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HHS falsely blames Obama amid outrage over anti-trans memo

Error-filled statement seeks to skirt responsibility for controversy



Religious Freedom Division, gay news, Washington Blade

HHS issued an error-filled statement in response to outrage over an anti-trans memo. (Photo by Sarah Stierch; courtesy Wikimedia Commons)

Under fire for a reported anti-trans plan that would eliminate federal protections for transgender people, the Trump administration is pushing back in defense of its enforcement of the law — but with a statement that is filled with errors and blames the Obama administration for undercutting transgender rights.

Caitlin Oakley, an HHS spokesperson, said the department has no comment on “alleged, leaked documents,” which the New York Times reported Sunday was being spearheaded by the Department of Health & Human Services and would restrict the definition of “sex” under federal law to biological gender.

In defense of current policy, Oakley blamed the Obama administration for enforcement of the law excluding transgender status from the definition of “sex.”

“The Obama administration’s broad definition of ‘sex’ was enjoined by a federal court on a nationwide basis in December 2016 and the Obama administration did not appeal,” Oakley said. “That court found that the Obama administration regulation was overbroad and inconsistent with the text of the 1972 Title IX law prohibiting discrimination on the basis of sex. The court order remains in full force and effect today and HHS is bound by it as we continue to review the issue.”

Oakley also asserted HHS continues to apply the law fairly and enforces all laws under its purview against discrimination.

“Everyone deserves to be treated with respect and HHS’s Office for Civil Rights will continue to vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in healthcare on the basis of race, color, religion, national origin, sex, age and disability,” Oakley added.

For starters, the response appears to conflate two separate rulings in 2016 from U.S. District Judge Reed O’Connor in Texas, although both rulings were against transgender rights.

The part about a ruling in December 2016 seems to reference O’Connor’s decision against an Obama-era regulation interpreting Section 1557 of the Affordable Care Act, which bars sex discrimination in health care, to prohibit bias against transgender people, including refusal of gender reassignment surgery.

But the part about Title IX of the Education Amendments of 1972 appears to reference another anti-trans decision from O’Connor in July 2016 barring the Obama administration from enforcing its guidance requiring schools to allow transgender kids to use the restroom consistent with their gender identity.

In either event, the response makes incorrect statements about the Obama administration’s role in these lawsuits and falsely accuses the previous White House of supporting the decisions.

If the statement was intended to reflect the Obamacare ruling, the decision to refuse to appeal the preliminary injunction rests solely with the Trump administration. The deadline for the Justice Department to appeal the decision was March 2017, when U.S. Attorney General Jeff Sessions was the running the show. At that time, no action was taken.

Josh Block, a senior staff attorney with the American Civil Liberties Union, affirmed the decision to let the Obamacare ruling stand rested with the Trump administration, not the Obama administration.

“The Trump administration made the decision not to appeal,” Block said. “The PI decision came down just before New Year’s Eve in December 2016, and the federal government had 60 days to file an appeal.”

Sharon McGowan, chief strategy officer for Lambda Legal and former Obama administration official for the Justice Department, said not appealing O’Connor’s anti-trans decision in health care “was a decision ultimately made by Trump’s Justice Department” and compared it to the Trump administration’s action in the Title IX case.

“Even if a protective notice of appeal had been filed during the last weeks of the Obama administration, that appeal could have been pulled, just as Jeff Sessions pulled DOJ’s appeal challenging the nationwide injunction to the transgender student guidance on his second day on the job,” McGowan said.

If the statement was intended to reflect the Title IX ruling, the Justice Department under U.S. Attorney General Loretta Lynch, although the Trump administration later reversed those decisions.

The Obama administration filed a notice of appeal on Oct. 20, 2016, and later asked O’Connor to reconsider the nationwide application of his order.

On Sessions’ second day as attorney general in February 2017, the Justice Department rescinded the request for a more limited ruling. Two months later, the Justice Department dropped the appeal before the U.S. Fifth Circuit Court of Appeals entirely.

Jon Davidson, legal director for Freedom for all Americans, affirmed the “Obama administration did appeal Judge O’Connor’s preliminary injunction ruling” in the Title IX case contrary to HHS’s statement, but added the notion the order remains in force “also is a lie.”

“The same day that the Fifth Circuit dismissed the appeal, the plaintiff states that filed the Texas v. U.S. case dismissed their case because the Trump administration withdrew the Obama administration policy and guidance that the states were suing over,” Davidson said. “As expressly stated in the Notice of Voluntary Dismissal filed by the plaintiff states this dismissal ‘necessarily dissolved’ the preliminary injunction, which is no longer in effect.”

McGowan said the Justice Department overall has acted in ways that serve to bolster its interest when judges issue anti-LGBT decisions consistent with the Trump administration’s policy.

“The fact is this Department of Justice had no interest in appealing Judge O’Connor’s ruling [on health care] because it is aligned with their own ideology and policy preferences, as evidenced by the fact that within 48 hours of assuming the position of attorney general, Jeff Sessions pulled the plug on a DOJ appeal from a different Judge O’Connor ruling that prevented the Department of Education from protecting transgender students nationwide,” McGowan said.

Regardless of which case HHS was referencing, the blame on the Obama administration seems likely an attempt to shift responsibility to someone else for the underlying outrage over the anti-trans memo reported in the New York Times, which has nothing to do with any anti-trans decision from the courts. (In fact, the memo is contrary to at least eight federal appeals court rulings and 35 trial court rulings finding the definition of “sex” under federal law applies to transgender status, according to the National Center for Transgender Equality.)

Davidson said whomever is advising the Trump administration on transgender rights “appears to have as tenuous connection to the truth as they do to the law, sound public policy and the facts regarding transgender people.”

“HHS’s blaming the Obama administration and their reliance on a terribly flawed and now dissolved preliminary injunction that was and remains in conflict with the overwhelming majority of federal courts which have held that, properly construed, Title IX protects transgender students is shocking,” Davidson said. “Although it is hard for anything the current Departments of Justice, Education, or Health and Human Services do or say on LGBTQ issues to surprise me anymore, this manages to, and it is appalling.”

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards



Puerto Rico Pulse nightclub victims, gay news, Washington Blade


A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami



Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)


MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

















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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness



Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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