kelly Knight Craft and then-U.S. Ambassador to Germany Richard Grenell in 2019 during a U.N. General Assembly meeting hosted an event that focused on efforts to decriminalize consensual same-sex sexual relations around the world. 

President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of the Biden-Harris administration’s overall foreign policy. Then-State Department spokesperson Ned Price later told the Washington Blade the decriminalization of consensual same-sex sexual relations is one of the White House’s five priorities as it relates to the promotion of LGBTQ and intersex rights overseas.

The U.S., the U.K., France, China and Russia are the Security Council’s five permanent members. Albania, Brazil, Ecuador, Gabon, Ghana, Japan, Malta, Mozambique, Switzerland and the United Arab Emirates are the 10 non-permanent members.

Ghana and the United Arab Emirates are two of the dozens of countries in which consensual same-sex sexual relations remain criminalized. 

“Today’s meeting was an important first step toward further concrete actions the Security Council, and all parts of the U.N., can take to integrate LGBTQI+ human rights, experiences, and perspectives into their day-to-day work,” Thomas-Greenfield told the Blade in a statement after Monday’s meeting. “We’re proud of the four commitments we made today, and we will keep working to make sure this topic remains on the Council’s agenda.”

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