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DOJ faces renewed call to provide benefits to gay veterans

Mark Udall, Democratic Party, United States Senate, Colorado, gay news, Washington Blade

Sen. Mark Udall (D-Colo.) is renewing his call for the Obama administration to stop enforcing portions of Title 38 (Photo public domain).

Pressure is increasing on the Obama administration to ensure gay veterans have access to spousal benefits everywhere they go in the country as additional U.S. senators are joining others in a call for action.

In a letter dated Jan. 16 to U.S. Attorney General Eric Holder, seven senators — led by Sen. Mark Udall (D-Colo.) — call on the Obama administration to stop enforcing 103(c) of Title 38 to ensure gay veterans in same-sex marriages can receive spousal benefits.

“We believe taking this action is an important part of DOJ’s responsibility to implement and enforce the legal doctrine created in Windsor,” the senators writes. “Further, if the VA is able to apply 103(c) so that all marriages legally entered into will be recognized, it will provide continuity with the Department of Defense policy that applies to active duty service members and avoid a situation where the federal government is recognizing a person’s marriage one day and ignoring it the next.”

Joining Udall is signing the letter are Sens. Jeanne Shaheen (D-N.H.), Richard Blumenthal (D-Colo.), Barbara Boxer (D-Calif.), Chris Coons (D-Del.) and Jeff Merkley (D-Ore.) as well as lesbian Sen. Tammy Baldwin (D-Wis.).

A portion of the law governing veterans’ benefits, 103(c) of Title 38, looks to the state of residence, not the state of celebration, in determining whether a couple is married. That means if a gay couple in which one partner is a veteran weds in a marriage-equality state like New York, but moves to non-marriage equality state like Colorado, the couple won’t be able to apply for these benefits.

The letter emphasizes that the place of residence rule for spousal benefits isn’t a hypothetical problem for gay couples because many have already been denied benefits under this statute. Some of the spousal benefits allocated under Title 38 are disability benefits, survivor benefits and joint burial at a veteran’s cemetery.

“Over the last few months, there have been specific instances of legally married couples who were denied VA spousal benefits solely because of their gender and place of residence,” the letter states.

The Obama administration has already taken some action on this issue. In the wake of the Supreme Court decision against DOMA, the Justice Department had announced in September the Obama administration wouldn’t enforce a portion of Title 38 that independently defines marriage in opposite-sex terms.

But no decision has been made on the place of residence rule of Title 38. The Obama administration has said it’s still reviewing whether it can stop enforcing 103(c) of the statute.

In the letter, the senators are critical about the length of time it’s taking to resolve this issue in the aftermath of the Supreme Court decision against DOMA in June.

“Unfortunately, nearly six months after that decision we continue to see specific cases where the federal government is withholding federal benefits to legally married same-sex couples,” the letter states. “This appears to be in conflict with the central principle of the Windsor decision, that the federal government should respect the lawful marriages of same-sex couples.”

Dena Iverson, a Justice Department, said in response to the missive, “We’re reviewing the letter.”

The continued enforcement of this 103(c) of Title 38 to deny benefits to gay couples has concerned lawmakers for some time.

In November, Udall wrote a letter on his own to the Justice Department calling on the Obama administration to stop enforcing the place of residence rule to discriminate against gay veterans. Earlier this month, Sen. Mark Warner (D-Va.) wrote a similar letter asking the Obama administration to cease enforcement, citing issues that gay veterans are having with obtaining VA loans.

LGBT groups, including the Human Rights Campaign and American Military Partners Association, have said they share the concerns about the place of residence rule under Title 38. HRC has previously called for clarity from the administration on whether or not it can cease enforcing that section of the law to discriminate against gay couples.

Stephen Peters, AMPA president, reiterated his previous call for the Obama administration to take action in a statement.

“No veteran should be treated differently by the federal government just because he or she is married to someone of the same-gender or lives in a state that does not value the diversity of his or her family,” Peters said.

Alex Nicholson, who’s gay and legislative director of Iraq & Afghanistan Veterans of America, said his organization “absolutely” shares the concerns expressed in the letter.

“IAVA strongly believes that all veterans are entitled to fair and equal treatment with respect to benefits and services provided by the VA,” Nicholson said. “The Supreme Court has been clear that legally married same-sex couples are entitled to federal recognition and benefits, so the administration must proactively resolve the lingering technicalities that have thus far prevented the VA from complying.”

It remains to be seen whether Holder will address this issue — as well as other post-DOMA issues, such as granting Social Security survivor and pension benefits to married same-sex couples in non-marriage equality states — in any of his upcoming public appearances. He’s set to deliver testimony before the Senate Judiciary Committee on Jan. 29 and is scheduled as the keynote speaker at HRC’s Greater New York Gala on Feb. 8.

CORRECTION: An earlier version of this article was incorrect about the date on which Holder would deliver testimony before the Senate. The Blade regrets the error.

19
Jan
2014

Holder to announce new DOJ policy on gay rights

Eric Holder, Tammy Baldwin, Melissa Etheridge, United States Department of Justice, United States Senate, Democratic Party, Wisconsin, gay news, Washington Blade, LGBT Pride

U.S. Attorney General is set to announce new DOJ policy in the wake of the Supreme Court decision against DOMA (Washington Blade photo by Michael Key).

U.S. Attorney General Eric Holder is set to announce a new policy today aimed at ensuring the Justice Department recognizes same-sex marriages under the law, the Washington Blade has learned.

Holder is scheduled to deliver the remarks at 7 p.m. during his speech at the Human Rights Campaign’s annual gala in New York City held at the Waldorf Astoria.

According to excerpts from his prepared remarks, Holder is set to announce the Justice Department will issue a memorandum on Monday to outline the changes, which will bring the department into compliance with the Supreme Court’s decision against the Defense of Marriage Act.

Holder is prepared to make the announcement in the same speech in which he’s set to reflect on the 50th anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech and passage of the Civil Rights Act of 1964.

“And yet, as all-important as the fight against racial discrimination was then, and remains today, know this: my commitment to confronting discrimination based on sexual orientation or gender identity runs just as deep,” Holder’s prepared remarks say. “Just like during the civil rights movement of the 1960s, the stakes involved in this generation’s struggle for LGBT equality could not be higher.”

Each of the changes is related to the way the Justice Department handles recognition of married same-sex couples. They range from rights in civil and criminal cases, rights as inmates and access to benefits programs:

• The Justice Department will recognize that same-sex spouses of individuals involved in civil and criminal cases have the same legal rights as straight married couples, including the right to decline to give testimony that might incriminate a spouse.

This new rule applies in non-marriage equality states. The government won’t object to couples in same-sex marriages invoking this right if they marry in another state, but their current jurisdiction doesn’t recognize their union.

• In bankruptcy cases, the U.S. Trustee Program will take the position that same-sex married couples should be treated in the same manner as opposite-sex married couples. Consequently, same-sex married couples will be eligible to file for bankruptcy jointly; certain debts to same-sex spouses or former spouses will be excepted from discharge; and domestic support obligations should include debts, including alimony, owed to a former same-sex spouse.

• Federal inmates in same-sex marriages will be entitled to the same rights and privileges as inmates in opposite-sex marriages. These rights include spousal visitation; inmate furloughs to be present during a crisis involving a spouse; escorted trips to attend a spouse’s funeral; correspondence with a spouse; and compassionate release or reduction in sentence if an inmate’s spouse is incapacitated.

• The Justice Department will recognize same-sex couples for the purposes of a number of benefits programs it administers, such as the Radiation Exposure Compensation Program and the September 11th Victim Compensation Fund.

Also among these programs is the Public Safety Officers’ Benefits Program, which provides death benefits to surviving spouses of public safety officers, such as law enforcement officers and firefighters, who suffer catastrophic or fatal injuries while on duty.

“When any law enforcement officer falls in the line of duty or is gravely injured, the federal government should stand by that hero’s spouse – no matter whether that spouse is straight or gay,” Holder’s prepared remarks say.

The new policy comes seven months after the U.S. Supreme Court decision against Section 3 of the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage. Nothing in the excerpts of prepared remarks received by the Blade references DOMA, but a Justice Department official said the new changes are considered a step in the process to bring the Justice Department into compliance with the decision.

The Justice Department has coordinated the effort across the Obama administration to ensure married same-sex couples have the same rights and benefits under federal law as opposite sex couples in the wake of the DOMA decision. The various departments and agencies announced changes in policies since that time.

Chad Griffin, HRC president, praised Holder in a statement for changes he’s slated to announce within the Justice Department.

“This landmark announcement will change the lives of countless committed gay and lesbian couples for the better,” Griffin said. “While the immediate effect of these policy decisions is that all married gay couples will be treated equally under the law, the long-term effects are more profound. Today, our nation moves closer toward its ideals of equality and fairness for all.”

At least one of the changes that Holder is set to announce — the eligibility of married same-sex couples to file jointly for bankruptcy — was already the policy of the Justice Department. According to Reuters, following a ruling against DOMA by a bankruptcy court in Los Angeles, the Justice Department in 2011 elected to no longer dismiss bankruptcy petitions filed jointly by married same-sex debtors.

In his remarks, Holder is set invoke the memory of former U.S. Attorney General Robert Kennedy and his work in the civil rights movement as a reference point for the additional work the Justice Department is doing on LGBT rights.

“Then, as now, nothing less than our country’s commitment to the notion of equal protection under the law was on the line,” Holder’s prepared remarks say. “And so the Justice Department’s role in confronting discrimination must be as aggressive today as it was in Robert Kennedy’s time.  As Attorney General, I will not let this Department be simply a bystander during this important moment in history.”

Just last month, Holder announced the federal government would recognize the more than 1,300 same-sex marriages that took place in Utah following a district court ruling legalizing gay nuptials in the state — even though the state won’t recognize the unions now that the U.S. Supreme Court has placed a stay on the weddings.

HRC’s Griffin said the actions that Holder is preparing to undertake are right in line with Kennedy’s legacy as civil rights icon.

“Attorney General Holder continues to show incredible leadership, and this latest action cements his place in history alongside Robert F. Kennedy, another attorney general who crusaded for civil rights,” Griffin said.

08
Feb
2014

Justice Department launches transgender training program

Ruby Corado, Casa Ruby, gay news, Washington Blade

Ruby Corado, executive director of Casa Ruby, is among those who took part in a U.S. Justice Department training on Thursday. (Washington Blade file photo by Michael Key)

In a conference room at its headquarters in Washington, the U.S. Justice Department on Thursday held a first-of-its-kind training session for law enforcement officials on how they can better serve the transgender community.

Deputy Attorney General James M. Cole, in opening remarks, said Thursday’s session represented the launching of an ongoing nationwide series of similar training sessions designed to educate the nation’s law enforcement establishment about problems and needs of trans people.

“At its most basic level, the new training will provide tools to enhance an officer’s ability to build partnerships with community members and to work with fellow citizens, who share a commitment to public safety,” Cole told the gathering.

Cole and other DOJ officials said the department’s Community Relations Service, which was established under the famed U.S. Civil Rights Act of 1964, developed the trans training program with input from representatives of the LGBT community.

LGBT community members, including D.C. trans activist Ruby Corado, were among those attending the March 27 session.

“We heard you when you told us that we needed to establish a foundation of trust between those who serve and protect the public and those in the LGBT communities – particularly the transgender community – who are disproportionately the victims of hate violence,” said Cole.

Among those who helped develop the training program and who were scheduled to give a presentation at the session were Major Irene A. Burks of the Prince George’s County, Md., Police Department; and Diego Miguel Sanchez, a veteran trans advocate, legislative assistant to former U.S. Rep. Barney Frank (D-Mass.) and current National Director of Policy for Parents, Families, and Friends of Lesbians and Gays (PFLAG).

Also scheduled to give a presentation at the session was Harper Jean Tobin, an attorney and Director of Policy at the National Center for Transgender Equality.

Sgt. Brett Parson of the Metropolitan Police Department of D.C., who formerly headed the division that oversees the department’s Gay and Lesbian Liaison Unit, assisted in developing the trans training program. Parson was scheduled to be one of the instructors at the March 27 training session but had to cancel his appearance due to a scheduling conflict, people familiar with the event said.

Also attending the training were D.C. police Sgt. Matthew Mahl, the current supervisor of the Gay and Lesbian Liaison Unit, and Officer Justin Markiewicz, a member of the unit.

DOJ officials limited news media attendance of the event to the introductory remarks by DOJ officials. DOJ spokesperson Emily Pierce said the training itself was closed to the media because it involved role-playing exercises that could make participants uncomfortable under the glare of the press.

A statement released by the DOJ says the trans training program will become an important component of the DOJ’s Community Relations Service, which, among other things, helps communities develop strategies to prevent and respond to violent hate crimes committed on the basis of a victim’s sexual orientation and gender identity as well as other factors such as race, religion, and national origin.

The trans training program “will hereafter be facilitated around the country by CRS (Community Relations Service) regional personnel and local volunteer experts in communities that are experiencing hate violence and wish to better respond and prevent such incidents against transgender persons,” the statement says.

It says that in addition to its D.C. headquarters, the Community Relations Service has 10 regional offices and four smaller field offices that serve all 50 states and U.S. territories.

“The training resources that CRS (Community Relations Service) has created (with input from law enforcement leaders and transgender advocates) is intended to assist communities across the country and law enforcement agencies wishing to improve their understanding of and work with the transgender communities they serve,” according to the statement.

Trans activists across the country, including those in D.C., have reported widespread incidents of police mistreatment of trans people. D.C. Police Chief Cathy Lanier has been credited with putting in place policies and procedures for officers to treat transgender residents with respect and sensitivity.

Despite these policies, trans advocates says incidents of insensitivity by officers, while declining, continues to surface.

“We understand when you shared the worst possible – and frankly unacceptable – outcome that the transgender community could face,” said Cole at the training session in Washington. “Based on the community’s fears about law enforcement’s support and perceptions, too many of you in the transgender community simply didn’t report incidents of crime brought to bear against you,” he said.

“This is not a result that can or will be tolerated by the Justice Department, and it runs counter to the very role your community public safety officials want to promote,” said Cole.

Cole acknowledged, however, that the trans training program would likely be utilized mostly by “forward-thinking chiefs of police, sheriffs, and other public safety professionals who opt to participate” in the program.

Tony West, DOJ’s associate attorney general, and Grande H. Lum, national director of the department’s Community Relations Service, also spoke at the training.

28
Mar
2014

Baldwin delivers stirring Pride speech

Melissa Etheridge, United States Department of Justice, gay news, Washington Blade, LGBT Pride, Tammy Baldwin, United States Senate, Wisconsin, Democratic Party

Sen. Tammy Baldwin speaks at a DOJ Pride event. (Washington Blade photo by Michael Key)

Sen. Tammy Baldwin (D-Wis.) delivered a stirring keynote address Tuesday on advancing LGBT rights as the nation awaits Supreme Court decisions that could potentially advance marriage equality throughout the country.

In an address in the Great Hall of the U.S. Justice Department where employees commemorated June as the month of Pride, the first out lesbian elected to the U.S. Senate spoke about the importance of continuing to advance LGBT rights.

Recalling her attendance for oral arguments on DOMA before the Supreme Court, Baldwin said much attention was devoted to federalism and standing, but the debate on marriage equality “isn’t really about any of those things.”

“It’s about fairness, it’s about whether gay and lesbian Americans deserve to be treated just like our family members, our friends and our neighbors,” Baldwin said. “It’s about opportunity, about whether every American gets to dream the same dreams, choose the same ambitions and have the same shot … And it’s about freedom: the freedom to love, the freedom to commit, the freedom to build a family.”

Baldwin spoke on stage at a podium next to U.S. Attorney General Eric Holder, who delivered opening remarks prior to her speech, and lesbian signer Melissa Ethridge. Baldwin’s office said her complete remarks weren’t available.

Invoking former Attorney General Robert Kennedy’s work in diversifying the Justice Department as the black civil rights movement unfolded in the 1960s, Baldwin said the LGBT movement is the current battle for equality and noted the importance of pending court cases on marriage.

“Of course, as much progress as that generation made in fulfilling the promises America makes about fairness and equality, there was plenty left to do for generations that followed,” Baldwin said. “But we gather today, at another moment of great progress in the area of civil rights — this time for LGBT Americans.”

She also reflected on the progress on LGBT issues in recent years, which she said has taken place because more Americans “have decided that they want to leave to the next generation a country that is more equal, not less.”

“That, along with the hard work of so many champions of equality — from the president to the activists in all our 50 states — that is why we have so many firsts to celebrate today,” Baldwin said. “And that’s why the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act is on the books — and ‘Don’t Ask, Don’t Tell’ isn’t.”

Baldwin also ticked off numerous pending LGBT bills — saying she’s “even more excited about the progress that’s in our reach” with President Obama in the White House — even progress on legislation that often isn’t given considerable attention.

“Progress like the Employment Non-Discrimination Act, so that we don’t have to contend with the … reality that in more than two dozen states, it’s to legal to discriminate against LGBT employees,” Baldwin said. “And progress like the Student Non-Discrimination Act and the Safe Schools Improvement Act, so that LGBT students can go to school worried about math tests and swim meets, and not about bullying and harassment. Progress like the Domestic Partnership Benefits & Obligations Act, so that LGBT Americans who work to support their families in the civil service can be rest assured that their partners can enjoy benefits like health insurance and retirement.”

But Baldwin concluded by saying the LGBT rights movement is actually about working toward a cultural change to ensure LGBT people are treated fairly.

“But we don’t want to just live in a country where our rights our respected under the law, we want to live in a country where we are respected for who were are, where we enjoy the freedom and opportunity not because the Supreme Court gave us permission, but because we’re Americans, and that’s all there is to it,” Baldwin said.

The speech elicited considerable excitement from the audience. After she spoke, Holder stood up on stage and said, “Wow!” and “That was good!”

Chris Hook, a Justice Department attorney and secretary for the LGBT affinity group DOJ Pride, said Baldwin struck an emotional chord with the audience.

“Part of it is, she’s achieved so much within our own community, and it’s really great to see her supporting and championing causes not only for the LGBT community, but as Americans writ large,” Hook said.

18
Jun
2013

Court grants extended time for DOMA arguments

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court on Monday set up speaking time for oral arguments in the DOMA case (Washington Blade file photo by Michael Key)

The U.S. Supreme Court announced on Monday it would grant extended time for oral arguments in a lawsuit challenging the Defense of Marriage Act.

In its order list, the court granted a total of 110 minutes in arguments before the court — set for March 27 — with 50 minutes devoted to jurisdictional issues and 60 minutes devoted to the merits. That’s significantly longer than the standard 60 minutes for oral arguments before the court.

Time is further broken down as follows:

“On the jurisdiction issues, the Court-appointed amicus curiae is allotted 20 minutes, the Solicitor General is allotted 15 minutes, and respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives is allotted 15 minutes,” the orders state. “On the merits, respondent Bipartisan Legal Advisory Group of the U.S. House of Representatives is allotted 30 minutes, the Solicitor General is allotted 15 minutes, and respondent Edith Windsor is allotted 15 minutes.”

The Court-appointed amicus curiae is Harvard law professor Vicki Jackson, who has argued that the Supreme Court doesn’t have jurisdiction to hear the DOMA case, nor does the House Republican-led Bipartisan Legal Advisory Group have standing to participate in the lawsuit.

The announcement responds to a request filed last week from U.S. Solicitor General Donald Verrilli, reported by SCOTUSBlog, for extended speaking time during the oral arguments. Notably, even though attorneys for plaintiff Edith Windsor sought time to speak on the jurisdictional question, they are not granted time during oral arguments to address that issue.

While setting time allocations for the DOMA arguments, the court orders on Monday make no mention of whether the Supreme Court has agreed to another request from the Solicitor General Donald Verrilli to participate in oral arguments in the case against California’s Proposition 8. The issue apparently remains to be decided.

Last week, Verrilli filed a motion with the Supreme Court noting the Justice Department’s recently filed friend-of-the-court brief in the case and saying the government has a similar interest in Prop 8 as it does with DOMA.

“This case, like Windsor, presents the Court with the opportunity to address the question whether laws that target gay and lesbian people for discriminatory treatment should be subject to heightened scrutiny,” the motion states. “Certain interests articulated in support of Proposition 8 in this case have also been raised in Windsor in support of Section 3 of the Defense of Marriage Act, and the Court’s approach when examining those interests therefore is of significance to the United States.”

Verrilli adds Justice Department participation in oral argument will provide the court with the government’s “unique perspective” on Prop 8 and will be of material assistance to the Court.

04
Mar
2013

‘Gay panic’ defense in Miss. murder case

Marco McMillan, gay news, Washington Blade

Marco McMillan (Photo courtesy of Facebook)

A county coroner in Mississippi disputed claims by family members of gay mayoral candidate Marco McMillian that McMillian was murdered on Feb. 26 by being beaten, burned and dragged naked along an earthen levee next to the Mississippi River near the City of Clarksdale.

The dispute between the family and Coahoma County coroner Scotty Meredith surfaced on Tuesday shortly after local TV news stations reported that Lawrence Reed, 22, the man charged with McMillian’s murder, told friends that he killed the mayoral candidate in self-defense after McMillian allegedly made sexual advances toward him.

Those claims created an immediate uproar among gay activists and McMillian’s friends and family members, who argued that Reed appeared to be invoking the so-called gay panic defense that has often been used by criminals who target gay men for violent attacks.

ABC 24 News of Clarksdale reported that Reed’s friends said Reed and McMillian met a few weeks before the murder at a Clarksdale bar and became friends. The friends told the TV news program they learned later that Reed, who says he’s straight, called his girlfriend immediately after he reportedly killed McMillian.

“She said she was listening to everything that was going on, how the guy was trying to get Lawrence to have a homosexual activity,” Derric Crump, one of Reed’s friends, said in an interview with the TV news program.

McMillian’s friends and family members dispute that account, saying McMillian would not do such a thing.

As developments in the case continued to unfold, the National Black Justice Coalition, an LGBT civil rights group based in Washington, D.C., announced on Tuesday that it has called on the U.S. Justice Department to investigate McMillian’s murder as a possible hate crime.

“After speaking extensively with the family, community and anti-violence coalition members like the National Coalition of Anti-Violence Programs, NBJC feels the perpetuation and validation of the ‘gay panic’ defense is irresponsible,” NBJC Executive Director Sharon Lettman-Hicks said in a March 5 letter to Attorney General Eric H. Holder Jr.

“The conflicting reports as well as the current racial and anti-LGBT climate in Mississippi is justification enough for a federal investigation,” Lettman-Hicks said in her letter.

The dispute between the coroner and McMillian’s family members over the nature of the injuries suffered by McMillian came at a time when neither the coroner nor the Coahoma County Sheriff’s Office have disclosed the cause of death or the motive for the murder.

According to a spokesperson for the Sheriff’s Office, an autopsy was conducted but its results remain inconclusive until toxicology tests are completed. The coroner’s office has said the results of those tests wouldn’t be known until at least the end of the week if not later.

Meredith, the coroner, appeared to be the first public official to provide details about the nature of McMillian’s injuries when he spoke to the New York Times on Tuesday.

According to the Times, he said McMillian’s family apparently misinterpreted information he gave them a week earlier, prompting them to incorrectly disclose to the press and LGBT organizations that McMillian died from being brutally beaten, set on fire and dragged from the side of a road to the levee where his body was found on Feb. 27.

The Times reports Meredith as saying McMillian’s body was found unclothed, with a black eye and two small burns on his skin. Those injuries were not the cause of his death and the cause was still not confirmed pending the completion of the toxicology tests, he told the Times.

“There was no beating, although there may have been an altercation,” the Times quoted him as saying. “He got two little bitty burns.”

In a statement released on Tuesday prior to the publication of the New York Times story on the Times website, McMillian’s family members said the gay mayoral candidate was “brutally murdered.” He suffered severe injuries from being “beaten, dragged and burned (set afire),” the statement says.

“This was reported in our meeting with the local coroner on two occasions,” the statement says.

Meredith told the Times that burns the size of a half-dollar coin were found on McMillian’s hand and leg and that the cause of the burns were unknown.

“For this family, this was their child, whether he’s 34 years old or 3,” the Times quoted Meredith as saying. “They want to believe it was a hate crime. But we don’t have a hate crime.”

Lawrence Reed. (Photo courtesy Coahoma County Miss. Sheriff's Office)

Lawrence Reed. (Photo courtesy Coahoma County Miss. Sheriff’s Office)

The Sheriff’s Office spokesperson, Will Rooker, told the Blade investigators linked defendant Reed to the crime after he became involved in a head-on collision with a car while he was driving McMillian’s SUV on a highway on Feb. 26. McMillian wasn’t in the SUV, and the discovery that the vehicle belonged to McMillian prompted the Sheriff’s Office to launch an investigation into his whereabouts, Rooker said.

Reed was taken by helicopter to a hospital in Memphis, Tenn., which is the closest large city to Clarksdale, where he was treated and listed in stable condition. He appeared in a Memphis court on Monday and waived his right to fight extradition to Mississippi. He was being held without bond and was expected to be returned to Coahoma County, Miss., later this week.

The Jackson, Miss., Clarion-Ledger reported yet another wrinkle in the case on Monday. According to the newspaper, the driver of the vehicle struck by the SUV Reed was driving said friends of Reed told him Reed’s girlfriend called 911 to report that Reed confessed to her that he killed McMillian and stole McMillian’s SUV.

The 911 call was made before the traffic accident occurred, Chris Talley, the driver of the other vehicle, told the Clarion-Ledger. Talley told the Clarion-Ledger he spoke with family members of Reed’s girlfriend at the Sheriff’s Office when he went there to pick up his belongings that were left behind at the scene of the accident.

“They already knew that the vehicle was stolen when the sheriff’s deputies arrived (at the scene of the wreck), and they already knew it was a murder,” the Clarion-Ledger quoted Talley as saying.

McMillian’s friends and campaign supporters said he was considered a viable candidate to become the first openly gay elected official in Mississippi. He was one of four candidates running in the May 7 Democratic primary for mayor in the majority Democratic city of Clarksdale.

With no Republican running in the election, the winner of the primary was expected to easily win the general election on June 4.

06
Mar
2013

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.

02
Jan
2013

Court grants DOJ speaking time in Prop 8 case

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court has granted the Justice Department time to speak during the Prop 8 arguments (Washington Blade file photo by Michael Key)

The Obama administration will have the opportunity to speak out against the constitutionality of California’s Proposition 8 when the U.S. Supreme Court hears oral arguments on the anti-gay measure.

In court orders on Friday, justices announced the U.S. Solicitor General will be allowed speaking time for oral arguments in the case, which are scheduled for March 26.

“The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted,” the orders states.

The Justice Department had filed a request for speaking time in the oral arguments shortly after it filed a legal brief against Prop 8. In the brief, the Obama administration argued Prop 8 should be overturned because laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

The Obama administration is also participating in litigation against the Defense of Marriage Act pending before the Supreme Court. Oral arguments for that case are set for March 27.

15
Mar
2013

Puerto Rico police agree to strengthen hate crime response

Gay News, Washington Blade, Puerto Rico, Hate Crimes

Pedro Julio Serrano (Photo courtesy of Pedro Julio Serrano)

The Puerto Rico Police Department agreed to strengthen its response to hate crimes in a settlement the Justice Department announced on Dec. 21.

DOJ ordered the PRPD to “collect accurate and reliable data hate crimes” on “an ongoing basis” and submit it to the Federal Bureau of Investigation for inclusion in its annual Hate Crimes Statistics report. (The FBI currently reports statistics based on sexual orientation, but not gender identity and expression. It will begin to collect transgender-specific data this year as outlined in the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act that President Obama signed in 2009. The agency will begin to report them in 2014.)

The department agreed to develop policies that will improve the way its officers interact with transgender people while in custody. The PRPD will also provide officers with bias-free police trainings at least every two years and annually after 2017. Components of these sessions will include “the protection of civil rights as a central part of the police mission” and “arbitrary classifications and stereotyping” based on sexual orientation, gender identity and expression and other factors.

“These provisions are designed to promote police services that are equitable, respectful, and free of unlawful bias in a manner that supports broad community engagement and effective crime prevention,” the agreement reads. “These provisions will enable PRPD to provide members of the public with equal protection of the law, without bias based on race, color, ethnicity, national origin, religion, gender, disability, sexual orientation, gender identity or gender expression.”

“We appreciate the hard work of [then-Gov. Luís] Fortuño, [PRPD] Superintendent Hector Pesquera and their staff,” Thomas E. Perez, assistant attorney general for the DOJ Civil Rights Division, said in a press release that announced the agreement. “Together, and with great input from the public, we have designed a comprehensive blueprint for reform that provides a solid foundation that will professionalize and support the hardworking men and women of PRPD as they protect the people of Puerto Rico.”

The DOJ’s announcement comes after its damning Sept. 2011 report that listed an inadequate response to hate crimes as among the PRPD’s numerous deficiencies.

More than 30 LGBT Puerto Ricans have been killed since gay teenager Jorge Steven López Mercado’s decapitated, dismembered and partially burned body was found alongside a remote roadside in Nov. 2009.

A judge sentenced Juan José Martínez Matos to 99-years in prison after he pledged guilty to the crime, but the Puerto Rico Department of Justice’s own reports indicate Puerto Rican prosecutors have yet to convict anyone under the island’s hate crimes law that includes both sexual orientation and gender identity and expression. The Puerto Rico Senate in late 2011 approved a proposal that would have eliminated LGBT-specific protections from the aforementioned statute.

Pedro Julio Serrano and other Puerto Rican LGBT advocates repeatedly criticized Fortuño and his administration for what they contend was an unwillingness to speak out against anti-LGBT violence in the American commonwealth in the wake of López’s brutal death that sent shockwaves across the island and around the world.

“It’s definitely too little too late for the outgoing administration,” Serrano told the Washington Blade in response to the DOJ agreement. “But it’s a good blueprint and protocol that is necessary to finally have this in place for the prosecutors in Puerto Rico so they can work on the hate crimes on the island and make sure they are correctly prosecuted and investigated as hate crimes because it hasn’t happened in Puerto Rico.”

The DOJ also met with Gov. Alejandro García Padilla, who succeeded Fortuño on Wednesday, to discuss the agreement.

“We look forward to working with Governor-elect García Padilla and his incoming administration to finalize the agreement and begin the critical work of rebuilding PRPD,” Perez said before the current governor took office. “Ensuring effective, constitutional policing is not a partisan issue, and we appreciate the commitment of Gov. Fortuño and Governor-elect García Padilla to the reforms embodied in the agreement. The successful implementation of the reforms contained in this agreement will help to reduce crime, ensure respect for the Constitution and restore public confidence in PRPD.”

García pledged during his campaign he would support a number of LGBT-specific proposals that include the addition of sexual orientation and gender identity and expression to the island’s anti-employment discrimination law, civil unions for same-sex couples and including LGBT Puerto Ricans in the island’s domestic violence statutes. Serrano urged the incoming administration to amend the hate crimes law to allow prosecutors to introduce bias-related evidence at the start of a trial as opposed to during the sentencing phase.

“We want it from the get go to be prosecuted as a hate crime so the evidence and a way the case is prosecuted is a following the motivation of the crime and it’s not left to the end of the process where usually after they get a conviction or someone pleads guilty then they don’t have to deal the motivation because they already got what they wanted,” he said, adding he feels both the PRPD and the Puerto Rico Justice Department do not understand how to address hate crimes. “The only way to curb anti-LGBT violence in Puerto Rico is we finally prosecute these as hate crimes and people understand the motivation behind them was anti-LGBT.”

The DOJ agreement will take effect on April 15.

03
Jan
2013

Ohio hospital to pay for HIV-based bias

Thomas Perez, assistant attorney general for the Civil Rights Division of the Justice Department.(Washington Blade file photo by Michael Key)

Thomas Perez, assistant attorney general for the Civil Rights Division of the Justice Department.(Washington Blade file photo by Michael Key)

WASHINGTON — Glenbeigh Hospital in Rock Creek, Ohio, must pay $32,500 plus $5,000 in civil penalties to an unidentified man who sued the hospital for unlawfully refusing to admit him to an alcohol treatment program because of side effects of his HIV medication, the Justice Department announced last week.

The department found that Glenbeigh could not show that treating the man would have threatened his health or the health and safety of others. The settlement resolves allegations from the man that Glenbeigh violated the Americans with Disabilities Act.

The Department said this is the fourth settlement it has reached in six weeks addressing HIV discrimination by a medical provider.

Glenbeigh must also train its staff on the Americans with Disabilities Act and develop and implement an anti-discrimination policy.

“Ensuring access to medical care for people with HIV requires that those in the medical field make medical decisions that are not based on fears or stereotypes,” said Thomas Perez, assistant attorney general for the Civil Rights Division of the Justice Department.

20
Mar
2013