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Rulings in favor of Title VII protections for LGBT workers on the rise

Decisions from Second and Sixth add to opinions from growing number of courts

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The number of circuit courts that have determined Title VII applies to LGBT people is on the rise.

New rulings from federal appeals courts that have found an existing civil rights law against sex discrimination also prohibits anti-LGBT discrimination are shaking up the landscape for protections for LGBT people in the workplace.

In the past month, two circuit courts — the U.S. Second Circuit Court of Appeals and the U.S. Sixth Circuit Court of Appeals — have determined Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex in the workplace, applies to LGBT people.

The Second Circuit found the anti-gay discrimination is a form of sex discrimination in the case against Altitude Express in New York filed by Donald Zarda, a gay now deceased skydiver. That decision made the Second Circuit one of two circuits where sexual-orientation discrimination is unequivocally prohibited under federal law, complementing a decision from the U.S. Seventh Circuit Court of Appeals last year.

The next week, the U.S. Sixth Circuit Court of Appeals determined Title VII bars anti-trans discrimination in the case against Harris Funeral Homes in Michigan. That decision also found the Religious Freedom Restoration Act doesn’t provide an exemption to employers seeking a religious exemption to discriminate against transgender workers. As a result of the ruling, the Sixth Circuit joins the First, Ninth and Eleventh Circuits in barring anti-trans workplace discrimination without dispute.

Sharita Gruberg, associate director of LGBT research and communications at the Center for American Progress, said the circuit court decisions are “incredibly important” tools against anti-LGBT discrimination.

“Title VII provides strong protections against discrimination in the workplace,” Gruberg said. “If you are an employee in any one of those circuits that have already held that you’re protected, that gives you recourse. Also, there’s a lot of district courts that have also found Title VII prohibits discrimination based on gender identity and sexual orientation. So we’re seeing a lot more jurisdictions across the country agreeing with this definition.”

As a result of these court rulings, workplace protections for LGBT people have advanced in measurable ways. Federal law in the states of the Sixth Circuit — Michigan, Ohio, Kentucky and Tennessee — now unequivocally bar discrimination against transgender workers. Although each of the states in the Second Circuit — Vermont, Connecticut and New York — already has state a law barring anti-gay discrimination, the ruling enables lesbian, gay and bisexual workers to sue under federal law. That requires a lower threshold of evidence for a successful case than state law because it allows charges when the firings were the result of mixed motivations.

Because each individual plaintiff either faces discrimination on the basis of sexual orientation or gender identity, courts have interpreted Title VII to apply to LGBT workers in a kind of two-layered approach. No court ruling against anti-gay or anti-trans discrimination explicitly covers the other. However, the reasoning is often based on the determination that anti-LGBT discrimination is sex-stereotyping, which means a ruling against anti-gay or anti-trans discrimination could easily bolster a case of the other kind of discrimination.

The number of circuit courts that have determined Title VII applies to LGBT workers may soon grow. The LGBT legal group Lambda Legal and the St. Louis-based law firm Mathis, Marifian & Richter LTD have brought before the U.S. Eighth Circuit Court of Appeals another lawsuit that could affirm protections in the jurisdiction for lesbian, gay and bisexual workers. The litigation was filed on behalf of Mark Horton, a health care sales specialist whose job offer at Midwest Geriatric Management was rescinded after the employer found out he’s gay.

Last week, 47 businesses, attorneys general from 15 states and D.C., the U.S. Equal Employment Opportunity Commission and major LGBT groups were among those that filed friend-of-the-court briefs before the Eighth Circuit urging the court to rule in favor of Horton and affirm Title VII protections for lesbian, gay and bisexual workers.

Omar Gonzalez-Pagan, staff attorney for Lambda Legal, said in a statement the briefs demonstrate “the nation’s top corporations recognize that discrimination is bad for business.”

“Our economy cannot thrive unless all people are welcome both as employees and customers,” Gonzalez-Pagan said. “Companies across all industries know that when an employee like Mark can bring their whole selves to work without fear of retaliation, they can focus on their jobs and succeed. Mark was recruited because of his recognized skills, which is what matters – and not his sexual orientation.”

But not every court is in alignment with the idea that Title VII protects LGBT workers. In a case filed by Jameka Evans, who alleged Georgia Regional Hospital fired her as a security guard for being a lesbian, the Eleventh Circuit Court of Appeals last year determined Title VII doesn’t apply to lesbian, gay and bisexual workers because Congress didn’t intend that when it passed the law in 1964. Other circuits have years-old precedent against protections for LGBT people under Title VII.

Moreover, the Trump administration has defied court rulings and reversed federal policy from the Obama years determining laws against sex discrimination apply to transgender people. On Title VII, U.S. Attorney General Jeff Sessions reversed a memo from former Attorney General Eric Holder assuring transgender workers protections. The Obama administration never explicitly took a position one way or the other on whether Title VII applies to lesbian, gay and bisexual workers, but the Trump administration sent a lawyer to the Second Circuit to argue against interpreting the law in favor of gay people in the Zarda case.

That view of sex discrimination under the Trump administration isn’t limited to Title VII. The Trump administration also rescinded guidance assuring transgender kids access to school restrooms consistent with their gender identity under the Title IX of the Education Amendments of 1972. The Justice Department also backed down from defending in court a rule assuring transgender people’s access to health care, including gender reassignment surgery, based on Section 1557 of Obamacare, which prohibits sex discrimination by medical providers.

Walter Olson, a senior fellow at the libertarian Cato Institute, said the idea Title VII applies to LGBT workers is “something of a stretch” based on the intent of Congress in 1964 as well as lawmakers’ inability since that time to pass an explicit law against anti-LGBT discrimination, such as the Employment Non-Discrimination Act.

“When this question first came up years ago, several circuit courts of appeals had rejected the idea that by banning sex discrimination Congress had also banned sexual orientation discrimination,” Olson said. “The cases back then were clear enough and consistent enough that lawyers regarded the issue as practically settled and so advised their clients. And law runs on precedent.”

Still, Olson conceded “there are also some pretty good arguments in favor of the effort” to interpret Title VII to apply to LGBT workers because “the law as interpreted by courts does change.”

“As we have seen in constitutional law, when narrow interpretations get broadened the world does not necessarily come to an end,” Olson said “And in the past couple of years there has been first a trickle and now a definite movement of federal courts toward a new position that ‘because of sex’ does cover sexual orientation after all. If that’s a stretch, then it’s the kind of stretch we’ve seen many times before, both in Title VII and elsewhere.”

As opposed to just leaving the issue to the judiciary, Gruberg said LGBT advocates should pressure Congress to enact an explicit prohibition on anti-LGBT discrimination because of the uncertainty of the courts and possible reversals from the federal government depending on which administration is in power.

“There’s still parts of the country where it’s an individual worker’s right and whether it’s their right to work free from discrimination because of their sexual orientation or gender identity will be upheld is not clear, and it’s really critical that Congress bring that clarity,” Gruberg said.

The likely vehicle for explicit legislative protections against anti-LGBT discrimination is the Equality Act, which would amend the Civil Rights Act of 1964 to prohibit anti-LGBT discrimination in employment, housing, public accommodations, credit, jury service, education and federal programs. The chief sponsor of the bill is Rep. David Cicilline (D-R.I.) in the U.S. House and Sen. Jeff Merkley (D-Ore.) in the U.S. Senate.

However, the bill is highly unlikely to move as long as Republicans retain control of Congress. In a 2000 interview with The Advocate, President Trump said he supports the idea of a bill that would add sexual orientation to the Civil Rights Act, but hasn’t addressed the issue since that time, nor whether he’d support adding protections for transgender people to the law. It seems unlikely he would support that now based on the record of his administration.

The U.S. Equal Employment Opportunity Commission, the agency charged with enforcing federal employment civil rights law, has determined in recent years Title VII applies to LGBT workers and decided to take up charges of anti-LGBT discrimination on behalf of workers. The commission found in 2012 Title VII applies to transgender workers in the case of Macy v. Holder and found in 2015 the law applies to lesbian, gay and bisexual workers in the case of Baldwin v. Foxx.

Data on the EEOC’s website indicates the charges and resolutions of anti-LGBT discrimination in the workforce has grown since the findings were made. In fiscal year 2017, the commission obtained 1,762 receipts of anti-LGBT discrimination and resolved 2,016 charges if anti-LGBT discrimination. (A total of 1,373 these FY-17 resolutions, however, were dismissed because EEOC found “no reasonable cause” for discrimination and another 304 were dismissed through administrative closures because, for some reason, such as a lack of contact information, EEOC couldn’t move forward with investigation.)

Even though the 11th Circuit in the Evans case has determined Title VII doesn’t apply to lesbian, gay and bisexual workers, the commission continues to interpret the law that way in that jurisdiction.

Christine Nazer, a spokesperson for the EEOC, affirmed the commission continues to apply the law in opposition to anti-gay discrimination in the 11th Circuit because the EEOC works as as independent agency.

“The agency’s position doesn’t change because of a circuit court decision,” Nazer said. “When we take charges of workplace discrimination (in this case, sexual orientation and gender identity charges) from the public, we apply Title VII/sex discrimination. In other words, our administrative process doesn’t charge; we determine the merit of the charge based on the law and EEOC policy.”

Gruberg said the EEOC has stood apart from other agencies in the Trump administration in continuing to uphold the idea laws against sex discrimination apply to transgender workers because of the nature of the commission.

“Even the conservative commissioners come from this kind of employment law background, and they have a very deep strong understanding of what Title VII entails and what the law says and what the non-discrimination protections includes and have been reviewing these cases and very familiar with it,” Gruberg said.

It’s hard to say when the U.S. Supreme Court will have an opportunity to decide the issue on a nationwide basis and affirm without a doubt Title VII protects either gay or transgender workers from discrimination. The high court declined to take up an opportunity last year to decide the issue in terms of anti-gay discrimination by declining a petition for certiorari in the 11th Circuit case filed by Jameka Evans against Georgia Regional Hospital.

There may be another opportunity if Altitude Express, the company that fired Zarda, filed a petition for certiorari over the Second Circuit. Although the business hasn’t announced one way or another what it will action, that action seems unlikely. An attorney for Attitude Express didn’t respond to a request to comment on whether a petition will be filed.

Another opportunity also may come after the Eighth Circuit decides against Horton, which may well be the case because the conservative court is stocked George W. Bush appointees. If Horton is the losing party, he could file a petition for certiorari before the Supreme Court.

Gruberg said the timing for when the Supreme Court will take up a case on whether gay protections are included under Title VII is “a very good question.”

“I think everyone feels that that’s coming,” Gruberg said. “It’s unclear what that case is going to be, though, so I think it’s probably a question that they’re going to take up soon, but what soon means in the court’s timeline is really unclear right now.”

The prospects are more daunting for a Supreme Court ruling asserting Title VII covers transgender people compared to anti-gay discrimination because the circuit courts have reached a greater consensus anti-trans discrimination is illegal. Transgender advocates are unable to seek review of wins before the Supreme Court because they have to take “yes” for an answer from the circuit courts.

However, a ruling from the Supreme Court for either gay or transgender people on Title VII, Gruberg said, would be significant not only for employment protections, but because it would have implications for other civil rights laws barring sex discrimination.

“It would definitely shift the tide in our favor when we’re trying to interpret what sex discrimination under Title IX means. That would also weigh really heavily into that, including protections for LGBTQ people, sex discrimination in Section 1557 also,” Gruberg said. “It would be very clear LGBTQ people are protected under that as well.”

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Kelley Robinson, a Black, queer woman, named president of Human Rights Campaign

Progressive activist a veteran of Planned Parenthood Action Fund

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Kelley Robinson (Screen capture via HRC YouTube)

Kelley Robinson, a Black, queer woman and veteran of Planned Parenthood Action Fund, is to become the next president of the Human Rights Campaign, the nation’s leading LGBTQ group announced on Tuesday.

Robinson is set to become the ninth president of the Human Rights Campaign after having served as executive director of Planned Parenthood Action Fund and more than 12 years of experience as a leader in the progressive movement. She’ll be the first Black, queer woman to serve in that role.

“I’m honored and ready to lead HRC — and our more than three million member-advocates — as we continue working to achieve equality and liberation for all Lesbian, Gay, Bisexual, Transgender, and Queer people,” Robinson said. “This is a pivotal moment in our movement for equality for LGBTQ+ people. We, particularly our trans and BIPOC communities, are quite literally in the fight for our lives and facing unprecedented threats that seek to destroy us.”

Kelley Robinson IS NAMED as The next human rights Campaign president

The next Human Rights Campaign president is named as Democrats are performing well in polls in the mid-term elections after the U.S. Supreme Court overturned Roe v. Wade, leaving an opening for the LGBTQ group to play a key role amid fears LGBTQ rights are next on the chopping block.

“The overturning of Roe v. Wade reminds us we are just one Supreme Court decision away from losing fundamental freedoms including the freedom to marry, voting rights, and privacy,” Robinson said. “We are facing a generational opportunity to rise to these challenges and create real, sustainable change. I believe that working together this change is possible right now. This next chapter of the Human Rights Campaign is about getting to freedom and liberation without any exceptions — and today I am making a promise and commitment to carry this work forward.”

The Human Rights Campaign announces its next president after a nearly year-long search process after the board of directors terminated its former president Alphonso David when he was ensnared in the sexual misconduct scandal that led former New York Gov. Andrew Cuomo to resign. David has denied wrongdoing and filed a lawsuit against the LGBTQ group alleging racial discrimination.

Kelley Robinson, Planned Parenthood, Cathy Chu, SMYAL, Supporting and Mentoring Youth Advocates and Leaders, Amy Nelson, Whitman-Walker Health, Sheroes of the Movement, Mayor's office of GLBT Affairs, gay news, Washington Blade
Kelley Robinson, seen here with Cathy Chu of SMYAL and Amy Nelson of Whitman-Walker Health, is the next Human Rights Campaign president. (Washington Blade photo by Michael Key)
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Eastern Europe

Former Ambassador Daniel Baer explains it all on Ukraine crisis

Expert downplays strategic thinking behind Putin’s move

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Daniel Baer, United States Department of State, Bureau of Democracy, Human Rights and Labor, gay news, Washington Blade
Daniel Baer served as U.S. ambassador to the Organization for Security & Cooperation in Europe. (Blade file photo by Michael Key)

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?

Baer: Yes.

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.

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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

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Donald Trump (left) ribbed former Vice President Mike Pence (center) in a meeting with Andrew Napolitano for thinking "it's a crime to be gay." (Blade photos of Donald Trump and Mike Pence by Michael Key; screen capture of Andrew Napolitano via Fox News YouTube)

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.

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