House Speaker Nancy Pelosi hinted at the possibility of legislation to codify the right of same-sex couples to marry, which many fear is in danger after the U.S. Supreme Court’s decision overturning Roe v. Wade, as part of an effort to secure “freedoms which Americans currently enjoy.”
Pelosi suggested such legislation could be in the works in a “Dear Colleague” letter on Monday to fellow members of the House Democratic caucus addressing plans for congressional action after the ruling last week in Dobbs v. Women’s Health Organization, which eliminated the right for women to access an abortion.
The concurrence of U.S. Associate Justice Clarence Thomas is a core component of the letter from Pelosi, who expressed consternation about his rejection of finding unenumerated rights under the 14th Amendment of the U.S. Constitution.
“It is still appalling to me that the Chief Justice of the Supreme Court would agree that a Constitutional right does not exist if it was not spelled out explicitly and in public when the 14th Amendment was ratified over 150 years ago,” Pelosi said. “While this extremist Supreme Court works to punish and control the American people, Democrats must continue our fight to expand freedom in America. Doing so is foundational to our oath of office and our fidelity to the Constitution.”
Thomas said in his concurring opinion he welcomes vehicles that would allow the court to revisit other major decisions, such as the Griswold decision guaranteeing the right to contraceptives; the Lawrence decision decriminalizing sodomy for same-sex couples and others; and the Obergefell decision legalizing same-sex marriage nationwide.
Although Pelosi doesn’t explicitly say she’ll introduce legislation on same-sex marriage, she brought up “access to contraception and in-vitro fertilization to marriage equality,” then added, “Legislation is being introduced to further codify freedoms which Americans currently enjoy. More information to follow.”
“It is clear from how Donald Trump and Mitch McConnell stacked the Supreme Court that elections have ramifications,” Pelosi said. “It is essential that we protect and expand our pro-choice Majorities in the House and Senate in November so that we can eliminate the filibuster so that we can restore women’s fundamental rights – and freedom for every American.”
Any legislation seeking to codify marriage equality would have to get around marriage being an issue administered by the states under the guidelines of the U.S. Constitution. In the past, Rep. Jerrold Nadler (D-N.Y.) has introduced the Respect for Marriage Act, which would have required the federal government to recognize same-sex marriage and states to recognize same-sex marriage performed elsewhere.
Pelosi’s office didn’t respond to a request for comment on the possibility of marriage legislation or the timeline for U.S. House approval of such a measure. Nadler’s office also didn’t immediately respond to a request for comment.
President Biden, unveiling on Friday his initial budget request to Congress in the first year of his administration, called for ramping up funds to beat the HIV/AIDS epidemic in the United States, signaling he’d continue the PrEP-centric initiative that began in the previous administration.
In the preliminary budget request for fiscal year 2022, known in Washington parlance as the “skinny budget” in anticipation of broader request at a later time, Biden seeks an increase of $267 million for Ending the HIV Epidemic, building on the more than $400 million Congress has appropriated for the program since 2019.
As it was launched in the Trump administration, the initiative sought a 90 percent decrease in new incidents of HIV infections across the United States by 2030, although Biden campaigned on beating that goal by five years and ending the domestic HIV epidemic by 2025.
Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, hailed in a statement the proposed increased funds for the initiative, but said it falls short of the amount advocates in the fight against HIV/AIDS were seeking.
“While it falls short of what the community has requested, if this funding is realized it will continue the momentum already created and make further progress in ending HIV in the U.S. Efforts to end HIV will help eradicate an infectious disease that we have been battling for the last 40 years and help correct racial and health inequities in our nation,” Schmid said.
Counterintuitively, Trump had sought more funds to beat HIV/AIDS in his final year in office than Biden has in his first year in office. Last year, President Trump’s budget called for an increase of $412 million for the second year of the initiative for a total of $716 million while Congress settled on an increase of approximately $137 million.
Biden seeks increased funds for HIV/AIDS at a time when advocates in the fight against HIV were at a crossroads at the start of a new administration. Questions had persisted about whether or not the Biden administration would continue the initiative, which was the brainchild of health officials in the Trump administration.
A Christian school in Virginia infamous for banning LGBTQ teachers and students after second lady Karen Pence took a teaching job there obtained nearly $725,000 in PPP funds despite its anti-LGBTQ policies, the Washington Blade has learned.
A look at the distribution for the COVID-19 bailout funds, as documented by the government watchdog Accountable.US, reveals Immanuel Christian School in Springfield, Va., obtained the six-figure grant as part of the Paycheck Protection Program, which sought to keep small businesses afloat amid the coronavirus pandemic.
Immanuel Christian School claimed 115 jobs saved with the PPP money, according to the raw SBA data.
“It is shameful that an institution that discriminates against LGBT Americans received nearly $1 million in taxpayer funds,” Kyle Herrig, president of government watchdog Accountable.US, said in a statement. “This money was meant to help mom and pop small businesses meet payroll and keep the lights on — instead the wealthy and well-connected cashed in.”
The Small Business Administration operated the $669 billion program, which the agency says saved more than 51 million jobs during the coronavirus and is credited with being the most successful jobs program in U.S. history. (A report earlier this year in Axios, however, contested that estimate and said the number of jobs saved was closer to 13.6 million.)
Shannon Giles, a spokesperson for the Small Business Administration, declined to comment on the $725,000 given to Immanuel Christian School, citing a practice of no comment on individual borrowers.
Immanuel Christian School doesn’t just have policies excluding LGBTQ people, but declares in its employment application “homosexual acts and lifestyles are clearly perversion and reprehensible in the sight of God.” The school bars admissions of students if they identify as LGBTQ or come from LGBTQ families and refuses to employ LGBTQ teachers.
The school’s guidelines are listed in its “parent agreement,” which states Immanuel Christian School “can refuse admission to an applicant or to discontinue enrollment if the atmosphere or conduct within a particular home, the activities of a parent or guardian, or the activities of the student are counter to, or are in opposition to, the biblical lifestyle the school teaches.”
Immanuel Christian School didn’t respond Thursday to the Blade’s request to comment on whether it was appropriate for the school to accept taxpayer funds when it would reject taxpayers from admission or employment based on LGBTQ status.
Karen Pence accepted a position teaching art two days a week at the school in early 2019, returning after having worked there when her husband was a congressman.
“I am excited to be back in the classroom and doing what I love to do, which is to teach art to elementary students,” Pence said in a statement at the time.
Both President Trump and Vice President Mike Pence have defended Karen Pence for taking a job as an art teacher at the school. Trump called her a “terrific woman” during a February 2019 speech at the National Prayer Breakfast in response to her position at Immanuel Christian School, while Pence said in an interview with EWTN Global Catholic Network he was “deeply offended” by the criticism.
“The freedom of religion is not just enshrined in the Constitution, it’s enshrined in the hearts of the American people,” Mike Pence said later at the 2019 Conservative Action Political Conference. “But make no mistake about it. The freedom of religion is under attack in this country. Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.”
Neither the White House nor the vice president’s office responded to the Blade’s request to comment on whether it was OK for Immanuel Christian School to receive PPP money with anti-LGBTQ polices in place.
Current federal law doesn’t prohibit anti-LGBTQ discrimination in the distribution of PPP funds. Although the U.S. Supreme Court ruling this year in Bostock v. Clayton County determined anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal in the workforce under Title VII of the Civil Rights Act, has broad applications to all laws against sex discrimination, it has no bearing on federal programs like PPP.
Title VII of the Civil Rights Act of 1964, which covers federal programs, bars discrimination on the basis of race, color and national origin, but says nothing about sex, let alone sexual orientation or gender identity.
Ian Thompson, legislative director for American Civil Liberties Union, affirmed the Bostock decision “would not apply” in the context of PPP, but said the Equality Act, legislation that would expand the prohibition on anti-LGBTQ discrimination under the Civil Rights Act, would rectify the situation.
“The Equality Act would fix this gap in civil rights law by making it illegal to discriminate with federal funding based on sex [including sexual orientation and gender identity],” Thompson said. “When the Equality Act is the law of the land, recipients of federal funding would not be permitted to have policies that openly discriminate against LGBTQ people.”
Thompson, however, conceded Immanuel Christian School may still be acting unlawfully in the aftermath of the Bostock decision regardless of whether or not it got PPP funds for having policies discriminating against LGBTQ employees or students.
“If a religious school were refusing to employ LGBTQ people or to enroll LGBTQ students, we think that would violate Title VII and Title IX under Bostock, regardless of whether it got a PPP loan or not,” Thompson said. “We also think that a policy of excluding LGBTQ people would be unlawful, but there might be a question of who had standing to challenge that policy if no one was actually excluded. And there would also be a question about whether the religious school would have access to a religious exemption, either under Title VII or Title IX or RFRA or the Constitution.”
With fewer than two months remaining in the Trump administration, the Department of Labor went through with making a rule final on Monday that would grant religious institutions a broader exemption under former President Obama’s executive order barring anti-LGBTQ workplace among federal contractors.
Although no notice was seen on the Federal Register website indicating the process is over for implementing the rule, first proposed in August 2019, the website for the Labor Department’s Office of Federal Contract Compliance Programs indicates the regulation has become final. A note in the final rule indicates it will become effective on Jan. 8, days before President-elect Joe Biden is set to be sworn in as the 46th president of the United States.
The final rule has language stating its purpose to “clarify” the religious exemption under Executive Order 11246 signed by former President Lyndon Johnson in 1964 to ban employment discrimination among federal contractors, which Obama amended in 2014 to include a prohibition on anti-LGBTQ discrimination.
Recognizing Title VII of the Civil Rights Act, which bars discrimination in employment, was amended in 1972 to expand its religious exemption, OFFCP the regulations under the executive order “should be given a parallel interpretation” with regard to its religious exemption.
“This rule is intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors,” the rule says.
As a result of the rule, federal contractors will be to claim a religious exemption to discriminate against LGBTQ people in employment without punitive consequences from OFCCP under Obama’s executive order.
Religious affiliated colleges and universities that contract with the federal government and have histories of anti-LGBTQ discrimination, such as Brigham Young University in Utah, may be the intended beneficiaries of the final rule. However, the definition of a religious institution is so vague virtually any federal contractor could assert a religious view to get out of the requirements against anti-LGBTQ discrimination.
Further, the rule makes no distinction between anti-LGBTQ discrimination and other forms of discrimination. Because Obama’s executive order was in the form of an amendment to Johnson’s executive order against discrimination based on race, color, religion, sex or national origin, the final rule open the door to workplace discrimination on the basis of these categories as well as anti-LGBTQ discrimination among federal contractors.
Jennifer Pizer, director of law and policy at the LGBTQ group Lambda Legal, said in a statement “it is hard to overstate the harm that the Office of Federal Contract Compliance Programs is visiting on LGBTQ people, women, religious minorities and others with the sledgehammer it is taking to federal non-discrimination protections.”
“For nearly 80 years, it has been a core American principle that seeking and receiving federal tax dollars to do work for the American people means promising not to discriminate against one’s own workers with those funds,” Pizer added. “This new rule uses religion to create an essentially limitless exemption allowing taxpayer-funded contractors to impose their religious beliefs on their employees without regard to the resulting harms, such as unfair job terms, invasive proselytizing and other harassment that make job settings unbearable for workers targeted on religious grounds.”
OFCCP didn’t respond to the Washington Blade’s request to comment Monday on why the Trump administration needed to make the rule final with less than two months remaining in the Trump administration and why the final rule doesn’t appear in the Federal Register.
According to the final rule, OFCCP obtained during the 30-day public comment period 109,726 comments on the proposal, which includes more than 90,000 comments generated by organized comment-writing efforts.
The rule is made final days before the Labor Department is expected to produce internal emails on the deliberation behind the regulation. In September, the Washington Blade had filed a lawsuit with attorneys from the Reporters Committee for the Freedom of the Press under the Freedom of Information Act seeking internal emails within OFCCP to uncover information about the motivation behind the rule change. The first batch of emails from the Labor Department is expected to come out Thursday as a result of a joint status report in this lawsuit.
Obama’s executive order now has less importance in the aftermath of the U.S. Supreme Court decision this year in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal in the workforce under Title VII regardless of whether or not a business is a federal contractor. However, the executive order provided additional tools for the OFCCP to root out anti-LGBTQ discrimination proactively without an employee having to file a workplace discrimination lawsuit under Title VII.
OFFCP states in the rule the change is needed to enforce the law consistent with recent Supreme Court decisions in Masterpiece Cakeshop, Trinity Lutheran Church of Columbia and Hobby Lobby, even though cases had nothing to do with employment. Meanwhile, the final rule downplays the importance of the Bostock decision, asserting the “holding itself is not particularly germane to OFCCP’s enforcement of E.O. 11246, which has expressly protected sexual orientation and gender identity since 2015.”
“The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump,” the statement says.
Obama’s executive order covered an estimated 34 million employees working for federal contractors, many thousands who are LGBTQ, and 22 percent of the workforce.
White House Deputy Press Secretary Judd Deere, however, said any notion the updated regulation undercuts Obama’s executive order is false.
“This rule does not revise, amend or in any way undermine the executive order governing nondiscrimination requirements for federal contractors, and it in no way undercuts the president’s promise and commitment to the LGBT community,” Deere said. “It simply seeks to clarify the scope and application of the religious exemption already contained in the executive order that the previous president signed.”
Now that the Trump administration has made the rule final, the Biden administration cannot easily undo it under the Administrative Procedure Act, which requires the U.S. government to undertake a deliberative process and engage with the public before making regulatory changes.
Pizer told the Blade via email the Biden administration “will have to do a full rulemaking” process under the Administrative Procedure Act to undo the regulation in the aftermath of the Trump administration making it final.
“We do expect it to be among the many Trump administration rule changes (and still-pending, likely-to-be-finalized, proposed rule changes) that will be top priorities for review and redoing by the new administration,” Pizer said.
Pizer added she can’t predict the timing for that process given the sheer number of Trump-era rules that needed reversing under Biden, especially because that might be affected by litigation that might produce court orders enjoining the U.S. government from enforcing the regulation.
Sasha Buchert, senior attorney with Lambda Legal, said in a statement the final rule not only obstructs LGBTQ people from job opportunities, but may block them from obtaining benefits for a same-sex spouse and child as an employee of a federal contractor.
“This rule effectively allows almost any federal contractor to claim a right to fire a person, deny health benefits or take other forms of discriminatory action for marrying a same-sex partner or coming out as transgender, or who the employer or would-be employer discovers is transgender, for living in accordance with their gender identity,” Buchert said. “The harm to those who already face pervasive discrimination is incalculable.”
Michigan Attorney General Dana Nessel, a lesbian, announced Thursday she has filed felony charges against conservative hoaxers Jacob Wohl and Jack Burkman — who have a history of deceit and unscrupulous dealings — for misleading robocalls discouraging Michigan residents from voting by mail.
Nessel said in a statement the robocalls, which were made in Black-majority areas around Detroit, go above and beyond those “flooding our cell phones and landlines each day” in a battleground state for the 2020 election.
“Any effort to interfere with, intimidate or intentionally mislead Michigan voters will be met with swift and severe consequences,” Nessel said in a statement. “This effort specifically targeted minority voters in an attempt to deter them from voting in the November election.”
The message discouraging voting by mail, Nessel said, “poses grave consequences for our democracy and the principles upon which it was built.”
“Michigan voters are entitled to a full, free and fair election in November and my office will not hesitate to pursue those who jeopardize that,” Nessel.
Wohl, 22, and Burkman, 54, are charged with four felony counts: One count of intimidating voters under election law; one count of conspiracy to commit an election law violation; one count of using a computer to commit to intimidate voters against election law; and using a computer to commit a crime of conspiracy.
The two face five years in prison and/or a $1,000 fine for intimidating voters, plus a $10,000 fine for conspiracy to commit that crime, while they face an additional seven years in prison and/or $5,000 for using a computer to commit those crimes, according to the charging papers.
The charges were filed Thursday in the 36th District Court in Detroit, where a judge found probable cause to support them, according to the Associated Press. Arraignment is pending for Wohl and Burkman.
Nessel said her office intends to work with local law enforcement if needed to secure the appearance of each defendant in Michigan, although it’s too early to say if formal extradition will be needed or if the two will voluntarily present themselves.
The robocalls allegedly created and funded by Wohl and Burkman, Nessel said, were targeted at nearly 12,000 residents in the Detroit-area urban in late August. The attorney general had previously warned Michigan residents of the calls at that time.
An audio recording of the robocall provided by Nessel’s office features a caller who sounds like a Black female who claims to be associated with an organization founded by Burkman and Wohl.
The caller, in a false claim according to Nessel’s office, tells people mail-in voting will allow their personal information to become part of a database used by police to track down old warrants and by credit card companies to collect outstanding debts.
“Don’t be finessed into giving your private information to the man,” the caller warns. “Stay safe and be aware of vote by mail.”
The caller also says, in another false claim according to Nessel’s office, the Centers for Disease Control and Prevention will use mail-in voting information to track people for mandatory vaccines.
But the calls aren’t limited to Michigan. In working with state attorneys general in New York, Pennsylvania, Ohio and Illinois, the Michigan attorney general found other states reported similar robocalls — around 85,000 made nationally — to urban areas with significant minority populations, according to a news statement.
Claims made in the call against mail-in voting are consistent with dubious complaints from President Trump, who has said publicly the system is rife with fraud, despite assurances from experts the voting system is sound.
Trump, who has suggested he wouldn’t accept the results of an election decided by mail-in ballots, has said explicitly said he’d might have to take up the results in the federal court. Trump also said declined to say he’d allow for a peaceful transition of power as result of the election.
Both Wohl — who has been banned for life from Twitter, but still communicates via his Instagram account and has an OnlyFans page — and Burkman have a long history of nefarious dealings aimed at protecting Trump and getting him re-elected.
An attempt to smear FBI investigator Robert Mueller with false sexual harassment charges was exposed, as well as a similar attempt to defame Anthony Fauci. The two made dubious accusations in the Democratic primary about against sexual impropriety against female candidates Elizabeth Warren and Kamala Harris.
Wohl and Burkman also reportedly sought to get a male student to make up charges Pete Buttigieg had sexually assaulted them, but the effort was exposed by the Daily Beast and went no where.
The Washington Blade has reached out to Wohl for comment on the charges. Burkman couldn’t be reached for a request to comment.
In August, Wohl said they suspected “leftist pranksters” were behind the robocalls because recipients were shown a caller ID that was Burkman’s mobile number, according to the AP. Burkman was quoted as saying the situation is “a joke” and threatening to sue for defamation.
The U.S. Supreme Court seems poised to grant religious schools an expanded ministerial exemption in employment decisions based on oral arguments Monday in litigation that could have significant bearing on LGBTQ teachers at these institutions.
The cases, Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel, were brought by Catholic schools seeking immunity under the law to conduct employment practices for non-ministerial jobs — such as the hiring and firing of teachers — consistent with their religious beliefs under the exemption granted by the First Amendment.
The schools raised the claims in response to a lawsuit from teachers alleging wrongful termination. One alleges she was terminated based on age discrimination, the other based on disability after having to request time off to treat cancer. The schools have maintained the termination was the result the teachers not fulfilling their ministerial roles at the schools.
Predictably, the five conservative justices on the bench seemed amenable to the idea of an expanded ministerial exemption, while the four liberal justices were against it.
U.S. Associate Justice Ruth Bader Ginsburg was blunt in her questioning about the possible implications of a ruling in favor of Catholic schools, calling it “staggering.”
“Suppose a teacher who does everything the two teachers in these cases do as a faith leader also reports a student’s complaint of sexual harassment by a priest and is terminated,” Ginsburg said. “She has no remedy?”
U.S. Associate Justice Clarence Thomas, on the other hand, appeared to justify a decision for the Catholic schools by indicating the work of teachers there would be considered a violation of the Establishment Clause at a public schools.
“It’s my understanding they actually let them from time to time in prayer or took them to service, things like that,” Thomas said.
The cases have broad implications for workers at religious schools, including LGBTQ teachers. The ruling could impact whether gay teachers have a legal right to sue a Catholic school if they’re terminated for entering into a same-sex marriage, or transgender teachers if they’re fired for undergoing a gender transition.
Shannon Minter, legal director for the National Center for Lesbian Rights, said based on the arguments the court seems ready to grant Catholic schools the considerable leeway they’re requesting.
“It seems likely there are enough votes to broaden the scope of the so-called ‘ministerial exception’ for religious employers, which would give religious schools and other religious employers more leeway to fire workers without regard for anti-discrimination laws, including those that protect LGBTQ people,” Minter said.
Jeffrey Fisher, an attorney with the Menlo Park, Calif.-based law firm O’Melveny & Myers LLP, represented the teachers who were terminated and estimated hundreds of thousands of lay teachers across the country may be affected.
“The schools’ argument would strip more than 300,000 lay teachers in religious schools across the country of basic employment law protections — and necessarily included in this number are teachers who teach so-called secular classes,” Fisher said.
The Trump administration backed the arguments from the religious schools during oral arguments by sending — completely on a voluntary basis because the U.S. government isn’t a party in the litigation — a high-level attorney to argue in favor of an expansive ministerial exemption.
Assistant to the U.S. Solicitor General Morgan Ratner maintained a ruling in favor of an expanded ministerial exemption would be consistent with Supreme Court precedent.
“Under Hosanna Tabor, those teachers are ministering to their students by teaching them how and why to be Catholic, so this should fall within the ministerial exemption regardless of what the school calls them,” Ratner said.
Much of the argument in favor of the expanded ministerial exemption rested on the Supreme Court’s 2012 decision in Hosanna Tabor v. EEOC, the 2012 ruling that determined federal discrimination laws don’t apply to religious organizations’ selection of ministerial leaders. However, that decision didn’t specify which employees are considered ministers and which aren’t.
Eric Rassbach, an attorney with the Becket Fund for Religious Liberty who represented the Catholic schools before the court, said the court’s decision in Hosanna Tabor compels to rule in favor of an expanded ministerial exemption.
“Eight years ago in Hosanna Tabor — the pretext inquiry, the notice requirements, the idea that freedom of association makes freedom of religion entirely unnecessary — all were raised in Hosanna Tabor and rejected unanimously,” Rassbach said. “Eight years later, respond to arguments are not any more convincing. In short, there’s no reason for government to get into business of teaching religion.”
U.S. Associate Justice Elena Kagan sought to clarify the implication of what Rassbach was seeking by peppering with questions on hypothetical jobs for which he thinks the ministerial exemption should apply.
A math teacher who is told to teach something about Judaism for 10 minutes a week? “Probably not.” A press or communications staffer who prepares press release for a religious institution? “That should fall within it.” An employee at a soup kitchen who distributes religious literature and leads grace before meals? “My guess is that that would be de minimius.” A church organist who provides musical accompaniment and selects hymns for religious services? “I think that would fall within it because that’s an important religious function.”
A nurse at a Catholic hospitals who prays with sick patients and is told otherwise to tend to their religious needs? “I think a nurse doing that kind of counseling and care may well fall within the exception.”
Fisher seized on Rassbach’s admission nurses at Catholic hospitals would have no recourse under non-discrimination law with an expanded ministerial exemption as evidence of the breadth of such a decision.
“If you write an opinion that says all important religious functions trigger the ministerial exception, I don’t think there’s any way to escape — you’re going to have the cases with the nurses, you’re going to have the cases with the football coaches, you’re going to have the cases with the summer counselors,” Fisher said. “The only thing the other side says to that in our brief is, ‘Well, those cases haven’t been brought so much,’ but my answer to that is that just shows how revolutionary their case would be, because there’s no good answer to those cases and Mr. Rassbach himself said nurses would be covered.”
U.S. Associate Justice Sonia Sotomayor also expressed fear about the potential ruling for an expansive ministerial exemption because the two teachers in the cases “are not claiming that they were fired because the school thought they were teaching religion wrong.”
“You’re asking for an exception to the Family & Medical Leave Act, to wage and hourly laws to all sorts of laws, including breach of contract, because at least one of the schools here, contract with the teacher says they won’t discriminate because of the teachers age or disability,” Sotomayor said.
The conservative justices, nonetheless, devised scenarios in their questioning that appeared to justify having an expanded ministerial exemption for employment at religious schools.
U.S. Associate Justice Neil Gorsuch raised the possibility of a religious school with limited funds that hires a full-time teacher, but asks the teacher to act as a religious leader part-time, or a religion that believes all its members are leaders of the faith.
“You said we shouldn’t focus on their sincerely held religious beliefs, but that is what we do elsewhere in First Amendment jurisprudence,” Gorsuch said. “We don’t second guess those sincerely held religious beliefs. Why would we do it here?”
Although the issue of titles was brought up as a way to distinguish between ministerial and non-ministerial positions, U.S. Associate Justice Samuel Alito said that would be insufficient because titles don’t always give a clear indication of role.
“How does it even help to understand the person’s role?” Alito said. “Suppose you have two people who do exactly the same thing in two different religiously affiliated schools but one has a title and the other one doesn’t have a title, other than the title of the teacher. Why should the presence or absence of this title make any difference?”
It’s true LGBTQ people, as of now, have extremely limited explicit non-discrimination protections under federal law, but the Supreme Court will soon issue a ruling on the Title VII of the Civil Rights Act of 1964 that will determine whether the law covers LGBTQ people. A ruling for Catholic schools in these cases would undercut an LGBTQ-inclusive in the Title VII litigation.
Further, a ruling in favor of an expanded ministerial exemption would undermine the laws in 21 states and D.C. that bar anti-LGBTQ discrimination in the workforce. Not just LGBTQ people would be affected. A ruling for Catholic schools would also allow them to discriminate based on race, national origin, disability or any other category in non-ministerial jobs.
U.S. Associate Justice Stephen Breyer noted various categories of people with histories of discrimination against which a religious institution could lawfully terminate if the ruling came out in favor of the Catholic schools.
“This case has to do with a religious organization might dismiss someone on the basis of race or religion or national origin…where that isn’t related to the carrying on of the religious activity, for example, a person who’s handicapped,” Breyer said.
Minter echoed that concern in his assessment of the oral arguments based on the way judges appeared to lean in favor of an expanded ministerial exemption.
“If the schools win today’s cases, religious schools would be able to fire many more LGBTQ teachers based purely on anti-LGBTQ animus or for any other reason, regardless of whether they have a religious reason for doing so,” Minter said.
A decision in the case is expected before next month at the end of the term for the Supreme Court.
Faced with tremendous pressure during the coronavirus crisis to lift its policy barring gay men from donating blood, the Food & Drug Administration announced on Thursday it has eased the restrictions.
While the previous policy, established in 2015, barred men who have had sex with men in the 12 months from making a donation, the new policy would shorten the deferral period, requiring abstinence for only three months.
The FDA indicated it would make a change in a notice to stakeholders on Thursday, indicating the decision was based on “evaluation of the totality of the scientific evidence available.”
“To help address this critical need and increase the number of donations, the FDA is announcing today that based on recently completed studies and epidemiologic data, we have concluded that the current policies regarding the eligibility of certain donors can be modified without compromising the safety of the blood supply,” the notice says.
In addition changing the recommended deferral period for men who have had sex with men from 12 months to 3 months, the FDA informs stakeholders of other changes.
Among them are easing ban on donations for women who have had sex with men who, in turn, previously have had sex with a man. For these women the deferral period has similarly been changed from 12 months to 3 months.
Further, the new policy eases recommended 12 month deferral for individuals with recent tattoos and piercings to three months, and eases from an indefinite ban to a three month ban for donations from people who have a past history of sex in exchange for money, or injection drug use.
Other changes are implemented easing policy related to blood donors who have travelled to malaria-endemic areas, such as countries in Africa, or to European countries where the donors faces potential risk of transmission of Creutzfeldt-Jakob Disease or Variant Creutzfeldt-Jakob Disease.
The FDA issued the notice to stakeholders at the same time it published on its website a 17-page official memo outlining the changes, declaring they were made to address the shortage in the blood supply amid the COVID-19 crisis and therefore would not wait for a public comment period.
“As a result of this public health emergency, there is a significant shortage in the supply of blood in the United States, which early implementation of the recommendations in this guidance may help to address (even though the recommendations in this guidance are broadly applicable beyond the COVID-19 public health emergency),” the memo says.
The three month deferral period is consistent with recommendations from the American Red Cross, which before the coronavirus had called on the FDA to shorten the deferral period.
Amid the coronavirus crisis, state health officials responsible for gathering data on COVID-19 are declining to collect and report whether or not patients identify as LGBTQ — a practice that angers LGBTQ advocates who say those answers could yield important information to combat the disease.
The lack of data, advocates say, will essentially blind the public to the coronavirus’ impact on LGBTQ people — a population that may be particularly vulnerable to COVID-19 — as the epidemic continues to rise and health officials warn the death toll in the United States will hit its peak in the coming weeks.
An estimated 100,000 to 240,000 Americans may die as a result of the coronavirus epidemic, U.S. government health advisers said this week.
The deputy director of the National LGBT Cancer Network, who goes by the name Scout and has a Ph.D. in sociomedical sciences from Columbia University, said the lack of data on the coronavirus’ impact on LGBTQ people reflects the absence of LGBTQ data collection in medical surveys writ large.
“The common phenomenon of not collecting LGBTQ health surveillance data hurts us in so many ways. Now it will hurt us by masking the impact of COVID-19 on our communities,” Scout said. “Considering an estimated 3.3 million of us use tobacco products, and therefore have a higher risk of negative outcomes if we get coronavirus, not collecting LGBTQ+ status in health surveillance data is horrible. We will mourn our losses but never be able to measure them.”
The Blade reached out to several states where the confirmed cases of coronavirus infection are at their highest and as of this week surpassed 5,000 cases, according to data from the Centers for Disease Control & Prevention. Additionally, the Blade sought LGBTQ demographic information on the COVID-19 impact from jurisdictions local to the D.C. region and states that have had greater incident rates of COVID-19 cases.
The only jurisdiction to report having collected data on whether COVID-19 patients identify as LGBTQ was D.C,, where the department of health affirmed Tuesday to the Blade that process was underway.
“DC Health is collecting information about LGBTQ+ status of coronavirus patients,” said Alison Reeves, a D.C. Department of Health spokesperson. “However, that data is incomplete and will not be made public at this time.”
Harper Jean Tobin, director of policy for the National Center for Transgender Equality, said any reporting on COVID-19’s impact on LGBTQ people would likely be an undercount “due to the fast spread of the virus and the extraordinary shortcomings in the United States’ response to the pandemic.”
“Unfortunately, many of our pre-existing public health surveillance systems did not yet incorporate basic demographic data about LGBTQ people, and many health care institutions haven’t yet implemented this data collection in their patient record systems either,” Tobin said. “That’s inexcusable, but it’s also not likely we’ll be able to correct those deficiencies in the middle of a fast-moving global pandemic.”
Jurisdictions other than D.C. either didn’t respond to the Blade’s request to comment, or affirmed they didn’t collect data on whether coronavirus patients identify as LGBTQ.
In Michigan, where Detroit has become a new epicenter for the coronavirus epidemic, a spokesperson for the state department of health confirmed LGBTQ status of patients isn’t asked by health officials.
“That’s not something captured in the Michigan Disease Surveillance System where cases are reported, so we wouldn’t be able to determine that information,” said Lynn Sutfin, a spokesperson for Michigan Department of Health and Human Services.
The Michigan Department of Health and Human Services didn’t respond to a follow-up email inquiry on why LGBTQ status isn’t collected in the state medical data system.
In New York, a spokesperson said the NY Department of Health is “not tracking COVID-19 cases by sexuality,” then when asked why that was the case referred the Blade to recent remarks from Gov. Andrew Cuomo on COVID-19.
“This virus does not discriminate,” Cuomo said. “It doesn’t discriminate by age. It doesn’t discriminate by party. It affects all Americans, and what you’re seeing in New York is going to spread across this country.”
Privacy issues around asking COVID-19 patients whether they identify as LGBTQ were cited by one state contacted by the Blade about LGBTQ demographics on the epidemic.
In Washington State — where the coronavirus spread early on the during the epidemic, but has since stabilized compared to other states — the state department of health affirmed it doesn’t collect data on whether coronavirus patients identify as LGBTQ.
Danielle Koenig, a Washington State Department of Health spokesperson, said, “We don’t have sexual orientation information on patients.” When asked why that was the case, Koenig replied, “We don’t publish more specific demographic data to protect patient privacy.”
Tobin sought to assuage concerns about privacy issues on collecting LGBTQ information in health surveys by saying state officials could keep it confidential and that information could be used to augment health care.
“Providers and our leaders need to make sure that everyone who needs help is getting it, and discrimination won’t be tolerated,” Tobin said. “Though it may take much longer than it should, we need to ensure going forward that LGBTQ-inclusive demographic data is included in all our health surveillance and electronic health record systems, that this information is voluntary and confidential, and that it’s used to improve access and quality of care.”
The departments of health for New Jersey, Maryland and Virginia didn’t respond to the Blade’s request to comment, and the California Department of Health referred the Blade to a page on its website showing the information state officials record for COVID-19. (It doesn’t include whether patients identify as LGBTQ.)
Emphasizing changing forms to include LGBTQ questions amid a pandemic may not be realistic, Tobin cited several examples for why they would have been useful, including finding out whether LGBTQ people have particular health vulnerabilities and the right way to tailor public health messages.
“The health care system runs on data,” Tobin said. “Collecting information in patient records helps promote honest communication between patients and staff to make sure their health needs and concerns are addressed. It helps us determine whether certain populations are seeking or receiving specific services at different rates, or having different outcomes.”
The lack of data collection on whether coronavirus patients identify as LGBTQ appears to be the result of a general practice as well as the official CDC form specific for COVID-19 data collection, which doesn’t include questions seeking to identify whether a patient is LGBTQ.
The CDC form seeks to obtain information on patients who tested positive for COVID-19 based on age, sex and ethnicity, but no where does it ask their sexual orientation.
For the query on sex, the form allows states to record the patient’s answer as “male,” “female,” “none,” or “other.” Although those options provide some flexibility to patients who are non-binary, it doesn’t explicitly seek to ascertain whether a COVID-19 patient is transgender.
The Centers for Disease Control didn’t respond to multiple requests from the Blade on whether it has information on COVID-19’s impact on LGBTQ people, nor why its data collection survey doesn’t ask patients if they identify as LGBTQ.
Tobin said she’s optimistic about seeing more LGBTQ demographic data in health surveys in the future, but recognized the current reality.
“For now, we know that the virus doesn’t care about gender, but that having physical vulnerabilities, a high-risk job, no paid leave, smoking, lacking safe housing, or living in an institutional setting (such as a shelter, jail, or nursing home) all put you at greater risk,” Tobin said. “Trans people, on average, are more likely to experience each one of these risk factors.”
States and the CDC aren’t collecting data on whether COVID-19 patients identify as LGBTQ despite a recent joint letter declaring LGBTQ people would be vulnerable to the epidemic.
More than 150 advocates warned LGBTQ people would be disproportionately affected by the coronavirus because they smoke and suffer from cancer at higher rates; have high reported rates of discrimination in the health care system; and are disproportionately affected by HIV/AIDS.
(However, Dr. Susan Henn, chief medical officer for the D.C.-based Whitman-Walker Health, has told the Blade for people with well-managed HIV, the increased risk would only be “very slight.”)
The letter takes note ensuring “surveillance efforts capture sexual orientation and gender identity as part of routine demographics” would be a crucial goal to achieve in serving LGBTQ people during the COVID-19 epidemic.
Dr. Scott Nass, president of GLMA: Health Professionals Advancing LGBTQ Equality and a Palm Springs, Calif.-based family physician, said LGBTQ advocates will continue to beat the drum for LGBTQ inclusion in health surveys despite states declining to do that during the coronavirus crisis.
“GLMA has long advocated for data collection inclusive of sexual orientation and gender identity as central to ensuring the health and well-being of LGBTQ people,” Nass said. “Given the potential risk factors for LGBTQ individuals, inclusive data collection at federal and state levels may reveal important and life-saving data about the coronavirus and LGBTQ people and that’s exactly why GLMA, the National LGBTQ Cancer Network and more than 150 organizations called for data inclusion in our open letter on COVID-19 and LGBTQ communities.”
The Department of Health & Human Services added a question on sexual orientation to the National Health Interview Survey, the principal source of information on the health of the U.S. population. Although the administration was sluggish to add questions on transgender status, the Obama administration eventually allowed states to ask both sexual orientation and gender identity questions on the Behavioral Risk Factor Surveillance System, or BRFSS, if they so choose.
Scout said allowing states to include the LGBTQ questions on health surveys “has actually proven unexpectedly strong as political winds shifted” and now around 35 states made the inquiry on BRFSS, but “that’s still not full U.S. data.”
“Collecting SOGI data on electronic health records is rare as hens teeth,” Scout said. “This leaves us with all of our health issues masked for anything that is reliant on real time or end stage disease reporting (save HIV which has a separate system). Thus, in a time like today, we will only be able to measure which LGBTQ people had COVID years after the fact through self-report of people who have survived and happen to live in a state that collects SOGI on their BRFSS, and then only if BRFSS coordinators decide to add a COVID question.”
Amid concerns a lack of federal protections leaves LGBTQ people open to discrimination, a group of 87 House Democrats are calling on Dr. Deborah Birx to affirm anti-LGBTQ discrimination will be prohibited in coronavirus relief efforts.
The March 26 letter, coordinated by Rep. Deb Haaland (D-N.M.), Rep. Sharice Davids (D-Kansas) and the LGBTQ Equality Caucus, draws on the assertion LGBTQ people are disproportionately vulnerable to the coronavirus.
“We call on you to keep these considerations in mind as you develop solutions and we ask you to be proactive by publicly asserting that any programs or initiatives that assist the American people during this crisis must be conducted without discrimination against any community, including the LGBTQ community, and that there are no grounds by which this type of discrimination is acceptable,” the letter says.
LGBTQ people are disproportionately vulnerable to the coronavirus, the letter says, because that have high reported rates of discrimination in the health care system; have greater rates of smoking, cancer and depression; and are disproportionately affected by HIV/AIDS, which can depress immune systems and make patients vulnerable to disease.
Older people are vulnerable to the coronavirus, and LGBTQ elders even more so, the letter says, because they “grew up in an era where asserting an LGBTQ identity was difficult to impossible” and now have limited social support.
Birx, named the White House Coronavirus Response Coordinator, has become a rising star as result of her diplomatic approach to answering questions during the daily White House briefings on the pandemic.
As the House Democrats’ letter notes, Birx also has a history in fighting the HIV/AIDS epidemic. Since 2014, she has served as ambassador-at-large and U.S. Global AIDS Coordinator since 2014, which makes her responsible for the President’s Emergency Plan for AIDS Relief, or PEPFAR.
“Based on your many years of service in the fight against HIV/AIDS, we take comfort knowing that you are in this leadership position and have been, and will continue to be, an ally to the LGBTQ community,” the letter states.
Birx has compared the coronavirus pandemic to the fight against HIV/AIDS in the early days of the epidemic during a White House briefing in the Rose Garden earlier this month.
“We had another silent epidemic: HIV,” Birx said. “And I just want to recognize the HIV epidemic was solved by the community: the HIV advocates, and activists who stood up when no one was listening and got everyone’s attention. We’re asking that same sense of community to come together and stand up against this virus.”
House Democrats write the letter in the aftermath of the Trump administration declaring it will refuse to enforce an Obama-era rule barring anti-LGBTQ discrimination among federal grantees, such as taxpayer-funded adoption agencies and medical care providers. The Department of Health & Human Services had implemented the rule in December 2016 just before Obama left the White House and Trump took office.
Faced with calls to lift the rule from religious-affiliated non-profits, including Catholic Social Services, the Trump administration announced late last year it would not only the start the rule-making process to lift the regulation, but cease enforcing it immediately.
Earlier this month, a trio of LGBTQ legal advocacy groups filed a lawsuit against the decisionto stop enforcing the rule in court, citing the discrimination LGBTQ people may face in social services, such as meals on wheels, without the implementation of the rule.
Although House Democrats don’t explicitly mention the rule or the lawsuit, they cite many of the same concerns expressed in the lawsuit against the Trump administration.
“For every community impacted by coronavirus, you will often see ways in which the LGBTQ populations within those communities face harsh realities,” the letter says. “Young people whose colleges are closing may not have supportive families who will take them in. LGBTQ people who lose their jobs may have a harder time finding new work based on pre-existing patterns of discrimination against LGBTQ job-seekers. Those LGBTQ people in prison or who are navigating the immigration system already face unique challenges, including vulnerability to violence, which can be made worse during a crisis such as this.”
The record-setting $2 trillion deal Congress reached on Wednesday to stimulate the economy amid the devastation of the coronavirus pandemic contains $155 million to bolster HIV programs serving the nexus of communities affected by both diseases.
For the Ryan White HIV/AIDS Program, the deal includes $90 million for existing contracts under the law and the Public Health Service Act. At the same time, the deal appropriates $65 million for the Housing Opportunities for Persons with AIDS, or HOPWA, to maintain operations and provide rental assistance amid the coronavirus crisis.
In both cases, the money must be used by Sept. 30, 2022, although appropriations for HOPWA afford some additional flexibility. The money is on top of the $330 million Congress appropriated in December 2019 for Ryan White and other initiatives in fiscal year 2020 as part of the Trump administration’s initiative to beat HIV by 2030.
The money for the HIV programs is geared toward ensuring recipients — which include cities, states and community health centers — can continue and expand those services as the coronavirus pandemic complicates efforts to address HIV.
Rachel Klein, deputy executive director of the AIDS Institute, said the additional money for Ryan White programs, which provides care to low income people with HIV, is essential for HIV-positive people trying to obtain services amid the coronavirus pandemic.
“The program itself needs to be able to adapt to provide care in different ways,” Klein said. “People are trying to avoid sitting in public meeting rooms unnecessarily right because they don’t want to be exposing themselves potentially to a new virus. The programs are going to need to be able to be flexible, to find creative ways to ensure that people are able to still get the care that they need, and that’s going to come with some costs.”
There are mixed opinions about whether people with HIV are more at risk for COVID-19. On one hand, HIV if left untreated will depress a patient’s immune system and make them more susceptible to disease, but Dr. Susan Henn, chief medical officer for the D.C.-based Whitman-Walker Health, has told the Blade for people with well-managed HIV, the increased risk would only be “very slight.”
Lauren Killelea, director of public policy of the National AIDS Housing Coalition, said money for HOPWA is needed because people with HIV without access to housing “are less likely to be virally suppressed and therefore more susceptible to COVID-19.”
“HOPWA is uniquely situated to be a great, flexible resource for low-income people living with HIV during the coronavirus pandemic,” Killelea said. “HOPWA can not only provide permanent housing but also short-term assistance as well as critical supports like access to transportation and nutrition services.”
After failed votes in the U.S. Senate and negotiations throughout the week, congressional leaders had announced Wednesday morning they had reached a deal on Stage 3 for congressional action in response to the coronavirus crisis.
A vote was expected earlier Wednesday after the Senate returned from recess, but proceedings were halted over objections from a small cadre of Republicans — including Sens. Tim Scott (S.C.), Ben Sasse (Neb.) and Lindsey Graham (S.C.) — over language they say could lead to the exploitation of unemployment benefits. After leaders agreed to an amendment to appease these lawmakers, the Senate voted to approve the measure 96-0.
The next step is House approval for the stimulus package and President Trump signing the package into law, both of which were expected to happen expeditiously.
A number of parties had pressed Congress for the HIV funds in the stimulus package. Last week, AIDS United and a coalition of 90 HIV/AIDS and LGBTQ groups, including GLAAD, the Human Rights Campaign, Whitman-Walker Health, NMAC, NASTAD, NCSD and the AIDS Institute, sent a letter to every member of Congress urging them to consider people with HIV and “craft a relief package that takes the unique needs of this population into account.”
In a letter to Congress dated March 17 and obtained by the Blade, the White House Office of Management & Budget sought money in the stimulus package for Ryan White and other health programs to the tune of $1.336 billion. An attached request from Health Resources & Services Administration makes that request for “health centers to expand triage and treatment capacity and telehealth, rural hospital technical assistance and the Ryan White HIV/AIDS Program, in response to coronavirus.”
The request, however, makes no mention of HOPWA funds, which the Trump administration sought to cut earlier this month in its budget request for fiscal year 2021. OMB didn’t respond to the Blade’s request to comment on whether it welcomes the HIV money appropriated in the stimulus package.
Killelea said the HOPWA money was inserted by the Transportation and Housing & Urban Development Act appropriations staff headed by Sens. Susan Collins (R-Maine) and Jack Reed (D-R.I.) and Reps. David Price (D-N.C.) and Mario Diaz-Balart (R-Fla.). (Diaz-Balart was the first member of Congress confirmed to test positive for the coronavirus.)
Congress makes the appropriations at the same time the Trump administration has made a pledge to beat HIV in the United States with a PrEP-centric plan that aims at reducing new infections by 75 percent in five years and 90 percent by 2030.
Carl Schmid, executive director of the HIV & Hepatitis Policy Institute and co-chair of Presidential Advisory Council on HIV/AIDS, told the Blade the extra money is needed because the coronavirus threw a “monkey wrench” in the HIV plan.
“I was just talking today to someone at the CDC that several people from the center for that are working on HIV are being used to address COVID-19, and it’s a significant amount of their staff, because they all have the expertise in infectious diseases, and the doctors, too, in the field,” Schmid said. “That’s why I can see a lot of this 90 million being used to, for the doctors in the workforce.”
As Congress advances the deal, the Health Resources & Services Administration’s HIV/AIDS Bureau was set to have a phone conference with grant recipients and stakeholders across the country on Thursday at 3:30 p.m., according to a notice shared with the Washington Blade.