National
In seesaw experience, LGBTQ fed’l workers enjoy new openness under Biden
Pride Month celebrated after neglect in Trump years
With Pride month underway and the coronavirus pandemic getting under control, LGBTQ federal workers are expressing a new sense of ebullience about being able to celebrate openly this season after a more muted experience during the Trump administration.
The new excitement about the openness is the latest chapter for LGBTQ federal employees, who have a unique seesaw experience of having alternating periods of support mixed with periods when the leadership is disengaged or even hostile.
Anthony Musa, chair of Pride in Federal Service for LGBTQ federal employees, said the change in feeling to “a sense of acceptance” is in no small part the result of outreach from the top in the Biden administration.
“There is a strong push by the White House, especially lately in the past couple of weeks to really reach out directly to LGBTQ+ federal employees and ensure that Pride month is celebrated and that employees are supported by both the administration and the political appointees within the individual departments and agencies,” Musa said.
One example of the Biden administration reaching out, Musa said, is the White House Office of Public Engagement coming to affinity groups for LGBTQ federal workers and offering assistance for promotion and coordination of Pride celebrations.
It’s not just Pride events. Musa said the U.S. Office of Personnel Management has been conducting periodic calls about the Federal Health Benefits Program to highlight opportunities for LGBTQ families and health care for transgender and non-binary people.
The Biden administration’s outreach to LGBTQ employees is visible in other ways. For the first time, Energy Secretary Jennifer Granholm last week raised the Progress Pride flag outside of her department’s headquarters in D.C. in an event recognizing Pride month.
The sense of jubilation outside the Department of Energy was palpable among its LGBTQ employees, who were able to openly celebrate Pride at an official event with a top Biden administration official.
Helping Granholm raise the flag was Tarak Shah, chief of staff for the energy secretary and the first openly gay person to occupy that role.
Shah said via email to the Washington Blade he considers the experience of raising the Pride flag at the Department of Energy “a moment that is incredibly personally meaningful – and one I don’t take for granted.”
“For much of our nation’s history, our institutions have held LGBTQ+ people back,” Shah said. “But, when we raised the flag over DOE this month, we symbolically lifted up our people up, and set an example for the energy and scientific communities around the world. I am proud to be part of an administration that says clearly ‘we have your back’ and for an energy secretary who is a champion for LGBTQ people everywhere.”
The State Department is experiencing a similar change. After the Trump administration in its final years prohibited U.S. embassies from flying the Pride flag on the official pole, the State Department reversed the policy, allowing the rainbow flag to be flown alongside the U.S. flag.
A gay civil service officer at the State Department, who spoke on condition of anonymity because he wasn’t authorized to speak with the media, said the new policy at U.S. embassies as well as Pride proclamations from Biden and Secretary of State Anthony Blinken are having a positive impact.
“One thing I’ve been noticing is within the GLIFAA group on Facebook, people sharing photos of our embassies and consulates around the world with the [Pride] flag flying on the same pole with the U.S. flag,” the officer said. “Those kinds of signals alone I think are making people feel like it’s just a completely different world instead of months ago for us. You know where we were.”
The new flag policy, the officer said, is consistent with a broader change at the State Department of leadership making diversity writ large a priority, which includes having a diversity and equity official in place who reports directly to the secretary of state.
In contrast, the Trump administration’s approach to LGBTQ employees was largely hands-off — if not a climate of hostility. LGBTQ people who continued to work in the federal government didn’t have the same engagement from the top down and contended with policies frustrating plans for Pride activities.
One example of the Trump administration being counterproductive was the executive order former President Trump signed prohibiting critical race theory in diversity training for federal employees. Because the directive required review of all diversity engagement — even if it didn’t include critical race theory — the executive order hampered organization among LGBTQ employees.
In fact, last year Pride in Federal Service was forced to cancel a summit for LGBTQ federal employees because Trump’s executive order on critical race theory made things too complicated.
Musa said the Trump administration offered “absolutely no outreach or support” for engagement with federal government employees.
“We were offering some training with OPM on diversity and inclusion that we had to suspend because it fit within those guidelines of what was restricted,” Musa said. “So it was difficult to say the least.”
But the change in atmosphere isn’t the result of the change in administration alone. LGBTQ workers are also feeling a sense of renewal with the coronavirus in the rear-window as domestic vaccinations continue to increase and events cancelled in the past year are happening again.
One event in honor of Pride month cancelled last year due to coronavirus, but now happening again, is a celebration at the Pentagon for LGBTQ service members and civilian employees. Although the events at the Defense Department had taken place annually since “Don’t Ask, Don’t Tell” repeal was certified in 2011, coronavirus broke the annual streak of that new tradition.
Rudy Coots, president of the LGBTQ employee group DOD Pride, said LGBTQ federal employees are able to reconnect in ways that haven’t been possible for a long time thanks to the lifting of coronavirus restrictions.
“I would say that we’re excited to be able to celebrate Pride month this year in person since COVID-19 prevented us from having an event last year,” Coots said. “So we’re very excited about that, and we’re certainly in the department very excited that the secretary of defense will honor us with remarks as our keynote speaker.”
Also in contrast to the previous administration at the Pentagon event for Pride month is the presence at the event of a Cabinet-level official. Defense Secretary Lloyd Austin is set to deliver the keynote address, a stark contrast to the Trump years when Pride events within federal agencies were more limited and didn’t include Cabinet-level officials.
With such a distinction between one administration and the next, LGBTQ workers in the federal government acknowledge they face a unique seesaw effect — and the on-and-off experience takes a toll.
In recent years, the neglect and outright hostility during the George W. Bush administration changed when former President Obama took office, but the pendulum swung the other way during the Trump years, and now the situation for LGBTQ federal workers has changed once again with Biden in office.
Musa said the back-and-forth isn’t necessarily as difficult for workers who live in D.C., which has robust legal protections against anti-LGBTQ discrimination, but the situation is different for federal employees in other areas.
“We are a small minority of federal employees; the majority of federal employees work outside the D.C. region,” Musa said. “And I think that really having that back and forth seesaw type thing where things are either really good depending on what administration’s in charge or really bad, is particularly aggravating.”
Musa added the stress of the back-and-forth would be alleviated if a federal law expanding the prohibitions on anti-LGBTQ discrimination, such as the Equality Act, were in place. The bill, however, continues to languish in Congress and is all but dead.
Despite the on-and-off track record, LGBTQ federal workers continue to hold out hope of greater stability in the near future and say as time passes the changes made for a welcoming work environment have become more and more durable.
The gay civil service officer at the State Department said the momentum is toward greater LGBTQ inclusion within the federal workforce and “over time, it will be harder and harder to walk back these changes,” pointing to a few bright spots in the Trump administration.
“They yanked the flag and some other stuff, but they were still fighting to get same-sex spouses accredited and countries that don’t allow you to accredit your spouse,” the officer said. “And so a lot of the things that had changed actually under the Obama administration did remain in place.”
The officer conceded, however, LGBTQ public advocacy in the State Department on behalf of the community, both abroad and within its workforce “really fell away, and then obviously there were specific cases of political attacks against LGBTQ staff that are well documented.”
Musa predicted the situation with LGBTQ employees would evolve to a place of continued support regardless of the administration in power, which he said would stem from civil service leadership’s more consistent support as opposed to political appointees.
“That’s sort of my hope,” Musa concluded. “Worst case scenario we end up back in the same way we were in late 2020, but hopefully we don’t go back to that.”
CORRECTION: An initial version of this article misspelled the name of Rudy Coots. The Blade regrets the error.
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Federal Government
Republican state AGs challenge Biden administration’s revised Title IX policies
New rules protect LGBTQ students from discrimination
Four Republicans state attorneys general have sued the Biden-Harris administration over the U.S. Department of Education’s new Title IX policies that were finalized April 19 and carry anti-discrimination protections for LGBTQ students in public schools.
The lawsuit filed on Tuesday, which is led by the attorneys general of Kentucky and Tennessee, follows a pair of legal challenges from nine Republican states on Monday — all contesting the administration’s interpretation that sex-based discrimination under the statute also covers that which is based on the victim’s sexual orientation or gender identity.
The administration also rolled back Trump-era rules governing how schools must respond to allegations of sexual harassment and sexual assault, which were widely perceived as biased in favor of the interests of those who are accused.
“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
“Florida is suing the Biden administration over its unlawful Title IX changes,” Florida Gov. Ron DeSantis wrote on social media. “Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth.”
After announcing the finalization of the department’s new rules, Education Secretary Miguel Cardona told reporters, “These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights.”
The new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, a question that is addressed in a separate rule proposed by the agency in April.
LGBTQ and civil rights advocacy groups praised the changes. Lambda Legal issued a statement arguing the new rule “protects LGBTQ+ students from discrimination and other abuse,” adding that it “appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
United Methodist Church removes 40-year ban on gay clergy
Republican state AGs challenge Biden administration’s revised Title IX policies
University students have a right to protest
Former CAMP Rehoboth official sentenced to nine months in prison
Christian Siriano to serve as grand marshal of Annapolis Pride Parade
Md. governor signs Freedom to Read Act
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
PHOTOS: Capital Pride Pageant
