Trans and non-binary people in New Jersey will no longer have to take out a newspaper advert telling the public that they have legally changed their name after a discriminatory rule was finally overturned.
The New Jersey Supreme Court amended the rule on Tuesday (15 December) after LGBT+ advocacy organisations detailed the harm the harm the policy could cause to trans people.
Under the terms of the rule, all people who legally changed their name in New Jersey were obliged to take out a newspaper advert detailing their new name and their deadname.
LGBT+ rights activists and advocacy organisations warned that the policy could jeopardise the safety of trans people by forcing them to out themselves in a public forum, and that it created a financial barrier to those who cannot afford to take out newspaper adverts.
The New Jersey Supreme Court’s decision was broadly welcomed by campaigners, who said it would make it easier for trans and non-binary people to legally transition.
“We applaud the New Jersey Supreme Court for recognising the safety and privacy considerations that are often barriers for transgender name change petitioners,” said TLDEF’s name change project counsel Charlie Arrowood.
“Removing the publication requirement for name changes not only makes the process more accessible and affordable to those who need it, but also removes the safety burden of publicising private and personal information.
“At a time when violence against our community continues to break records, granting legal name changes and protecting private medical information will save lives.”
The decision was also welcomed by Garden State Equality, an LGBT+ organisation in New Jersey.
We commend the court for taking this initiative in the name of social justice
“Removing the requirement for people to publish name changes in the newspaper gives transgender and non-binary people the dignity and privacy they deserve,” said the group’s executive director, Christian Fuscarino.
“Eliminating the see financial and social barriers ensures that trans people of all socio-economic backgrounds have one less obstacle in the way of living full and healthy lives.”
The Transgender Legal Defence & Education Fund (TLDEF), along with Garden State Equality and the law firm Lowenstein Sandler, submitted comments to the New Jersey Supreme Court in October arguing that the policy should be scrapped.
Matthew Hintz and Zachary Berliner, attorneys with Lowenstein Sandler, said the Supreme Court’s decision will have a significant impact on the lives of trans and non-binary people from low income backgrounds in New Jersey.
“They will also have greater access to legal name changes without the fees required for two publications,” the attorneys said in a statement.
Biden will hold the event with Vice President-elect Kamala Harris in Wilmington, Delaware, around 11:45 a.m. ET. An advisory from the Biden transition team described Buttigieg, the openly gay former mayor of South Bend, Indiana, as “a barrier-breaking and transformational public servant from the industrial Midwest who embodies a new generation of American leadership.”
If confirmed by the Senate, the Biden transition said, Buttigieg would work to implement Biden’s agenda by “rebuilding modern, sustainable infrastructure nationwide and creating millions of good-paying union jobs.”
Buttigieg would also be the first openly gay person confirmed to lead a Cabinet department.
The former mayor, 38, ran against Biden and Harris in the 2020 Democratic presidential primary, but ended his bid just before the Super Tuesday primaries. He then quickly endorsed Biden for president.
Biden and Harris also will meet virtually with governors in the afternoon.
In other transition news:
Biden plans to nominate former Michigan Gov. Jennifer Granholm to lead the Department of Energy and is expected to name Gina McCarthy as his domestic climate coordinator, NBC News reports. McCarthy — a former EPA chief under President Barack Obama — will work with former Secretary of State John Kerry, whom the president-elect has tapped as his climate czar.
Trump called out Senate Majority Leader Mitch McConnell, R-Ky., for defying him Tuesday when he congratulated Biden on his election victory and called him the president-elect. In a tweet after midnight, Trump shared a story about his allies slamming McConnell and added, “Mitch, 75,000,000 VOTES, a record for a sitting President (by a lot). Too soon to give up. Republican Party must finally learn to fight. People are angry!”
The president has come so close to firing FBI Director Christopher Wray in recent months that the White House counsel’s office has warned him not to do so because it could put him in potential legal jeopardy, NBC News reports.
Trump is set to hold a Cabinet meeting Wednesday, his first since May, at 11:30 a.m. ET. The meeting is closed to the press.
In an interview on CNBC on Tuesday, Health and Human Services Secretary Alex Azar said the general public will receive the Covid-19 vaccine “by the end of February into March.”
Rep. Ayanna Pressley, D-Mass., a member of “the squad” in the House, spearheaded a letter signed by more than 40 House lawmakers and representatives-elect calling on Biden to end the federal death penalty on his first day in office.
Malcolm Kenyatta, Pennsylvania state representative and “rising star” of the Democratic party, played a crucial role in officially ousting Donald Trump from office.
Kenyatta was one of 538 electors who officially gave Trump his marching orders when the Electoral College confirmed Joe Biden as president-elect on Monday (14 December).
Biden won 306 electoral votes compared to the outgoing president’s measly 232, putting some of the final nails in the coffin of Trump’s desperate bid to subvert the will of the American people.
The results will now be sent to Washington DC, where they will be tallied in a joint session of Congress on 6 January, presided over by the outgoing vice president Mike Pence.
In Pennsylvania, Malcolm Kenyatta led his state’s delegation by making an official motion for the electors to cast their votes for Biden.
He celebrated the incredible moment on Twitter, writing: “HUGE HONOUR. I just made the official motion to deliver Pennsylvania’s 20 electoral votes to Joe Biden!”
Kenyatta has been called one of the “rising stars” of the Democratic party, and was one of the 17 people selected to deliver a keynote address at the Democratic National Convention in August.
Speaking at the event, where he appeared with his fiancé, Kenyatta said: “Joe Biden was the first national figure to support me and my family.”
His fiancé, Matthew Miller, added: “I appreciate you, man.”
Speaking to LGBTQ Nationearlier this year, Kenyatta, who is the first gay Black man to be seated in the Pennsylvania General Assembly, reflected on the many ways in which “systems are broken” in the United States.
“As somebody who inhabits all of these intersections, growing up in an incredibly poor neighbourhood to a working poor family, as one of only two openly LGBTQ members of the Pennsylvania General Assembly and the only one that’s a person of colour, I see all the different ways that frankly our systems are broken,” he said.
A number of organizations, schools and businesses with either a history of anti-LGBTQ advocacy or policies that explicitly discriminate against lesbian, gay, bisexual, transgender and queer individuals have received millions in pandemic relief funding, according to an NBC News analysis of data released last week by the Small Business Administration.
The Paycheck Protection Program (PPP) — which was intended to help small businesses amid the Covid-19 crisis — gave nearly $5.3 billion in the potentially forgivable loans to 5,160,000 recipients, with the average loan being $101,409.
The lion’s share of that money went to the American Family Association, which received nearly $1.4 million in Paycheck Protection Program funds. The Mississippi-based organization uses its resources, in part, to combat what it calls the “homosexual agenda.” Through its One Million Moms initiative, the organization rallies its supporters to boycott brands and media outlets that promote “homosexuality and transgenderism.”
Cassie Miller, a senior research analyst at the SPLC, criticized the Trump administration for “letting millions of Americans and small businesses suffer” while providing “financial support to groups that tear at the fabric of our democracy.”
“Extremist movements thrive in climates of political uncertainty,” she said. “Now, the government is doing even more to help hate groups by handing them millions of dollars in forgivable loans.”
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The American Family Association, Ruth Institute and Pacific Justice Institute did not respond to NBC News’ requests for comment on the SPLC’s “hate group” designation and how they used their Paycheck Protection Program funds. The other four groups all disputed being labeled a “hate group,” and two of them shed light on how they used their relief loans.
The American College of Pediatricians said it used the loan to “fund the covered payroll period as designated.” It called the SPLC’s hate group designation a “mischaracterization” of its organization and pointed to its detailed response to the criticism. Liberty Counsel, which said it used its funds to avoid laying off any of its 35 employees, accused the SPLC of wanting to “destroy those with whom they disagree.”
Dr. James Dobson, who founded Focus on the Family, offers a prayer before an appearance by President Donald Trump at a campaign rally on Feb. 20, 2020, in Colorado Springs, Colo.David Zalubowski / AP file
At least four other organizations that received Paycheck Protection Program funding — Concerned Women for America, Dr. James Dobson Family Institute, Family Leader and First Liberty Institute — have a demonstrated track record of anti-LGBTQ advocacy or espousing an anti-LGBTQ ideology, though they have not been designated “hate groups” by the SPLC. These organizations received nearly $2 million in pandemic relief money combined.
The Dr. James Dobson Family Institute, Concerned Women for America and Family Leader did not respond to NBC News’ requests for comment on how they used the aid and their response to assertions that their organizations have a track record of anti-LGBTQ advocacy. First Liberty Institute’s general counsel, Mike Berry, sent a brief response saying his organization “advocates for the religious liberty of people of all faiths” and said “First Liberty repaid, with interest, all PPP funds by June 30.”
Two private schools that made national news over the past two years due to their anti-LGBTQ policies — and their high-profile conservative backers — were also on the Paycheck Protection Program recipient list.
Immanuel Christian School, a private K-10 in northern Virginia where Vice President Mike Pence’s wife, Karen Pence, teaches, received $724,900 in aid funding. As NBC News reported last year, the school explicitly bars its employees from engaging in or condoning “homosexual or lesbian sexual activity” and “transgender identity.” And in its parent agreement, the school states that it may “refuse admission” or “discontinue enrollment” of a student whose household condones “sexual immorality,” such as “homosexual activity or bi-sexual activity.”
Trinity Schools, a group of private Christian schools where newly confirmed Supreme Court Justice Amy Coney Barrett was once a trustee, received over $1 million. As The Associated Press reported in October, the schools effectively bar admission to children of gay parents and make it clear that openly LGBTQ teachers are not welcome in the classrooms.
Immanuel Christian School did not respond to NBC News’ request for comment. Trinity Schools President Jon Balsbaugh sent an email saying his institution used the funds to “ensure that economic disruption of our employees and staff due to the pandemic would be lessened” and said Trinity Schools does not “unlawfully discriminate with respect to race, color, gender, national origin, age, disability, or other legally protected classifications under applicable law.”
Several companies and organizations that have been at the center of high-profile lawsuits regarding their policies of excluding LGBTQ people have also received Paycheck Protection Program funding.
Catholic Social Services, which received over $2 million, is at the center of a case currently before the Supreme Court. Fulton v. City of Philadelphia stems from the faith-based child welfare agency’s policy of not considering same-sex couples as potential parents for foster children.
R.G. & G.R. Harris Funeral Homes, which received more than $150,000, was part of a landmark Supreme Court case that resulted in the justices ruling that workplace discrimination based on a person’s sexual orientation or gender identity violates federal civil rights law. The Michigan funeral home’s involvement in the case stemmed from its termination of an employee after she came out as transgender. In November, the business agreed to pay $250,000 to the estate of the terminated employee, who died earlier this year, to settle the lawsuit.
Roncalli High School, which received nearly $1.8 million, was sued by two lesbian guidance counselors last year who said they were terminated when the school discovered they were married to women. The Roman Catholic Archdiocese of Indiana, which oversees the school and was also named in the women’s suits, received over $2.4 in pandemic relief funds. In response to the lawsuits, which are still active, the Indiana archdiocese told NBC News last year that it has “a constitutional right to hire leaders who support the school’s religious mission.”
Catholic Social Services, R.G. & G.R Harris Funeral Homes, Roncalli High School and Arlene’s Flowers did not respond to requests for comment.
‘Warped priorities’
Kyle Herrig, president of government watchdog Accountable.US, said it’s “shameful” that the Trump administration provided pandemic relief funds to “organizations promoting bigotry, intolerance, and hate” with “so many small businesses forced to shutter since the start of the pandemic.”
“It is hard to find a clearer example of the Trump administration’s warped priorities than allowing countless mom-and-pop shops to go under without proper relief while bailing out wealthy and well-connected anti-LGBTQ enterprises on Americans’ dime,” he said in an email.
Justin Nelson, co-founder and president of the National LGBT Chamber of Commerce, shared a similar view.
“I think it’s ridiculous,” he said, “that the Small Business Administration led by the Trump administration would put the needs of avowed anti-LGBT organizations before hardworking small-business owners.”
Nelson said he’s seen first hand how LGBTQ-owned small businesses have struggled during the pandemic and how many have been unable to receive government relief.
“These folks are worried about keeping the lights on,” he said. “We had a number of businesses that applied, and only a small number that received funding.”
Nelson, whose organization works with thousands of LGBTQ-owned businesses around the country, said it’s frustrating to see large, well-funded organizations with anti-LGBTQ track records collect large sums of relief funding while thousands of small businesses have had to close their doors permanently. He noted that his chamber did not apply for a Paycheck Protection Program loan so as not to take away resources from the businesses most in need.
The Small Business Administration said in a statement that it does not comment on individual borrowers or loans. An agency spokesperson said the agency designed a “robust loan review process to ensure that only eligible borrowers received loans that fully complied with the program requirements” but added that just because a loan was issued, doesn’t mean the recipient was eligible or that the loan will ultimately be forgiven.
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.
The Trump administration has issued new guidance on religious exemptions for federal contractors that critics say grants them carte blanche to discriminate against LGBTQ workers, women, religious minorities and others.
The Department of Labor’s Office of Federal Contract Compliance Programs released Monday its final rule on exemptions to Title VII of the Civil Rights Act of 1964 and a related 1965 executive order instituting anti-discrimination requirements for federal contractors.
The provision expands exceptions to any contractors — for-profit or nonprofit — who “hold themselves out to the public as carrying out a religious purpose.”
“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,” it reads in part. According to the office, the new rule “reduces confusion” and reinforces existing statutes, including the Religious Freedom Restoration Act, 1993 legislation intended to prevent the federal government from “substantially burdening a person’s exercise of religion.”
“Religious organizations should not have to fear that acceptance of a federal contract or subcontract will require them to abandon their religious character or identity,” Secretary of Labor Eugene Scalia said in a statement.
The U.S. government is the single largest customer in the world, awarding hundreds of billions of dollars in federal contracts each year to companies covering every facet of life, from military hardware to social services. Signed by President Lyndon Johnson in 1965, Executive Order 11246 prohibited businesses with government contracts over $10,000 from employment discrimination based on race, color, religion, sex or national origin. It did, however, stipulate religious organizations could prefer to hire ‘individuals of a particular religion.’”
In a subsequent order in 2014, President Barack Obama added gender identity and sexual orientation to the list of characteristics protected in EO 11246.
The Labor Department first proposed the new religious exemption guidelines in August 2019 and received more than 109,000 comments during the public comment period — including more than 90,000 from organized letter-writing campaigns.
Civil rights organizations blasted Monday’s final rule for disarming existing nondiscrimination protections with overly broad exemptions.
Alison Gill, vice president for legal and policy at American Atheists, called it “an absolute attack on religious equality and workers’ rights.”
Employees — especially those of government contractors — shouldn’t face a religious litmus test to get or keep their jobs, she said in a statement. “The American taxpayer should not be forced to fund discrimination, period.”
Jennifer Pizer, director of law and policy for LGBTQ legal organization Lambda Legal, said the new guidance is part of a decadeslong effort by Christian conservatives to remove anti-discrimination safeguards.
“The argument is, ‘If faith-based groups don’t receive government money with the freedom to act however they want to, then that’s discrimination. We must do it this way, and you must fund us,’” Pizer told NBC News.
Not long ago, she said, that suggestion would have been seen as a violation of the Constitution’s establishment clause, which prohibits the government from establishing an official religion or favoring one faith above others.
“But now it’s part of a growing victim narrative among the Christian right,” Pizer said. “It’s a flabbergasting alternate reality where white Christian society is somehow under attack by people who want equal rights.”
The Office of Federal Contract Compliance Programs guidelines “are not a surprise,” she added, “but they’re a profound affront to one of the basic principles our nation was founded on.”
With evangelicals among his strongest supporters, President Donald Trump has made religious freedom a key tenet of his administration: He’s issued executive orders protecting prayer in school and clergy who endorse political candidates from the pulpit. He also broadened the range of employers who can refuse to cover birth control under their health insurance policies. The Department of Justice under Trump issued amicus briefs supporting religious liberty in several Supreme Court cases, including Masterpiece Cakeshop v Colorado Civil Rights Commission, in which a Christian baker refused to sell a wedding cake to a gay couple, and the still-pending Fulton v. City of Philadelphia, which addresses whether faith-based child welfare agencies can turn away LGBTQ foster and adoptive parents and still receive taxpayer money.
In 2018, Trump announced a new White House faith and opportunity initiative, designed to “to remove barriers which have unfairly prevented faith-based organizations from working with or receiving funding from the federal government.”
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The Labor Department was among nine agencies that proposed subsequent guidelines to “safeguard the fundamental right to religious freedom by eliminating unfair and unequal treatment by the federal government,” according to deputy press secretary Judd Deere.
The Department of Education issued its final rule in September, while other agencies have yet to finalize their plans. The Labor Department policy announced Monday won’t take effect until Jan. 8, less than two weeks before Inauguration Day.
President-elect Joe Biden’s transition team declined to comment on whether it would overturn the new rule. However, in previously released policy statements, Biden has committed to restoring “full implementation” of President Barack Obama’s executive order prohibiting discrimination by federal contractors on the basis of sexual orientation and gender identity.
But even if they’re only in effect for a limited time, Pizer said, the policies “invite discrimination — and represent a real legal and political view that’s moving forward.”
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.”
A lesbian firefighter has alleged she was fired after enduring years of sexual harassment from a male colleague.
In a lawsuit filed in the Middlesex County Superior Court, Kira Castellon said she was sacked from her role as a fire inspector in Piscataway, New Jersey, because she made an allegation of sexual harassment, according to My Central Jersey.
In the lawsuit, filed against the township, Arbor Hose Company 1 and Fire District 3, Castellon said she joined the fire service in 2015, where she was the only female firefighter on staff.
Her sexuality was “generally known” by her co-workers and did not pose a problem until she was promoted in September 2016.
Following her promotion, a male colleague allegedly began an “almost daily” campaign of sexual harassment against her, beginning in late 2016 and continuing until January 2019.
During this time, the male colleague allegedly kissed and groped her repeatedly. According to the lawsuit, he “thrust his pelvis into (her) from all directions as his way of saying hello and goodbye”.
He also allegedly told Castellon on a number of occasions: “I’ll make you straight again.”
The campaign of harassment reportedly occurred in the presence of other staff members.
“The sexual harassment was open and notorious which became widely known throughout the firehouse,” the lawsuit said.
The sexual harassment continued after Castellon returned to work following surgery. At one point, while on crutches, she struggled “to stay upright as he groped her and thrust his pelvis into her rear-end”.
In her lawsuit, Castellon said she reported the abuse but that the company made no effort to enforce an anti-harassment policy.
Her employment was eventually terminated on 30 October, 2019, after the company accused her of using its tax-exempt status to buy personal goods at a local store. The company alleged that she used the tax exempt code for personal goods, but Castellon said in her lawsuit that the items she bought were used at the the firehouse.
“It is clear that (Castellon’s) prior reports of sexual harassment and her continued efforts to combat the workplace harassment which tortured her experience at the firehouse since she arrived, were a motivating, if not sole factor in (the) decision to terminate her employment,” the lawsuit said.
When she heard a knock on the door, Colin Monahan figured it had to be about the new garage.
Monahan and her wife, Shannon Lastowski Monahan, had just finished dinner. Their guests had all departed, leaving the couple alone at their log home well off the main road in the rural community of Wapiti, a village of a few hundred in northwest Wyoming. Colin had just finished installing a new, prefabricated garage on their property, painted in a shade of brown to complement the waving grasses of the surrounding valley.
Donning their masks and opening the door, the couple were greeted by five people standing on their porch, there to discuss a “neighborhood issue” — presumably, Colin thought, the garage.
It would have been a strange complaint. The couple had received permission to install it from the subdivision’s management, and the area’s lack of a homeowners’ association made concerns over aesthetics questionable at best. The iconic Smith Mansion — a twisting structure looming on a bluff overlooking Highway 14 — is visible from the couple’s porch, while the subdivisions surrounding them feature a broad mix of architectural styles that had sprouted amid a flood of new residents discovering the Wyoming countryside.
The garage, as it turned out, wasn’t the problem, the Casper Star-Tribune reported.
Shannon Lastowski Monahan and Colin Monahan sit on the front porch of their home in Wapiti, Wyo. Thursday, Oct. 29, 2020.Cayla Nimmo / AP
Looking over the group, the Monahans — a same-sex couple originally from the Chicago area — recognized a familiar face, a man who the couple said had previously harassed them on social media. Both Colin and Shannon, residents of the subdivision four years now, quickly came to realize that the conversation was never about a garage, and was never intended to be.
It was about Colin, who dresses masculine but, in her own words, could be seen as either male or female. She goes by “Colleen” as often as she does “Colin.”
“One of the women said to us, ‘Your kind is not welcome here. You are not welcome in Cody Country and you need to leave,’” Shannon recalled in an interview shortly after the October incident. “She told Colin, ‘You pretend to be a man, and you need to leave.’”
The incident sparked a conversation that reverberated through Wapiti and into the greater Park County community, including Cody, a popular tourist town of 10,000.
Some businesses made clear their support for the LGBTQ community. Sunlight Sports, a sporting goods store on Cody’s main strip, declared on its social media pages that bigots were not welcome inside.
The owners, Wes and Melissa Allen, stressed that they believed that 99 percent of county residents are good people. But they had an unblinking message for the rest.
“If you hate your neighbors so much for who they are — who they love, the color of their skin, where they were born, where they worship, or any of the other things that make up that person — that you need to treat them differently or harass them or make them feel unsafe in their own home, don’t come into our business,” they wrote.
Other businesses began stocking merchandise in solidarity with the couple, producing stickers and buttons with rainbow flags and slogans supportive of the LGBTQ community. But that, in turn, touched off a wave of bigotry on social media, directed at the couple as well as others who publicly supported them. On one local Facebook group, a man described the couple as “liberal socialist democratic homosexual transvestites from Chicago” who “hate this country.” Suggestions of the need for a hate crime bill were described in a letter to the local newspaper as “dangerous” and “Orwellian,” while others cast doubt that the incident happened at all.
“It leads to social justice warriors proclaiming far and wide that Wapiti and all of Wyoming is a racist and homophobic state and needs hate crime laws enacted because all allegations must be immediately and totally believed,” one woman wrote on another Facebook group.
Isolated among a few individuals or not, that response was seen by some as a symptom of a rage brewing among a vocal minority of Park County during a time of dramatic change. But that bigotry also prompted others in the community to stand up and say, “Enough.”
The question is, will it be?
“We have employees and friends and neighbors who don’t fit the ‘white Caucasian’ profile who have been made to feel uncomfortable in our town in recent months,” Wes Allen said in an interview. “Our perception was that it was getting worse. And we’ve already been having conversations in our community when this happened. But this was the time we knew we had to come out and say something. Because if we weren’t going to say something publicly when something bad happened, we have no right to say anything at all.”
A community in flux
Nestled in the foothills at the end of a winding maze of dirt and gravel, the cabin shared by Colin, Shannon and their two dogs doesn’t stand out much from the rest of the homes in the Cody Country subdivision, which sits between Cody and Yellowstone National Park.
From the small porch of the couple’s slice of land, a herd of elk could be seen resting in the distant prairie. Around them, snow-capped peaks stretch around the periphery of the Shoshone River Valley and the North Fork Highway below.
It’s an easy place to disappear in, and plenty have over the years, drawn by the promise of seclusion and the region’s beautiful surroundings.
Manda Siebert’s family has owned a gas station in Wapiti for decades. In that time she has watched the area grow from a minuscule farming community into a tapestry of subdivided ranchland and new construction, with each new subdivision constructed over the past two decades as controversial as the next. “Cultural issues,” as they were called at the time, were of concern even in 2004, when residents raised an uproar over the development of the Copperleaf subdivision, with one man saying at the time that it was not the subdivision itself that was controversial but “the product anticipated which makes it so contentious.”
“There’s been a little bit of an uproar from people upset that more and more people are moving here,” said Siebert, whose business sits across the street from a former hayfield. “But when I was a kid, this was all open. None of this was subdivided. If somebody hadn’t sold their land, those people would not be living here, either. You have to put the shoe on the other foot: If you were living in these big cities and wanted something different, wouldn’t you want to move out here?”
That change has been accelerating in the region. When a Star-Tribune reporter called the Park County planning office last month, an official there said that inquiries concerning building permits and subdivisions have roughly tripled this year, while the rate of home sales among COVID-19 refugees — like similarly attractive corners of the Mountain West — continues to outpace annual averages. According to reporting by the Enterprise, 2020 presented one of the office’s busiest years on record, with the office processing more applications for building permits and subdivisions through the month of July than it did all of last year.
That, in turn, has created tension among some who fear the new arrivals are spoiling the promise of Wyoming.
“There’s a really strong sentiment of resentment when people are buying property here,” Shannon said. “When you’re used to having the view a certain way and then people move in… There’s even been someone — we don’t know who — who has been tearing up the ‘for sale’ signs by the gate.”
Cody Mayor Matt Hall said the first tinges of such a change were felt with the arrival of rapper Kanye West last year. That feeling, the Cody native says, has been amplified by conservative-leaning newcomers in the last few years who believed they would find a city of like-minded people waiting for them upon their arrival. New businesses in town are attracting new residents as well, changing the fabric of the community.
“I talk to the police chief a lot about making sure that we’re managing people’s reactions to things in a way that is going to be fair for everyone, that we’re not going to pull somebody over just because they don’t look like you or anything like that,” Hall said. “It’s interesting to have to grapple with those kind of issues.”
That feeling has bled into the local politics as well. The area’s Republican primary between Rep. Sandy Newsome and former Hot Springs County Clerk Nina Webber featured some of the most vicious politics seen anywhere in Wyoming this election cycle. Meanwhile, members of the community marching in solidarity with the national Black Lives Matter movement earlier this summer were met with armed residents wary of perceived threats from outside agitators that never coalesced. Community Facebook pages with names such as the “Wapiti Whisper” or “Cody Chit Chat” have been increasingly dominated by political discussions fueled by rage and contempt, with dissenting voices being shouted down.
“They’re just really hard to read,” said Sarah Growney, a local business owner and a Cody resident of nearly two decades who has been an active supporter of the Monahans. “It just creates a culture of acceptance for that kind of language or hate. My honest-to-God opinion is that we are not talking about a lot of people, but they’re just very loud. Most people who live in Wapiti or Cody aren’t bad. I think most are good. It’s just the ones who express this kind of hatred are really loud.”
It’s contributed to a shift in sensibilities local leaders say are as much a byproduct of the current pandemic as it is a symptom of a greater demographic shift in the Equality State. Longtime Wyoming residents such as Hall say his community has grown increasingly conservative in the Trump era, and in particular since the tail end of Gov. Matt Mead’s administration, a trend residents say has been exacerbated by outsiders attracted to the area’s natural beauty as much as the state’s deep red politics.
But some people haven’t realized just how diverse their community has become. When counterprotests emerged in the wake of June’s Black Lives Matter demonstrations, Hall found himself playing intermediary between marchers and armed residents unconvinced that a fellow Wyomingite could have different politics than they did.
“I was talking to some friends of mine who estimated at least 70% of that crowd was from outside of the area,” said Hall, a lifelong Cody resident. “Almost every one of them was from the Bighorn Basin. I said, ‘Instead of sitting there with your gun waiting for them to give you a reason to try and shoot them, why don’t you try talking to them?’ We all like to live here, we all like to fish and hunt here. I mean … the commonalities probably exist way more than probably the disparities.”
Small towns, long streets
Wyoming is often characterized as a “small town with long streets,” both for its small population and the neighborly disposition of its residents. Given that reality, how can some people be so blind to their neighbors or unwilling to accept people who might be different?
It’s a paradox that some, like Allen, the shop owner whose social media post provoked a considerable response, have come to understand.
“Wyoming’s always been so lightly populated that you don’t get to really choose your neighbors,” he said. “If you’re going to survive here, you need to develop this thing where you can get along with everybody. If you are mad because your neighbor was one thing or another and you only had like three neighbors, and when things got bad if you would antagonize them … there would be nobody for you to fall back on. And so the culture has become one of tolerance in general.”
Park County already has a small but vibrant LGBTQ community, and one that existed prior to the migration that’s brought many new faces to the area of late.
One of the members of that community is Nikki Flowers, a Cody resident who moved to the area as a high school sophomore nearly two decades ago. In 2014, Flowers became one of the first women to be granted a same-sex marriage license in Park County with her spouse, Desiree, whom she first met in the halls of Cody High School. Even with same-sex marriage controversial in Wyoming at the time, Flowers said she received little pushback in the community save for her mother and the county clerk at the time, who refused to perform the ceremony.
Then the incident in Wapiti happened.
“It hurt my heart,” she said. “What happened to that couple was just terrifying. I mean, I don’t know what I would do. If something like that happened to me… It’s scary. And I’ve never felt scared in this town.”
Newcomers still find themselves wary of the state’s legacy, still tainted by memories of the 1998 murder of gay University of Wyoming student Matthew Shepard. Growney, who has two fathers, dealt with it the first time her dad came to visit, fearful of the way he was dressed and of those who weren’t accepting of people like him. Over time, however, her fear subsided with the growing understanding of her neighbors, who had regularly begun to interact with her fathers and over time began to understand that the men were just like them in a plethora of ways.
“I’m a believer in the idea that ignorance breeds fear,” Growney said. “These folks are anti-whatever they are because they don’t know someone gay, they’ve never lived with black people, or they’ve never been away to school. Their whole existence has been here, in Wyoming.”
Changing the conversation
But sheer exposure is not a sufficient antidote for bigotry.
In a converted greenhouse in the atrium of Cody High School, Amy Gerber — a science teacher of 32 years — had just finished a consultation with a student who had run into issues at home when a reporter arrived to talk with Gerber.
For the past several years, she has served as faculty adviser for the school’s Gay Straight Alliance, a role she developed as a way to provide a safe space for students who felt they did not have one either in the classroom or at home.
A mother to a gay son, Gerber herself saw bigotry on its face when a group of her 14-year-old son’s classmates threw a slur at him as they drove through the parking lot.
“It just broke my heart,” she said. “That’s the last thing you want as a mom. You don’t want people to be mean to your kid. You want people to care about you and care about your kid, and not judge them for being gay.”
Her son asked her not to respond, fearing it would put an even bigger target on his back. But she wanted to do something.
Ten years later — long after her son had graduated — she decided to hang a rainbow flag in her room, a sign of solidarity for a group of students she knew existed but had no means of connecting with. That small show of solidarity, she said, eventually grew into the school’s GSA, which today counts several dozen students among its ranks.
It was an unthinkable prospect during the time her son was in school. She knew several members of the local school board would fight her on it, while the effort itself encouraged opponents to come out of the woodwork. One caller into a morning talk show at the time, she recalled, asked why the school needed a club where “boys were liking boys and girls were liking girls.”
“It was ridiculous. But that was the perception,” Gerber said. “For me, I wasn’t sure whether that was the perception of the whole community, or if it was just a handful of people who have this type of worldview and are just really vocal about it? You really just don’t know.”
The incident in Wapiti drew similar feelings. After being quoted in a local news article about what happened, Gerber was barraged with hate mail and comments on Facebook disparaging her, prompting a former student of hers — the one who helped her start the GSA — to tell community members that the hatred he saw emerging was precisely the Cody he knew.
“I would love to say collectively as a community, there’s way more of us who support the live-and-let-live mentality, that you’re welcome here,” Gerber said. “Gay, straight, black, white doesn’t matter. Like, you’re welcome. But the truth is, even if it’s not the majority, there is a fraction of our community that is just loud, and makes the community seem like it stands for something that it doesn’t.”
The aftermath
Several weeks after the incident, Colin and Shannon are both in good spirits, but still on edge.
Colin, a hunter and an owner of several guns, was just days removed from getting fingerprinted for a concealed carry permit, a little extra security should the worst happen. What worries her most, she said, is the prospect of what won’t happen.
In the years since Shepard’s murder set off a national movement for hate crime legislation, Wyoming lawmakers have failed to enact a similar law despite the pleas of various nonpartisan commissions, small businesses and even the LGBTQ community itself. Critics of hate crime legislation say the state’s constitution is sufficient to protect the rights of everyone.
But Colin, who has faced hate up close, doesn’t feel that protection.
“The bigger story is this culture here, and ultimately, why Wyoming needs hate crime legislation,” she said. “They don’t think that they have an issue, and yet they repeatedly have issues here.”
Still, there are growing signs of tolerance and support. People in Cody and Wapiti banded together in their own way to reject what had happened in their communities. A conservative family near the couple brought them fresh vegetables. Newsome, the Republican lawmaker, announced efforts to co-sponsor hate crime legislation in the coming session. Businesses and community members have been vocal in their support. Across from the town hall, a rainbow flag could be seen hanging from a porch. Down the street, Growney’s gift shop, The Thistle, had already sold out of one batch of pro-LGBTQ stickers.
So what happens now? Will the incident that provoked so much debate and consternation lead to real change?
Colin Monahan and Shannon Lastowski Monahan shared their story, and the community stood up to respond. They just hope that the risk they took was not made in vain, and that their experience — a couple singled out for who they love — underscores the need for a greater level of protection for people like them.
“We can’t be protected by weapons,” Shannon said. “We have an alarm system, surveillance cameras, all of that, but that can only help so much. It gives you a small sense of reducing the risks. But the courts aren’t going to protect us. … It’s just a simple trespass. I guess I just never realized before how vulnerable we are.”
