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U.S. Attorney challenges use of civil rights law

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show he’s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because he’s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the library’s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeer’s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The government’s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

“We believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,” said Charles Miller, a spokesperson for the Justice Department’s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congress’s in-house equal employment opportunity division, which investigated TerVeer’s allegations of discrimination and harassment and dismissed an in-house complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

“The Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,” Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the government’s motion to dismiss the case “relies on legal precedent that excludes LGBT employees from protection under Title VII.”

Brown declined to comment further on the government’s arguments, saying TerVeer’s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the government’s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

“I think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,” Nevins said. “Some court rulings have essentially said Title VII does not apply to sexual orientation.”

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeer’s lawsuit says he also was targeted for retaliation after he filed his discrimination complaint with the library’s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

“Plaintiff’s discrimination and retaliation claims fall short,” Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

“Plaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,” the motion to dismiss says. “But the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employer’s actions.”

The motion to dismiss adds, “[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes — generally relating to an employee’s behavior, demeanor or appearance in the workplace — and allegations to support the claim that this non-conformity negatively influenced the employer’s decision … In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ‘he did not conform to the defendant’s gender stereotypes associated with men under Mech’s supervision.’”

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorney’s office was fulfilling its role in defending its client — the Library of Congress — and should not be faulted for arguing against TerVeer’s attempt to invoke protection from Title VII.

“The government’s argument that the complainant fails to allege sufficient facts to state a claim … are typical arguments that they’d make equally if the plaintiff were female or black rather than gay,” the attorney said.

The government’s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeer’s specific allegations of discrimination and retaliation.

The government’s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeer’s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employee’s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the library’s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeer’s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorney’s office as “Exhibit D,” was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeer’s attorney, which the U.S. Attorney’s office submitted in court as part of Exhibit D.

“Based on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainant’s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,” Magnus said in her letter.

In what potentially could be damaging to TerVeer’s lawsuit, Magnus notes that the OIC investigation into TerVeer’s discrimination and retaliation complaint included interviews of and testimony by five of TerVeer’s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, “each of whom personally observed complainant’s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].”

Brown, TerVeer’s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The library’s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.


Classical closet?

Van Cliburn, Washington Blade, gay news

Van Cliburn (Photo by David Eldan via Wikimedia Commons)

It was publicly acknowledged in obituaries in the New York Times and the Los Angeles Times and at a funeral held last weekend that concert pianist Van Cliburn, one of the most famous classical musicians of the 20th century, was gay, but the references — the “g” word was not used — were as discreet and low key as the keyboard virtuoso was in his lifetime.

Cliburn, whose triumph at the 1958 International Tchaikovsky Competition in Moscow at age 23 was the crowning achievement of what had been a white-hot track record of competition winning and concertizing after a lauded three-year stint at the famous Juilliard School, died Feb. 27 at his home in Fort Worth, Texas, at age 78 following a battle with bone cancer. The story of his win in Moscow at the height of the Cold War when he was exalted as a symbol of overcoming the fear and paranoia of the era with great art, has been oft told, especially over the last week as his life has been remembered and celebrated. The long decades since it happened have cemented its mythic status and though Cliburn’s return to performing in the late ‘80s and ‘90s after nearly a decade-long hiatus drew mixed reviews, the fire and talent he brought to his early career is pretty much universally acknowledged by critics.

Cliburn plays Tchaikovsky Piano Concerto No.1 Mvt III

“With the iconic nature of his rise to fame so to speak, he really became this symbol because what really happened there in Moscow was about so much more than the music,” says Scott Beard, a gay concert pianist and professor at West Virginia’s Shepherd University. “It wasn’t like Glenn Gould with the ‘Goldberg Variations,’ it was a highly politicized thing and to [Nikita] Khruschev’s credit, he said, ‘He’s the best, he should win.’ I think with that came a lot of pressure.”

And while one wouldn’t expect Cliburn to have been out at the time — it was, after all, only a year after gay rights pioneer Frank Kameny was fired by the U.S. government for being gay and years before Stonewall — Cliburn’s low-key handling of his homosexuality has been so understated that, at times, the references to it in mainstream media outlets are almost, one might argue, comically opaque.

The Los Angeles Times mentioned “Thomas L. Smith, his friend and manager who survives him.” The New York Times said he was “survived by [Smith], with whom he shared his home for many years.” A 2008 New York Times article commemorating the 50th anniversary of his Tchaikovsky win, mentioned “his home in Fort Worth, which he shared with a longtime friend.” (Smith spoke briefly at Cliburn’s funeral saying, “Van’s death is a crater-sized void that is felt around the world but for me, it is the loss of my soul mate, the deepest friendship …”)

A sunny 1993 biography from Chicago Tribune arts critic Howard Reich is more than 400 pages long yet includes not one mention of Cliburn’s love life. (Reich wrote in an e-mail to the Blade this week regarding Cliburn that “my area of study is really the music itself.”)

There was one episode the papers did dutifully report — a former boyfriend, Thomas Zaremba, sued Cliburn in 1996 seeking millions in palimony. The suit was eventually dismissed. Cliburn did briefly comment on the matter at the time, telling the Fort Worth Star-Telegram it was “absolutely a shocking surprise.” Cliburn said there was no way he could have exposed Zaremba to HIV, as Zaremba had claimed, as Cliburn himself was negative.

If anything, though, the lawsuit did break the ice for acknowledgement of Cliburn’s being gay in the press. Although friends and associates who knew him early in his career say he was never particularly closeted, it was not a topic ever publicly discussed. Aside from the fact that more gays were in the closet in the ‘50s, ‘60s and ‘70s than today, the near-constant presence of Cliburn’s mother, the famous Rildia Bee O’Bryan Cliburn, who had been his first piano teacher, is generally acknowledged as a factor in his low-key lifestyle.

“When I first knew him, I knew he was gay from the very beginning, but I can’t remember quite how I knew,” says Robert Croan, a former classical music critic for the Pittsburgh Post-Gazette who’s gay. “His mother, whom I met many times, was sort of a grand dame type, but very down to earth. She had a great sense of humor but she watched over him very carefully. I think he had his excursions with various men but she traveled with him and was just there all the time. … She was very proprietary with him and the father was sort of invisible as far as the public really knew.” (Cliburn’s father died in 1974.)

Croan says although he and Cliburn were not close friends, they were friendly over many years and saw each other multiple times, including when Croan covered the Van Cliburn International Piano Competition, a highly regarded quadrennial contest Cliburn started in the late ’60s in Fort Worth, for the Post-Gazette. Croan helped facilitate an honorary doctorate for Cliburn from Pittsburgh’s Duquesne University, where Croan previously taught.

Fans inevitably wondered to what degree — if any — Cliburn was out to his mother. Cliburn never publicly commented on the matter.

“I would say she had to have known,” Croan says. “Whether they actually discussed it, I have no way of knowing but she couldn’t have been around him all that time and not known. This was not a stupid woman. … I would guess at the very least she closed her eyes to what was going on or maybe acknowledged it privately.”

But it’s unlikely Rildia Bee, who died in 1994 at age 97, was the only factor. Cliburn spent his later years living in his native Texas (in a swanky suburb of Fort Worth), was a lifelong Baptist, member and regular attendee at Fort Worth’s large Broadway Baptist Church and was also a Republican. Former President George W. Bush, also from Texas, spoke at Cliburn’s funeral. (In 2009, Cliburn’s church severed ties with the Southern Baptist Convention in a disagreement over the church’s welcoming of LGBT members.)

And for all his musical achievements, Cliburn — at least so far as is publicly known — was not involved in LGBT advocacy work of any kind.

Philip Johnson, an 87-year-old Fort Worth gay activist who worked with Kameny and was involved in LGBT work for decades, says, “I don’t think he ever associated with the gay movement at all.”

“I used to see him sometimes at the Highland Park Cafeteria, this place where wealthy people ate that had really excellent food,” Johnson says. “But we never crossed paths at any sort of gay rights rally or anything like that.”

Darren Woods, general director of the Fort Worth Opera, agrees.

“I did not know him well outside of his attending operas occasionally and the occasional hello at a restaurant,” Woods, who’s gay, wrote in an e-mail. “He and his long-time partner, Tommy, were deeply involved with many straight married couples who were big arts patrons.”

SIDEBAR: Mono recording of Cliburn’s Moscow triumph available

The degree to which Cliburn was out at various periods of his life, while interesting enough in and of itself, also raises a bounty of other questions. Were many classical pianists of Cliburn’s day — Liberace, for the record, was considered more of a pop entertainer and was never taken seriously by the classical establishment — gay? If so, how many were out? Are the numbers any different today? How does it compare to other classical professionals such as orchestra players, conductors and composers? And did the classical world warm to out gays more quickly than pop culture? Or the world at large? Or did the blue-blooded, elderly art patron types keep gays in the closet longer? And with so much emphasis in pop culture with who’s sleeping with whom and the personal lives of celebrities, why do such questions seldom get asked of classical artists?

Nobody has numbers, but the anecdotal assessments are entertaining.

“Generally it’s thought that a lot of concert pianists were gay,” says David Patrick Stearns, a classical music critic at the Philadelphia Inquirer, who’s gay. “Nobody really knows why, but it seems to be somewhere around 50 percent. Violinists? Almost never. Again, nobody really knows why. Cellists? That’s a little up for grabs. Organists? Almost all of them. Countertenors? Most of the American ones are gay, but the non-American ones are not. … Opera is kind of a separate thing. Opera, I mean talk about queer energy, though. I’ve heard people talk about there being straight opera queens but I don’t know.”

Croan says more American composers have traditionally tended to be gay than pianists.

“(Fellow Cliburn Juilliard pianist) John Browning was out,” Croan says. “Samuel Barber and Gian Carlo Menotti, certainly a large number of American composers of the mid-20th century were gay. Aaron Copland is another. They weren’t out in the sense that there was any public announcement about it and the media wouldn’t have touched on it unless there was some sort of a scandal, but it was kind of quietly acknowledged. I met a lot of gay performers of that generation. Some got married but most didn’t. Ned Rorem was gay and was very open about it in his memoirs.”

One wonders the degree to which this was acknowledged among the musicians themselves. Was anybody hosting pool parties on Sunday afternoons the way gay director George Cukor famously did in Hollywood?

“I don’t know about pool parties, but I think there was a large degree of socializing,” Croan says. “Classical music is a pretty small world to begin with so you have a smaller pool of people. … The difference from then and Van Cliburn is they didn’t all travel with their mothers, that’s a big difference. I think he stayed a bit more to himself in that way. … And I also think these groups could be very productive. It wasn’t all just drinking and carousing. Their interactions were very artistically productive. You had a lot of interaction and influence and a lot of good artistic results, ramifications.”

Stephen Hough, a highly regarded classical concert pianist who’s released many recordings, remembers a “wonderful evening” of dinner and a recital Cliburn gave at Tanglewood, an estate and music venue in Lenox and Stockbridge, Mass., in the ‘90s.

“I didn’t know him well but I found him to be a completely charming person at dinner,” Hough, who’s gay, says. “He was very humble and modest and always interested in what other people were saying. … He was a lovely person and I wish I’d been able to meet him more.”

Hough says many factors likely contributed to Cliburn’s discretion.

“He had a huge female audience,” Hough says. “Women always found him very attractive. He was sort of the perfect bachelor everyone wanted to marry. There were older women who simply fell at his feet. There’s a story I’m told where an older female fan greeted him once and told him with tears, ‘You’ve made my life worth living.’ He took her hands in his and held her to him and said, ‘This is such a special moment in my life, you’ve touched my heart deeply.’ Back in the earlier years, I don’t think his audience would have even known what homosexuality was much less accepted it. It was a much different era.”

Hough says he’s seen the matter handled in many different ways by classical performers over the years.

“Jorge Bolet was a pianist of the same generation as Cliburn,” he says. “He had a partner for decades who traveled with him always. He was just always there but it was never really laid out clearly who this was. You could think he was a boyfriend, you could think he was a secretary, a manager or whatever you chose, but there he was. We really shouldn’t demand too much heroism in the past because it was so different.”

As to how quickly the classical world warmed to the idea of its heroes being out, many say it pretty much mirrored the rates of society at large. It was never particularly unwelcoming, insiders say, but the seriousness with which its fans and artists approach their work made it perhaps an easier topic, historically, to avoid dealing with head on.

“Yes, you had all these staid, wealthy board members but they weren’t stupid people,” Croan says. “They put a blind eye to it in some ways, but they also liked socializing with the stars, just like they do in Hollywood. I’d say it was acknowledged on Broadway long before it was in Hollywood or in the classical music world. Broadway, I think, has always been pretty gay. I think Hollywood was probably the last. It was a medium for more people, more democratic and thus perhaps more conservative. You’d have children watching movies whereas classical music was pretty much an adult group.”

‘An old-fashioned institution’

Stearns says other arenas of performing lend themselves more easily to issues of sexuality.

“Movie stars and rock stars, too, they’re presented as these sexual objects so of course the public is interested in their sex lives,” he says. “But then you have people like [late gay pianist] Vladimir Horowitz and even gay people don’t want to know what he was doing in the bedroom. It’s a completely different playing field.”

The inherent formality in classical music is also a factor, it is widely thought.

“Classical music is a more old-fashioned institution,” Hough says. “You have Rufus [Wainwright] and he’s on stage singing songs he just wrote last year. I’m playing with a whole different flavor and a much longer time frame. It’s just generally a more formal art form. Some say they’d like us to come out in torn jeans and talking to the audience, but there’s also something about that formality that provides its own kind of theater in a way. When the lights go down and the conductor or soloist comes out, it’s a very theatrical moment and I think a certain amount of mystery can be a good thing.”

Hough says he experienced no backlash after coming out several years into his career. “A couple youngsters wrote to tell me I’d encouraged them,” he says. “Otherwise nothing good or bad really.”

Patricia Racette, currently on stage in the opera “Manon Lescaut” at the Kennedy Center, writes in an e-mail (she’s saving her voice, understandably, for the stage) that the demands placed on classical musicians are also a factor. Racette is in a lesbian relationship and has been out for years.

“We now live in a world inundated by reality TV,” she writes. “And the reality for a classical musician is the demand of a continually honed skill, never-ending study, preparation and execution of all of the above in order to sustain this unrelenting art form. While so many artists are indeed fascinating in their personal lives, the emphasis on the work (in classical music) is the most relevant.”

Racette, who earned her music degree from the University of North Texas, says she can relate to the conservative nature of the state being a factor in Cliburn’s quiet life.

“I was so buried in my music and working to pay for my school that I honestly did not tap into a specific LGBT community there,” she writes. “The campus itself was quite conservative making it a bit of a scary place to come into one’s own as it were.”

Others say too much personal information is sometimes seen as a distraction in classical music.

“I think it’s just the issue of let the music speak for itself,” Beard says. “Maybe on some level it helps to be out to help you build an audience … so I don’t know if it’s taboo per se, but … I think the focus is much more on the craft which I why maybe in a marketing sense you don’t see it more often. You want the music critics to take you seriously so you can imagine them thinking, ‘OK why are you telling me this, tell me how you play Beethoven,’ or whatever. It’s just kind of this unwritten thing of, ‘OK, you’re gay, you have your life, but the focus is not on your personal life.’”

Others are delighted to see how quickly the classical world and the world at large are changing in their acceptance.

Stearns says he and others at the Inquirer were debating how to address or broach the topic of the personal life of Yannick Nezet Seguin, who’s gay and last September became music director of the Philadelphia Orchestra.

“We were all thinking, ‘OK, how do we handle this?’” Stearns says. “People are always curious. They want to know who the wife is but we don’t out people at the Inquirer so, the mayor was there and said, ‘We welcome Yannick and his partner,’ and it was like, ‘OK, thank you.’” … Three or four years ago, I would have said yes, there might have been some squeamishness, but nobody batted an eye. Now he’s the first conductor of one of the five biggest orchestras in the country to be out. And, you know, Philly isn’t known to be the most progressive town on the planet. I think people were just really glad to just sort of snag this really wonderful up-and-coming talent. He’s very extroverted and a real people person and people are just really drawn to him and his boyfriend.”

Charles Miller, organist and music director at Washington’s National City Christian Church, says it’s up to each public figure to decide how to handle it depending on his or her comfort level.

“I think there are some good examples even in pop culture,” Miller, who’s gay, says. “You think of someone like David Hyde Pierce. We all know now and he’s never really shied away from it, but he’s not flaunting himself or his partner or activities in every magazine. In some cases, it’s the artist sort of preserving something of their lives under wraps so that it doesn’t detract from the art form. … [With Cliburn], you wouldn’t just have expected, now it’s the 2000s we’re gonna see him come flying out of the closet and jump up on a float. It’s really the individual’s preference of how they want to live their life.”

Cliburn did eventually tire of public life and for much of the ‘70s, lived quietly. He eventually returned to public life and performing and is widely acknowledged for starting the Cliburn Competition, but even so, there was an unexpected gay side to him in addition to his many eccentricities such as staying up all night, running late for recitals, hoarding antiques, opening recitals with “The Star-Spangled Banner” and saving dead flowers.

“If you really wanted to engage him and get him talking, you brought up Cher,” Stearns says with a hearty laugh. “He absolutely loved Cher.”