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‘Less than credible’: Investigation of HRC prez dismissed as conflict of interest

Sidley Austin LLP has pre-exisitng relationship with LGBTQ group

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hate crimes, gay news, Washington Blade

After a damning report on sexual misconduct allegations that forced Andrew Cuomo to resign as governor of New York and that ensnared the Human Rights Campaign president for having a potential role in the cover-up, the nation’s leading LGBTQ group has arranged for a law firm to conduct an independent review of its president’s role in the scandal — but legal experts see a conflict of interest looming over the process.

Sidley Austin LLP, the law firm chosen to conduct the review, has a self-described “long standing pro-bono relationship” with the Human Rights Campaign and was chief among its legal partners announced in October 2019 for a new direction to litigation in LGBTQ advocacy, which was an engagement David undertook when he took the helm as president.

In fact, Sidley issued a news statement hailing its participation in the agreement with the Human Rights Campaign and six other law firms, which Sidley described as an “alliance” designed to “help shape state and federal laws, regulations and policies and the application of constitutional principles.”

“We’re looking forward to working with the Human Rights Campaign on strategic litigation that will take on discriminatory measures targeting LGBTQ people,” Carter Phillips, partner at Sidley, is quoted as saying in the statement. “HRC is a long-standing pro bono client and this next stage of collaboration reinforces Sidley’s deep commitment to advocating for diversity and equality.”

As a result of the 2019 announcement, which was brokered soon after David took the helm of the Human Rights Campaign, some legal experts see a conflict of interest that undermines the perception of impartiality in Sidley’s ongoing review and could color any finding of no wrongdoing, which would arguably be in the interests of all parties involved in the review.

Brenner Fissell, a law professor who teaches legal ethics at Hofstra University in Long Island, N.Y., told the Blade the independent review Sidley is undertaking “appears less than credible.”

“This is not even a relationship where they engaged them once,” Fissell said. “Sidley in the press release calls HRC a long-standing pro bono client, and they’re also doing PR for them. I mean, they’re really inextricably connected, right?”

The imbroglio with the Human Rights Campaign president began when New York Attorney General Letitia James issued her report finding Cuomo violated the law by sexually harassing as many as 11 women on the job. David, who before taking over as Human Rights Campaign president was counselor to the governor of New York, was named nearly a dozen times in the report.

David has continued to deny wrongdoing. However, the findings indicate after his tenure as counselor to Cuomo, he kept the personnel file of an employee accusing the governor of sexual misconduct, then assisted in returning that file to Cuomo staffers seeking to leak it to the media in an attempt to discredit her. (A representative has disputed the characterization of material David kept as a personnel file, saying it was memorandum on an internal employment matter David kept because he, in part, worked on it.)

Further, the report finds David allegedly said he would help find individuals to sign their names to a draft op-ed that sought to discredit the survivor but went unpublished, although he wouldn’t sign the document himself. Also, the report indicates David was involved in the discussions about secretly calling and recording a call between a former staffer and another survivor in a separate effort to smear her.

In response, David said he agreed to help with only one version of the letter that was more positive in nature and his part of the discussion about recording a survivor was limited to his role as counselor.

Although the Human Rights Campaign board has stood by David and announced on the day after the report came out it has renewed his contract for another five years, last week it announced an independent investigation to resolve the matter. The investigation would be conducted by Sidley and last no longer than 30 days. David has publicly endorsed the review.

But the pre-existing close relationship between Sidley and the Human Rights Campaign has left some legal observers questioning the merits of the investigation.

Fissell said no ethical rules are in place for conducting independent investigations per se, especially because Sidley has never represented David before as a client. As a result, Fissell said there is likely no technical violation of ethics rules over conflict of interest in this scenario.

The only real framework for independent investigations that could be a model of the review for this situation, Fissell said, is found in the handbook for the U.S. Securities & Exchange Commission. Among the factors considered in such investigations, Fissell said, is whether outside counsel conducting the review had previously done work for a company or if management previously engaged such counsel.

“If you had previously engaged such counsel, that makes it less independent,” Fissell said. “So the answer to your question is, this is not good if you want to do a truly independent investigation.”

Fissell also questioned why 30 days was selected as the time limit for the investigation, which he said seems artificial and could limit findings.

Sidley didn’t respond to repeated email requests from the Blade for answers to a series of written questions on the independent investigation and its pre-existing relationship with the Human Rights Campaign, including whether or not Phillips, the attorney quoted in the news statement would participate in the ongoing review.

A Human Rights Campaign representative, however, responded to similar inquiries from the Blade with a series of bullet points essentially denying any conflict of interest and standing by the decision to charge Sidley with the investigation.

The representative in the bullet points said the Human Rights Campaign chose Sidley “because of its vast experience in internal investigations and reviews” and is “grateful that Sidley has always represented us on a pro bono basis, including in this matter.”

“Sidley has not represented HRC on any matter related to any of the issues in the current internal investigation that Sidley is conducting,” the representative said.

The Human Rights Campaign representative said Sidley is one of many firms that has worked for the LGBTQ organization, but has “never represented Alphonso David on any matter.” In conducting the investigation, the representative said Sidley reports to an independent Board of Directors for the Human Rights Campaign.

Michael Frisch, an ethics counsel and adjunct professor at Georgetown Law School, told the Blade a law firm being charged with conducting an investigation for an entity after having a previous relationship with it is “always potentially a problem.”

“When any outside entity is retained to conduct an independent review, it has to be truly independent,” Frisch said. “To me, if you’re going to conduct an independent inquiry. Your bonafides to give independent advice in a report is always subject of concern, and one should be above reproach in those situations.”

Frisch, asked if the potential for a conflict is present in Sidley’s investigation of the Human Rights Campaign president, said he couldn’t directly opine on that without knowing all the details about the situation.

“You analyze any conflict of interest from the point of view of is there a substantial risk that the lawyers’ advice will be colored by some interest, other than the client who’s getting the advice,” Frisch said. “The magic language in the rule is substantial risk of material limitation, that’s essentially the test. Every client is entitled to independent advice.”

Asked if a law firm like Sidley could take any internal steps to mitigate the appearance of conflict of interest while continuing to conduct an independent investigation, Frisch said those options, such as walls or ethical screens, aren’t in play here.

“Those kinds of mechanisms to defeat conflicts don’t sound like they’re applicable in this kind of situation because it doesn’t really sound like client-client conflicts,” Frisch said. “A report is not like litigation in that there are parties and opposing counsel and things of that nature that you would have obligations to.”

Frisch concluded: “So that’s where I kind of get back to the key is is it a truly independent report, and if the drafters of the report are compromised by other interests, that always leaves the report open to criticism on that basis.”

A representative for David, who previously pushed back on conclusions of wrongdoing by David based on the report, didn’t respond to a request for comment for this article. Meanwhile, David’s mention in the AG report continues to leave the nation’s leading LGBTQ group in turmoil. Amid reports staffers have called on David to resign, lesbian tennis legend Martina Navratilova — who has previously come under fire for views against transgender women in sports — publicly called for David’s resignation in a podcast interview with the progressive news outlet Raw Story.

Last week, David posted to his Twitter account an open letter from “colleagues and friends” in support of him. Days later, the Blade was forwarded an open letter from “Real HRC Staffers” addressing a separate “communication” that went out from other employees calling for David’s resignation. The open letter asserts David is being unfairly maligned and calls for signatures in support of his presidency.

“It is disheartening to see how the leadership of a Black queer man is being criticized by and vilified in the media and within our own organization at a time of racial reckoning in America and globally,” the letter said. “Worse, is to witness the scapegoating of Alphonso and others who are now being made to answer for the behaviors of powerful white men.”

Fissell, meanwhile, told the Blade the Human Rights Campaign would be better suited going elsewhere for a law firm to conduct the investigation if it wanted real answers about its president in the Cuomo affair.

“If they’re truly committed to demonstrating that they want to have an independent investigation, they would find someone else,” Fissell said.

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LGBTQ community calls out Radio Korea over host’s homophobic comments

Station acknowledged controversy, but skirted accountability

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On Nov. 21st, Radio Korea CEO Michael Kim made an official video statement addressing the Nov. 3rd program. (Screen capture via Radio Korea/YouTube)

On Monday, Nov. 3, Radio Korea aired its regular morning talk show program, where one of its hosts, Julie An, discussed her lack of support for the LGBTQ community, citing her religious beliefs. She also went on to comment that gay people spread HIV and AIDS, and that conversation therapy — which has been linked to PTSD, suicidality, and depression — is a viable practice. Clips of this have since been taken down.

Radio Korea offers Korean language programming to engage local Korean American and Korean immigrant community members. Its reach is broad, as Los Angeles is home to the largest Korean population in the U.S, with over 300,000 residents. As An’s words echoed through the station’s airwaves, queer Korean community members took to social media to voice their concern, hurt, and anger.  

In a now-deleted Instagram post, attorney, activist, and former congressional candidate David Yung Ho Kim demanded accountability from the station. Writer and entertainer Nathan Ramos-Park made videos calling out Radio Korea and An, stating that her comments “embolden” people with misinformation, which has the ability to perpetuate “violence against queer people.”

Community health professional Gavin Kwon also worries about how comments like An’s increase stigma within the Korean immigrant community, which could lead to increased discrimination against queer people and their willingness to seek health care.  

Kwon, who works at a local clinic in Koreatown, told the Los Angeles Blade that comments like An’s prescribe being gay or queer as a “moral failure,” and that this commonly-held belief within the Korean immigrant community, particularly in older generations, strengthens the reticence and avoidance clients hold onto when asked about their gender or sexual orientation. 

“When you stigmatize a group, people don’t avoid the disease — they avoid care,” Kwon explained. “They avoid getting tested, avoid disclosing their status, and avoid talking openly with providers. Stigma pushes people into silence, and silence is the worst possible environment for managing any infectious disease.”

For weeks, Radio Korea did not offer a direct response to the public criticism. Its Instagram feed continued to be updated with shorts, featuring clips of its various hosts — including An. 

On Friday, Radio Korea CEO Michael Kim released an official statement on the station’s YouTube page. In this video, Michael Kim stated that An’s comments “included factual inaccuracies” and that the station “does not endorse or share the personal opinions expressed by individual hosts.” Michael Kim also stated that Radio Korea “welcomes members of the LGBT community to share their perspectives” in order to deepen understanding through dialogue. 

Afterwards, Michael Kim continued that though he acknowledges the “pain” felt by queer community members, he concluded: “I don’t think Radio Korea needs to apologize for what was said any more than Netflix should apologize for what Dave Chappelle says, or any more than Instagram or TikTok should apologize for what people say on their platforms.” 

Michael then offered a justification that An’s statements were “not part of a news report,” and that he was “disappointed” that David Yung Ho Kim, specifically, had been vocal about An’s comments. Michael Kim stated that he was the first person to interview David Yung Ho Kim in 2020 during his congressional campaign, and that he had provided the candidate a platform and opportunity to educate listeners about politics. 

“After all these years, the support Radio Korea has given him,” said Kim, “the support I personally gave him, even the support from other Radio Korea members who donated or even volunteered for him — he dishonestly tried to portray Radio Korea as being an anti-gay organization.”

Michael Kim went on to criticize David Yung Ho Kim’s purported “hurry to condemn others,” and also questioned if David has disowned his father, who he states is a pastor. “What kind of person is David Kim, and is this the kind of person we want in Congress?” Michael Kim asked viewers, noting that Koreatown is “only about three miles from Hollywood, and some people just like to perform.” 

At the end of the video, Michael Kim stated that his duty is to guard the legacy of the station. “My responsibility is to protect what was built before me and ensure that Radio Korea continues serving this community long after today’s momentary controversies disappear,” he said. 

For community members and advocates, this response was unsatisfactory. “The overall tone of the statement felt more defensive than accountable,” Kwon wrote to the Blade. “Instead of a sincere apology to the LGBTQ+ community that was harmed, the message shifts into personal grievances, political dynamics, and side explanations that don’t belong in an official response.”

Michael Kim’s portrayal of the criticism and calls to action by community members as a “momentary controversy” paints a clearer picture of the station’s stance — that the hurt felt and expressed by its queer community members is something that will simply pass until it is forgotten. An continues to be platformed at Radio Korea, and was posted on the station’s social media channels as recently as yesterday. The station has not outlined any other action since Michael Kim’s statement. 

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U.S. Military/Pentagon

Pentagon moves to break with Boy Scouts over LGBTQ and gender inclusion

Leaked memo shows Hegseth rejecting Scouting America’s shift toward broader inclusion

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Scouts for Equality march in the 2015 Capital Pride Parade. (Washington Blade file photo by Michael Key)

The Pentagon is preparing to sever its longstanding partnership with the Boy Scouts of America, now known as Scouting America.

In a draft memo to Congress obtained by NPR, Defense Secretary Pete Hegseth criticizes the organization for being “genderless” and for promoting diversity, equity, and inclusion.

“The organization once endorsed by President Theodore Roosevelt no longer supports the future of American boys,” Hegseth wrote, according to Defense Department sources.

Girls have been eligible to join Cub Scouts (grades K–5) since 2018, and since 2019 they have been able to join Scouts BSA troops and earn the organization’s highest rank of Eagle Scout.

A statement on the Scouting America website says the shift toward including girls stemmed from “an expanding demand to join the Boy Scouts” and a commitment to inclusivity. “Throughout the late 20th and early 21st centuries, it has undergone significant changes to become more inclusive of the adult staff and volunteers that drive its programming as well as of scouts and their families,” the organization says.

Part of that broader push included lifting its ban on openly gay members in 2014 and on openly gay adult leaders in 2015.

Once the Pentagon finalizes the break, the U.S. military will no longer provide medical and logistical support to the National Jamboree, the massive annual gathering of scouts in West Virginia that typically draws about 20,000 participants. The memo also states that the military will no longer allow scout troops to meet on U.S. or overseas installations, where many bases host active scout programs.

Hegseth’s memo outlines several justifications for the decision, arguing that Scouting America has strayed from its original mission to “cultivate masculine values” by fostering “gender confusion.” It also cites global conflicts and tightening defense budgets, claiming that deploying troops, doctors and vehicles to a 10-day youth event would “harm national security” by diverting resources from border operations and homeland defense.

“Scouting America has undergone a significant transformation,” the memo states. “It is no longer a meritocracy which holds its members accountable to meet high standards.”

The Pentagon declined NPR’s request for comment. A “War Department official” told the outlet that the memo was a “leaked document that we cannot authenticate and that may be pre-decisional.”

The leaked memo comes roughly one month after nearly every major journalism organization walked out of the Pentagon in protest of new rules requiring reporters to publish only “official” documents released by the department — effectively banning the use of leaked or unpublished materials.

President Donald Trump, who serves as the honorary head of Scouting America by virtue of his office, praised the Jamboree audience during his 2017 visit to West Virginia. “The United States has no better citizens than its Boy Scouts. No better,” he said, noting that 10 members of his Cabinet were former Scouts.

Hegseth was never a scout. He has said he grew up in a church-based youth group focused on memorizing Bible verses. As a Fox News host last year, he criticized the Scouts for changing their name and admitting girls.

“The Boy Scouts has been cratering itself for quite some time,” Hegseth said. “This is an institution the left didn’t control. They didn’t want to improve it. They wanted to destroy it or dilute it into something that stood for nothing.”

NBC News first reported in April that the Pentagon was considering ending the partnership, citing sources familiar with the discussions. In a statement to NBC at the time, Pentagon spokesman Sean Parnell said, “Secretary Hegseth and his Public Affairs team thoroughly review partnerships and engagements to ensure they align with the President’s agenda and advance our mission.”

The Scouting America organization has has long played a role in military recruiting. According to numbers provided by Scouting America, many as 20 percent of cadets and midshipmen at the various service academies are Eagle Scouts. Enlistees who have earned the Eagle rank also receive advanced entry-level rank and higher pay — a practice that would end under the proposed changes.

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The White House

Trans workers take White House to court over bathroom policy

Federal lawsuit filed Thursday

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Protesters outside of House Speaker Mike Johnson's (R-La.) office in the Cannon House Office Building last year protesting a similar bathroom ban. (Washington Blade photo by Christopher Kane)

Democracy Forward and the American Civil Liberties Union, two organizations focused on protecting Americans’ constitutional rights, filed a class-action lawsuit Thursday in federal court challenging the Trump-Vance administration’s bathroom ban policies.

The lawsuit, filed on behalf of LeAnne Withrow, a civilian employee of the Illinois National Guard, challenges the administration’s policy prohibiting transgender and intersex federal employees from using restrooms aligned with their gender. The policy claims that allowing trans people in bathrooms would “deprive [women assigned female at birth] of their dignity, safety, and well-being.”

The lawsuit responds to the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” signed by President Donald Trump on his first day in office. It alleges that the order and its implementation violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In 2020, the U.S. Supreme Court ruled 6-3 that Title VII protects trans workers from discrimination based on sex.

Since its issuance, the executive order has faced widespread backlash from constitutional rights and LGBTQ advocacy groups for discriminating against trans and intersex people.

The lawsuit asserts that Withrow, along with numerous other trans and intersex federal employees, is forced to choose between performing her duties and being allowed to use the restroom safely.

“There is no credible evidence that allowing transgender people access to restrooms aligning with their gender identity jeopardizes the safety or privacy of non-transgender users,” the lawsuit states, directly challenging claims of safety risks.

Withrow detailed the daily impact of the policy in her statement included in the lawsuit.

“I want to help soldiers, families, veterans — and then I want to go home at the end of the day. At some point in between, I will probably need to use the bathroom,” she said.

The filing notes that Withrow takes extreme measures to avoid using the restroom, which the Cleveland Clinic reports most people need to use anywhere from 1–15 times per day depending on hydration.

“Ms. Withrow almost never eats breakfast, rarely eats lunch, and drinks less than the equivalent of one 17 oz. bottle of water at work on most days.”

In addition to withholding food and water, the policy subjects her to ongoing stress and fear:

“Ms. Withrow would feel unsafe, humiliated, and degraded using a men’s restroom … Individuals seeing her enter the men’s restroom might try to prevent her from doing so or physically harm her,” the lawsuit states. “The actions of defendants have caused Ms. Withrow to suffer physical and emotional distress and have limited her ability to effectively perform her job.”

“No one should have to choose between their career in service and their own dignity,” Withrow added. “I bring respect and honor to the work I do to support military families, and I hope the court will restore dignity to transgender people like me who serve this country every day.”

Withrow is a lead Military and Family Readiness Specialist and civilian employee of the Illinois National Guard. Previously, she served as a staff sergeant and has received multiple commendations, including the Illinois National Guard Abraham Lincoln Medal of Freedom.

The lawsuit cites the American Medical Association, the largest national association of physicians, which has stated that policies excluding trans individuals from facilities consistent with their gender identity have harmful effects on health, safety, and well-being.

“Policies excluding transgender individuals from facilities consistent with their gender identity have detrimental effects on the health, safety and well-being of those individuals,” the lawsuit states on page 32.

Advocates have condemned the policy since its signing in January and continue to push back against the administration. Leaders from ACLU-D.C., ACLU of Illinois, and Democracy Forward all provided comments on the lawsuit and the ongoing fight for trans rights.

“We cannot let the Trump administration target transgender people in the federal government or in public life,” said ACLU-D.C. Senior Staff Attorney Michael Perloff. “An executive order micromanaging which bathroom civil servants use is discrimination, plain and simple, and must be stopped.”

“It is absurd that in her home state of Illinois, LeAnne can use any other restroom consistent with her gender — other than the ones controlled by the federal government,” said Michelle Garcia, deputy legal director at the ACLU of Illinois. “The Trump administration’s reckless policies are discriminatory and must be reversed.”

“This policy is hateful bigotry aimed at denying hardworking federal employees their basic dignity simply because they are transgender,” said Kaitlyn Golden, senior counsel at Democracy Forward. “It is only because of brave individuals like LeAnne that we can push back against this injustice. Democracy Forward is honored to work with our partners in this case and is eager to defeat this insidious effort to discriminate against transgender federal workers.”

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