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Trans kids in sports may be sticking point in Equality Act talks

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Equality Act, gay news, Washington Blade

With the Equality Act remaining at an impasse in the U.S. Senate, one sticking point for potential supporters is whether or not the legislation will address the hot button issue of transgender kids participating in sports as one prominent LGBTQ legal group says it will draw a red line on the issue in any negotiations on the bill.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the organization “will certainly hold firm” on protecting transgender kids from all forms of school-based discrimination, including in sports, which he said is already law in the aftermath of the U.S. Supreme Court’s decision last year in Bostock v. Clayton County.

“There seem to be a lot of misconceptions about this issue, so this may well turn out to be an area where more discussion will show there is little if any real disagreement.,” Minter said. “For example, current law already allows for reasonable regulations, such as those adopted by the NCAA, to ensure both inclusion and fairness in elite competition. Nothing in the Equality Act would change that.”

After the court ruling in Bostock, which found anti-LGBTQ discrimination is an illegal form of sex discrimination under the law, transgender legal advocates have argued — and won in court — the ban on sex discrimination in schools under Title IX of the Education Amendment of 1972 requires them to allow transgender students to compete consistent with their gender identity. Moreover, U.S. government discrimination on the basis of sex is subject to heightened scrutiny under legal jurisprudence, which in theory after Bostock would apply to schools prohibiting transgender athletes from participating in sports.

Amid a wave of anti-LGBTQ legislation throughout the country targeting transgender kids in sports — most recently in Oklahoma, where the state House approved legislation essentially barring them from participation — legal advocates have already declared they will look to the courts for the legal protections afforded under Bostock to challenge any new laws.

And transgender advocates are pointing to the policy of the National Collegiate Athletic Association, which allows transgender athletes to participate consistent with their gender identity provided they meet certain sex-based characteristics, such as testosterone suppression treatment for transgender women to compete in women’s sports. Although the NCAA had held out on commenting on anti-transgender state legislation, the organization last week issued a statement affirming its commitment to transgender athletes and hinting it would move events from states with those measures in place.

Other transgender groups echoed the sentiment that current law already protects transgender students and the NCAA’s policy could provide a model for schools writ-large, although they stopped short of saying they would draw the line on the issue in negotiations on the Equality Act.

Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality, pointed to both existing law and the NCAA in response to an inquiry from the Washington Blade on talks about the legislation.

“NCTE is committed to protecting transgender youth from discrimination in every aspect of education, including school sports,” Heng-Lehtinen said. “The Bostock decision also reinforces that anti-transgender discrimination is illegal. Notably, the NCAA already has policies to allow for transgender student-athletes to compete, and nothing in the Equality Act would change that.”

NCTE didn’t respond Wednesday to a follow-up inquiry on whether that means the transgender sports issue would be a red line in talks over the Equality Act.

Andy Marra, executive director of the New York-based Transgender Legal Defense & Education Fund, said in response to an inquiry the need for allowing transgender athletes to compete consistent with their gender identity will become apparent as talks continue.

“For a decade now, the NCAA has maintained an inclusive policy that allows for transgender athletes to participate fully in sports. We are confident that as we continue to clarify this issue, it will become clear that not only is discrimination against transgender students both harmful and wrong, it is also already illegal.”

If advocates hold firm on the issue of transgender athletes in sports, it may well mean the Equality Act will have no chance of winning the 60 votes needed to overcome a filibuster in the Senate.

A recent PBS Newshour poll found two-thirds of Americans oppose anti-transgender laws proposed in the states, including measures prohibiting students from participating in sports. That opposition to anti-trans sports bills is seen across party lines, with 69 percent of Democrats, 66 percent of Republicans and 67 percent of independents saying they opposed the measures. However, Americans are most closely divided when it comes to the actual issue of transgender participation in sports.

“For grade school, 50 percent of people said transgender children should be allowed to play on teams that match their gender identity, while 44 percent said they should not. In middle school, the split was 49 percent for, and 47 percent against,” writes Matt Loffman, PBS NewsHour’s deputy senior politics producer. “In high school, 47 percent were for and 48 percent against. And in college, 49 percent were in favor and 45 percent opposed.”

Seeming to pick up on that hesitation, Sen. Susan Collins (R-Maine) — who had co-sponsored the Equality Act in the previous Congress, but not now — has articulated the sports issue as a point of contention she wanted to address as a condition for renewed support of the Equality Act. Collins was among the senators who voted for an amendment proposed as a part of Biden’s COVID relief package that would have zeroed out Title II funding for schools allowing transgender athletes to participate in sports.

Joining Republicans in voting for the amendment was Sen. Joe Manchin (D-W.Va.), who remains the lone Democratic hold out on the Equality Act as a Democratic insider says he’s facing a deluge of calls in opposition to the legislation. Some insiders are looking to Sen. Shelley Capito (R-W.Va.), an unlikely Republican who may be a surprise supporter of the Equality Act, to lock up support from Manchin.

Transgender advocates may have good reason to be concerned negotiators on the Equality Act may buckle on the transgender sports issue. After all, when the Blade asked Sen. Jeff Merkley (D-Ore.), the lead co-sponsor of the Equality Act, during an interview upon introduction of the bill in February whether he’d be willing to make accommodations for the issue, he hedged as opposed to ruling it out.

“In terms of the dialogue that is held between the two chambers and with the Republican colleagues, that dialogue will happen in close consultation with the civil rights groups that have enormous expertise and working to make sure that no modification or clarification is anything that undermines the opportunity of LGBTQ Americans to thrive in our society,” Merkley said.

Many key negotiators on the Equality Act are staying silent on the transgender sports issue as they continue to keep their cards close to their vest on talks. The Human Rights Campaign, for example, didn’t respond to the Blade’s request for comment for this article.

Merkley said in a statement to the Blade provided by his office in response to an inquiry for this article that he remains committed to transgender athletes in his efforts to pass the Equality Act.

“All kids deserve the opportunity to play school sports with their friends,” Merkley said. “That experience of forming camaraderie, being part of a team, and discovering something you love is so valuable, and no kid should be turned away. Every child deserves equal dignity, respect, and opportunity, and that’s why I’m working hard in the Senate to pass the Equality Act.”

Merkley said his focus is finding the 60 votes in the Senate needed to end a filibuster on the legislation and get the measure to the desk of President Biden, who campaigned on signing the legislation into law within his first 100 days in office.

“I am deeply committed to working on a bipartisan basis to find the necessary votes to pass this landmark law and replicate the bipartisan success of the 2013 Employment Non-Discrimination Act,” Merkley said. “Those conversations are ongoing. I am gathering feedback and working with colleagues on both sides of the aisle — and with civil rights organizations — to find a path forward that will bring senators together behind a vision of full equality for LGBTQ Americans.”

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

Played key role in creating red ribbon for awareness

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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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Activists concerned over removal of D.C. AIDS office executive

Dept. of Health declines to explain abrupt replacement of Kharfen

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D.C. Department of Health Director Dr. LaQuandra Nesbitt abruptly dismissed Michael Kharfen from his position. (Photo via Linkedin)

The leaders of several local and national AIDS organizations have expressed concern over a decision by D.C. Department of Health Director Dr. LaQuandra Nesbitt to abruptly dismiss Michael Kharfen from his position since 2013 as Senior Deputy Director of the department’s HIV/AIDS, Hepatitis, Sexually Transmitted Disease and Tuberculosis Administration.

Under the leadership of Kharfen, who is gay, the Department of Health entity commonly referred to as HAHSTA has played a lead role in what AIDS advocacy organizations consider to be D.C.’s highly successful efforts in recent years to lower the rate of new HIV infections among city residents.

Alison Reeves, a spokesperson for Nesbitt, declined to give a reason for Kharfen’s termination, saying the DOH does not comment on “personnel matters.” Reeves said DOH official Dr. Anjali Talwalker has been named as interim Senior DOH Deputy Director for HAHSTA while a national search is being conducted for a permanent HAHSTA leader.

People who know Kharfen have said he has declined at this time to publicly comment on his departure from HAHSTA. He could not immediately be reached by the Blade for comment.

“Michael Kharfen’s departure is a real loss to HAHSTA, the D.C. community, and nationally,” said Paul Kawata, executive director of the D.C.-based National Minority AIDS Council. “It is important to remember that when Michael took over HAHSTA there were real challenges and concerns,” Kawata said.

“He transformed the agency and built strong relationships with local organizations and D.C.-based national organizations,” said Kawata. “His reasoned voice and ability to collaborate will be sorely missed.”

At least three sources familiar with HAHSTA, who spoke on condition of not being identified, have said reports have surfaced internally from DOH that director Nesbitt is planning to reorganize several DOH divisions, including HAHSTA.

The sources say people familiar with the reported reorganization expressed alarm that HAHSTA would be dismantled as a separate DOH entity, with AIDS-related programs operated by other DOH divisions.

“Some think she wants to use the funds earmarked for HAHSTA for other things,” said one of the sources. “She could be jeopardizing federal grant money for HIV and hepatitis,” the source said.

The Washington Blade raised questions surrounding Kharfen’s departure with John Falcicchio, the D.C. Deputy Mayor for Planning and Economic Development, who also serves as Mayor Muriel Bowser’s chief of staff, at a press conference on Monday on an unrelated topic. Falcicchio said he would try to arrange for mayoral spokesperson LaToya Foster to respond to the Blade’s questions about a possible DOH reorganization of HAHSTA and the issues surrounding Kharfen’s departure from DOH.

Neither Foster nor another mayoral spokesperson had responded as of late Tuesday.

“Michael Kharfen’s leaving D.C. government is a huge loss to the D.C. community and potentially puts at risk federal grants for HIV, sexually transmitted diseases, and hepatitis,” according to David Harvey, executive director for the D.C.-based National Coalition of STD Directors.

“If his departure is about a consolidation of agencies within DOH, then the community will be the loser,” Harvey said.

“We need HAHSTA to continue,” he said, adding, “The mayor should reverse this decision and reinstate Michael Kharfen.”

Sources familiar with the D.C. government’s personnel polices have said that Kharfen and other high-level officials holding positions such as that of a senior deputy director are considered “at will” employees who serve at the pleasure of the mayor and the agency head for whom they work. They can be removed for any reason or no reason, those familiar with the personnel policy say.

Before becoming the DOH Senior Deputy Director in charge of HAHSTA in 2013, Kharfen served from 2006 to 2013 as HAHSTA’s Bureau Chief for Partnerships, Capacity Building, and Community Outreach. Those who know Kharfen said in that role he is credited with working closely with a wide range of local and national organizations that provide services for people with HIV/AIDS as well as other public health organizations.

Among them is the D.C. Appleseed Center for Law & Justice, which has worked closely with HAHSTA and the DOH to develop, among other things, a plan to significantly curtail new HIV infections in the city by 2020.

Other groups working closely with Kharfen have been the Washington AIDS Partnership, the National Coalition of STD Directors, the Prevention Access Campaign, and the HIV-Hepatitis Policy Institute.

“Under Michael’s leadership, D.C. was instrumental in pioneering many new innovations in preventing and treating HIV that were later adopted by other jurisdictions,” said Carl Schmid, executive director of the D.C.-based HIV-Hepatitis Institute. “And if you look at the results, I think it demonstrates success,” Schmid said.

“I do not know any details of his departure, but I know he will be missed not only in D.C. but across the country,” Schmid told the Blade.

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Trans teacher, P.G. County schools face off in discrimination lawsuit

Officials deny charges of harassment, retaliation

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Jennifer Eller, gay news, Washington Blade
Jennifer Eller alleges the P.G. County school system subjected her to discrimination and harassment. (Photo courtesy of Lambda Legal)

Attorneys representing transgender former English teacher Jennifer Eller in a 2018 discrimination lawsuit against the Prince George’s County Public Schools and the county’s Board of Education filed a motion in federal court last week asking a judge to rule in support of Eller’s two main allegations against school officials.

The motion for partial summary judgment, filed on April 28 in U.S. District Court for the District of Maryland, calls on the court to affirm Eller’s charges that school officials acted illegally by failing to intervene when she was subjected to a hostile work environment for five years that included abuse and harassment by students, parents, fellow teachers and supervisors and retaliation by administrators.

The motion also calls on the court to affirm that Eller, 39, was forced to resign from her teaching job in 2017 because of the harassment and discriminatory action based on her gender and gender identity.

Eller’s motion for summary judgement, which calls for a ruling in her favor on the allegations, came one month after attorneys for the P.G. County Schools and the school board filed their own motion seeking summary judgment against all the allegations in Eller’s lawsuit. If U.S. Magistrate Judge Charles B. Day rules in favor of the school system’s motion, which court observers do not think will happen, it would result in the dismissal of the lawsuit.

The motion filed by Eller’s attorneys calls on the court to rule against the school system’s motion for summary judgment.

Court records show that the motions by the opposing sides in the case came after Magistrate Judge Day issued a March 26 directive requiring the two sides to attend a May 7 settlement conference in which an effort must be made to settle the case before it goes to trial.

Day’s directive, in the form of a letter to the attorneys, called for Eller and her attorneys to submit 10 business days in advance of the conference a “written demand” for what a settlement agreement should include. Day’s letter calls for P.G. school officials and their attorneys to submit five days in advance of the conference a “written offer” to Eller for what a settlement should consist of.

“For years, I was aggressively misgendered, attacked and harassed in the hallways and even in my own classroom by students, peers and supervisors,” Eller said in a statement released by the LGBTQ litigation group Lambda Legal, which, along with the D.C. law firm Arnold & Porter, is representing Eller.

“My pleas for help and for sensitivity training on LGBTQ issues for students and staff, were ignored,” Eller said. “The relentless harassment stripped me of the joy of teaching and forced me to resign,” said Eller. “It is time for Prince George’s County Public Schools to be held accountable.”

Eller charges in her lawsuit that the harassment and discriminatory action against her began in 2011 when she began presenting as female during the school year. The lawsuit says school officials initially responded to her complaints about the harassment by demanding that she stop dressing as a woman and return to wearing men’s clothes, which she refused to do.

The lawsuit says she was forced to resign from her teaching job in 2017 after being diagnosed with post-traumatic stress disorder due to the alleged abuse she faced on the job.

In addition to naming P.G. County Public Schools and the P.G. County Board of Education as defendants, the lawsuit also names as a defendant the school system’s CEO Monica Goldson.

The lawsuit charges that the school district and its administrators violated Title VII of the U.S. Civil Rights Act of 1964, Title IX of the U.S. Education Amendments of 1972, the Equal Protection Clause of the U.S. Constitution, the Maryland Fair Employment Practices Act, and the Prince George’s County nondiscrimination code.

In its official response to the lawsuit, attorneys for the school system denied Eller’s allegations and claimed the school system had in place nondiscrimination policies that covered gender identity and sexual orientation for school employees and students. The school system also states in its response that Eller may have failed to exhaust administrative remedies required prior to filing a lawsuit and that the lawsuit missed deadlines for certain legal claims.

It also says her legal claims may be disqualified because of her “voluntary resignation of employment,” an assertion disputed by Eller’s attorneys who say the resignation was forced by the abuse and harassment Eller faced on the job.

Her attorneys also point out that Eller filed a complaint against school officials in 2015 before the U.S. Equal Employment Opportunity Commission, which conducted an extensive investigation into Eller’s complaint. The attorneys note that in 2017 the EEOC issued a letter stating that there was “reasonable cause” to believe Eller had been subjected to unlawful treatment based on her sex and gender identity.

“After she filed this discrimination charge, the school administration retaliated against Ms. Eller by taking away her advanced placement English class and opening a disciplinary hearing against her that ended in no discipline,” the Lambda Legal statement says.

P.G. County school officials have declined requests from the Washington Blade for comment on Eller’s lawsuit, saying they have a policy of not commenting on pending litigation.

Among those expressing concern over the issues raised in the Eller lawsuit is College Park, Md., Mayor Patrick Wojahn, who is gay. College Park, which is home to the University of Maryland, is in Prince George’s County.

“It’s important for our county and for the entire community, especially for the kids, that the schools be places free of harassment and discrimination,” Wojahn said. “And if what Ms. Eller says is true, then it shows that the school system has fallen seriously short.”

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