Federal Government
Rachel Levine and AVP on approaching anti-LGBTQ hate as ‘public health threat’
White House LGBTQI+ Safety Partnership ‘ramping up’
Admiral Rachel Levine, assistant secretary for health at the U.S. Department of Health and Human Services, told the Washington Blade in a statement: “We know that hate — whether fueled by homophobia, transphobia, or racism — is a public health threat.”
“I look forward to a day in the future where hate-fueled violence, is an unwelcome memory of the past and no longer incites fear amongst LGBTQI+ people, and all people who live in America,” she said, adding, “We all deserve to live in communities safe from violence.”
A pediatrician and four-star officer who serves as the highest-ranking openly transgender official in U.S. history, Levine’s statement came in response to an inquiry about her meeting on Thursday with New York City Anti-Violence Project (AVP) Executive Director Beverly Tillery.
Also in attendance were the assistant secretary’s senior adviser on LGBTQI+ health equity, Adrian Shanker, and Lynn Rosenthal, director of Sexual and Gender-based Violence at the agency.
“We talked about some of the recommendations we have developed specifically for HHS,” Tillery told the Blade during a phone interview on Friday.
These focused on three areas, she said: “more work that will approach hate violence as a public health issue”; incorporating this approach and addressing “the needs of safe spaces on the ground” when implementing the White House LGBTQI+ Community Safety Partnership; and exploring “opportunities for funding and technical assistance for safe spaces.”
Tillery said that “it was a real honor to be able to have a conversation directly with” Levine, adding that during their meeting, the assistant secretary explained she had made a point of visiting LGBTQ spaces in person.
HHS understands that these groups provide and administer the services it funds, like legal aid and referrals to affirming healthcare providers, she said.
The agency “prioritizes those spaces,” with the knowledge that “we’re talking about a really critical infrastructure in our community,” a network of organizations that “holds our community together in terms of physical and mental health,” Tillery said.
Noting the escalation of violence encountered by LGBTQ individuals and spaces, the White House in June announced plans to create an LGBTQI+ Community Safety Partnership led by the U.S. Department of Homeland Security in coordination with the U.S. Department of Justice and HHS.
“We are now looking to the beginning of next year, kind of having a plan in place for what we think needs to be happening for next Pride season, really early, and also thinking about the election,” Tillery said. “This is a really critical time where we need to make sure that we get as much information and resources and boots on the ground so they can be actively thinking about safety in a bunch of different ways.”
The White House explained the Partnership will “Provide dedicated safety trainings for LGBTQI+ community organizations and increase federal threat briefings for LGBTQI+ organizations,” “protect health care providers who serve the LGBTQI+ community,” and “support LGBTQI+ communities to report hate crimes and build cross-community partnerships to address hate-fueled violence” — all while working “to build trust between LGBTQI+ organizations and federal law enforcement agencies.”
So far, Tillery said, “the bulk of the work right now that has been done rests in” the Department of Homeland Security, but “I do feel like, right now, they’re ramping up and figuring out [questions like] ‘who is going to be responsible for this thing and what is it going to look like?'”
She added that during Thursday’s meeting, “One of the things that we asked HHS to think about and help us think about is, ‘could there be some very public, regular cadence of meetings between organizations and the agencies specifically about this Partnership'” such that the public might be kept apprised of its progress?
“We are really hoping,” Tillery said, “to make sure that there’s a process for AVP and other organizations to be in regular communication with [the agencies] involved in the White House Community Safety Partnership.”
Tillery said she also talked with Levine and the other officials about ways that HHS, which unlike DHS and DOJ does not represent law enforcement, can contribute — such as by “having them play a role in data collection,” especially provided how the agency is already “paying attention to” data on sexual orientation and gender identity “across the board” and is well positioned to identify gaps.
The full spectrum of hate incidents targeting all types and sizes of LGBTQ spaces
For the past few months, Tillery has met with the White House, HHS, and members of Congress to discuss the first of its kind survey conducted by AVP and its corresponding report published in July, “Under Attack: 2022 LGBTQ+ Safe Spaces National Needs Assessment.”
The document contains feedback from LGBTQ groups of all types and sizes from all 50 states on the hate incidents they have experienced and “the critical needs they have for future safety.”
AVP discovered that nearly nine in 10 LGBTQ community centers experienced hate incidents in person or over the phone. The findings are consistent with the increase, from 2021 to 2022, in hate crimes motivated by bias against the victim’s sexual orientation and, especially, gender identity that were reported by the FBI on Oct. 16.
What distinguishes AVP’s report, Tillery told the Blade during a previous interview on Sept. 13, is that “nobody had really looked at this issue of what’s exactly happening with [LGBTQ] spaces across the country.”
She noted the importance of broadening the focus on anti-LGBTQ hate incidents to include not just acts of violence like last year’s the mass shooting at Club Q, but the full range of ways in which LGBTQ people are targeted or made to feel unsafe, and in all types of community spaces from book stores to bars and beyond.
When discussing the report and its findings in meetings on Capitol Hill, Tillery said “people are surprised” to learn the extent of anti-LGBTQ violence as well as “the range of different kinds of incidents that are happening across the country” and “the way these attacks are happening.”
About half of the surveyed LGBTQ groups said they did not report hate incidents to the police, with many respondents explaining that when their spaces were targeted with anti-LGBTQ protests led by white nationalist groups like the Proud Boys, they felt local law enforcement was more closely allied with or sympathetic to the extremists, Tillery said.
She noted the “overlay of gun violence with this as well,” especially in communities that do not have strong gun safety laws; places where, in many cases, anti-LGBTQ protesters showed up heavily armed.
Understanding intimate partner violence within the LGBTQ community
Tillery said she was encouraged by how much of her conversation with Levine, Shanker, and Rosenthal concerned issues of intimate partner violence within the LGBTQ community within the context of anti-LGBTQ violence more broadly.
She explained that victims are often made vulnerable by their sexual orientation, gender identity, or HIV status, and targeted not just with physical violence but also other forms of intimate partner abuse such as forced “outing,” blocking access to medication, or isolation from community and support networks.
The problem was exacerbated by the Covid pandemic, Tillery said, which caused many people to be “stuck at home with people who might be causing them harm.” Likewise, she said, LGBTQ youth who do not live in affirming, supportive homes in many cases “had to relive some of the homophobia and transphobia while they were in isolation with family members.”
The conversation about intimate partner violence dovetailed into other matters Tillery discussed with HHS, such as areas in which there is a deficit in data collection, she said.
For example, she pointed to the results of the Centers for Disease Control and Prevention’s 2021 Youth Risk Behavior Survey that were published in April, which had “great data” about experiences with intimate partner violence among gay and bisexual men and women but very little with respect to transgender and gender nonconforming respondents, Tillery said.
Tillery added that strong data is crucial for the Partnership’s work and beyond, carrying implications “down the road for funding and resources and congressional action.”
Looking ahead to prepare for next year’s Pride and election seasons
Another topic addressed on Thursday, Tillery said, was how best to “get out in front” with the work that must be done on matters of community safety and securing LGBTQ spaces ahead of not just the next Pride season but also the 2024 elections.
She said AVP will continue working with the Biden-Harris administration and other partners on implementing measures to protect the various groups, activists, organizers, and volunteers who will be running voter registration programs, participating in “get out the vote” efforts, and campaigning on behalf of candidates.
“We are now looking to the beginning of next year, kind of having a plan in place for what we think needs to be happening for next Pride season, really early, and also thinking about the election,” Tillery said.
“This is a really critical time where we need to make sure that we get as much information and resources and boots on the ground so they can be actively thinking about safety in a bunch of different ways,” she said.
Tillery added, “Hopefully we can get out in front of it, so that we can provide some groups with some resources and tools before they start doing a lot of those activities as the election season heats up,” she said.
Federal Government
US Census Bureau testing survey on LGBTQ households
Agency proposing questions about sexual orientation and gender identity
The U.S. Census Bureau is seeking public comment on a proposed test of sexual orientation and gender identity questions on the American Community Survey. The test would begin this summer and continue into next year.
The Census Bureau published the request as a Federal Register notice. In its press release the agency noted that the ACS is an ongoing survey that collects detailed housing and socioeconomic data. It allows the Census Bureau to provide timely and relevant housing and socioeconomic statistics, even for low levels of geography.
As part of the process for adding new questions to the ACS, the Census Bureau tests potential questions to evaluate the quality of the data collected.
The Census Bureau proposes testing questions about sexual orientation and gender identity to meet the needs of other federal agencies that have expressed interest in or have identified legal uses for the information, such as enforcing civil rights and equal employment measures.
The test would follow the protocols of the actual ACS — with one person asked to respond to the survey on behalf of the entire household. These particular questions are asked about people 15 years of age or older. Households are invited to respond to the survey online, by paper questionnaire or by phone.
The current Federal Register notice gives the public a final opportunity to provide feedback before the Census Bureau submits its recommendations to the Office of Management and Budget for approval. The public may provide feedback through May 30 online.
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.
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