The Trump administration has appeared to have given up a proposed regulation that would have allowed taxpayer-funded homeless shelters to refuse to place transgender people consistent with their gender identity, although another measure permitting HHS federal grantees to discriminate against LGBTQ people may be imminent.
With the Trump administration coming to an end less than one month away, the anti-trans rule under the Department of Housing & Urban Development hasn’t yet been submitted to the White House Office of Management & Budget. The Office of Information & Regulatory Affairs at OMB, which manages the rule-making process for federal agencies, has no listing for its rule under the “regulatory review” portion of the website.
Additionally, the rule is scheduled to become final April 2021. That would be after the swearing-in of President-elect Joe Biden, whose administration would presumably reject the proposed regulation.
By contrast, the rule allowing recipients of grants from the Department of Health & Human Services to discriminate against LGBTQ people has been received by OMB and under review since May 2020. Further, the December 9 issue of the Trump administration’s regulatory agenda indicates OMB intends to make the rule final during the transition period before Trump’s exit.
A HUD official, speaking to the Washington Blade on anonymity, said in the normal schedule for rule regulations and filings the anti-trans homeless shelter rule “will not be finalized before Jan. 20 and isn’t scheduled for finalization until sometime in April.”
“Given the incoming administration, it would seem likely that HUD will take some form of action to either not finalize the rule or withdraw it from consideration soon after their arrival,” the official said.
It’s unclear whether or not a formal decision was made within HUD to let the rule die with the end of the Trump administration. The HUD official said “basically it wasn’t prioritized and therefore it won’t become a final rule because of scheduling.”
The HUD rule, formally proposed in July 2020 after years of mixed signals from Secretary of Housing & Urban Development Ben Carson under questioning from Reps. Mike Quigley (D-Ill.) and Jennifer Wexton (D-Va.), would allow federally funded single-sex homeless shelters to turn away transgender people seeking emergency housing. The sole basis would be the staff perception on whether or not that transgender person appears sufficiently masculine or feminine to be housed in that facility.
Any number of reasons could have contributed to HUD not prioritizing the rule, including delay due to the volume of comments, public backlash over the anti-trans regulation or simply incompetence in the Trump administration.
It could also be the result of legal uncertainty about the proposed rule in the wake of the U.S. Supreme Court ruling earlier this year in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal under Title VII of the Civil Rights Act of 1964. The underlying reasoning behind the decision applies to all laws banning sex discrimination, essentially making anti-LGBTQ illegal in employment, housing, credit, health care, education and jury service.
With the HUD rule, the Trump administration appeared to propose a workaround for Bostock in the case of sex-segregated homeless shelters, asserting they couldn’t turn away transgender people entirely, but could refuse to place them consistent with their gender identity.
“For example, under the proposed rule, if a single-sex facility permissibly provides accommodation for women, and its policy is to serve only biological women, without regard to gender identity, it may decline to accommodate a person who identifies as female but who is a biological male,” the proposed rule says. “Conversely, the same shelter may not, on the basis of sex, decline to accommodate a person who identifies as male but who is a biological female.”
It’s possible, however, Trump administration lawyers concluded that rationale wasn’t enough to get around Bostock and convinced HUD to abandon the regulation on the basis that it would make the department vulnerable to lawsuits.
Newsrooms around the world were stretched to the limit in 2020, as journalists, including those at the Blade, struggled to cover multiple once-in-a-lifetime crises at once: a pandemic, the worst financial crisis since the Great Depression, a reckoning over racial justice and police brutality, and the 2020 presidential election.
Here are the Blade staff picks for the top 10 national news stories of 2020.
10: Methodist Church faces split
Amid division in the denomination over LGBTQ clergy and same-sex marriage, the Methodist Church proposed a formal plan this year to separate on the lack of agreement on religious views toward LGBTQ people.
The Methodist Church agreed to adopt a more LGBTQ-inclusive doctrine while allowing a coalition of conservative congregations in the United States and Africa who objected to change to separate. The “Protocol of Reconciliation and Grace through Separation” would allow the departing congregations to keep their property and give them $25 million to form a new denomination.
The plan would have needed approval in May 2020 in General Conference for ratification. The vote, however, never took place and was postponed until 2021 during the coronavirus pandemic.
9: Trump campaign stages Pride events
Upon stepping down from the Trump administration, Richard Grenell took on a new role as senior adviser for the Trump campaign on LGBTQ outreach and was made co-chair of the Trump Pride coalition, marking the first time a Republican presidential nominee had an LGBTQ political coalition.
Trump Pride held events in states deemed competitive in the election, including Arizona, Michigan, Pennsylvania, and Florida. Tiffany Trump, who had heretofore kept a low profile during her dad’s administration, participated in Trump Pride events in full support of her father, although she was mocked on Twitter during her public appearances.
Arguably, the Trump Pride coalition found success in convincing some LGBTQ voters to come to their side. Exit polls revealed 61 percent of LGBTQ voters backed Biden, the lowest percentage of support ever for a Democratic nominee, while 28 percent backed Trump, doubling his LGBTQ support from 2016.
8: Ric Grenell named acting DNI, 1st out gay Cabinet official
A Republican administration made the historic first of appointing the first openly gay person to a Cabinet post when President Trump named Richard Grenell, who had been serving as U.S. ambassador to Germany, as acting director of national intelligence.
Critics pointed out Trump never sought or won Senate confirmation for the role. Grenell also used the position as a political tool to declassify documents, seeking to impugn Biden for unmasking individuals caught up in surveillance during the Michael Flynn investigation.
But Grenell also used the position to highlight the global initiative to decriminalize homosexuality he spearheaded, threatening to cut off U.S. partners overseas from shared intelligence if they didn’t respect LGBTQ human rights.
Upon his departure, Grenell posted a photo to Instagram asserting President Trump gave him his Cabinet chair because being the first openly gay person to serve at that level was a “big deal.”
7: LGBTQ candidates win big on election night
LGBTQ candidates in the 2020 election achieved historic firsts, breaking barriers and demonstrating political aspirants in marginalized communities have no limit in winning public office.
The LGBTQ Equality Caucus in the U.S. House will be expanded and diversified with the addition of Ritchie Torres and Mondaire Jones of New York, who will be the first Black, openly gay men elected to Congress. Torres is also the first openly gay Afro-Latino elected to Congress.
Sarah McBride, a transgender advocate famous for her speech at the Democratic National Convention in 2016, was elected to a seat in the Delaware State Senate, setting her up to become the highest-ranking openly transgender legislator in the United States. Other transgender candidates, Taylor Small in Vermont and Stephanie Byer in Kansas, won seats in state legislatures, nearly doubling the number of transgender legislators in the United States.
6: FDA eases gay blood ban
In a move uncharacteristically positive for the LGBTQ community from the Trump administration, the Food & Drug Administration this year eased the ban on blood donations from gay and bisexual men.
The previous policy, set up by the Obama administration, required men to abstain from having sex with men for 12 months before making a donation. The FDA, amid a blood shortage during the coronavirus pandemic, shortened the deferral period to three months. The 12-month wait instituted during the Obama administration was a drastic change from the lifetime ban on blood donations from gay and bisexual men instituted in 1983.
President Trump said he had no hand in the FDA decision. When asked by the Blade about the change during a White House news conference, Trump replied, “No. I didn’t know anything about that. That was done by the FDA, very capable people at the FDA.”
5: RBG dies weeks before election
Ruth Bader Ginsburg, known as a champion of LGBTQ rights as an associate justice on the U.S. Supreme Court, died after 27 years on the bench. Hundreds gathered at the Supreme Court on the night of her death to adorn the ground with memorabilia in mourning over her passing.
Ginsburg had joined each of the milestone rulings in favor of LGBTQ rights and same-sex marriage, including Romer v. Evans, Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges. Most recently, Ginsburg joined the Bostock decision finding anti-LGBTQ discrimination is illegal under federal civil rights law.
President Trump, however, chose to fill Ginsburg’s seat with Amy Coney Barrett, a jurist who’s a favorite among the Christian right. Shortly after confirmation, Barrett participated in arguments for the case of Fulton v. City of Philadelphia, which will determine whether a Catholic foster care agency has a First Amendment right to reject LGBTQ families over religious objections.
4: Landmark SCOTUS ruling on LGBTQ workplace rights
In a historic ruling ending a long fight to prohibit employment discrimination against LGBTQ people in federal law, the U.S. Supreme Court ruled in the consolidated case of Bostock v. Clayton County that anti-LGBTQ discrimination constitutes a form of sex discrimination.
Although the ruling pertained to employment discrimination under Title VII of the Civil Rights Act of 1964, the decision has broad applications to all laws banning sex discrimination, including civil rights law in housing, health care, education, and credit.
The litigation came about after Gerald Bostock was fired from his job as a municipal worker after expressing interest in a gay softball league and Aimee Stephens, a funeral home director in Michigan, who was fired for being transgender. Stephens died shortly before the decision was handed down.
The Trump administration, however, never fully implemented the decision, and outright flouted it with regard to access to sex-segregated spaces for transgender people. Biden is expected to recognize Bostock fully upon taking office.
3: Calls for racial justice after George Floyd killed
The death of George Floyd at the hands of Minneapolis police ignited a firestorm of protests and energized the Black Lives Matter movement, bringing calls for police reform, if not to outright defund the police, and end systemic racism.
LGBTQ Pride events, which had been cancelled amid the coronavirus epidemic, were in some cases back on with a renewed focus on anti-racism. (Drama followed, however, when LA Pride planned a solidarity march and sought cooperation with police. Organizers ended up handing over the reins to All Black Lives Matter, an advisory board of Black LGBTQ activists.)
Much of the outrage was directed at President Trump, who reportedly hid in a bunker amid protests that became violent outside the White House. Afterwards, Trump went to St. John’s Church near Lafayette Square with Cabinet officials to hold up a Bible in a controversial photo-op.
2: Biden wins; Kamala Harris makes history
Joe Biden won the presidential election this year, ensuring Donald Trump would be a one-term president and bringing an end to an administration with a record of anti-LGBTQ policies.
Biden, whose comments in favor of same-sex marriage on “Meet the Press” in 2012 are still remembered for their impact, has long-standing connections to the LGBTQ community and issued a detailed policy plan for LGBTQ initiatives he’d pursue in his administration. Biden has pledged to end the transgender military ban and sign the Equality Act into law within 100 days.
Vice President-elect Kamala Harris, who made history as the first woman of color elected as part of a presidential ticket, also has deep ties to the LGBTQ community. As California attorney general, Harris declined to defend California’s ban on same-sex marriage on Proposition 8 in court and raised LGBTQ issues as U.S. senator.
In another historic move, Biden tapped Pete Buttigieg for Transportation Secretary. He would become the first openly gay Senate-confirmed Cabinet official if approved in 2021.
1: Coronavirus ravages U.S. public health, economy
The coronavirus pandemic left hundreds of thousands dead, disrupted lives and threw the economy into a tailspin, stoking fears in a way no other public health crisis has done since the HIV/AIDS epidemic as the virus continued to spread. The outbreak is the Washington Blade’s top national news event of 2020.
COVID-19, which originated in China, had killed by mid-December an estimated 300,000 people in the United States and infected 16 million. Although states kept tabs on racial, ethnic, and gender demographics on the disease, few recorded data on LGBTQ casualties.
An estimated 100,000 businesses across the nation closed their doors as governors ordered residents to remain at home, much to the consternation of conservative activists who said the directives were unconstitutional. The annual Pride month celebrations and parades were among the events cancelled.
The downturn in the economy forced many small business to close and put many workers on unemployment. Hospitality workers, many of whom are LGBTQ people, were hit especially hard. The Paycheck Protection Program saved many jobs, but as of late December, Congress had not come to an agreement on additional stimulus.
President Trump, who continued to insist the coronavirus would simply “go away,” faced heavy criticism for failing to contain the epidemic, leading to major change in the 2020 election.
Honorable mention: Blade reporter refuses to move seat in WH briefing room
When Blade reporter Chris Johnson was fulfilling his role in the pool rotation for the White House press corps, the White House press office sought to humiliate CNN’s Kaitlan Collins by ordering Johnson to switch seats with her. Collins had an assigned seat in the front row of the briefing room, while the seating arrangements had the Blade toward the back.
Johnson refused to move, pointing out the White House Correspondents Association controls the seating assignments, not the White House. Johnson held firm even though he was told the Secret Service was involved in wanting the switch. Secret Service later denied any involvement. Johnson won widespread praise from mainstream media colleagues for his cool-headed, brave handling of the situation. (By Kevin Naff)
LGBTQ staffers who are familiar faces from the Obama years are among the choices for the upcoming Biden administration as the transition continues to ramp up. One prominent LGBTQ Trump supporter is among the appointments President Trump has made prior to his exit.
Stuart Delery, who served during the Obama years as acting U.S. associate attorney general and was the most senior openly LGBTQ official in the U.S. Justice Department’s history, was announced Wednesday as White House deputy counsel for President-elect Joe Biden.
Delery, currently a partner at Gibson, Dunn & Crutcher, LLP, was also assistant attorney general for the Civil Division, a role in which he supervised the defense of the U.S. law in court on behalf of the federal government, and was senior counselor to Attorney General Eric Holder, according to his bio. Delery now lives in Washington, D.C., with his husband and two children
Gautam Raghavan, who served as White House LGBTQ liaison under former President Obama and was chief of staff to Rep. Pramila Jayapal (D-Wash.), was also tapped as deputy director of the White House Presidential Personnel Office.
Annise Parker, CEO of LGBTQ Victory Institute, said in a statement Wednesday Raghavan’s appointment “demonstrates the President-elect’s long-term commitment to building an administration that is reflective of America.”
“He believes a diverse administration best serves the president and our nation and will ensure appointing qualified LGBTQ people, women and people of color at every level of government remains a priority for the next four years,” Parker said. “Gautam also understands our community is not monolithic and that LGBTQ people of all races, sexual orientations and gender identities must be part of the new administration.”
More LGBTQ appointees may be on the way. Biden, to great fanfare, has previously announced Pete Buttigieg would be his pick for transportation secretary, potentially making him the first Senate-confirmed Cabinet appointee.
Few Cabinet-level positions are remaining for LGBTQ people to fill. Randi Weingarten and Denise Juneau, former superintendent of the Seattle public school system, had come up possible names for education secretary, but Biden ended up picking Connecticut Education Commissioner Miguel Cardono.
But the role of head of the U.S. Small Business Administration is still open. Fred Hochberg, who during the Obama years served as head of the U.S. Export-Import Bank, continues to be talked about as a possibility.
Biden has also yet to name his choice for U.S. attorney general. Maura Healey, who as Massachusetts Attorney General became the first openly gay state attorney general, has been named as a possibility, but she’s viewed as a long-shot amid reports Biden has narrowed his choice to either Sen. Doug Jones (D-Ala.) or U.S. Circuit Judge Merrick Garland.
The LGBTQ Victory Institute, which seeks to help qualified LGBTQ people obtain positions in the U.S. government, has been renewing its efforts calling on Biden to name a transgender person for an appointment subject to Senate confirmation, sources familiar with the talks told the Blade. No openly transgender person has ever sought or obtained Senate confirmation for a presidential appointment in U.S. history.
Although no exact position was named, Pennsylvania Secretary of Health Rachel Levine, who was passed over for Biden’s choice as U.S. surgeon general, still comes up. Others are Amanda Simpson, who as the first transgender woman presidential appointee served in the departments of defense and homeland security during the Obama years, and Shawn Skelly, a transgender veteran and Obama alum who currently serves on Biden’s landing team for the Defense Department.
Securing the appointment of a transgender person during the Biden administration has openly been one of the main goals of the LGBTQ Victory Institute, in addition to the naming of a Senate-confirmed openly LGBTQ Cabinet official. Another goal is the naming of an LGBTQ woman, transgender person or person of color to a position of U.S. ambassador.
Jamal Brown, a Biden transition spokesperson, responded with a general comment when asked by the Blade via email about potential LGBTQ appointments.
“President-elect Biden is working to build an administration that looks like America, starting with the first woman of South Asian descent and first Black woman to be vice president-elect, as well as a slate of historic nominees and appointees, to-date,” Brown said. “Over the coming weeks, our team will continue to build upon President-elect Biden’s legacy of advancing LGBTQ+ equality by shaping a government that reflects the breadth and diversity of our nation.”
Meanwhile, on the same day, President Trump shook things up with a slew of pardons and railed in a video he posted to Twitter against the coronavirus spending package, the the White House announced he had selected Richard Grenell as a member of the U.S. Holocaust Memorial Council.
Grenell, a Trump loyalist who as former acting director of national intelligence was the first openly gay Cabinet member and was the face of LGBTQ outreach for Trump’s re-election campaign, was among three individuals given seats on the council on Tuesday.
It remains to be seen whether Grenell will seek to amplify the U.S. Holocaust Memorial Museum’s mission to highlight gay and bisexual men who were victims of the Holocaust. Grenell didn’t respond via Twitter to comment.
In the wake of extended deliberations, Congress included in its deal to provide coronavirus relief and fund the government for fiscal year 2021 an increase of $137 million for the Trump administration’s plan to beat HIV/AIDS, but stopped short of the full request, much to the disappointment of advocates fighting the epidemic.
The $1.4 trillion deal, unveiled Monday after days of negotiations amid fears of a potential government shutdown, notably includes $600 in stimulus checks to U.S. adults and new money for small businesses under the Paycheck Protection Program. In mere hours after the deal became public, Congress voted to approve the measure Monday evening.
The deal, however, also contains funds for the Ending the HIV Epidemic initiative, which seeks to beat the HIV epidemic by 2030.
The FY-21 deal appropriated $403 million for the initiative, increasing the FY-20 funding levels by $137 million. The $137 million increase breaks down as follows:
$35 million for Centers for Disease Control’s HIV prevention efforts;
$35 million for the Ryan White HIV/AIDS Program;
$52 million for HRSA Community Health Centers to focus on PrEP to prevent HIV transmission;
$5 million for Indian Health Service for HIV and hepatitis; and
$10 million for National Institute for Health’s Centers for AIDS Research.
The final package also includes important funding increases for other domestic HIV programs, including an increase of $20 million for HUD’s Housing Opportunities for People with AIDS, or HOPWA, $1.5 million for the Minority HIV/AIDS Fund and $1 million for the CDC’s School Health program.
But the funding is a far cry from the $412 million increase sought by the Department of Health & Human Services, making a total appropriation of $678 million in FY-21, to ramp up the Ending the HIV Epidemic initiative in each designated high-incident jurisdiction with testing, linkage to care and PrEP activities.
Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, said in a statement the funds Congress appropriated aren’t what the Trump administration, or advocates against HIV/AIDS, were seeking, but he was hopeful they would be enough to keep the initiative going.
“We thank the president for initially proposing and now the Congress for including increased funding for the second year of the Ending the HIV Epidemic Initiative,” Schmid said. “While it is not as much as we anticipated, it is reassuring that both the House and Senate, in a bipartisan fashion, support increases to our public health efforts so that we can continue the momentum already created and make further progress in ending HIV in the U.S.”
Evan Hollander, a House Appropriations Committee spokesperson, said the $403 million allocated by Congress represents a 48.8 percent increase, which he said “far outpaces the overall increase in non-defense discretionary spending.”
Taking a jab at the Trump administration, Hollander said the $678 million sought by the Trump administration sounds better than it is because it was “predicated on cuts to other labor, health and human services, and education programs.”
No HIV money was included in the coronavirus relief portion of the package. That stands in contrast to the CARES Act, which included $155 million for Ryan White programs as part of the earlier coronavirus package.
Hollander said House Democrats included $100 million in the Heroes Act, the $4 trillion COVID-19 relief passed in October, but Republicans “insisted on dramatic cuts to the emergency appropriations that were included in that bill.”
The Senate Appropriations Committee didn’t respond to a request to comment for this article. The White House referred the Blade to the Office of Management & Budget, which didn’t respond to a request to comment. HHS also didn’t respond to a request to comment.
Jennifer Kates, director of global health and HIV policy at the Kaiser Family Foundation, was more bleak in her assessment and openly wondered if the amount Congress appropriated would be enough to complete the HIV initiative by its 2030 goals.
“The funding in the bill for the Ending the HIV Epidemic initiative is below the president’s request, and it’s unclear if this will be sufficient for reaching the initiative’s goals within the timeline, particularly since the timeline itself has already been threatened by COVID-19,” Kates said.
Meanwhile, Congress also agreed to reject the draconian cuts the Trump administration had sought for global AIDS programs as part of its FY-21 budget request.
The deal allocated $5.9 billion for the President’s Emergency Plan for AIDS Relief, or PEPFAR, the same amount as FY-20 and $2.1 billion above Trump’s request. Congress also allocated $1.56 billion for the Global Fund to Fight AIDS, Tuberculosis and Malaria, which is $903 million above Trump’s request.
Jessica Bassett, a spokesperson for the New York-based grassroots group Health GAP, said via email to the Blade, however, the allocation for global programs is “another punt from Congress when what people with HIV need is urgent, decisive action.”
“The U.S. was already underfunding its share of the global AIDS response via PEPFAR and the Global Fund to Fight AIDS, Tuberculosis & Malaria – and that was before COVID-19,” Bassett said, “The COVID-19 pandemic has exposed and exacerbated weaknesses in the HIV response, triggering life-threatening disruptions to HIV treatment, prevention, and care for adults and children, and undermining years of progress in the fight against HIV in just a matter of months.”
Bassett concluded she wants to see big changes when the Biden administration begins on Jan. 20, when she said Congress “won’t be able to use Trump’s perennial slash-and-burn budget proposals as cover for flatlining global AIDS funding.”
“The Biden-Harris administration should work with Congress to deliver a bold global HIV catch-up plan to save lives, particularly the lives of those who have suffered the most during the pandemics: LGBTQ+ people, children, pregnant people, sex workers, people who use drugs, and incarcerated people,” Bassett said. “Scaling up the U.S. investment to put the global AIDS response back on track must be a priority for the new administration, first to mitigate the harms done by COVID-19, and then year after year to successfully expand access to
Undeterred by being in the lame duck for Congress, the U.S. Senate on Tuesday approved the nomination of Stephen Schwartz to the U.S. Court of Appeals for Federal Claims, a nominee with an anti-LGBTQ record who rounds out the unprecedented number of judges confirmed under President Trump.
The vote on the Schwartz confirmation was a strict 49-47 party-line vote, with Republican senators, including Sen. Susan Collins (R-Maine), voting to approve the Trump pick while Democratic senators voted to reject him.
Nominated by Trump in June 2017, Schwartz’ nomination had been pending for more than two years and takes place in lame duck just before the end of the Trump administration and after the 2020 election when senators would be held accountable for their votes. Schwartz, 34, was confirmed to serve for a 15-year term on the U.S. Court of Appeals for Federal Claims.
When North Carolina’s anti-LGBTQ House Bill 2 was challenged in court, Schwartz represented the North Carolina legislature in defending the law, which barred municipalities from enacting LGBTQ non-discrimination ordinances and transgender people from using bathrooms in state-owned properties consistent with their gender identity.
Schwartz has also served as counsel to the Gloucester County School Board in Virginia in seeking to bar transgender student Gavin Grimm from access the restroom consistent with his gender identity. After ruling in favor of Grimm, the U.S. Fourth Circuit Court of Appeals in September refused to reconsider the case “en banc” at the request of the school.
Schwartz, in written responses to the Senate Judiciary Committee, denied his roles in the litigation would have any bearing on his approach as a federal appeals judge because he has “represented a diversity” of interests.
“Like many judicial nominees, I have represented a wide variety of clients in cases involving a wide variety of issues,” Schwartz wrote. “While some of them have been associated with political controversy, I have also been involved in a large amount of general commercial litigation with little, if any, political salience. I have represented farmers, small-boat cod fishermen, family business owners, and an inmate of the New York State prison system. I have been both aligned with and adverse to the federal government’s positions at various times.”
Asked specially about representing Gloucester County School Board against Grimm, Schwartz declined to offer go into details, but said he supports “privacy and dignity” for all people.
“This question refers to a pending case in which I currently represent one of the parties,” Schwartz wrote. “My obligations as an advocate make it inappropriate for me to answer this question in detail. I do believe that everyone is entitled to basic privacy and dignity.”
Sasha Buchert, senior attorney at Lambda Legal, said in a statement the confirmation Schwartz “another dark day for the U.S. judiciary and the latest attack on LGBTQ people from the Trump-Pence Administration.”
“Among the terrible catalogue of Trump’s nominees, Schwartz ranks at the top because of the extreme damage we know he would inflict upon our communities and institutions,” Buchert said. “Now, he will serve for 15 years on a consequential court that oversees LGBT issues in the military, and the balance between government actions and the people.”
To counterbalance Trump’s picks, progressives have been pushing the expansion of the judiciary, otherwise known as packing the court, when Biden takes office with Democratic choices, although that plan will likely not come to fruition after Democrats came up short in Senate pickups in the 2020 election.
Alphonso David, president of the Human Rights Campaign, said in a statement Schwartz’s record of litigating against LGBTQ right makes him unfit for the judiciary.
“Schwartz has made his career by actively working to undermine LGBTQ rights — from defending North Carolina’s House Bill 2 that mandated discrimination against LGBTQ people to supporting Gloucester County School Board’s discriminatory restroom policy that segregrated transgender students from their peers,” David said. “Schwartz is unqualified and unfit for any court, yet the Republican leadership in the Senate is attempting to advance his nomination through the lame duck with only days until President-elect Biden takes office.”
Other anti-LGBTQ judges confirmed under Trump are U.S. District Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, who served as deputy general counsel First Liberty Institute, which represented an Oregon refusing to make a wedding cake of a same-sex couple; and U.S. Circuit Judge Kyle Duncan, who also had a role in litigation against Grimm. More recently as a judge, Duncan refused to recognize the personal pronouns of a transgender inmate.
With President-elect Joe Biden quickly filling out his Cabinet, fewer opportunities remain for him to make history by nominating the first openly LGBTQ person to a Cabinet-level role for Senate confirmation, which many see as a missed opportunity as Pete Buttigieg has rejected the idea of serving as director of White House Office of Management & Budget and secretary of Veterans Affairs, according to Democratic insiders.
Some LGBTQ leaders are quietly expressing frustration that the movement hasn’t pushed more aggressively for representation in Biden’s Cabinet, especially when Black and Latino advocates have been vocal and have had their efforts pay off with prominent appointments. As of now, none of Biden’s major appointees — Cabinet or otherwise — have been out members of the LGBTQ community.
Meanwhile, Buttigieg — widely assumed to be a top contender for a Cabinet post in the Biden administration — has reportedly turned down two prominent roles.
In talks with the Biden transition team, one Democratic insider said the idea of Buttigieg becoming White House OMB director came up, but he rejected it and said he wanted a “real Cabinet” position, not a “staff-level” job. Buttigieg wasn’t formally offered the role because the idea was more a discussion with senior members of the transition team, the insider said.
Additionally, Buttigieg in separate talks on Monday signaled to Annise Parker, CEO of the LGBTQ Victory Institute, that he won’t pursue the position of secretary of Veterans Affairs, according to two senior Democratic sources, despite media reports he was in consideration for the job.
Buttigieg didn’t respond to a request for comment, nor did his political action committee, Win the Era.
Biden has never explicitly made a promise to appoint an openly LGBTQ Cabinet member, notably declining to make that commitment when asked during the presidential campaign in an interview with the Philadelphia Gay News. In an interview last week with CNN, Biden generally recognized the importance of including marginalized communities in his administration, including LGBTQ people.
“Every advocacy group out there is pushing for more and more and more of what they want. That’s their job,” Biden said. “My job is to keep my commitment, to make the decisions. And when it’s all over, people will take a look and say, I promise you, you’ll see the most diverse Cabinet, representative of all folks, Asian-Americans, African-Americans, Latinos, LGBTQ, across the board.”
But if Biden declines to nominate an openly LGBTQ person to his Cabinet for Senate confirmation, he’ll miss an opportunity to make history and grant prominent visibility to a community that has a history of talented leaders being sidelined because of their sexual orientation or gender identity.
It would also give Richard Grenell — who as acting director of national intelligence in the Trump administration became the first openly gay Cabinet member in U.S. history — a reason to celebrate: Trump would have achieved a first for the LGBTQ community that Biden didn’t even attempt. (Grenell never sought or obtained confirmation for the DNI role, but did get Senate approval for his concurrent role as U.S. ambassador to Germany.)
Jamal Brown, a spokesperson for the Biden transition team, pointed out Biden has achieved many firsts for other communities in response to the simmering discontent over no LGBTQ appointees.
“President-elect Biden is working to build an administration that looks like America, starting with the first woman of South Asian descent and first Black woman to be Vice President-elect, as well as a slate of historic nominees and appointees, to date,” Brown said. “Over the coming weeks, our team will continue to build upon President-elect Biden’s legacy of advancing LGBTQ+ equality by shaping a government that reflects the breadth and diversity of our nation.”
Many observers thought Buttigieg, who made history as a gay presidential candidate in the Democratic primary, would be a shoo-in for a Cabinet role. After all, Buttigieg gave Biden a boost in the primary by dropping out after the South Carolina contest and endorsing his fellow moderate, then campaigned hard for Biden in the weeks leading up to the general election.
But finding the right role for Buttigieg — who’s talented, but lacks government experience other than serving as mayor of the small city of South Bend, Ind. — isn’t easy.
The multilingual Buttigieg emerged as a possible pick for U.S. ambassador to the United Nations, as many media outlets reported. It’s a not a Cabinet position, but is a prominent role and would have burnished Buttigieg’s foreign policy credentials for a subsequent run for public office.
But with Biden promising to conduct foreign policy with seasoned professionals, in contrast to the Trump administration’s reliance on dilettantes like Ivanka Trump and Jared Kushner, the job ended up going to Linda Thomas-Greenfield, who as a Foreign Service officer had multiple postings in the Caribbean, Africa, and Asia and served as assistant secretary of state for African Affairs in the Obama administration.
As noted, both the idea of director of OMB and secretary of VA have come up in talks with Buttigieg, but he rejected them, according to knowledgable sources. The nod for OMB ended up going to Neera Tanden, president of the Center for American Progress, although she may face a difficult Senate confirmation fight.
It should be noted the VA has a long history and reputation for institutional problems in delivering care to veterans. Anyone running the VA would face criticism for its inefficiencies and the job is widely considered more appropriate for an elder statesman as opposed to a young politician eager to make another run for office.
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.”
House Speaker Nancy Pelosi (D-Calif.) held firm to her commitment to civil rights for transgender kids Friday under questioning from a hostile reporter who asked about students accessing bathrooms, sports and locker rooms consistent with their gender identity.
During a weekly news conference where Pelosi gave updates on whether Congress would reach a deal on coronavirus relief, a reporter from the Christian News Service asked: “Joe Biden says he’ll give transgender students access to sports, bathrooms, and locker rooms in accordance to their gender identity in all federally-funded schools. Does he have the power to unilaterally do this and do you agree?”
Pelosi was succinct in her response and said, “Yes and I think he does.”
Such guidance would be similar to the guidance issued during the final year of the Obama administration assuring transgender students access to schools facilities consistent with their gender identity, including bathrooms, under Title IX of the Education Amendments of 1972. Within months after President Trump took office, Education Secretary Betsy DeVos and former U.S. Attorney General Jeff Sessions rescinded that guidance under pressure states objecting to the measure.
Despite the Trump administration’s change, administration of Title IX to allow transgender students access to bathrooms, sports and locker rooms consistent with their gender identity is now required regardless of whether or not Biden issues guidance. This year, the U.S. Supreme Court decided in the case of Bostock v. Clayton County anti-transgender discrimination is a form of sex discrimination. Although the case was about employment, it has broad applications and would cover schools under Title IX.
Biden, in the comprehensive LGBTQ plan his issued during his presidential campaign, pledged on his first day in office to reinstate the Obama guidance for transgender students revoked by the Trump administration. As recently as the day of the exchange between the reporter and Pelosi, Biden promised at the International LGBTQ Leaders Conference “the most pro-equality administration in history.”
Gillian Branstetter, a transgender advocate and spokesperson for the National Women’s Law Center, said Pelosi is “absolutely right” and called on the upcoming Biden administration to reinstate the guidance.
“The Supreme Court was abundantly clear when it found sex discrimination laws prohibit discrimination on the basis of sex, exactly as Title IX does,” Branstetter said. “And given the crisis of harassment, violence, and rejection faced by trans youth, supporting schools in their effort to keep trans kids safe is essential as both a legal and moral matter.”
Pelosi held firm to transgender rights hours before she appeared virtually at the International LGBTQ Leaders Conference to accept the LGBTQ History Maker Award.
Rep. Sean Patrick Maloney (D-N.Y.), promising a re-evaluation of strategy after House Democrats experienced stinging losses in the 2020 election, was elected head of the political arm of the caucus Thursday, marking the first time an openly gay person was selected for the role.
The House Democratic caucus approved Maloney as the next chair of the Democratic Congressional Campaign Committee by a 119-107 vote.
“A strong Democratic majority in 2022 will be essential to our fight,” Maloney said in a statement. “I will work every day to improve our campaign operations, connect with voters across lines of difference, protect our incumbents, and expand our majority. I thank my peers for their confidence, and can’t wait to roll up my sleeves and get to work.”
Although Joe Biden was able to beat President Trump in the presidential election, House Democrats in the 2020 election lost a net of at least 11 seats, with two races still uncalled.
In an interview last week with the Washington Blade, Maloney said he wants to recreate the after-action review conducted after losses in 2016, which led to Democrats taking control of the U.S. House in 2018.
The review, Maloney said, would be similar to the analysis conducted before the mid-term election, which consisted of viewing all the quantitative data on the 2016 losses and interviewing about 200 people, including members of Congress, pollsters, and consultants.
“I mean, soup to nuts,” Maloney concluded. “The point was to develop a shared understanding among ideological perspectives, and also, to fine tune your organization. And I think the 2018 results speak for itself. So, I tend to repeat that process.”
Maloney said he’d take the lessons learned from the upcoming review and apply them to the 2022 election, when congressional districts will be redrawn in the aftermath of the 2020 Census.
House Democrats elected Maloney chair of the DCCC after more than 140 LGBTQ leaders, many affiliated with the LGBTQ Victory Fund and LGBTQ Victory Institute, submitted a joint letter to members of Congress in support of his candidacy.
Annise Parker, president LGBTQ Victory Fund, said in a statement Maloney’s victory “enormous power,” citing attack on openly LGBTQ candidates in the 2020 election.
“Sean believes running diverse candidates makes the Democratic party more competitive and will prioritize ensuring they build on their majority with candidates that reflect the demographics of America,” Parker said. “In 2020, the National Republican Campaign Committee operationalized anti-LGBTQ rhetoric to a new level. He will be a chair who forcefully stands behind candidates who face anti-LGBTQ, racist or sexist attacks and will refuse to allow those tactics to succeed.”