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U.S. agency seeks to cut LGBTQ protections in union contract talks

NLRB denies meeting with employees concern about anti-LGBTQ move

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The National Labor Relations Board is seeking under the Trump administration to axe LGBTQ non-discrimination language — as well as protections based on race, sex and religion — from its union contract with professional attorneys within the U.S. agency as part of collective-bargaining negotiations, according to union representatives.

The union, known as the National Labor Relations Board Professional Association, is made up of about 120 attorneys at the NLRB headquarters in D.C.

“They’re taking it all out,” one NLRBPA member said. “They’re basically saying it’s duplicative, it’s covered by statute, so we don’t want to do anything through grievance and arbitration. If you think there is discrimination, then you need to a file complaint with the EEOC.”

The NLRBPA is pleading with Rep. Jamie Raskin (D-Md.) and Sen. Dianne Feinstein (D-Calif.) to step in and urge the agency to keep those non-discrimination protections in place within the union contract. Individually, LGBTQ employees with concerns over removal of the non-discrimination protections also sought to meet with management on the issue, but were rebuffed, union members told the Washington Blade.

For the time being, NLRB is required to maintain the non-discrimination protections from the previous contract, even though that contract expired last year. But that situation is expected to change soon. As a result of executive orders signed by President Trump last year, federal employee unions are required to engage in negotiations with their respective agencies to form new contracts.

In a pair of letters dated March 5, the NLRPA calls on Raskin and Feinstein to engage in oversight of the agency as it seeks to eliminate those non-discrimination protections. One letter calls the proposal “a giant step backward in the fight to ensure that LGBTQ workers receive equal treatment under the law.”

“It is a mark of shame that employment discrimination against LGBTQ employees, including federal employees, has been tolerated for so long, and to callously take any protections away after so long a struggle for equal treatment would be unconscionable,” one letter says. “In that spirit, we would be most grateful for any oversight of the agency and help that you can provide to defend the workplace rights of our LGBTQ brothers and sisters.”

The letters also express other concerns. Among them is NLRB proposing to eliminate a standing joint labor-management Equal Employment Opportunity Committee, a reversal the union says turns “historically a cooperative relationship between management and the union into an adversarial relationship.” The NLRB also proposes to undercut the grievance and arbitration system in other ways, the letter says.

Raskin, in a statement to the Blade responding to the letter, said NLRB’s proposed removal of LGBTQ protections is unjust, especially from a U.S. agency charged with enforcing federal labor law.

“Trump’s administration has tried from the start to purge all mention of LGBTQ rights from federal law and policy,” Raskin said. “Now, by proposing to eliminate protections for LGBTQ employees from its collective bargaining agreements, the NLRB — which is supposed to be a leader for workplace fairness—becomes the latest perpetrator of the administration’s political assault on equal protection and equal employment rights for the LGBTQ community.”

NLRB, according to members of the union, justified its proposed removal of the non-discrimination protections on the basis that employees could seek recourse against discrimination under Title VII of the Civil Rights Act of 1964, a federal law that bars discrimination on the basis of race, color, religion, sex and national origin.

But that law as it stands affords no protections based on sexual orientation or gender identity. Although the U.S. Supreme Court is considering litigation that will decide whether anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII, there is no certainty that will happen.

Should the Supreme Court rule Title VII doesn’t cover anti-LGBTQ discrimination, NLRBPA attorneys would have no recourse under federal law for LGBTQ discrimination claims.

NLRBPA employees — even though they work within D.C. — also aren’t covered by the D.C. Human Rights Act. Although the law bars anti-LGBTQ discrimination, the D.C. Human Rights Act doesn’t have jurisdiction over federal entities, such as NLRB.

Over the course of contract negotiations, one NLRBPA member said, management was unmoved by the argument LGBTQ non-discrimination protections are needed in the union contract because the Supreme Court might be against them under Title VII.

“There’s a possibility we’re not going to be covered by statute, so we will have no protections whatsoever,” the NLRBPA members said. “And my understanding was the agency response was, ‘We can’t control what the Supreme Court does.”

According to the NLRBPA, non-discrimination protections based on sexual orientation have been part of the NLRBPA contract since 2002 and non-discrimination protections based on gender identity have been part of the contract since 2017. Although that contract was terminated in 2019, the agency remains legally obligated to enforce it until a new contract agreement with the union is reached.

“So you can imagine our dismay when we received contract proposals from management eliminating the contractual provisions prohibiting discrimination based on sexual orientation and stating that any ‘prior MOUs, agreements, or settlements executed prior to the latest date below are not incorporated into this agreement,’” the letters say.

Outside of union negotiations, the letter says, a group of LGBTQ employees sought to meet with senior management to discuss concerns over the removal of the non-discrimination language, but were unsuccessful.

Adam Naill, an NLRB attorney and NLRB union official, affirmed to the Blade via email a group of LGBTQ employees were denied a meeting with management outside the negotiations.

“A number of LGBTQ folks at the agency attempted to meet with NLRB senior leadership to just express their concerns about the proposal and how they’re feeling — frightened and alarmed — about management’s position on this and were rebuffed, senior leadership said they wouldn’t meet with employees about the issue,” Naill said.

The NLRB justified denying the meeting, one NLRBPA member said, by giving assurances the agency is committed to LGBTQ equality and saying the meeting would be inappropriate amid ongoing contract negotiations.

But the NLRBPA member expressed doubt about that commitment to LGBTQ equality based on attorneys in the workforce overheard making homophobic statements.

“Among some of the rank and file attorneys, those people who very likely in the coming years will probably be promoted to supervisors, there’s been several times overhearing some very problematic homophobic, misogynist statements coming from them,” the NLRBPA member said.

The office of Feinstein didn’t respond Monday to the Blade’s request to comment on the proposed removal of LGBTQ protections. The NLRB declined to comment for this article, citing a practice of withholding commenting on contract negotiations with unions.

Jerame Davis, executive director of the LGBTQ labor group Pride at Work, condemned NLRB in a statement to the Blade, but said this move is consistent with the policy of the Trump administration.

“As taxpayers, we should expect that all working people — including LGBTQ working people — would be protected from discrimination in a federal government job,” Davis said. “But it is particularly insulting that these protections are being stripped from the working people who protect our country’s workforce from unfair labor practices. There is little that has been consistent with this administration, but their attacks on LGBTQ people have come regularly, like clockwork.”

The union for the professional attorneys at NLRB is different from the union for the 1,200 employees in the field offices, which is the known simply as the National Labor Relations Board Union, or NLRBU.

According to NLRBPA, the sister union is also currently engaged in contract negotiations, but they’re still bargaining over ground rules and haven’t made substantive proposals. The Blade emailed NLRBU seeking a comment on the situation.

NLRB chair John Ring and NLRB general counsel Peter Robb are set to testify on Wednesday before the House Appropriations Committee on the Trump administration’s budget request. It remains to be seen whether the agency officials will be questioned on the proposed non-discrimination omission from the union contract.

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Utah

VIDEO: Utah deal promoted as national model for LGBTQ rights, religious liberty

Data finds state has 2nd highest support for LGBTQ rights

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(Screen capture via YouTube)

A new video from the premier LGBTQ group in Utah, challenging the idea LGBTQ rights must be at odds with religious liberty, promotes an agreement reached in the state as a potential model to achieve a long sought-after update to civil rights law at the federal level.

The video, published Friday by Equality Utah, focuses on a 2015 agreement in Utah between the supporters of LGBTQ rights and the Mormon Church to enact a compromise acceptable to both sides. The agreement by those two sides led to an LGBTQ civil rights law in the state, which has Republican control of the state legislature and the governor’s mansion.

Troy Williams, executive director of Equality Utah, says in the video dialogue is key to achieving meaningful success, whether its among the people of Utah, a state legislature or lawmakers in Congress.

“When you are working with LGBT rights in a state like Utah, and you want to advance legal equality, you can’t do it without working with Republicans, with conservative, with people of faith,” Williams says.

Williams, speaking with the Washington Blade over a Zoom call, said the main audience for the video is people on “the center right and the center left” willing to listen to other side when it comes to LGBTQ rights and religious liberty.

“People that have the courage to reach out to each other, and sit down across from each other and say, ‘Hey look, let’s hammer this out,” Williams said. “That’s who my audience is.”

Not only did Utah enact non-discrimination protections for LGBTQ people, but the state under a Republican governor administratively banned widely discredited conversion therapy for youth. When lawmakers proposed legislation that would ban transgender youth from competing in school sports, the proposal was scuttled when Gov. Spencer Cox (whom Williams called a “super Mormon”) said he’d veto it after it came to his desk.

Marina Gomberg, a former board for Equality Utah, is another voice in the video seeking dispel the narrative religious liberty and LGBTQ rights are in conflict.

“in order to protect LGBTQ people, we don have to deny religious liberty, and in order to provide protections for religious liberties, we don’t have to deny LGBTQ people,” Gomberg says. “The idea that we do is a fallacy that Utah has dismantled.”

In July, new polling demonstrated the surprisingly the Utah, despite being a conservative state, has the second highest percentage of state population in support for non-discrimination protections for LGBTQ people. The data Public Religion Research Institute from 77 percent of Utah residents support LGBTQ people, which is just behind New Hampshire at 81 percent.

Tyler Deaton, senior adviser for the pro-LGBTQ American Unity Fund, said the Utah agreement demonstrates the possibility of reaching an agreement at the federal level once “second order” issues are put into perspective.

“The first order question has to be how are we winning the culture,” Deaton said. “Do people even want to pass the bill? And if they do, you then figure out the details.”

The American Unity Fund has helped promote as a path forward for LGBTQ non-discrimination at the federal level the Fairness for For All Act, legislation seeking to reach a middle ground on LGBTQ rights and religious freedom. Polling earlier this year found 57 percent of the American public back a bipartisan solution in Congress to advance LGBTQ civil rights.

Supporters of the Equality Act, the more established vehicle for LGBTQ rights before Congress, say the Fairness for For All Act would give too many carve-out for LGBTQ rights in the name of religious freedom. The Equality Act, however, is all but dead in Congress and has shown no movement in the U.S. Senate.

Skeptics of the Utah law would point out the law doesn’t address public accommodations, one of the more challenging aspects in the fight for LGBTQ rights and one or remaining gaps in civil rights protections for LGBTQ people in the aftermath of the U.S. Supreme Court’s decision last year in Bostock v. Clayton County. As a result, it’s perfectly legal in Utah for a business owner to discriminate against LGBTQ coming as patrons.

Williams, however, shrugged off the idea the lack of public accommodations protections in Utah make the agreement in the state makes it any less of a model, making the case the spirit behind the deal is what matters.

“I think copying and pasting Utah’s law doesn’t work for lots of reasons,” Wililams said. “What’s most important is a model of collaboration because when you are sitting around the table with each other — Democrats and Republicans, LGBTQ people and people of faith — that’s when the transformation happens. That is when the mutual respect is really forged.”

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Venezuelan man with AIDS dies in ICE custody

Pablo Sánchez Gotopo passed away at Miss. hospital on Oct. 1

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Pablo Sanchez Gotopo, who was living with HIV/AIDS, died in U.S. Immigration and Customs Enforcement custody in Mississippi on Oct. 1, 2021. (Courtesy photo)

A Venezuelan man with AIDS died in U.S. Immigration and Customs Enforcement custody on Oct. 1.

An ICE press release notes Pablo Sánchez Gotopo, 40, died at Merit Health River Oaks in Flowood, Miss., which is a suburb of Jackson, the state capital. The press release notes the “preliminary cause of death was from complications with acute respiratory failure, Acquired Immune Deficiency Syndrome (AIDS), pneumonia, acute kidney failure, anemia and COVID-19.”

ICE said U.S. Border Patrol took Sánchez into custody near Del Rio, Texas, on May 17. He arrived at the Adams County Detention Center in Natchez, Miss., four days later.

“Upon arrival to an ICE facility, all detainees are medically screened and administered a COVID-19 test by ICE Health Service Corps (IHSC) personnel,” said ICE in its press release. “Sánchez’s test results came back negative.”

The press release notes Sánchez on July 28 received another COVID-19 test after he “began showing symptoms of COVID-19.” ICE said he tested negative, but Adams County Detention Center personnel transferred him to a Natchez hospital “for additional advanced medical care.”

ICE Enforcement and Removal Operations staff in its New Orleans Field Office, according to the press release, “coordinated with hospital staff to arrange family visitation” after Sánchez’s “health condition deteriorated.” Sánchez was transferred to Merit Health River Oaks on Sept. 25.

“ICE is firmly committed to the health and welfare of all those in its custody and is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases,” says the press release.

Venezuela’s political and economic crises have prompted more than 10,000 people with HIV to leave the country, according to the New York-based Aid for AIDS International.

Activists and health care service providers in Venezuela with whom the Washington Blade has spoken in recent years have said people with HIV/AIDS in the country have died because of a lack of antiretroviral drugs. Andrés Cardona, director of Fundación Ancla, a group in the Colombian city of Medellín that works with migrants and other vulnerable groups, told the Blade last month that many Venezuelans with HIV would have died if they hadn’t come to Colombia.

The Blade has not been able to verify a Venezuelan activist’s claim that Sánchez was gay. It is also not known why Sánchez decided to leave Venezuela and travel to the U.S.

ICE detainee with HIV described Miss. detention center as ‘not safe’

Activists and members of Congress continue to demand ICE release people with HIV/AIDS in their custody amid reports they don’t have adequate access to medications and other necessary medical treatment.

Two trans women with HIV—Victoria Arellano from Mexico and Roxsana Hernández from Honduras—died in ICE custody in 2007 and 2018 respectively. Johana “Joa” Medina Leon, a trans woman with HIV who fled El Salvador, died in 2019, three days after ICE released her from a privately-run detention center.

The Blade in July 2020 interviewed a person with HIV who was in ICE custody at the Adams County Detention Center. The detainee said there was no social distancing at the privately-run facility and personnel were not doing enough to prevent COVID-19 from spreading.

“It’s not safe,” they told the Blade.

The entrance to the Adams County Detention Center in Natchez, Miss. (Washington Blade photo by Michael K. Lavers)

Elisabeth Grant-Gibson, a Natchez resident who supports ICE detainees and their families, on Wednesday told the Blade that she was able to visit the Adams County Detention Center and other ICE facilities in the Miss Lou Region of Mississippi and Louisiana from November 2019 until the suspension of in-person visitation in March 2020 because of the pandemic.

“Medical neglect and refusal of medical care has always been an issue in the detention center at Adams County,” said Grant-Gibson. “After the facilities were closed to public visitation, those problems increased.”

Grant-Gibson told the Blade she “worked with a number of families and received phone calls from a number of detainees, and I was told again and again that detainees were being refused the opportunity to visit the infirmary.”

“When they did visit the infirmary, they were given virtually no treatment for the issues they were presenting with,” said Grant-Gibson.

ICE in its press release that announced Sánchez’s death said fatalities among its detainees, “statistically, are exceedingly rare and occur at a fraction of the national average for the U.S. detained population.” ICE also noted it spends more than $315 million a year “on the spectrum of healthcare services provided to detainees.”

“ICE’s Health Service Corps (IHSC) ensures the provision of necessary medical care services as required by ICE Performance-Based National Detention Standards and based on the medical needs of the detainee,” notes the ICE press release. “Comprehensive medical care is provided from the moment detainees arrive and throughout the entirety of their stay. All ICE detainees receive medical, dental, and mental health intake screening within 12 hours of arriving at each detention facility, a full health assessment within 14 days of entering ICE custody or arrival at a facility, and access to daily sick call and 24-hour emergency care.”

An ICE spokesperson on Wednesday pointed the Blade to its Performance-Based Detention Standards from 2011, which includes policies for the treatment of detainees with HIV/AIDS.

A detainee “may request HIV testing at any time during detention” and ICE detention centers “shall develop a written plan to ensure the highest degree of confidentiality regarding HIV status and medical condition.” The policy also states that “staff training must emphasize the need for confidentiality, and procedures must be in place to limit access to health records to only authorized individuals and only when necessary.”

“The accurate diagnosis and medical management of HIV infection among detainees shall be promoted,” reads the policy. “An HIV diagnosis may be made only by a licensed health care provider, based on a medical history, current clinical evaluation of signs and symptoms and laboratory studies.”

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Rachel Levine on becoming four-star admiral: ‘It comes from my desire to serve’

Trans official sworn-in to U.S. Public Health Service

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For Rachel Levine, the appointment to her new role as a four-star admiral complementing her existing duties as assistant secretary for health is another way for the first openly transgender Senate-confirmed presidential appointee to serve.

“I think that this just really comes from my desire to serve in all capacities,” Levine said in an interview Tuesday with the Washington Blade. “To serve the first day in my field of academic medicine and pediatrics, but then in Pennsylvania and now in the federal government, and it furthers my ability to do that.”

Levine, 63, also recognized the importance of the appointment as a transgender person within the U.S. Public Health Service, for which she was ceremonially sworn in on Tuesday

“I think for the LGBTQ+ community, it is a further sign of progress and our president’s commitment to equity, to inclusion and diversity,” Levine said. “So I think that it is a very important milestone, and I’m pleased to serve.”

As part of her duties, Levine will lead an estimated 6,000 public health service officers serving vulnerable populations, including deployments inside and outside the country for communities beleaguered with the coronavirus, according to the Department of Health & Human Services. The role involves working closely with U.S. Surgeon General Vivek Murphy, whom Levine called her “friend and colleague.”

The U.S. Public Health Service, Levine said, has deployed “many, many times,” including its greatest number ever of deployments to vulnerable populations during the coronavirus pandemic. Among the places the service has deployed, Levine said, was in her home state of Pennsylvania, where she recently served as secretary of health.

Not only is Levine the first openly transgender person to serve in the uniformed health service as a four-star general, but she’s also the first woman to serve in that capacity.

“We have 6,000 dedicated committed public servants really all focused on our nation’s health, and they serve in details to the CDC and the FDA and the NIH, but also clinically with the Indian Health Service, and the federal prison system,” Levine said. “They’re also detailed and deployed throughout the country, and they deployed like never before for COVID-19 as well as the border, as well as dealing with floods and hurricanes and tornadoes.”

Although the Public Health Service is primarily focused on addressing public health disasters within the United States, Levine said it has a record of deployments overseas, including years ago when it was deployed to Africa under the threat of Ebola.

Secretary of Health & Human Services Xavier Becerra had high praise for Levine in a statement upon news of taking on a leadership position in the service.

“This is a proud moment for us at HHS,” Becerra said. “Adm. Levine — a highly accomplished pediatrician who helps drive our agency’s agenda to boost health access and equity and to strengthen behavioral health — is a cherished and critical partner in our work to build a healthier America.”

Levine, however, was careful to draw a distinction between her appointment within the Public Health Service and being a service member within the U.S. armed forces.

“It is not a military branch, it’s not the armed forces: It’s a uniformed force, so it’s different,” Levine said. “For example, the Army, the Navy, our military, there are two other uniformed branches, and that is ours, the United States Public Health Service Commissioned Corps and NOAA.”

The new role, Levine said, would complement her duties as assistant secretary for health. Although not only secretaries of health have been commissioned to take the uniform, Levine said she wanted to undertake that as part of her role in the Biden administration.

The two appointments were not simultaneous, Levine said, because of a general process she undertook, which was completed just this week.

It hasn’t been an easy road for Levine. During her Senate confirmation process, when she was hounded by anti-transgender attacks in conservative media and rude, invasive questioning by Sen. Rand Paul (R-Ky.) on her gender identity.

Levine, however, said she hasn’t encountered any hostility regarding her new role (as of now) and shrugged off any potential attacks in the future and said the move is about her career “to serve and to help people.”

“I’ve continued that for our nation as the assistant secretary for health and this is just a further demonstration of my commitment to service,” Levine said. “I don’t know what others will say, but that’s the genesis of my wanting to serve in the United States Public Health Service Commissioned Corps, and to place on the uniform.”

Levine’s new appointment comes shortly after a group of Democratic senators led by Sen. Chris Murphy (D-Conn.) sent her a letter dated Sept. 30 calling on her and Miriam Delphin-Rittmon, assistant secretary for mental health and substance use, to issue new guidance for hospital or residential care on mental health needs of transgender people.

Asked about the letter, Levine said mental health issues are under the authority of Delphin-Rittmon and the two “will work together and we will respond.”

Specifically, the senators in the letter call on the Behavioral Health Coordinating Council, or BHCC, and experts in the field of adolescent trans care to offer guidance on best practices for inpatient mental health care among these youth.

Asked what the response will look like, Levine said, “We’re going to work on that.”

“We will be looking at what they’re asking for and the requirements, and we’ll talk with them and the stakeholders and we’ll look to issue appropriate guidance,” Levine said.

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