National
Internal emails reveal questions, confusion on Trump religious freedom directive
Labor Department guidance seen to enable anti-LGBTQ discrimination
Emails obtained by the Washington Blade through a FOIA lawsuit reveal officials in the Trump administration’s Labor Department were mired in questions and confusion about a 2018 religious freedom directive to comply with the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case.
Befuddlement and inquiries from business leaders, lawmakers, and media as well as progressive and conservative advocates alike reflect the criticism of the Labor Department’s religious freedom directive as a means to enable anti-LGBTQ discrimination.
A 2018 Blade story on the religious freedom directive, titled “New Trump administration memo on Obama order alarms LGBT advocates,” was circulated in an email chain among officials within the Office of Federal Contract Compliance. One of the top officials in that office, Christopher Seely, recognized the predictable impact the directive would have by writing in response to the Blade article: “It is not surprising that the LGBT community sees the directive as targeting them.”
The Masterpiece Cakeshop directive, as of now, is still in place, a Labor Department spokesperson confirmed for the Blade on Wednesday. However, the Biden administration has issued a proposed notice to rescind the rule implementing the legal requirements regarding the Equal Opportunity clause’s religious exemption.
The proposed rule, the Labor Department spokesperson said, is at the White House Office of Information & Regulatory Affairs pending review and will be published when that is concluded, which will lead to a public comment period and additional steps to make the rule final.
As reported by the Blade in August 2018, the Labor Department guidance purported to “incorporate recent developments in the law regarding religion-exercising organizations and individuals” with the enforcement of the executive order signed by former President Obama in 2014 barring federal contractors from engaging in discrimination against LGBTQ people in the workplace.
The imprint of former President Trump’s executive orders on religious freedom, which critics said were a means to allow federal grantees and contractors to engage in anti-LGBTQ discrimination, is also seen in the directive. It says that guidance has “similarly reminded the federal government of its duty to protect religious exercise — and not to impede it.”
All in all, the instructions seems aimed at allowing religiously affiliated non-profits to discriminate against LGBTQ workers despite Obama’s executive order prohibiting such bias in employment. Previously, religious non-profits, including religious schools and universities, were required to abide by the executive order and received no religious exemption.
The Washington Blade obtained the internal emails as a result of a lawsuit filed in September 2020 under the Freedom of Information Act with attorneys from the Reporters Committee for the Freedom of the Press, which sought communications within OFCCP to uncover information about the motivation behind the rule change in religious freedom. The Labor Department continues to produce emails to the Blade as a result of the ongoing litigation.
Labor Department officials appear to have anticipated the confusion and flurry of questions they would receive over the 2018 religious freedom directive. One email chain details discussions on a proposed email to stakeholders for when the guidance would be issued. The actual talking points are redacted in the email obtained by the Blade. Craig Leen, then director at OFFCP, concludes after the discussion: “[W]e are planning to proceed tomorrow.”
Among the emails obtained through this lawsuit were several from LGBTQ advocates questioning officials within the Labor Department on the 2018 Masterpiece Cakeshop directive, including representatives from the American Civil Liberties Union and the National Center for Transgender Equality and one separate FOIA request that appears to have come from the Center for American Progress.
One email chain discusses a FOIA request — identified as “Gruberg 865067,” which is presumably from Sharita Gruberg, vice president of LGBTQ research and communications at the Center for American Progress — seeking the number of requests made by federal contractors for a religious freedom exemption under Obama’s executive order. (Gruberg wasn’t available to comment by Blade deadline to confirm she was the one to make that FOIA request.)
A Labor Department official in the email chain describes the request as the “first FOIA request making inquiry as to whether or not a religious exemption has been requested since the directive was issued.” Another official responds, “I am not aware of one,” although it’s unclear from the email chain whether or not it was in response to the question about any federal contractors seeking a religious exemption or knowledge of any other FOIA requests on the directive.
But another email chain, one with officials preparing for a meeting with Democrats on the Senate Health, Education, Labor & Pensions Committee, reveals the absence of any complaints from religious freedom non-profits in complying with Obama’s executive order against anti-LGBTQ discrimination.
One Labor Department official asks for the number of reviews of religious organizations and the number of complaints received from religious organizations. A detailed chart from another official reveals a total of 11 reviews between fiscal years 2007 and 2016 with an average of about one per year. However, the official concludes in terms of complaints: “There were no complaint investigations.”
Marika Litras, an official within the Labor Department responds: “Very few which is what I suspected.” In response to a follow-up question from Litras on whether any complaints were received, the other official responds, “No complaints received either for 813110.” Litras replies: “Wow interesting thank you.”
Another top OFFCP official, John Haymaker, chimes in with a response uncharacteristically glib for government officials, but revealing of the basic understanding of the fairness of adhering to non-discrimination principles: “Well, I would hope that religious organizations would be better-behaved than most at least in public.”
The Labor Department’s internal responses to an ACLU inquiry in September 2018 are found in a separate email chain, which reveals a meeting scheduled for Sept. 17, 2018 between Ian Thompson, legislative director of the ACLU, and U.S. government officials on the religious freedom directive. Not much is revealed in the email chain other than talk about the right room to host the meeting.
Thompson, responding Wednesday to a question from the Blade on the email exchange, confirmed the meeting between the ACLU and Labor Department officials took place.
“As we repeatedly saw, the Trump administration had an agenda of using religion as a license to discriminate,” Thompson said. “We used this meeting to speak truth to power directly, raising our objections about how this directive would harm LGBTQ people and people from minority faith groups. Ultimately – as we knew they would – the Trump administration decided to move forward with this dangerous, discriminatory agenda.”
One email from Debra Carr, a Labor Department career official who had been serving director of policy for OFCCP, writing to colleagues about the meeting and discussing possible questions.”Who do you want to take a shot at drafting answers should they be needed?” Carr said. (The possible questions Carr writes, however, are redacted in the email obtained by the Blade.)
Another meeting between LGBTQ advocates and Trump administration officials is revealed to have taken place with the National Center for Transgender Equality taking the lead.
The job of drafting answers apparently went back to Carr. Litras, the other official at the Labor Department, responds: “Debra, can you take a stab at drafting brief responses?”
Carr passes the assignment to Christopher Seeley: “Hi Chris, take a shot at drafting responses to these.” Seeley, in turn, forwarded notice of the assignment to his supervisor, Harvey Fort: “This just came through as an assignment for me. I’m not sure the urgency, but it may eat into my week.” Fort replies: “Understood. That issue is very important to Craig and OFCCP.”
Seeley appears to have come with responses to the potential NCTE questions with a subsequent email to Carr: “Here are the responses I drafted.” (The actual email responses, however, are an attachment and not included in the email dump obtained by the Blade.)
The meeting between Labor Department offices and OFCPP, however, apparently did little if anything to allay the concerns of the transgender group. A subsequent chain includes an email from Ma’ayan Anafi, then policy counsel for the National Center for Transgender Equality, who says she has attached a letter from groups with “grave concerns” about the religious freedom directive.
“Please find attached a letter on behalf of 42 organizations expressing our grave concerns regarding Directive 2018-03, issued to OFCCP staff on August 10,” Anafi writes.
A proposed response to the letter is included in the email chain, although the content of the letter is redacted in the version obtained by Blade. Leen asks colleagues for review, which he said will be sent on OFCCP letterhead and sent to the Office of the Executive Secretariat. NCTE wasn’t immediately available to comment Wednesday on the whether it had obtained the directive and its reaction.
There were also inquiries from social conservative groups, including the Texas-based First Liberty Institute and the House Values Action Team, a group of conservative lawmakers led by Rep. Vicky Hartzler (R-Mo.).
One email from Katie Doherty, executive director of the Values Action Team, suggests possible dates and times for a meeting with Labor Department officials and invites them to brief lawmakers at an upcoming coalition meeting for the purpose of “providing a brief overview of DOL’s changes.”
The meeting appears to have taken place. In a subsequent exchange, a Labor Department official talks about a proposal from social conservatives “regarding their recommendations for implementing Directive 2018-03” as proposed in an email from Mike Berry, deputy general counsel at the First Liberty Institute.
“It was great to meet you and Mr. Leen last week at the House VAT meeting,” Berry writes. “Per our post-meeting discussion, I am sending you a document outlining our proposals for implementing Directive 2018-03. We would be happy to discuss this further, whether with representatives from OFCCP, or via a listening session, etc.”
Leen, in a subsequent email, affirms receipt of the recommendations, but asks his colleague to remind the First Liberty Institute he has little jurisdiction to implement them.
“Please thank Mr. Berry for providing this information and let him know we will review it,” Leen writes. “I am available to meet with him to discuss the directive if he would like. As for the rulemaking process, please let him know we are unable to comment on that, and he will have the opportunity to submit comments in response to a proposed rule.”
Other emails circulated questions on the religious freedom directive from business community groups, including the New York-based Equality Institute and the Center for Workplace Compliance. In addition to the Blade, questions from Buzzfeed are discussed, as well as an article from Bloomberg and a joint letter from Jewish religious leaders objecting to the directive.
Jennifer Pizer, senior counsel and director of strategic initiatives for the LGBTQ group Lamdba Legal, said Wednesday in response to a Blade inquiry on internal talk at the Labor Department the guidance was “just one of the slew of outrageous rule changes the Trump administration issued to greenlight harmful, legally inexcusable religion-based discrimination.
“Such discrimination continues to be widespread in employment as well as in medical and social services delivery, education, and other areas of public life for LGBTQ people and many others,” Pizer said. “And it hits hardest those who have limited options.”
National
Gallup finds LGBTQ support among Americans is dropping
Marriage equality support lowest since 2016
Gallup, one of the leading organizations in public opinion polling, has found that LGBTQ support among Americans is dropping.
The poll, whose data was collected using Gallup’s annual Values and Beliefs survey, was conducted in May and was published on Wednesday. The data was collected through telephone interviews from a sample of more than 1,000 adults living in all 50 states and D.C. using random digit dialing.
It highlights declining attitudes surrounding LGBTQ issues in multiple areas — from support for same-sex marriage to views on gender identity and the morality of one’s sexuality.
One of the most striking findings was that support for marriage equality fell six points from its 2022-2023 high.
The survey also found that 62 percent of Americans view gay and lesbian relations as morally acceptable, the lowest level since 2016 just after same-sex marriage was legalized nationwide by the U.S. Supreme Court.
One newer question on the poll found that the perceived morality of changing one’s gender has dropped eight points since 2021, indicating the American public is less supportive of transgender people.
The data attributes much of the decline to shifting Republican views alongside the party itself. Conservative leaders have pushed back against diversity, equity, and inclusion programs that were intended to foster greater acceptance of LGBTQ people and other historically disadvantaged groups.
President Donald Trump has been a guiding force behind waves of anti-LGBTQ sentiment, particularly when it comes to trans rights. The president has enacted multiple executive orders, including Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandates that gender be defined by one’s sex assigned at birth. He also signed Executive Order 14183, “Prioritizing Military Excellence and Readiness,” which barred qualified trans applicants from joining the military and led to the removal of trans service members already serving in the armed forces.
Additionally, he signed Executive Order 14201, “Keeping Men Out of Women’s Sports,” which prohibits trans female athletes from participating on women’s and girls’ sports teams.
In February, Gallup found that an estimated 9 percent of Americans identified as part of the LGBTQ community in some form.
The organization also found that 23 percent of adults under age 30 identify as LGBTQ, compared with 10 percent of those ages 30 to 49 and 3 percent or less among those ages 50 and older.
Congress
Ogles faces bipartisan backlash over anti-gay social media post
Tenn. congressman blamed the comment on staffer
U.S. Rep. Andy Ogles (R-Tenn.), who represents Tennessee’s 5th Congressional District, is facing backlash from LGBTQ advocates and fellow Republicans after a social media post declared that “homosexuality has no place in America.”
“Homosexuality has no place in America. Happy Nuclear Family Month,” the congressman wrote in a post on X that was later deleted.
According to the Williams Institute at UCLA School of Law, an estimated 6.3 percent of U.S. adults identify as LGBTQ.
Following widespread criticism, Ogles removed the post and blamed it on a staff member.
“The post was stupid, hurtful and a complete distraction from my America First focus. The employee has been reprimanded,” Ogles said in a statement.
The Washington Blade reached out to Ogles’s office for comment but did not receive a response by press time.
Among those condemning the message was U.S. Rep. Mike Lawler (R-N.Y.), who called it “absolutely idiotic” in a social media post.
“Homosexuality exists. In America,” Lawler wrote on X. “In fact, Andy, you have family, friends, neighbors, colleagues, and constituents who are gay and lesbian. It doesn’t make them less than or somehow unworthy of being an American.”
U.S. Sen. Ted Cruz (R-Texas) also criticized Ogles’s remarks.
“For all of recorded history, homosexuals have been a part of humanity,” Cruz told TMZ DC. “I think the behavior of consenting adults is their business.”
Chris Sanders, the executive director for the Tennessee Equality Project and Tennessee Equality Project Foundation provided a statement to the Blade about Ogles’s comment.
“The Tennessee Nuclear Family Month resolution has really backfired on conservatives by ensnaring Congressman Ogles in scandal. He used the resolution as a pretext to say that our community doesn’t belong in America, resulting in incredible backlash from across the partisan divide,” Sanders said. “It is a good opportunity for him to pause and reflect on whether it’s time for him to resign. Fighting one’s own constituents is not the purpose of serving in Congress.”
Human Rights Campaign Senior Press Secretary Jarred Keller provided a statement to the Blade regarding Ogles’s comments.
“LGBTQ+ people are woven into the fabric of America, and any politician who questions that is severely out of touch with reality. When so many people are worried about whether they can afford gas to get to work or groceries for their families, the last thing we need is right-wing Republicans targeting marginalized communities with hateful attacks,” Keller said. “Representative Ogles should spend less time attacking LGBTQ+ people and start addressing the issues that actually matter, because last I checked, our community isn’t the reason families are struggling to make ends meet.”
The controversy comes as Tennessee continues to advance legislation affecting LGBTQ residents. The state already has several laws on the books that LGBTQ advocates have criticized, including the Adult Entertainment Act, enacted in 2023, which restricts certain “adult cabaret performances.”
Lawmakers have also introduced additional measures this legislative session, including the “No Pride Flag or Month Act,” which would prohibit state employees, volunteers, and agents from displaying Pride flags or participating in Pride observances while acting in an official capacity.
Another proposal, the “Banning Bostock Act” would seek to limit the application of state anti-discrimination protections based on the U.S. Supreme Court’s decision in Bostock v. Clayton County. Tennessee lawmakers have also passed other measures restricting LGBTQ rights and access to gender-affirming health care.
U.S. Military/Pentagon
Federal appeals court rules White House illegally banned trans troops
Defense Secretary Pete Hegseth says Pentagon will appeal to SCOTUS
A panel of federal appeals court judges ruled that President Donald Trump’s policy banning transgender troops likely violates their constitutional rights.
The three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that Trump’s Executive Order 14183, also known as “Prioritizing Military Excellence and Readiness,” was created with the intent to exclude people from the military based on their gender identity.
The policy argues that trans people are inherently incapable of meeting the military’s “high standards of readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” citing a history of or signs of gender dysphoria as the cause. According to the Defense Department, this creates “medical, surgical, and mental health constraints on [an] individual.”
The policy states that, regardless of the physical or intellectual capabilities of each applicant, it views trans military applicants as a monolith, considering them less qualified than their cisgender peers.
Despite the panel’s majority opinion issued on Monday, the first day of Pride Month, the ban remains in effect. The U.S. Supreme Court allowed the Pentagon to enforce the policy last year and will continue to allow it to remain in place as litigation proceeds.
The panel’s new ruling will prevent the military from discharging current service members named in the lawsuit, but it does not allow new transrecruits to join.
The policy “appears to be driven by the bare desire to harm a politically unpopular group: persons who identify as transgender,” Judge Robert Wilkins, a Democratic appointee of President Barack Obama wrote for the majority.
Judge Justin Walker, the author of the dissenting opinion and a Republican Trump appointee, argued that the authority to determine military policy does not rest with the courts. Instead, he wrote, the Constitution grants that power to Congress through legislation and to the president as commander in chief of the armed forces.
“We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the commander-in-chief,” Walker wrote.
Defense Secretary Pete Hegseth indicated that an appeal is in the works, posting, “See you at SCOTUS” on X on Monday in response to the ruling.
Jennifer Levi, senior director of transgender and queer rights at GLAD Law, which has led the litigation since last November, applauded the decision.
“Today’s decision is a powerful vindication of the plaintiffs’ extraordinary courage and unwavering commitment to their country,” Levi said.
The Washington Blade spoke with Second Lt. Nicolas (Nic) Talbott of the U.S. Army, the lead plaintiff in the case, and Levi from GLAD Law back in November.
While discussing the case and his experiences as a trans service member, Talbott said his identity is an asset rather than a hindrance, particularly when it comes to identifying problems and finding solutions, regardless of what others may think or say.
“Being transgender is not some sad thing that people go through,” Talbott told the Blade. “This is something that has taken years and years and years of dedication and discipline and research and ups and downs to get to the point where I am today … my ability to transition was essential to getting me to that point where I am today.”
He also discussed the impact of removing qualified and dedicated service members from the military, arguing that the consequences will be felt long after Trump leaves office.
“When we’re losing thousands of those qualified, experienced individuals … those are seats that are not just going to be able to be filled by anybody,” he said. “[That’s] military training that’s not going to be able to be replaced for years and years to come.”
“Every person who puts on the uniform is expected to make a tremendous amount of sacrifice,” Talbott said. “Who I am under this uniform should have no bearing on that … We shouldn’t be picking and choosing which veterans are worthy of our thanks on that day.”
Levi characterized the policy as overtly cruel and legally indefensible to the Blade.
“This policy and its rollout is even more cruel than the first in a number of ways,” Levi explained. “For one, the policy itself says that transgender people are dishonest, untrustworthy and undisciplined, which is deeply offensive and degrading and demeaning.”
She also argued that the administration’s cost justification is flawed, saying that removing and replacing trans service members is more expensive than retaining them.
“There’s no legitimate justification relating to cost … it is far more expensive to both purge the military of people who are serving and also to replace people … than to provide the minuscule amount of costs for medications other service members routinely get.”
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PHOTOS: Hagerstown Pride
