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AG pick Garland may have to answer for rulings against LGBTQ plaintiffs

Biden’s choice ruled against protesters in police brutality case



Chief Judge of the United States Court of Appeals for the District of Columbia Circuit Merrick Garland is Joe Biden’s pick for U.S. attorney general. (Photo public domain)

Merrick Garland, chosen by President-elect Joe Biden to become the next U.S. attorney general, may have to answer during his confirmation process for his record as a federal judge for a series of rulings against LGBTQ plaintiffs, including LGBTQ protesters who were seeking to sue over police brutality.

Biden formally announced on Thursday that Garland, who became a liberal martyr after Senate Republicans refused to allow him to go through the confirmation process in 2016 for a seat on the U.S. Supreme Court, would be his choice for attorney general. Other names that were in contention were Sally Yates and Sen. Doug Jones (D-Ala.), other media outlets reported the choice had been narrowed down to Garland and Jones.

Other names announced on Thursday were Obama alums Lisa Monaco as deputy attorney general and Vanita Gupta as associate attorney general. Kristen Clarke, former head of the Civil Rights bureau of the New York Department of Law, was named as assistant attorney general for the Justice Department’s Civil Rights Division.

Major media outlets reported and the Blade confirmed on Wednesday the choice to lead the U.S. Justice Department in the Biden administration would be Garland the day after the Democratic victory in the Georgia runoff, which gave Biden a boost with the promise of a Democratic Senate in his administration.

A look at Garland’s record as a federal judge, as the Blade reported upon his nomination to the Supreme Court in 2016, found his LGBTQ-related cases are few in number. However, in at least four cases, Garland joined rulings against gay plaintiffs or self-proclaimed LGBTQ advocates. The Blade didn’t immediately find any additional cases Garland adjudicated on LGBTQ issues since his nomination to the Supreme Court in 2016.

One decision that may have more relevance at a time of renewed scrutiny on policy brutality was against LGBTQ rights protesters seeking to sue law enforcement officials for spraying a chemical deterrent on them during former President George W. Bush’s inaugural parade.

In 2004, Garland was part of a three-judge panel adjudicating a lawsuit filed by the International Action Center, which billed itself as “an unincorporated political association opposed to racism, sexism, oppression of lesbians, gays, bisexuals and transgendered people, war and militarism and the program of the Bush administration,” as well as supporters Elizabeth Ayer and Lowell T. Fletcher.

According to their complaint, Ayer and Fletcher on the day of Bush’s 2001 inaugural parade were “engaged in only lawful, peaceful activity” at the Navy Memorial on Pennsylvania Avenue when officers with the D.C. Metropolitan Police Department “without justification, struck [them]…and sprayed a chemical agent into [their] eyes and faces at close range.” Additionally, Ayer and Fletcher alleged the police struck and sprayed other demonstrators while other uniformed and non-uniformed police officers watched and did nothing.

The plaintiffs sought to hold the officers’ supervisors personally liable for damages for those injuries, which was allowed by the district court overseeing the case on the basis that the supervisors had a duty to train their subordinates to prevent alleged misconduct under the First and Fourth Amendments.

But in an April 16, 2004, decision, Garland joined U.S. Circuit Judge Harry Edwards and then-U.S. Circuit Judge John Roberts (now chief justice of the U.S. Supreme Court) in reversing the lower court decision, remanding with instructions to affirm qualified immunity for the supervisors.

“We hold that absent an allegation that the MPD supervisors had actual or constructive knowledge of past transgressions or that the supervisors were responsible for or aware of ‘clearly deficient’ training, the supervisors did not violate any constitutional right through inaction or failure to supervise,” the decision says. “Having found no constitutional violation … , ‘there is no necessity for further inquiries concerning qualified immunity.’”

Garland similarly joined the rulings against LGBTQ plaintiffs in other cases. One was filed by an Ohio-based radio station professing to serve an LGBTQ audience; another by a sailor discharged from the Navy after being accused of sexual assault against three other shipmates; and another by an inmate jailed for threatening the president who said he was at risk in his place of incarceration because he’s gay.

In 2001, Garland was on a three-judge panel adjudicating a complaint from Grid Radio, an unlicensed low-power radio station in Cleveland, Ohio, professing to serve “gay men and women and the arts community.” The Federal Communications Commission told Jerry Szoka, operator of the station, to cease broadcasting and pay an ancillary $11,000 forfeiture because Grid Radio was operating without a license.

Szoka contended he never sought a license because the FCC at the time had a ban on microbroadcasting, which would have prohibited a low-power station like Grid Radio from operating. The FCC order, Szoka contended, was unenforceable, because the agency’s microbroadcasting ban contravened federal law and the First Amendment, and because the forfeiture was unreasonable, excessive and beyond his ability to pay.

In a Feb. 8, 2002 decision, Garland and Senior Circuit Judge Stephen Williams joined the opinion of Judge David Tatel rejecting Szoka’s claims and affirming the FCC order against him.

“Absent a demonstration that the low-power ban was indisputably unlawful or unconstitutional, the Commission had no obligation to reconsider the ban in the context of an enforcement proceeding against a single unlicensed operator,” the decision says. “Moreover, the forfeiture is reasonable under the circumstances of this case, and the operator waived his inability-to-pay claim.”

In 2003, Garland as part of the same three-judge panel heard an appeal of Jim Turner, a petty officer who served in the Navy for seven years before the service expelled him with an “other than honorable” discharge after three shipmates accused him of sexual assault.

Turner — who petitioned the Navy secretary to reverse the decision, but was rebuffed — argued the commanding officer investigating the charges abused his discretion by proceeding against him under Article 15, which he said is reserved for minor offenses, and by asking him and other shipmates if they were gay, which would have been in violation of the enforcement of “Don’t Ask, Don’t Tell.”

Even though the Board of Corrections of Naval Records found error on procedural points in the discharge and lack of sufficient corroboration, Garland joined Williams in an April 15, 2003, decision that upheld a district court ruling rejecting Turner’s claims.

“Chief Petty Officer Clanahan, who conducted the investigation at Captain Frank’s request, at one point asked Seaman Maurer whether he was homosexual,” the decision says. “Turner says that this — and the coercive conditions of the interview — violated that portion of the ‘Don’t Ask, Don’t Tell’ regulations that precludes asking members of the armed forces ‘their sexual orientation.’ Assuming the question was a violation and the regulations are enforceable, Turner’s claim still fails. There is little reason to believe that the error (if such it was) affected the ADB or Article 15 proceedings.”

In 2013, Garland was part of another three-judge panel hearing a petition from Jeremy Pinson, a gay federal prisoner serving a 20-year sentence for threatening the president, knowingly and willfully making a false statement to a U.S. marshal and mailing threatening communications. According to the decision, Pinson “made good use of the federal courts during his time in prison, having filed more than 100 civil actions and appeals across the nation.”

In the case before Garland and other judges, Pinson sought a fee waiver for challenging his incarceration in the special management unit at the Federal Correctional Institution in Talladega, Ala. Because special management units house gang-affiliated and other disruptive inmates who present unique security concerns, Pinson alleged being placed in such conditions would put him at substantial risk because he’s gay and a former gang member.

But in an Aug. 5, 2014 decision, Garland joined U.S. Circuit Judge Sri Srinavasan and U.S. Circuit Judge Thelton Eugene Henderson in denying Pinson relief. The decision is based on Pinson running afoul of the Prison Litigation Reform Act’s three-strikes provision for a fee-waiver and not being able to show under the precedent of Mitchell v. Federal Bureau of Prisons qualification for the imminent danger exception.

“Like Mitchell, Pinson’s claim rests on the BOP’s decision to designate him to a particular facility notwithstanding its reputation as a dangerous place for inmates possessing certain characteristics — here, as a rival gang-member and homosexual, and in Mitchell, as a government ‘snitch,’” the decision says. “The Mitchell court found such contentions insufficient to satisfy the imminent danger exception, even though Mitchell, unlike Pinson, further alleged that he had already been attacked by the time he filed his complaint. We see no ground to reach a different conclusion here.

The Blade could find no rulings written by Garland himself pertaining to LGBTQ people, only opinions written by other judges that he joined. Since his tenure on the bench starting in 1997, Garland was never asked to rule on major LGBT rights issues, such as the constitutionality of state sodomy bans, state prohibitions on same-sex marriage or the Defense of Marriage Act.

Garland, during remarks in Wilmington, Del., in the official announcement he was tapped to become attorney general, didn’t explicitly mention any of his past rulings, but after assault by Trump supporters on U.S. Capitol said racial justice and countering violent extremism would be his priorities.

“The essence of the rule of law is that like cases are treated alike,” Garland said. “That there not be one rule for Democrats, and another for Republicans, one rule for friends and other foes one rule for the powerful. Another for the powerless, one rule for the rich and another for the poor are different rules, depending upon one’s race or ethnicity, and the essence of its great corollary equal justice under law is that all citizens are protected in the exercise of their civil rights, those ideals have animated the Department of Justice, since the very moment of its inception.”

A Biden transition spokesperson had no comment Wednesday in response to Garland’s cases and whether the nominee would address them.

It remains to be seen whether LGBTQ groups will call on Garland to address the rulings in his confirmation process or refuse to support him otherwise. The Human Rights Campaign didn’t respond Wednesday to a request for comment on the decisions.

The LGBTQ legal group Lambda Legal, which in 2016 via former Legal Director Jon Davidson said “we need a Senate hearing to fully understand Judge Garland’s judicial philosophy” in light of Garland’s decisions, expressed an openness to Biden’s pick as attorney general in 2021.

“A deep commitment to civil rights is an essential qualification for anyone aspiring to the position of Attorney General of the United States,” Sharon McGowan, legal director for Lambda Legal, said in a statement to the Blade. “While Judge Garland does not have the kind of civil rights credentials that Vanita Gupta and Kristen Clarke do, we receive the news of his nomination with an open mind.  The role of a judge and the duties of an advocate are related, but distinct, and so we will be eager to hear more from Judge Garland about his vision for the Justice Department, and how he would exert his leadership as attorney general to ensure that the vindication of civil rights is among the Department’s highest priorities.” 

LaShawn Warren, executive vice president of government affairs at the Leadership Conference on Civil & Human Rights, said in a statement Thursday upon Garland’s nomination he’d uphold civil rights after years of neglect in the Trump administration.

“For the past four years, the top political leaders at the Justice Department have abdicated their duty to enforce the law and defend the interests of the United States,” Warren said. “Attorneys General Sessions and Barr have not only undermined morale, but they have also fallen in lock step with President Trump’s attempts to use the department to weaken civil rights laws and to further his personal agenda. Merrick Garland will lead the department in recommitting itself to the people and restore fidelity to the democratic values embedded in the Constitution and the laws of the United States.”

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Top 10 Blade news stories by web traffic

COVID breakthroughs, Equality Act, and anti-trans attacks



Elliot Page created excitement by posting his first photo in swim trunks back in May.

Each year our staff gathers in late December to review the highest trafficked stories of the year and there’s more than a little bit of competitive spirit as we review the results. Here are the top 10 stories by web traffic at  HYPERLINK “” for 2021.

#10: Mark Glaze, gun reform advocate, dies at 51

The sad, tragic story of Glaze’s death captivated readers in November. 

#9: COVID breakthrough infections strike summer tourists visiting Provincetown

This one went viral in July after a COVID outbreak was blamed on gay tourists.

#8: Thank you, Kordell Stewart, for thoughtful response to ‘the rumor’

This opinion piece thanked the former NFL quarterback for writing a personal essay addressing gay rumors. 

#7: Elliot Page tweets; trans bb’s first swim trunks #transjoy #transisbeautiful

The actor created excitement by posting his first photo in swim trunks back in May.

#6: Romney declares opposition to LGBTQ Equality Act

Mitt Romney disappointed activists with his announcement; the Equality Act passed the House but never saw a vote in the Senate.

#5: White House warns state legislatures that passing anti-trans bills is illegal

The year 2021 saw a disturbing trend of GOP-led legislatures attacking trans people.

#4: Lincoln Project’s avowed ignorance of Weaver texts undercut by leaked communications

The Lincoln Project’s leaders, amid a scandal of co-founder John Weaver soliciting sexual favors from young men, have asserted they were unaware of his indiscretions until the Blade obtained electronic communications that called that claim into question.

#3: FOX 5’s McCoy suspended over offensive Tweet

Blake McCoy tweeted that obese people shouldn’t get priority for the COVID vaccine. 

#2: Transgender USAF veteran trapped in Taliban takeover of Kabul

Among the Americans trapped in the suburban areas of Kabul under Taliban control was a transgender government contractor for the U.S. State Department and former U.S. Air Force Sergeant. She was later safely evacuated.

#1: Amid coup chaos, Trump quietly erases LGBTQ protections in adoption, health services

And our most popular story of 2021 was about the Trump administration nixing regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.

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CDC still falling short on LGBTQ data collection for COVID patients: expert



COVID-19 vaccine, gay news, Washington Blade
The CDC is still not issuing guidance to states on LGBTQ data collection among COVID patients.

Despite requests since the start of the COVID pandemic for the U.S. government to enhance data collection for patients who are LGBTQ, the Centers for Disease Control & Prevention is still falling short on issuing nationwide guidance to states on the issue, a leading expert health on the issue told the Blade.

With a renewed focus on COVID infections reaching new heights just before the start of the holidays amid the emergence of Omicron, the absence of any LGBTQ data collection — now across both the Trump and Biden administrations — remains a sore point for health experts who say that information could be used for public outreach.

Sean Cahill, director of Health Policy Research at the Boston-based Fenway Institute, said Wednesday major federal entities and hospitals have been collecting data on whether patients identify as LGBTQ for years — such as the National Health & Nutrition Examination Survey, which has been collecting sexual orientation data since the 1990s — but the CDC hasn’t duplicated that effort for COVID even though the pandemic has been underway for two years.

“It’s not like this is a new idea,” Cahill said. “But for some reason, the pandemic hit, and all of a sudden, we realize how little systematic data we were collecting in our health system. And it’s a real problem because we’re two years into the pandemic almost, and we still don’t know how it’s affecting this vulnerable population that experiences health disparities in other areas.”

The Blade was among the first outlets to report on the lack of efforts by the states to collect data on whether a COVID patient identifies as LGBTQ, reporting in April 2020 on the absence of data even in places with influential LGBTQ communities. The CDC hasn’t responded to the Blade’s requests for nearly two years on why it doesn’t instruct states to collect this data, nor did it respond this week to a request for comment on this article.

Cahill, who has published articles in the American Journal of Public Health on the importance of LGBTQ data collection and reporting in COVID-19 testing, care, and vaccination — said he’s been making the case to the CDC to issue guidance to states on whether COVID patients identify as LGBTQ since June 2020.

Among those efforts, he said, were to include two comments he delivered to the Biden COVID-19 Health Equity Task Force in spring 2021, a letter a coalition of groups sent to the Association of State & Territorial Health Officers asking for states to collect and report SOGI in COVID in December 2020 as well as letters to HHS leadership and congressional leadership in spring and summer 2020 asking for them to take steps to encourage or require SOGI data collection in COVID.

Asked what CDC officials had to say in response when he brought this issue to their attention, Cahill said, “They listen, but they don’t really tell me anything.”

“We’ve been making that case, and to date, as of December 22, 2021, they have not issued guidance, they have not changed the case report form. I hope that they’re in the process of doing that, and maybe we’ll be pleasantly surprised in January, and they’ll come up with something…I really hope that’s true, but right now they’re not doing anything to promote SOGI data collection and reporting in surveillance data.”

Cahill, in an email to the Blade after the initial publication of this article, clarified CDC has indicated guidance on LGBTQ data collection for COVID patients may come in the near future.

“HHS leaders told us this fall that CDC is working on an initiative to expand SOGI data collection,” Cahill said. “We are hopeful that we will see guidance early in 2022. Key people at CDC, including Director Walensky, understand the importance of SOGI data collection given their long history of working on HIV prevention.”

In other issues related to LGBTQ data collection, there has been a history of states resisting federal mandates. The Trump administration, for example, rescinded guidance calling on states to collect information on whether foster youth identified as LGBTQ after complaints from states on the Obama-era process, much to the consternation of LGBTQ advocates who said the data was helpful.

The White House COVID-19 Health Equity Task Force has at least recognized the potential for enhancing LGBTQ data collection efforts. Last month, it published an implementation plan, calling for “an equity-centered approach to data collection, including sufficient funding to collect data for groups that are often left out of data collection (e.g….LGBTQIA+ people).”

The plan also calls for “fund[ing] activities to improve data collection…including tracking COVID-19 related outcomes for people of color and other underserved populations,” and specifically calls for the collection of LGBTQ data.

The importance of collecting LGBTQ data, Cahill said, is based on its potential use in public outreach, including efforts to recognize disparities in health population and to create messaging for outreach, including for populations that may be reluctant to take the vaccine.

“If we see a disparity, we can say: Why is that?” Cahill said. “We could do focus groups of the population — try to understand and then what kind of messages would reassure you and make you feel comfortable getting a vaccine, and we could push those messages out through public education campaigns led by state local health departments led by the federal government.”

The LGBTQ data, Cahill said, could be broken down further to determine if racial and ethnic disparities exist within the LGBTQ population, or whether LGBTQ people are likely to suffer from the disease in certain regions, such as the South.

“We have data showing that lesbian or bisexual women, and transgender people are less likely to be in preventive regular routine care for their health,” Cahill said. “And so if that’s true, there’s a good chance that they’re less likely to know where to get a vaccine, to have a medical professional they trust to talk to about it today.”

Among the leaders who are supportive, Cahill said, is Rachel Levine, assistant secretary for health and the first openly transgender person confirmed by the U.S. Senate for a presidential appointment. Cahill said he raised the issue with her along with other officials at the Department of Health & Human Services three times in the last year.

In her previous role as Pennsylvania secretary of health, Levine led the way and made her state the first in the nation to set up an LGBTQ data collection system for COVID patients.

“So she definitely gets it, and I know she’s supportive of it, but we really need the CDC to act,” Cahill said.

Although the federal government has remained intransigent in taking action, Cahill said the situation has improved among states and counted five states — California, Pennsylvania, Rhode Island, Nevada and Oregon — in addition to D.C. as among those that have elected to collect data on sexual orientation and gender identity of COVID patients.

However, Cahill said even those data collection efforts are falling short because those jurisdictions have merely been public about collecting the data, but haven’t reported back anything yet.

“Only California has reported data publicly, and the data that they’re reporting is really just the completeness of the data,” Cahill said. “They’re not reporting the data itself…And they’re also just asking people who tests positive. So, if somebody says positive COVID in California, a contact tracer follows up with that individual and asks them a battery of questions, and among the questions that are asked are SOGI questions.”

As a result of these efforts, Cahill said, California has data on the LGBTQ status of COVID patients, but the data is overwhelmingly more complete for the gender identity of these patients rather than their sexual orientation. As of May 2021, California reported that they had sexual orientation data for 9.5 percent of individuals who had died from COVID and 16 percent of people who tested positive, but for gender identity, the data were 99.5 percent.

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise



Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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