Hawaii Democrat Tulsi Gabbard has introduced a “blatantly transphobic” bill to deny trans-inclusive schools funding, despite claiming to support the LGBT+ community.
On Thursday (10 December), representative Gabbard introduced a bill to the house, co-sponsored by Republican representative Markwayne Mullin of Oklahoma, called the “Protect Women’s Sport Act”.
The bill aims to clarify Title IX rights (outlawing sex-based discrimination in federally-funded education) as “based on biological sex”, and prevent schools from receiving federal funding if they allow trans girls and women, as well as non-binary people, to compete on women’s sports teams.
In a statement, Gabbard said: “Title IX… led to a generational shift that impacted countless women, creating life-changing opportunities for girls and women that never existed before.
“However, Title IX is being weakened by some states who are misinterpreting Title IX, creating uncertainty, undue hardship and lost opportunities for female athletes.
“Our legislation protects Title IX’s original intent which was based on the general biological distinction between men and women athletes based on sex.”
Gabbard is the US representative for Hawaii’s second congressional district, who also ran for the Democratic presidential nomination last year.
During her campaign she came under fire for her history of opposed marriage equality and having called LGBT+ activists “homosexual extremists”.
However in a grovelling apology she insisted that her views had changed and that she was now an LGBT+ ally.
She was swiftly criticised for the new legislation, especially as just last year she insisted that would “work toward passing legislation that ensures equal rights and protections on LGBT+ issues”.
Activist Charlotte Clymer wrote on Twitter: “Tulsi Gabbard is now introducing a blatantly transphobic piece of legislation aimed at trans and non-binary young people.”
A married lesbian couple have won a lengthy legal battle against a retirement community that refused them housing due to the owners’ religious beliefs.
Mary Walsh, 72, and Beverly Nance, 68, have been together for 40 years and married for 10. In 2016 they applied to move to the Friendship Village senior living facility in St. Louis, where they hoped to spend their last years surrounded by friends with help on hand if they needed.
But once Friendship Village staff learned they were married they refused them, saying the home did not condone homosexuality. The letter they received said that the only married couples they accepted were those in unions between “one man and one woman”.
This blindsided the couple, who had already paid the $2,000 deposit under the assumption that their relationship was not an issue. They’d chosen Friendship Village for financial reasons, as the community offered care options they would need that weren’t available elsewhere without substantially extra costs.
Walsh and Beverly sued Friendship Village alleging housing discrimination, only to have their case dismissed last year when a judge found that the centre had indeed discriminated against them, but that it wasn’t illegal.
But the couple refused to back down, and their case was reinstated in July following the recent Bostock v. Clayton County ruling that determined sexual orientation was protected under Title VII of the Civil Rights Act of 1964.
Walsh and Nance finally got their hard-won victory on Tuesday (8 December), after reaching a confidential settlement with the home.
“This has been a harrowing experience and one that I hope no other same-sex couple has to face,” Walsh said after the ruling was announced. “Bev and I are relieved that this case is now behind us and that we have closure after our lives were thrown into chaos.”
Their focus now is only “on their health and each other,” and trying to stay safe during the coronavirus pandemic.
After training for hours on end, year after year, some women athletes – particularly those competing on the world stage – are getting their careers and successes ripped away because of “sex testing,” practices, which are invasive and medically unnecessary procedures based on disputed science that dictates what “natural” testosterone levels can be for women, and the role it plays in performance. Women from the global south are disproportionately targeted. Sporting officials demand that these women undergo irreversible sterilization surgeries or hormone therapies to have a chance at competing again. Philippa Stewart spoke to Dr. Payoshni Mitra, who has worked for years with affected athletes, about a new Human Rights Watch report, “‘They’re Chasing Us Away from Sport’” and why these tests have to end.
What is it that singles women out?
Often it is just that they look different, less “feminine” than men, and it often is men, in charge of the national or international sports federations, who think they should.
These policies disproportionately target women from the global south, specifically black and brown women. It is important to note that there aren’t any similar rules governing men’s bodies.
There is evidence of research studies by doctors affiliated to the World Athletics where women’s bodies have been investigated and operated on. They treated these women like guinea pigs. They would not have done this to an athlete from Europe or America.
Do the athletes give consent to be tested?
Not informed consent. They are normally not told exactly why they are being tested or what is going to happen. In the case of one athlete, she was told it was about high performance, others are told various things that aren’t true.
There is also no privacy, the coach is there when the physical exams are done. Then the women are pressured into surgery or hormone therapy as the only ways they could possibly be allowed to compete in their preferred event.
Often these women start competing because the prizes are a way to survive, to pull their family out of poverty. They love sports and see it as the thing that can change the fate of their family. And then suddenly they are told they don’t have a chance unless they take irreversible medical steps.
They are also told not to talk about it and to come up with some excuse about why they are not competing. This creates a feeling of shame for them, like there’s something wrong with them and they shouldn’t talk about it. It makes them feel inadequate, like they’re not the “correct” kind of woman. Athletes told me it feels like a way of telling them they aren’t good enough.
Are doctors willing to perform these tests without consent?
This isn’t a normal doctor-patient relationship. The athletic federations that are directly connected to the doctors are both requesting the invasive treatment and being given information by the doctors about the athletes. The athletes don’t have any autonomy around this process. Their medical information is passed on from the doctor to the athletic federation that decides their future and whether they will be allowed to compete.
Some people believe that if a woman doctor performs the test then it is fine. But it isn’t necessarily so. It is still an extra pair of eyes and hands on your body in a way you haven’t consented to. That is not fine.
The women are told not to speak about it because of “confidentiality,” but this protects the federations and the people performing the tests and not usually the athletes.
The World Medical Association has said these tests shouldn’t be performed. Has that made a difference?
Honestly, no. The WMA made it clear that the sex testing regulations are unethical and instructed doctors not to implement them. But the doctors are not controlled by medical authorities, they do what their collaborators – the athletic federations – tell them to do, and they follow what the international bodies say. There needs to be a change in sporting policy at the international level for these harmful practices to stop.
What happens after women are told they can’t compete?
Often these women start competing because of the prizes. Sometimes the prize is some food, and one woman told me she won a cow as a young girl, which meant her family could have milk every day. Sport, competing for the national team, it’s something to aim for because it pulls you out of poverty, it helps your family. Athletes in many countries get lifetime government jobs after they finish competing if they did well and brought pride to their country.
These policies disproportionately target women from the global south, specifically black and brown women. Dr. Payoshni Mitra
When that goes away, often the woman’s family stops supporting them. Especially because there are all these rumors around why they had to stop competing – that there is something shameful about them. These women can lose their support network overnight and they don’t even get told exactly why.
There are also long-term effects for these women if they try to stay in sports. They are constantly under scrutiny, they start to feel unsafe, people gossip about them constantly. It is a very hard thing to deal with when no one has told you why it is happening in a way that you understand.
South African runner Caster Semenya is probably the most famous case of gender testing. Is that where most people’s knowledge of these examinations comes from?
I am privileged to know Ms. Semenya, and she is a wonderful and extremely resilient champion, both on and off the field, who has a very important story to tell. But she is not the whole story. She was already at the top of her career when this happened and people are, rightly, rallying around to support her. She has support in a way that a lot of these women, at the start of their careers, often young and alone and not aware of their rights, do not have. It is, to my mind, a good thing more people are aware of these horrific tests now, but even with that, people don’t realize how many women it affects and what they go through, what they have to overcome.
She is a wonderful champion, but the media should highlight other stories too, of the women who don’t rise to those heights. The women who are just mid-level, proud to represent their country, and trying to build a better life, and then they have it ripped away.
What can be done to protect those women?
Education on rights – many athletes didn’t even know that the court of arbitration for sport existed, let alone that they could take their case there. I have been working with women athletes for years trying to make them aware of their rights. It is no coincidence that these policies affect women from poorer countries, where they don’t have the same level of awareness about their rights.
I advise athletes not to allow federations to communicate with them verbally. It is important to have evidence of what the federations ask athletes to do in writing. If they ask for every communication to be in writing, federation officials realize that they must take that athlete seriously and treat her respectfully.
Women are now challenging these policies in courts of law, both national and international. This is a recent development and it makes me happy to see that more and more women athletes from Asia and Africa are becoming conscious of their rights.
What about the testing policies?
They need to end. At a national level, and at an international level. There are some women who compete nationally, and then just as they are about to make it to the international stage, they get tested and dropped. There’s major downstream impact from the global regulations. That’s because the national federations or sport ministries see these international federation policies and think they have to test first. All levels of sport need to stop these tests now.
Is there anything that makes you hopeful things can change for the better?
These women have been scrutinized for so long and now, finally, that is being switched and it is the federations dealing with scrutiny for what they have done.
This report is the first time the world is truly hearing the voices of some of the women affected by these policies. Annet Negesa, the Ugandan runner who was sex tested and ruled ineligible, broke her silence for first time in an interview to Human Rights Watch last year. That was incredibly brave. Finally, after more than a decade of work, the world is paying attention.
I believe it is extremely powerful that all the affected athletes I am working with are now refusing harmful medical intervention. Dutee Chand and Caster Semenya have spoken openly about not succumbing to any pressure of taking medical steps. They have inspired athletes across the world to switch to a completely new, unrestricted event, rather than consent to these harmful and irreversible medical interventions. Switching events often outs them as having high testosterone. But that is not deterring them. It is a clear message to the World Athletics: “Enough is enough.”
This is as hard for me to write as it is for travelers to hear: It’s time to consider canceling or postponing your nonessential holiday trips.
Normally at this time of year, I would be writing about strategies to deal with the impending holiday crowds or how the two weeks after Thanksgiving or New Years are the cheapest times of year to travel, the so-called “dead weeks” when demand, and therefore prices, hit annual lows.
I’d be preparing for my annual holiday visit to Atlanta to see my family, or a “bleisure” trip to New York City to see the lights, visit some clients and pay through the nose for a Manhattan hotel.
But as the COVID-19 pandemic rages, with record rates of infections and hospitalizations in California and across the country, the “dead weeks” take on a whole new meaning. In the U.S., we’ve lost nearly 300,000 people, many of whom were, maybe this time last year, our fellow passengers on flights, or the folks across the hall from us in hotels. Maybe they were the business travelers behind us in a long line at SFO security, or the friendly older couple visiting New York City that we bumped into while gawking at the Christmas tree at Rockefeller Center.
What about those travel deals I’ve been writing about in recent months when the virus seemed to be on the wane? If you booked holiday trips at those great rates, consider canceling them or pushing them into the spring. The airlines no longer charge fees for changes and cancellations on most fares, so it’s not going to cost you much to do so. Hotels in California regions that are affected by shutdowns are now closed to everyone except essential workers for at least the next three weeks, and thankfully offering refunds to those who have to cancel their trips.
We are the survivors of this plague, so let’s do all we can to vanquish this disease for good, including wearing masks, altering our holiday habits and staying off planes. Not forever, but for the next couple months until infection rates decline and we have widespread availability of a vaccine. Once we’ve pushed the virus off the table, we can get back to our frequent travels. But until then, we need to sit still, something that does not come naturally to the frequent traveling crowd.
Dr. Anthony Fauci told CNN Monday that his concerns for the Christmas-New Year’s travel season were the same as his concerns for Thanksgiving, “only this may be even more compounded because it’s a longer holiday.” By mid-January, he warned of a very “dark period” as travelers begin to experience the impact of infections that occurred in late December.
COVID-19 spreads when people move around and breathe each other’s air, so let’s take a collective step back. Those plans to drive home or somewhere else and share air with family, friends or strangers? Nix them. You might be saving your life, or someone else’s, by just staying put. Not forever, but for now.
Sonoma County on Saturday will join five other Bay Area counties that have issued stay-home orders to slow the spread of the coronavirus.
The stay-home order will take effect at 12:01 a.m. Saturday, the county announced on its website Thursday afternoon, citing rising COVID-19 case numbers and hospitalizations.
Under the order, residents will be directed to stay at home except for work, shopping, outdoor recreation or other essential activities, such as medical appointments, allowed under the state’s regional shelter-in-place order. All sectors, other than retail and essential operations, were ordered to close. The new restrictions will remain in place until 11:59 p.m. on Saturday, Jan. 9, 2021.
Under the order, retail operations will be allowed to continue at 20% capacity, or 35% capacity for stand-alone grocery stores. Restaurants will be able to offer take-out, pick up, or delivery. Schools that have received waivers will be allowed to continue operation. Outdoor services are allowed at places of worship.
Hotels, vacation rentals and other lodging will only be allowed to offer accommodations for essential workers or the purpose of isolating people to prevent the spread of COVID-19. Additionally, overnight stays at campgrounds will not be permitted.
The following operations will be required to cease both indoor and outdoor services:
Hair salons and barbershops
Personal care services
Movie theaters (except for drive-in theaters)
Wineries, bars, breweries and distilleries (except for operations related to production, manufacturing, distribution and retail sales for off-site consumption)
County’s Health Orders and Guidance are updated as needed based on changing State requirements and current local needs as determined by the County Health Officer. In order to see the most current orders that may supersede any previous order, please view local orders and guidance, and state orders.
Please read this Order carefully. Violation of or failure to comply with this Order is a misdemeanor punishable by fine, imprisonment, or both. (California Health and Safety Code § 120275, et seq.)
UNDER THE AUTHORITY OF CALIFORNIA HEALTH AND SAFETY CODE SECTIONS 101040, 101085, AND 120175, THE HEALTH OFFICER OF THE COUNTY OF SONOMA (“HEALTH OFFICER”) ORDERS:
Summary. To slow the spread of Coronavirus Disease 2019 (“COVID-19”), this Order of the Sonoma County Health Officer implements the restrictions on businesses and activities set forth in the December 3, 2020, Regional Stay at Home Order and the December 6, 2020 Supplement to Regional Stay at Home Order issued by the California Department of Public Health.
Effective Date and Time. This order takes effect at 12:01 a.m. on Saturday, December 12, 2020, and will remain in effect until 11:59 p.m. on Saturday, January 9, 2021, unless it is extended, rescinded, superseded, or amended in writing by the Health Officer or State Public Health Officer.
Basis for Order. Sonoma County is in the midst of a local, regional and statewide surge of COVID-19 cases and hospitalizations that began in the middle of October 2020. On October 1, 2020, the seven-day average COVID-19 adjusted daily case rate was 13.3 cases per 100,000 people in the County. According to the most recently reported data, by December 9, 2020, the adjusted rate had nearly doubled, to 25.8 cases per 100,000 persons in the County. Hospitalizations of COVID-19 patients have also increased, from a seven-day average of 17.8 patients in County hospitals as of October 1, 2020, to a seven-day average of 49.1 patients in County hospitals as of December 9, 2020.Data reported by the State of California indicates that 10 percent to 30 percent of COVID-19 patients will require intensive care. Of 65 COVID-19 patients hospitalized in the County on December 9, 2020, 11 were in intensive care units (ICUs), and only 10 staffed ICU beds were available in the County for all patients, leaving the County with 18.2% percent available ICU capacity. Available ICU capacity in hospitals in the Bay Area region was 17.8 percent on December 9, 2020, and is projected to fall to 15 percent by December 14, 2020. If the current trends continue, according to State projections, Bay Area hospitals collectively may be operating at 91 percent of their full capacity by December 24, 2020, and by January 1, 2021, the demand for ICU beds may exceed the current supply.Surge plans are in place to convert non-ICU hospital beds to ICU beds if necessary, and move non-COVID-19 patients to temporary hospital facilities. However, due to limitations in the availability of qualified and trained medical personnel, expanding ICU capacity in this manner is not ideal from the standpoint of patient care. For this reason, the objective now is to manage existing ICU capacity so that all patients who need intensive care have access to an ICU bed. Reducing the number of transmissions of the COVID-19 virus is critical to meeting this objective.Gatherings of people – social or otherwise – pose risks of virus transmission, even with social distancing and the use face coverings, as neither is 100 percent effective in preventing transmission of the virus that causes COVID-19. The transmission risk is higher indoors than outdoors, but even outdoor gatherings can result in viral transmissions, particularly in locations where people remove their face coverings to eat or drink. Large gatherings are more risky than small gatherings, and prolonged interactions – i.e., longer than 15 minutes – are more risky than brief interactions.Reducing the maximum occupancy of businesses has been shown to reduce the risk of transmission of the COVID-19 virus. Based on models of the effect of occupancy limitations, researchers found that a substantial reduction in the maximum occupancy of a business substantially reduces virus spread but does not as sharply reduce the number of visits to the business. In the Chicago metropolitan area, for example, a cap on occupancy of businesses at 20 percent of the maximum was found to reduce the predicted number of new infections by more than 80 percent but there was a loss of only 42 percent of overall visits. Because of the current case and hospitalization rates, it is necessary to impose additional restrictions on businesses and personal activities.The California Department of Public Health issued a Regional Stay at Home Order on December 3, 2020, and a Supplement to Regional Stay at Home Order on December 6, 2020, which impose new restrictions on gatherings, travel, and business activities, effective regionally based when available ICU capacity drops below 15 percent. To protect the health and safety of County residents, it is necessary to implement the State Order restrictions before the State Order becomes effective regionally.
Other Orders. To the extent that this Order conflicts with the Health Officer’s June 18, 2020, Order (C19-15), as amended, which authorizes businesses to operate in the County in accordance with State guidelines and restrictions applicable to the tier of the State Blueprint that the County is in, or any other Order issued by the Health Officer in response to the COVID-19 pandemic, this Order will control.
Enforcement. Pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029, the Health Officer requests that the Sheriff and all chiefs of police in the County ensure compliance with and enforce this Order. The Sheriff, chiefs of police, County Counsel, District Attorney, and city attorneys are empowered to ensure compliance with and enforce this Order within their jurisdictions. The violation of any provision of this Order constitutes an imminent threat and menace to public health, constitutes a public nuisance, and is punishable by fine, imprisonment, or both.
Justification. The Health Officer has determined that this Order, and its Prior Shelter Orders, were and are necessary because cases of COVID-19 have been confirmed throughout the County. COVID-19 is highly contagious and has a propensity to spread in various ways including, but not limited to, by attaching to surfaces or remaining in the air, resulting in physical damage and/or physical loss.
Public Distribution. Copies of this Order shall promptly be: (1) made available at the County Administration Center at 575 Administration Drive, Santa Rosa CA 95403; (2) posted on the County Public Health Department website (https://sonomacounty.ca.gov/Health/Public-Health/) and (https://socoemergency.org/); and (3) provided to any member of the public requesting a copy of this Order.
Severability. If any provision of this Order to the application thereof to any person or circumstance is held to be invalid, the reminder of the Order, including the application of such part or provision to other persons or circumstances, shall not be affected and shall continue in full force and effect. To this end, the provisions of this Order are severable.
Switzerland has taken a major step on the path to equality after its parliament voted overwhelmingly in favour of a law to pass same-sex marriage.
The council of states – the upper house of Switzerland’s legislature – voted by by 22 votes to 15 to approve landmark legislation to make same-sex marriage a reality. Just seven politicians abstained from the vote.
It’s a huge moment for a country that has lagged behind most of Europe when it comes to LGBT+ rights, and is the culmination of a seven-year campaign.
“We have been waiting for this for seven years,” Olga Baranova of the Marriage For All campaign told Le Temps. “The emotions are very strong.”
The bill first introduced by the Green Party in 2013, and several versions of the text have since been debated. One of the central questions was whether a constitutional change was required to make it happen or whether a change of law would be enough.
Article 14 of Switzerland’s constitution states that “the right to marry and to have a family is guaranteed.” Those in favour of a legal change argued there was no need to change this because it already accommodates marriages of any kind.
The majority council of states agreed and rejected a motion that would have required a nationwide constitutional referendum on marriage equality, which would have delayed the law even further.
The push for equality was helped in part by progressive parties’ electoral gains in October that shifted parliament more to the left.
It’s been a long time coming for the Swiss LGBT+ community, whose conservative country has been slow to enact positive change: the first law banning LGBT+ discrimination only passed as recently as this February.
It’s not the end of the road though, and the next battle will concern LGBT+ couples’ access to sperm donors.
While the vast majority of Swiss people are now in favour of same-sex marriage, the debate around insemination remains controversial and is likely to be the subject of a national referendum.
Public Health England has finally confirmed where people living with HIV land on the coronavirus vaccine priority list.
On Tuesday (8 December) the UK became the first country in the world to start administering the Pfizer/BioNTech vaccine after it was approved my regulators last week.
The government has now released the order of priority in which the vaccine will be given out, and those who are HIV-positive will be in the sixth group, along with other “adults aged 18 to 65 years in an at-risk group”.
“At-risk” adults also include those undergoing chemotherapy or radiotherapy, people diagnosed with a blood cancer like leukaemia, and people with severe asthma, diabetes, heart problems or kidney disease. The group also includes those with a severe mental illness or learning disability.
The sixth risk group follows care home residents and staff, those over and 80 and health and social care workers, people over 75, people over 70 and the extremely clinically vulnerable individuals, and people over the age of 65.
Some studies have shown that those living with HIV are at an increased risk of dying from COVID-19 and, although information is conflicting, one small London study found that HIV-positive people with low CD4 cell counts were more likely to be admitted to hospital with COVID-19 than other people with HIV, according to HIV and AIDS charity NAM/ aidsmap.
NAM/aidsmap executive director Matthew Hodson told PinkNews: “Although there is little evidence that people living with HIV are more likely to acquire COVID, there may be a slightly increased risk of dying from COVID-19.
“People who are not virally suppressed on treatment for HIV are likely to be at greater risk. COVID has underlined the importance of prompt HIV diagnosis and treatment access.
“Some of the vaccines, such as the Oxford and Pfizer vaccines, specifically recruited people living with HIV, although the full results of these studies have not yet been released.
“On a personal level, as someone who has been living with HIV for 22 years, I will not hesitate to get vaccinated.”
Vaccine misinformation has been spreading like wildfire on social media, and this is no different when it comes to the safety of the coronavirus vaccine for people with HIV.
NHS HIV consultant Dr Rageshri Dhairyawan wrote on Twitter: “A WhatsApp message is circulating saying that people living with HIV should not accept the vaccine, as it is a way for the government to kill them, as they are too expensive to look after on the NHS. THIS IS NOT TRUE. It’s vital we discuss people’s fears!”
She added: “Made sure to recommend COVID-19 vaccines to all of my patients in clinic today. A lot of concerns, so it was great to discuss and address them.
“Interestingly, some people said it was reassuring to hear I was going to get one, as it made them feel more confident about them.”
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.”
Download the NBC News app for breaking news and politics
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.”
