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Companies grapple with uncertainty as Trump targets private sector DEI

Latham & Watkins lawyer spoke with Blade on Wednesday

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2 years ago

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President Donald Trump (Washington Blade photo by Michael Key)

Powerful companies and well known organizations have made headlines in the weeks since President Donald Trump’s Jan. 20 executive order targeting diversity, equity, and inclusion in the private sector, whether by announcing changes or rollbacks to their DEI programs, by defending their policies and practices, or by declining to wade into the debate at this early stage.

Danielle Conley, a partner at Latham & Watkins who leads the law firm’s anti-discrimination and civil rights practice, spoke with the Washington Blade on Wednesday about how companies and organizations are navigating an uncertain and rapidly evolving landscape.

“So much of this is it just comes down to what is the risk tolerance of the leadership of your company or your organization,” she said, noting that some firms have taken steps to avoid scrutiny from the federal government while others are standing firm in their policies and practices concerning DEI with the expectation that they would be ruled lawful if challenged. “We’ve seen organizations and institutions on both ends of the spectrum.”

Conley said private sector companies and the types of organizations specified in Trump’s order are working on “making sure that they’re on the right side of the legal lines, in the way that the civil rights laws exist right now, and also reviewing their practices and policies for political risks, and seeing whether there are potential changes that they need to make in order to not come under federal scrutiny.”

She stressed, however, that this type of audit is “very difficult to do in light of all of the uncertainty” about how to interpret the orders and how the lawsuits challenging them will ultimately be decided.

“Folks expected that there would be a domestic policy priority around diversity, equity and inclusion issues,” as Trump promised during his campaign, “but at the same time, the language of those executive orders sweep very broadly, and so there were certainly aspects of the executive orders that clients are still very much grappling with and trying to understand the implications of,” she said.

Issued on the first day of Trump’s second term, the first order stipulates that “the director of the Office of Management and Budget (OMB), assisted by the attorney general and the director of the Office of Personnel Management (OPM), shall coordinate the termination of all discriminatory programs, including illegal DEI and “diversity, equity, inclusion, and accessibility” (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.”

The directive issued on the following day includes a section titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” which mandates that the attorney general takes “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” “deter” such “programs or principles” and “identify … potential civil compliance investigations” to accomplish such “deter[rence.]”

Conley noted that DEI is not well defined, nor has the administration given “any specifics about what amounts to illegal DEI,” let alone an indication of “how the federal government is going to read the civil rights laws and interpret the civil rights laws to preclude certain DEI programs, and where they’re going to draw those particular lines.”

Risks and how to mitigate them

On one end of the spectrum are the “things that we’ve always known that you couldn’t do under the law, like using race based and gender based preferences in hiring programs,” she said—conduct covered by longstanding federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964, which prohibits “employers from considering race or gender in employment based decisions outside very narrow circumstances.”

On the other hand, “In light of the failure to really define DEI or to really set out any specific guidance of the kinds of programs that the government believes, under their interpretation of the civil rights laws, run afoul of those particular laws, that’s where the questions are coming from,” Conley said.

Companies, their lawyers, and the broader public are likely to soon find out, though, how and in which circumstances the Trump administration will bring an enforcement action or file a lawsuit against a company over “illegal” DEI.

The second executive action directs Attorney General Pam Bondi “to within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”  

Along with other types of information and recommendations, the report must include “a plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over one billion dollars.”

Broadly, the sectors targeted by each agency will correspond with its remit, Conley said. “HHS has an office for civil rights, and they enforce both Title VI, which prohibits race discrimination in federally funded programming, and also section 1557 of the Affordable Care Act, which prohibits race and gender-based discrimination and other forms of discrimination in health care programming.”

She continued, “So, based on their authority, you can imagine the Office for Civil Rights at HHS, would open up investigations, potentially, into health care companies, medical schools, other health care providers.”

Meanwhile, “the Department of Education has an Office for Civil Rights. Obviously, their enforcement authority is over institutions of higher education that receive federal funds. They enforce VI, that same statute that prohibits race based discrimination in federally funded programming. And so you can imagine the Department of Education opening up investigations into colleges and universities over these issues.”

With the DOJ’s authority under Title VI, the department would be able to investigate and bring enforcement actions or litigation against healthcare companies or institutes of higher education or “any company that receives any sort of federal funding,” Conley said.

In the meantime, as companies look for clarity as evaluate the extent to which their policies and practices may draw legal or political scrutiny, Conley said there has been an “uptick in private litigation” over DEI, which means recent cases have been brought before federal courts—and, in some cases, have been decided by their judges.

These lawsuits have tended to focus on “scholarship, internship, or fellowship programs” or “grant programs” that “are restrictive on the basis of race,” or “supplier diversity initiatives” that might “have very prescriptive guidance” like requirements that a certain percentage of a company’s vendors are Black or brown or women-owned businesses, Conley explained.

Still, she cautioned, “It’s super hard to speculate, because some of this stuff just hasn’t made its way through the courts,” she said.

While firms can expect these policies and practices targeted by private litigants are likely to be a focus for the Trump administration, the question, she said, will will be how far “beyond the kind of race based restrictions that we’ve already seen come under significant challenge in the context of private litigation, how far beyond those kinds of programs will they go, as potentially being violative of the civil rights laws?”

Conley added that these firms should focus not on programs and policies that present negligible or no legal risk, like dedicating a private room in an office space for nursing mothers. Rather, she said, they should consider questions like, “What do we do in the hiring and promotion space? What are we doing with respect to scholarship programs, internship programs and our outside partnerships? What are we doing with respect to any grants that we give? Where do we have risk? Do we have any programs that are explicitly race conscious? Because we know that if we do, the legal risk there is significantly elevated.”

The process is about “really assessing each of those buckets,” she said, adding “It’s that careful analysis—it’s really all you can do in this environment, again, as things are sort of constantly shifting.”

At the same time, Conley said, “we have to remember that the vast majority of DEI programs really do remain completely lawful under any interpretation of the civil rights laws.”

“A lot of these programs were put into place to ensure and to protect against discrimination in organizations,” she said. A consequence of “the executive orders and the uncertainty around how the federal government will be interpreting the civil rights laws and the kinds of programs that may violate them could cause a lot of organizations to overcorrect.”

“Big picture,” Conley said:

  • “Anytime something restricted on the basis of race, we’ve talked about how that really heightens legal risk. But I would also say [there tends to be risk] anytime that there’s a benefit being given that can be traced to race, or a burden that’s being imposed that can be traced to race.”
  • “So, for example, employee resource groups at companies have been completely lawful, and plenty of companies and organizations have them. You can imagine that there could be a legal argument that if there’s an employee resource group where those members are getting certain benefits that would help them in the promotion process, that’s something that could potentially be attacked as being potentially violative of Title VII.”
  • “There’s actually danger in in saying this program violates the law and this program doesn’t, because it’s super nuanced, and really does depend on the facts and circumstances of these programs and how they’re designed.”
  • “Because, again, I just want to make sure that I’m not on the record [saying] that, like, employee resource groups are illegal. They’re not.”
  • “But I do think that if there could be arguments made that those employee resource groups, when they’re not open to all (most are) and those employee members are getting certain benefits that could potentially help them in, let’s say, a promotion process—that could be something that, I would say, as their counsel, that could elevate your legal risk.”

Risks specific to pro-LGBTQ and pro-trans DEI in the private sector

Responding to a question about whether pro-transgender DEI programs will face heightened risk amid the administration’s broader attacks against trans and gender diverse communities, Conley pointed to provisions of Trump’s executive order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

“That sort of set out this notion that it was the policy of the United States that there were only two sexes, male and female, and that federal funds shouldn’t be used to promote unlawful gender ideology, which seems specifically aimed at transgender individuals,” she said.

In practice, Conley said, “to the extent that an organization is receiving a federal grant, and that federal grant is being used in a way that the government [claims] is promoting unlawful gender ideology, then there’s a very real threat that that grant money will stop.”

Asked whether the administration may target a company for its financial, charitable support for trans people and causes, she noted that “some challenges that we’ve seen have been not to corporate giving, but to grants that were racially restrictive.”

“In the context of corporate giving,” though, “where you’re just talking about a gift—again, this is very fact specific, but if you’re just talking about a gift, then it’s hard to see how just a straight gift violates any federal civil rights laws,” Conley said.

She added, “An internship, a scholarship, something that’s reciprocal, something that is a contract, that’s a different analysis, right? But it is not, to my mind, nor have I ever seen a case suggesting that it’s illegal for organization X to write a $20,000 check to X civil rights organization.”

LGBTQ-focused nonprofit and nongovernmental organizations and charities are grappling with the loss of federal grant funding, particularly for overseas work. If the business community’s move away from DEI means declined corporate giving, these groups would struggle to continue their work, which includes efforts to push back against the administration’s attacks against LGBTQ and especially trans communities.

Courts will soon step in

Importantly, “all of these EOS are caught up in litigation right now,” Conley said, noting that parts of the DEI executive actions were struck down on Feb. 21 by the U.S. District Court for the District of Maryland.

Earlier this month, a federal judge struck down Trump’s executive orders restricting access to transgender medicine for patients younger than 19 and requiring trans women to be housed with cisgender men in prisons.

“I am watching closely to see what happens in the challenges to the DEI executive orders,” Conley said, noting that the Trump administration has already appealed the case, which “will go to the 4th Circuit pretty quickly.”

If the U.S. Supreme Court weighs in, “especially around the arguments that the executive order was unconstitutional because of the lack of clarity and guidance it gave to organizations about what violates the law in a way that wouldn’t allow them to comply, I’m watching that one, because it’ll be interesting to see how the 4th Circuit and maybe even the Supreme Court addresses that particular argument,” she said.

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2026 Midterm Elections

Meet the LGBTQ candidates running for U.S. House, Senate

Pappas would become first out gay man elected to upper chamber

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2 days ago

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September 30, 2026

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U.S. Rep. Chris Pappas would become the first openly gay male U.S. senator if he wins in November. (Blade photo by Michael Key)

The midterm elections are often seen as a report card for the party in power, giving voters an opportunity to weigh in on the direction of the country after two years of unified control of the federal government. With Republicans controlling the White House, Congress and the Supreme Court, the 2026 elections could reshape the balance of power in Washington and determine what the next two years of federal policy will look like.

Among the candidates looking to shape that future are a large number of openly LGBTQ politicians running for federal office. All of the candidates listed below openly identify as members of the LGBTQ community and are running as Democrats, seeking seats in both the U.S. House of Representatives and the U.S. Senate. (See below for a list of LGBTQ incumbents.)

The New Candidates

U.S. Senate:

Chris Pappas — NH

The United States House of Representatives:

Cait Conley — NY-17

Jeremy Moss — MI-11

JoAnna Mendoza — AZ-06 

Marni von Wilpert — CA-48

Scott Wiener — CA-11

Chris Gallant — NY-1

JD Ford — IN-5

Janelle Sarauw — U.S. Virgin Islands

If all of these candidates running for federal office win their seats, this would make the federal government the queerest legislative term for Congress ever. 

Chris Pappas would become the first openly gay male senator if he wins the race against Republican John E. Sununu. Pappas is currently leading early polls 50% to Sununu’s 42%, and is seen as a fairly centrist Democrat with a slew of accomplishments passed through the House since his election in 2018 that make him a desired candidate for the purple “Granite State.”

Cait Conley is fighting to take two-term incumbent Republican Mike Lawler’s seat for New York’s 17th district, covering parts of Westchester, Rockland, Putnam and Dutchess counties. Conley has a long history of working as a public servant through her extensive military service, which includes six overseas deployments with the Army and work with the National Security Council. Current polling shows she has an advantage over her opponent, 64% to his 36%, making this one a race to watch. 

Jeremy Moss is running for election in Michigan, after quickly rising in the ranks within the Great Lake state. Moss, who was elected to his city’s city council, then to the state House, then to state Senate has had a lengthy connection with state politics for someone so young. He also served as the state’s first gay president pro tempore. He is running in the Detroit suburbs, including Oakland County. Nearly all polling puts Moss in the lead with some already giving him 99%.

JoAnna Mendoza is a veteran of the U.S. Navy and U.S. Marine Corps running for a House seat for the Tucson and southeastern Arizona area. She has been outspoken about how the cost of everyday necessities under the current leadership of President Trump and Republicans in Congress has made people in her state less safe. She is currently locked in a tight race with her Republican counterpart, leading Juan Ciscomani 47% to 45%.

Marni von Wilpert is running to represent northern San Diego County. She has experience representing the area as a San Diego City Council member, former prosecutor, and Obama workers’ rights attorney. Von Wilpert holds a narrow lead over Republican Jim Desmond, 45% to 42%.

Scott Wiener is looking for a chance to take former House Speaker Nancy Pelosi’s seat in the San Francisco area. Weiner holds a narrow lead over the Pelosi-endorsed San Francisco supervisor Connie Chan. A New York Times poll has him leading 45% to Chang’s 40%.

Chris Gallant has a slew of federal accomplishments under his belt, from working as an FAA air traffic controller to serving in the U.S. Army and New York Army National Guard, including as a Black Hawk helicopter pilot, and is a volunteer firefighter on Long Island. Despite all of this dedication to public service, he’s running in a solidly red district with recent predictions favor LaLota 81 to 26.

JD Ford is fighting to represent the northern Indianapolis suburbs and north-central Indiana against Republican incumbent Victoria Spartz. He was the first and only openly LGBTQ person elected to the Indiana Legislature, running his campaign on making living more affordable. Polling puts him slightly behind Spartz 48% to 46%.

Janelle Sarauw is trying to win the U.S. Virgin Island’s seat in the U.S. Congress. While there is no voting power, the seat can participate in debates. Sarauw is likely to win the seat after sweeping the primary earlier this year, and will face off against Shelley Moorhead, an independent, in November. 

The Incumbents

Becca Balint — VT-At Large

Emily Randall — WA-06

Eric Sorensen — IL-17

Mark Pocan — WI-02

Mark Takano — CA-39

Ritchie Torres — NY-15

Robert Garcia — CA-42

Sarah McBride — DE

Sharice Davids — KS-03

Becca Balint is running for reelection to represent all of Vermont, making her one of the few candidates on this list who represents an entire state rather than a congressional district. Balint, a former teacher and Vermont state senator, has made housing affordability, mental health, and protecting democracy central parts of her platform. Recent polling gives Balint a substantial lead over Republican challenger Gerald Malloy, 60% to Gerald’s 30%.

Emily Randall is running for reelection in Washington’s 6th Congressional District, which includes the Olympic Peninsula and parts of the Kitsap Peninsula across Puget Sound from Seattle. Randall, who previously served in the Washington state Senate, has made expanding access to affordable health care a major part of her platform. She appears to be in a relatively strong position for reelection where she won 60% of the vote in Washington’s August top-two primary, while her Republican opponent Teresa Fox received about 25%. 

Eric Sorensen is running for another term representing western Illinois. The former television meteorologist has centered his congressional work on lowering costs for working families. There is no public polling in the race, but a current nonpartisan forecast gives Sorensen 59% of the vote compared to Republican Dillan Vancil, with 40%.

Mark Pocan is seeking to continue representing Madison and south-central Wisconsin. Pocan, who has served in Congress since 2013, has focused on issues including health care affordability, workers’ rights and LGBTQ+ equality. There is no public polling of the race, but the current field has no Republican candidate, and a nonpartisan forecast gives Pocan more than a 99% modeled chance of winning.

Mark Takano is running for reelection in California’s 39th congressional district, which includes Riverside and portions of the Inland Empire east of Los Angeles. Takano has made health care and veterans’ issues major parts of his congressional work. There is no public polling of the race, but in his primary he came in first with 61% of the vote compared to Republican Steve Manos’s 39%.

Ritchie Torres is running for another term representing New York’s 15th congressional district in the Bronx. Torres, who previously served on the New York City Council, has made housing, economic development, education, and public safety major parts of his platform. There is no current public polling of the race, but multiple prediction sites have it squarely his to win.

Robert Garcia is seeking another term representing California’s 42nd congressional district, which includes Long Beach and southeastern Los Angeles County. Garcia, the former mayor of Long Beach, has focused on issues including infrastructure, transportation, education, and LGBTQ+ rights while in Congress. There is no public polling of the race, but forecasting has Garcia winning the seat over Republican Brian Burley 99% to 1%.

Sarah McBride, is running for reelection to represent Delaware’s sole congressional district, meaning she represents the entire state. McBride, who made history as the first openly transgender member of Congress, has centered her campaign on lowering health care costs, protecting reproductive health care, and strengthening workers’ rights. There is no public polling of the general election, but a current nonpartisan forecast gives McBride a 99.1% modeled chance of winning against Republican Joseph Arminio.

Sharice Davids is seeking another term representing Kansas’ 3rd Congressional District, which covers the Kansas side of the Kansas City metropolitan area. Davids, a former White House fellow and attorney, has made agriculture, lowering costs, and health care central parts of her platform. There is no current public polling of the race, but prediction polling shows she has a 94% chance of winning her race.

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White House

Trump-appointed judge restores White House TV pool access 

Judge called in to question president’s justification of the ban

Published

1 week ago

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September 24, 2026

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CNN's TV booth sat dark on Sept. 21, 2026. (Washington Blade photo by Joe Reberkenny)

A federal judge ordered the White House to restore West Wing press credentials to three news organizations after President Donald Trump attempted to bar their access for unfavorable reporting.

Early Thursday morning, Trump-appointed U.S. District Judge Timothy Kelly granted a temporary restraining order brought by POLITICO, CNN, and MS NOW as part of a joint lawsuit. The lawsuit cites the imperative role of a “free press” and ordered the 78 journalists’ credentials returned to the three outlets for at least the next two weeks as litigation plays out.

In the eight-page ruling, the judge goes over a slew of laws that Trump may have violated in banning the three media groups — from stepping on their First Amendment rights to a free press to the Fifth Amendment right to due process.

The judge also questioned Trump’s justification for removing the outlets, originally saying it was a matter of national security.

“The court is skeptical — at least on this record — that defendants’ interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of plaintiffs’ hard passes,” Kelly wrote in an 8-page ruling issued just before 1 a.m. ET.

“Nothing in the record that predates this suit suggests that the revocation of plaintiffs’ hard passes was motivated by national security concerns. Certainly, that is not what President Trump said when he announced that he was ‘banning’ plaintiffs from the White House — instead, he focused on the alleged lack of truthfulness and negativity of plaintiffs’ reporting,” the judge added.

The Washington Blade reached out to the White House press office asking if the administration would file an appeal to keep the journalists out of the West Wing but did not hear back before publication time.

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White House

White House press pool pushes back after Trump bars three outlets

As President Trump refuses entry to outlets he deems unreasonable, lawsuits have been filed to regain access to the West Wing

Published

2 weeks ago

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September 21, 2026

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(Washington Blade photo by Joe Reberkenny)

Past the first checkpoint to get into the White House, multiple carts filled with camera equipment sat along a fence. Wagons loaded with tripods, cables, mics, and cameras sat just past where they normally would be working at full power. Today, they were turned off and packed away.

Last week, President Donald Trump decided to bar CNN, MS NOW and POLITICO from the White House following reporting he considers “FAKE NEWS.”

Trump, in a post on Truth Social on Monday morning, described his move as “instituting an assault on the FAKE NEWS,” which he said has “grown like Cancer in our beloved United States of America.”

“It is corrupt, purposeful, pervasive, fully coordinated, and totally out of control,” he wrote on the social media site he owns. “It is a threat to our National Security, and must be stopped, NOW!”

As a result, all of the major television networks that comprise the television press pool — ABC, CBS, NBC, CNN, and Fox News — suspended their White House TV pool coverage. They decided to no longer send camera crews to cover President Donald Trump’s events.

“The public has a vital interest in receiving accurate, independent information about its government,” the five White House TV pool networks said in a joint statement Monday. “No administration should restrict a news organization because it objects to its reporting.”

POLITICO, CNN and MS NOW filed a lawsuit Monday to immediately restore access for their reporters, who had their credentials confiscated by the Secret Service.

In the White House, there was a noticeable shift in the atmosphere. The Washington Blade is the only LGBTQ news outlet that is part of the White House Press Pool, and was acting as the primary print pooler as the situation unfolded on Monday. 

Whispers about who might be kicked from the press pool next could be heard both in the press area of the West Wing, as well as outside the part of the White House dedicated to filming the president’s office. The area where TV stations normally film their live shots of the White House while reporting looked less busy than a normal Monday — especially as the president made his way to New York City ahead of the UN General Assembly meeting this week.

(Washington Blade photo by Joe Reberkenny)

CNN’s outdoor filming area, which is staffed nearly at all times, sat dark with a green cover over the space that normally houses its cameras and political reporters like Kaitlan Collins.

There were small signs of solidarity from other outlets in the press office. A sign that has hung outside one of the news offices in the West Wing was updated. It originally read, “WE STAND WITH AP” following President Trump’s first attempt at removing a news outlet he deemed unfavorable. It now includes “I STAND WITH AP CNN MSNOW POLITICO.”

The change could also be felt as the press pool attempted to cover the president.

There was a ribbon cutting in honor of the $6 million helipad installed at Trump’s behest — which had nearly no audio as a result of fewer microphones in the space following the outlets’ removal on Monday afternoon, and partly because of the loud sound of Marine One.

Vice President JD Vance defended Trump when asked about the changes to TV access at the White House, standing with the president despite this likely being a violation of the First Amendment’s guarantee of a free and fair press.

“He’s not banning media outlets. What he’s doing is saying we’re not going to give you special access to the White House if you engage in what is effectively propaganda,” Vance said, alleging that 92% of the stories from CNN, MS NOW and Politico about Trump are “negative.”

“That’s not representative of the American people. It’s not representative of public opinion,” Vance said.

He pushed back on the notion that this is a hindrance on free speech — claiming access to the president through White House visitation is a privilege — a privilege that in this administration, at least until courts weigh in, could change the landscape of the American media system.

“It’s about basic fairness. They can still report. They still have the access to free speech. They’re just not going to get an office in the White House anymore,” Vance said.

Jacqui Heinrich, the White House Correspondents Association President condemned the president’s actions in restricting media access in a statement sent to WHCA members on Saturday.

“Today’s action revoking access for journalists from CNN, POLITICO, and MSNOW violates the First Amendment. The implications extend beyond these organizations: a standard used to exclude one news outlet because of its coverage could be applied to any outlet in the future.

“The American people, through a free and independent press, must be able to scrutinize those elected to power, regardless of whether government officials view it favorably. That’s why courts have repeatedly held that once the White House provides access to journalists, it cannot deny that access arbitrarily or based on the content of their reporting. The WHCA calls on the administration to immediately restore our colleagues’ access.”

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