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Advocates seek LGBT inclusion in State of the Union

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Advocates are calling on President Obama to mention LGBT workers during his upcoming State of the Union address. (Washington Blade file photo by Michael Key)

Amid expectations that President Obama will issue a national call to address income equality in his upcoming State of the Union address, some advocates are asking him to take the opportunity to speak out against anti-LGBT workplace discrimination.

With no explicit federal language in place protecting LGBT workers from job discrimination, advocates are calling on Obama to incorporate as part of his speech a call to pass the Employment Non-Discrimination Act and a pledge to sign an executive order prohibiting anti-LGBT discrimination among federal contractors.

The details of the speech are under wraps, but Obama already hinted earlier this month the address — which will be delivered Tuesday before a joint session of Congress — will seek to mobilize the country to ensure “the economy offers every American who works hard a fair shot at success.”

Fred Sainz, vice president of communications for the Human Rights Campaign, said including the executive order or ENDA in the speech would fit right in with the president’s larger theme.

“The president is going to spend much of his State of the Union talking about economic inequalities and it’s important that he highlight those faced by the LGBT community,” Sainz said. “There are many ways to address these issues including signing a federal contractor non-discrimination executive order and calling on Congress to send ENDA to him for his signature.”

The call for inclusion of the executive order and ENDA in the State of the Union is the same request that LGBT advocates made early in 2013 prior to that year’s speech. Instead, Obama made a veiled reference to gay people when he said the economy should work for Americans “no matter…who you love” and gave himself props for starting the process to secure partner benefits for gay troops.

But the situation has changed this time around. The Senate last year passed ENDA on a bipartisan basis by a 64-32 vote. The only thing stopping ENDA from reaching Obama’s desk is House Republican leadership. House Speaker John Boehner (R-Ohio) has repeatedly said he opposes the bill when asked if he’ll allow a vote on it.

Tico Almeida, president of Freedom to Work, said including ENDA in the State of the Union would place significant pressure on Boehner to move forward.

“By explicitly calling on Speaker Boehner to allow ENDA to come to a vote, and by explaining the current gaps in employment law to the American people, President Obama can help build political momentum and do important public education to help correct the fact that 80 or 90 percent of Americans mistakenly think ENDA is already law,” Almeida said. “The president’s words would be a catalyst for millions of important conversations around the country.”

Almeida pointed to Obama’s words in his previous State of the Union speech calling for reauthorization of the Violence Against Women Act as “model language” for what he could say about ENDA. Following that speech, the House voted to send  an LGBT-inclusive VAWA reauthorization to Obama’s desk after a version without the protections failed on the House floor.

The White House didn’t respond to a request for comment on whether Obama will include a reference to ENDA or the executive order in the State of the Union address.

If Obama calls for passage of ENDA during the State of the Union, it wouldn’t be the first time that a president has mentioned the legislation during the annual speech. In 1999, then-President Clinton said discrimination based on factors such as sexual orientation “is wrong and it ought to be illegal,” calling on Congress to turn ENDA as well as hate crimes protections into law.

As for the executive order, Obama has recently threatened to take executive action if Congress fails to act on legislation important to his agenda. White House Press Secretary Jay Carney said he had no updates when asked by the Blade if the use of the pen applies to non-discrimination protections for LGBT workers, but suggested Obama would take the route only for other agenda items.

Still, the lingering issue of LGBT workplace discrimination isn’t the only issue advocates want addressed during the State of the Union.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said ENDA and the executive order are part of a group of agenda items Obama should mention during his speech “to build on his stellar track record in the area of LGBT freedoms and justice.”

“This includes signing an executive order that bans discrimination against LGBT people working for federal contractors and pushing Congress on passing ENDA and fair immigration reform legislation,” Carey said. “We would also like to see him include LGBT people and families as examples in his references to domestic issues that all Americans care about such as jobs, the economy, and health care. And finally, we would like him to use use the word ‘transgender’ and to call for an end to violence against transgender people.”

Obama’s State of the Union light on LGBT issues

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President Obama was criticized by LGBT advocates over his State of the Union address. (Washington Blade photo by Michael Key)

President Obama had few words in his State of the Union speech Tuesday night on LGBT issues, disappointing advocates who had wanted him to address the lack of federal non-discrimination protections for LGBT people.

Devoting a large portion of his speech to income equality, Obama called on on Congress to pass other initiatives — such as a Voting Rights Act, a measure to ensure equal for pay women, immigration reform — and pledged to sign an executive order raising the minimum wage to $10.10 an hour for federal contractors.

“In the coming months, let’s see where else we can make progress together,” Obama said. “Let’s make this a year of action. That’s what most Americans want: for all of us in this chamber to focus on their lives, their hopes, their aspirations.”

LGBT advocates had been pushing Obama to include in his speech a call to pass the Employment Non-Discrimination Act and a pledge to sign an executive order barring federal contractors from discriminating against LGBT workers.

Obama’s continued decision to withhold the LGBT executive order became more pronounced after he promised during his speech to take executive action if Congress doesn’t pass legislation, and enumerated a specific plan to boost the minimum wage through executive order. That raised questions about why he hasn’t done the same for LGBT workers.

“What I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class,” Obama said. “Some require congressional action, and I am eager to work with all of you. But America does not stand still — and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”

But Obama’s speech wasn’t completely devoid of any references to the LGBT community. The president identified marriage equality as one of those issues with which the White House is partnering with “mayors, governors and state legislatures” on throughout the country.

Further, he said the administration pursues a robust foreign policy because “we believe in the inherent dignity and equality of every human being” regardless of categories like sexual orientation. Obama also said American values “equality under law” in his speech, which is of importance as courts decide the issue of marriage equality.

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President Barack Obama, Vice President Joe Biden and Speaker of the House John Boehner at the 2014 State of the Union Address. (Washington Blade photo by Michael Key)

Nonetheless, the speech fell short of what LGBT advocates were calling in terms of federal workplace non-discrimination policy, prompting disappointment.

Chad Griffin, president of the Human Rights Campaign, responded the president’s failure to address LGBT issues in his speech with criticism, a striking change in tone from the organization’s usual praise of Obama as a strong LGBT ally.

“The President’s message tonight failed to address the needs of LGBT workers looking for a fair shake in this economy,” Griffin said. “Not only was there no call for the House to pass a federal law to protect LGBT workers nationwide, President Obama also sidestepped his commitment to take action where Congress has left off, leaving out an order prohibiting discrimination by federal contractors.”

Griffin added Obama “missed a real opportunity” to commit in the State of the Union to “executive action to address anti-LGBT discrimination for the millions of Americans employed by federal contractors.”

The absence of ENDA was particularly noteworthy because just months ago, for the first time in history, the Senate approved the measure on bipartisan basis, leaving the House as the only obstacle toward passage.

Although the president made no mention of ENDA during his speech, the White House included the legislation as part of a fact sheet distributed to reporters prior to the address, identifying LGBT non-discrimination as an issue in which the administration is “continuing to work with Congress.”

“Today, federal law prohibits employment discrimination based on race, sex, religion, and disability,” the fact sheet states. “It’s time to add sexual orientation and gender identity to that list, so that no American worker can lose his or her job simply because of who they are or who they love. ”

After noting that the Senate last year passed ENDA by a bipartisan vote, the fact sheet says Obama “renews his call for the House to do the same.”

Others advocates said they would continue to push Obama on the executive order despite the president’s exclusion of the directive from the State of the Union address.

Tico Almeida, president of Freedom to Work, said Obama’s pledge to issue an executive order on minimum wage was “great news” because it means there’s an opportunity for Obama to sign an executive order against LGBT discrimination.

“It’s disappointing ENDA did not make it into the State of the Union,” Almeida said. “But no matter what was omitted from this one address, we can still make 2014 a year of action for LGBT workplace protections by pushing the House of Representatives to allow an ENDA vote and pushing the President to keep his promise of the federal contractor executive order.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, gave Obama mixed reviews after previously calling on Obama to use the word “transgender” and address immigration reform during his speech in addition to LGBT workplace protections.

“The President is right to urge congress to fix our broken immigration system this year, the creation of more jobs, equal pay for women, and the restoration of the Voting Rights Act,” Carey said. “We are also pleased that the President is using his pen like he said he would to move things forward: in this instance by signing an executive order to increase the minimum wage for federal contract workers. However, he must go further and sign an executive order that bans discrimination against the same contract workers who are LGBT.”

Carey noted some of the workers who are set to receive pay raises because of the minimum wage executive order are vulnerable without the executive order for LGBT workplace non-discrimation.

“The irony is that some LGBT federal contract workers will get a pay raise but they could still be fired for who they are and who they love,” Carey said. “The longer the President waits the more damage LGBT people will face; discrimination is a painful reality that is too often the lived experience of LGBT people. The President has to act when Congress won’t.”

Gregory Angelo, executive director of the National Log Cabin Republicans, took issue with the speech as a whole, not simply for Obama’s handling of workplace issues.

“For a moment, I thought the news accidentally re-ran last year’s State of the Union, because all I really saw was more of the same,” Angelo said. “In the midst of a stagnant economy, understated unemployment, and ballooning debt, the only new ideas presented by the President involved using ‘a pen and a phone’ to push a liberal agenda for which hard-working Americans have no appetite.”

Coming off a victory in which Rep. Michael Grimm (R-N.Y.) agreed to sign on as co-sponsor of ENDA, Angelo also chided Obama for his lack of attention in the State of the Union to LGBT non-discrimination in the workforce.

“While the President’s calls for a more equal nation are welcome, there is a profound irony in the absence of any mention of the Employment Non-Discrimination Act for LGBT workers tonight, and likewise in the President’s threat to exercise unilateral Executive actions with the explosive potential to ignite class warfare, while at the same time remaining silent on signing a common-sense Executive Order barring federal workplace discrimination: an empty promise to LGBT Americans that stands unfulfilled after six years,” Angelo said.

Shin Inouye, a White House spokesperson, defended the speech by saying it wasn’t “a comprehensive list of all of the president’s positions or priorities. ”

“The President has long supported ENDA, and its inclusion in our fact sheet reflects the President’s belief that Congress needs to act,” Inouye said.

Among the guests seated behind first lady Michelle Obama in her box during the speech was Jason Collins, a former Washington Wizards center who made headlines last year after coming out as gay.

Following the speech, lawmakers who spoke to the Washington Blade on Capitol Hill said they noted the absence of the ENDA in his speech, but felt assured by the president’s leadership.

Del. Eleanor Holmes Norton (D-D.C.) said she thinks the minimum wage executive order will be a “down payment” on an LGBT directive the president will issue at a later time, but took issue with the lack of any mention of ENDA.

“I would love to have seen a mention, and I don’t think I saw, other than a passing mention of the LGBT community,” Norton said. “I think the way to have done it, frankly, would have been with ENDA, because ENDA is overwhelmingly supported by the American people. It’s already been supported by the Senate. It’s ripe, so I am disappointed that that did not occur, but I’m heartened that he’s going to move, and, frankly, I think we can get ENDA out of here in the next year or two.”

Rep. Mark Takano (D-Calif.), one of seven openly gay members of the U.S. House, said he was confident Obama would take executive action to protect LGBT workers based on his previous actions.

“I tell you, 2013 was one of the gayest years in the history of human kind, and this president has used his executive orders already in how he’s interpreted the Supreme Court decisions, the way he’s applied in the ruling in the Windsor case, in ways that have been very favorable,” Takano said. “He’s done that through executive orders and interpretations, so he’s already used his executive order in the gayest way possible. So, I have hope that he’ll continue to do so.”

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Rep. Mark Takano (D-Calif.) at the 2014 State of the Union Address. (Washington Blade photo by Michael Key)


Months after court ruling, DOMA issues remain unresolved

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U.S. Attorney General Eric Holder has pledged to extend federal benefits to married gay couples to the furthest extent possible under the law. (Washington Blade file photo by Michael Key)

Ever since the Supreme Court ruled against the Defense of Marriage Act last year, the Obama administration has been rolling out on a continual basis new federal benefits for married same-sex couples — but access to some benefits remains uncertain months after the decision.

While the administration has afforded a preponderance of the 1,138 federal benefits of marriage to same-sex couples, other benefits — including Social Security, veterans and family leave benefits — are still in limbo for those living in non-marriage equality states. For these benefits, federal policy looks to the place of residence, not the place of celebration, in determining whether a person is married.

The policy of the Obama administration has been to expand benefits to married same-sex couples to the furthest extend possible under the law following the court decision against DOMA. That position was formalized last week in a memo from U.S. Attorney General Eric Holder extending certain federal benefits under the purview of the Justice Department to married gay couples.

“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize valid in the jurisdiction where the marriage was celebrated,” Holder writes.

Thus far, the administration has extended numerous benefits to married same-sex couples related to taxes, immigration, federal employee benefits, employer-provided pensions and, most recently, the ability to refuse to testify against a spouse in federal court — even if these couples live in non-marriage equality states. The Justice Department has also ceased enforcement of a provision in Title 38, which governs veterans benefits, that independently defines marriage in opposite-sex terms.

But things get dicier when it comes to other benefits where the law governing them looks to the state law where a couple resides, rather than the state law where the couple was married in determining whether a marriage is legitimate. Does the spirit of the Supreme Court ruling against DOMA mean that these portions of these laws should also not be enforced, or are they so far removed from the ruling they require a legislative fix?

One such issue is with Social Security benefits. Although the Social Security Administration is processing retirement and survivor benefits for same-sex couples living in marriage-equality states, for the time being, it’s placing applications on hold for married same-sex couples living in places that don’t their recognize their union.

Kia Anderson, a Social Security spokesperson, said work coordinated with the Justice Department is still underway to determine whether her agency can recognize these same-sex marriages for benefits purposes.

“We are working with the Department of Justice to develop and implement policy and processing instructions on this issue,” Anderson said. “However, we encourage people to apply right away for benefits, even if they aren’t sure they are eligible. Applying now will protect against the loss of any potential benefits.”

Yet another benefit on hold for married same-sex couples living in non-marriage equality states is veterans benefits, which include disability benefits, survivor benefits and joint burial at a veteran’s cemetery for the spouses of former service members. As with Social Security law, a portion of veterans’ law, 103(c) of Title 38, looks to state of residence, not the state of celebration, to determine whether a couple is married.

Genevieve Billia, a spokesperson for the Department of Veterans Affairs, said her department is still reviewing the issue of these benefits with the Justice Department.

“VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation’s veterans,” Billia said. “Our commitment to provide all veterans and their families with their earned care and benefits will continue to be our focus as VA implements the Supreme Court’s decision in Windsor, and the president’s direction on Title 38.”

The continued enforcement of 103(c) of Title 38 to discriminate against gay couples has been a cause for concern for U.S. senators. Last month, seven senators — led by Sen. Mark Udall (D-Colo.) — called on the Obama administration to stop enforcing the law in a way that blocks gay veterans in same-sex marriages from receiving spousal benefits.

Stephen Peters, president of the American Military Partner Association, called the issue “a top concern” among veterans belonging to the LGBT military group.

“While we understand it takes time to review existing policies and laws in light of the Windsor decision, for the sake of our veterans and their families, our hope is that the administration will take swift action in extending full and equal VA benefits no matter what state the veteran and their family live in,” Peters said. “These veterans have earned these benefits and there is no valid reason why they should continue to be denied them.”

The American Military Partner Association has launched an online petition calling on Holder to stop enforcing U.S. code governing veterans benefits in a way that discriminates against same-sex couples. According to the organization, a little more than 1,000 people had signed the petition as of Wednesday.

Ian Thompson, legislative representative for the American Civil Liberties Union, expressed confidence the administration would be able to come to a conclusion on these issues as it has done with other benefits in the aftermath of the DOMA ruling.

“Federal agencies have moved with commendable speed to extend recognition to married same-sex couples, and to do so in a way that recognizes that these marriages don’t dissolve when a couple crosses state lines,” Thompson said. “While more work remains, including with SSA and the VA, we are confident that these issues can be properly addressed.”

The Justice Department didn’t respond to the Blade’s request for comment on the pace with which these benefits are being rolled out or when these outstanding issues will be resolved.

Shin Inouye, a White House spokesperson, touted the administration’s work so far in implementing benefits as he acknowledged “some work remains.”

“Following the Supreme Court’s ruling in Windsor, the president directed the attorney general to work with the Cabinet to review federal law to ensure the decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” Inouye said. “That process is ongoing, and while some work remains, the administration has worked to affirm the principle that all couples who are legally married receive full and equal recognition, to the greatest extent possible under the law.”

Should the administration determine it must continue enforcing these laws, a legislative fix from Congress would be necessary to ensure these benefits can flow to gay couples. For the Social Security benefits, that would mean passage of the Social Security Equality Act, sponsored by Rep. Linda Sanchez in the House. For the veterans benefits, that would mean passage of the Charlie Morgan Act, sponsored by Sen. Jeanne Shaheen (D-N.H.) in the Senate.

The federal benefits of marriage across the board would be assured for married gay couples regardless of where they live after passage of the Respect for Marriage Act, which is sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.

A Senate Judiciary Committee aide told the Blade last year that a Senate hearing was in the works for fall 2013 on the legislation. Although the hearing never took place, a Senate aide told the Blade plans are still underway for a hearing.

“Chairman Leahy continues to push for timely and comprehensive implementation of the Windsor decision, including last week’s landmark announcement that the Justice Department will treat all lawfully married couples equally in federal legal matters,” the Leahy aide said. “Chairman Leahy is committed to taking discrimination out of our laws, and he is working to schedule a hearing and build support for the Respect for Marriage Act.”

Not all the outstanding issues in the aftermath of the DOMA ruling are related to law. Benefits are blocked from flowing to married same-sex couples in non-marriage equality states under the Family & Medical Leave Act not because of statute, but by regulation, which the administration could change at any time without action from Congress.

And that change is already taking place. Last last year, the Department of Labor announced it was changing the regulations for the Family & Medical Leave Act — along with regulations for a slew of other laws — to ensure those benefits flow to married same-sex couples living in non-marriage equality states. According to Thompson’s HR Compliance Expert, the change will be implemented in March.

Laura Fortman, principal deputy administrator of the Labor Department’s Wage & Hour Division, wrote about the proposed change in a little-noticed blog post at the time.

“No one should have to choose between succeeding at work and being a loving family caregiver,” Fortman said. “The FMLA’s protections help ensure that people have the opportunity to be both and our proposed rulemaking is an important step in ensuring the law keeps up with the needs of all families in this country.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization looks forward to the day when the DOMA decision is “fully implemented” by the federal government.

“Steady progress is being made and more is to come,” Carey said. “For example, we are working with the Department of Health and Human Services to ensure that health insurance plans offer coverage for same-sex spouses regardless of where they live. Big picture, we fully expect this landmark decision to continue to positively impact the lives of LGBT people and their families for years to come and in ways that we haven’t even imagined.”


Obama admin says insurers can’t discriminate against gay unions

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The Centers for Medicare & Medicaid has issued guidance clarifying insurers can’t discriminate against same-sex couples. (Image public domain)

The Obama administration clarified on Friday that insurers are prohibited from discriminating against same-sex marriages for the purposes of non-grandfathered family coverage — even if applicants are applying in non-marriage equality states.

In guidance dated March 14, the Centers for Medicare & Medicaid says existing provisions in the health care reform law prohibiting discrimination by insurers on the basis of gender — which the Obama administration has interpreted to extend non-discrimination protections based on sexual orientation and gender identity — also requires insurers not to refuse family coverage for married same-sex couples.

The guidance is set up as Q&A. The question is “If a health insurance issuer in the group or individual market offers coverage of an opposite-sex spouse, may the issuer refuse to offer coverage of a same-sex spouse?” The response starts off simply, “No.”

“This section prohibits an issuer from choosing to decline to offer to a plan sponsor (or individual in the individual market) the option to cover same-sex spouses under the coverage on the same terms and conditions as opposite sex-spouses,” the guidance states.

Alicia Hartinger, a CMS spokesperson, said the guidance spells out that non-discrimination is the rule for insurers — both on and off the health insurance exchanges — when selling policies.

“CMS recognizes the importance of all Americans and their families having access to quality, affordable coverage,” Hartinger said. “Today’s guidance clarifies that issuers may not choose to treat same-sex spouses differently from opposite-sex spouses. If an issuer offers opposite-sex spouse coverage, it may not choose to deny the same coverage to a same-sex spouse. We will continue to work with states and issuers to help ensure all Americans have an equal opportunity to purchase the new coverage options available to them.”

The guidance says insurers cannot refuse family coverage to married same-sex couples even if they live in — or the insurance is sold in — a non-marriage equality state that doesn’t recognize those unions.

Additionally, the guidance acknowledges insurers may not have realized this prohibition when designing their policies for the 2014 coverage year. Accordingly, while encouraging immediate compliance, CMS says insurers need not begin adhering to this policy until Jan. 1, 2015. The guidance also directs states to begin enforcing the regulations no later than Jan. 1, 2015.

The guidance doesn’t address whether it requires CMS to provide coverage to same-sex couples in domestic partnerships or civil unions. A CMS official said the guidance applies only to marriages, not these other unions.

LGBT advocates praised the new guidance as a step toward ensuring that married same-sex couples have the same access to health insurance as their opposite-sex counterparts.

Rea Carey, executive director of the National Gay & Lesbian Task Force, earlier said her group wanted the Obama administration to make the clarification and upon news of the guidance said it would help same-sex couples “hurting right now” because they were denied health insurance.

“Today’s important HHS announcement will help remove this type of discrimination by requiring the health insurance industry to treat us the same as straight married couples — even if the states where we live do not recognize marriage equality,” Carey said. “While insurers are not required to be in compliance with the new rules until January 2015, we urge the industry to act now — as affordable health care delayed is affordable health care denied.”

There have been reported incidents of married gay couples being unable to receive family coverage in the aftermath of the implementation of the Affordable Care Act. In February, a gay couple — Alfred Cowger and Anthony Wesley of Gates Mills, Ohio — filed a federal lawsuit charging that they were unable to obtain family coverage because their state doesn’t recognize their marriage.

In January, Blue Cross and Blue Shield canceled family insurance policies it sold to same-sex couples under the Affordable Care Act in North Carolina. Following news reports about the cancellations, the insurer changed course and agreed to offer family coverage on the health insurance exchange to same-sex couples.

Kellan Baker, director of the LGBT State Exchanges Project for the Center for American Progress, said the new guidance is important because research shows LGBT families have trouble accessing health insurance.

“Research has shown that same-sex couples, as well as transgender people and other members of the lesbian, gay, bisexual, and transgender, or LGBT, communities, frequently face obstacles to affordable, comprehensive insurance coverage,” Baker said. “My colleagues and I look forward to working with HHS to ensure that this guidance is fully implemented in a timely manner and that similar action is taken to remove other barriers to coverage, such as discriminatory insurance exclusions that target transgender people.”


Trans students assured protections in DOE guidance

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The Education Department under Arne Duncan has affirmed that transgender students are protected under current law. (Washington Blade file photo by Michael Key)

Transgender students are protected under current law from discrimination and harassment in schools, according to new guidance unveiled by the Department of Education on Tuesday that LGBT advocates say marks the first time the Obama administration has clarified this interpretation of the law.

The language, which was made public Monday, is part of a Q&A for colleges, universities and public schools on handling sexual violence, but includes a passage articulating that Title IX of the Education Amendments of 1972 extends protections to non-gender conforming students, including those are who transgender. Title IX prohibits discrimination on the basis of sex in federally funded education programs.

“Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation,” the guidance says.

The guidance was highlighted by the White House Task Force to Protect Students from Sexual Assaults in conjunction with a new report of the issue intended to provide clarity about the requirements of Title IX in response to requests from institutions and students.

The Q&A was signed by Catherine Lhamon, assistant secretary of education for civil rights, who in a statement affirmed that students have a right to equal opportunity throughout the education system.

“Our federal civil rights laws demand that all students – women and men; gay and straight; transgender or not; citizens and foreign students – be allowed to learn and participate in all parts of college life without sexual assault and harassment limiting their opportunities,” Lhamon said. “The Office for Civil Rights stands ready to enforce this core principle to ensure all students’ safety in schools.”

LGBT advocates praised the guidance, saying it was the result of a continued effort to encourage the Obama administration to give voice to these protections. Even though the overall guidance is about sexual assault, LGBT advocates insist it applies to all forms of discrimination and harassment of transgender students at school.

Ian Thompson, legislative representative for the American Civil Liberties Union, said the guidance was a landmark statement for transgender students, but further action is needed.

“This guidance is crystal clear and leaves no room for uncertainty on the part of schools regarding their legal obligation to protect transgender students from discrimination,” Thompson said. “The Office for Civil Rights must now take the next step and issue comprehensive guidance on Title IX and transgender students.”

Although LGBT advocates say this is the first time that the Obama administration has asserted transgender students have protections under Title IX, the Department of Education has acted under the principle for some time.

In 2010, the Department of Education sent out a “Dear Colleague” letter to schools warning them that allowing anti-LGBT bullying and harassment could be a violation of Title IX and Title IV of the Civil Rights Act of 1964. Two years later, the Education and Justice departments reached a deal with the Anoka-Hennepin School District in response to students subjected to anti-gay harassment under this principle to protect them.

Just last year, the Arcadia Unified School District settled with a transgender boy over a lawsuit filed by the National Center for Lesbian Rights over the discriminatory treatment he received during a school camping trip. The settlement was the result of an investigation by the federal government under Title IX and Title IV.

Harper Jean Tobin, director of policy for the National Center for Transgender Equality, called the new guidance a “breakthrough for transgender students” because they often “face hostility at school and refusal by school officials to accept them for who they truly are.”

“It is now clearer than ever that schools nationwide are responsible for ensuring that transgender students are respected and safe, and students can seek protection from the Department of Education and the courts if schools fail to do so,” Tobin said.

The Education Department has reached the conclusion that Title IX extends to transgender students after numerous courts have concluded anti-transgender discrimination amounts to gender discrimination under existing law.

For example, that was the determination of the 11th U.S. Circuit Court of Appeals in the case of Glenn v. Brumby, which was filed by a transgender worker who lost her job at the Georgia State Legislature. The U.S. Equal Employment Opportunity Commission in its decision in Macy v. Holder and the Department of Health & Human Services in its interpretation of the Affordable Care Act have reached similar conclusions that transgender discrimination is the same as gender discrimination.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the new guidance is important because transgender and non-conforming students face “staggering” rates of discrimination in school.

“For example, 78 precent report harassment, 35 percent report physical assault, and 12 percent report sexual violence in educational settings, with many transgender and gender non-conforming students leaving school because of the appalling discrimination they experience,” Carey said. “The policy announced today is a giant leap forward in ending those staggering rates of discrimination.”


Boggs says views ‘may or may not’ have changed on marriage

Judicial nominee Michael Boggs says his views 'may or may not' have changed on marriage (Screenshot courtesy U.S. Senate).

Judicial nominee Michael Boggs says his views ‘may or may not’ have changed on marriage (Screenshot courtesy U.S. Senate).

A controversial judicial nominee said during his confirmation hearing Tuesday his views “may or may not” have changed since he backed Georgia’s anti-gay marriage amendment in 2004 — and he would defer to the Supreme Court precedent on any possible marriage cases that come before him as a judge.

Michael Boggs, whom President Obama nominated in January for a seat on the U.S. District Court for the Southern District of Georgia, said his current views on same-sex marriage may not reflect his previous opposition when asked by Sen. Charles Grassley (R-Iowa) about a statement he made on the issue 10 years ago.

“I clearly meant, Senator, that my personal opinion was at the time over a decade that I was in support of a proposed constitutional amendment that would have banned same-sex marriage,” Boggs said. “My position on that, Senator, may or may not have changed since that time — as many people’s have over the last decade.”

It’s customarily for judicial nominees not to definitively state during the confirmation process their personal views on matters, such as same-sex marriage, because if they did and the issue came before them as a judge, they would have to recuse themselves.

Boggs also emphasized that his stated opposition to same-sex marriage has had no impact of any cases over which he has presided since he became a state judge in 2004.

“Moreover, my position on that, as reflected by those personal comments in 2004, have never had any import whatsover in how I’ve decided cases or how I analyzed issues both as a trial court and an appellate court judge,” Boggs said.

Asked by Sen. Richard Blumenthal (D-Conn.) whether he would now back a constitutional ban on same-sex marriage, Boggs replied, “No, sir.” Boggs added that view wouldn’t inform his decision-making as a federal judge.

Three same-sex couples have filed a lawsuit against Georgia’s ban on same-sex marriage that’s now pending before federal court. Asked by Sen. Mazie Hirono (D-Hawaii) about the case, Boggs said he “would not” believe that a ruling against the law would be an example of judicial activism.

In a follow-up question from Hirono on whether he had considered as a state judge any cases involving gay people, Boggs revealed he indeed considered such a case involving a lesbian parent seeking second-parent adoption of her son.

Although Boggs said the “record is sealed,” he disclosed he agreed to take it up after the chief judge in his circuit refused to hear the case. After hearing the woman’s case on why she’d be a good parent, Boggs said he “approved the adoption.”

Under later questioning from Sen. Amy Klobuchar (D-Minn.), Boggs said her personal views wouldn’t influence his ruling on marriage cases and he would defer to the landmark Supreme Court decision on the Defense of Marriage Act for guidance on how to rule. Asked by Klobuchar whether he would defer to the DOMA decision as a judge, Boggs replied, “absolutely.”

Boggs reasserted that view on his judicial philosophy when asked about the DOMA decision by Sen. Dianne Feinstein (D-Calif.), the lead sponsor of the Respect for Marriage Act in the U.S. Senate.

“My personal feelings would be irrelevant to how I would act as judge,” Boggs said. “You have my commitment that I would follow the decision in Windsor; I would follow any precedent or the Supreme Court on marriage equality on the issues, as I would any issues.”

The Boggs nomination has invoked the wrath of progressive groups across the board — ranging from civil rights groups, women’s groups and LGBT groups — over his voting record in the Georgia State Assembly, which includes his vote in favor of Georgia’s state constitutional amendment against same-sex marriage in 2004, his votes against abortion rights and support for keeping the Confederate symbol in the state flag.

Running for election as a state judge in 2004, Boggs reportedly said, “You don’t have to guess where I stand — I oppose same-sex marriages.”

Among those opposing the nominee are the national LGBT groups the Human Rights Campaign, the National Gay & Lesbian Task Force and GetEQUAL. Those groups are among 27 organizations signed a letter asking the Senate Judiciary Committee to reject the nominee.

Two of the LGBT groups who have opposed his confirmation didn’t change their views of Boggs as a result of what was said during his confirmation hearing.

Heather Cronk, manager director for GetEQUAL, was unmoved by Boggs’ testimony, saying his “record on issues of justice for women and LGBTQ individuals is abysmal.”

“His long public record of stances on everything from choice to the confederate flag puts him out of step with not just the Obama Administration’s stated values, but also out of step with the American public,” Cronk said. “Stating during this make-or-break confirmation hearing that he ‘might’ have changed his views on one issue is not comforting — it’s simply a political move to take some heat off of his nomination.”

Stacey Long, policy and government affairs director for the National Gay & Lesbian Task Force, also said her organization’s view hasn’t changed.

“He may or may not have changed his views on marriage equality,” Long said. “We on the other hand have not changed our view of his nomination; he should be withdrawn. There are plenty of other qualified jurists out there.”

Fred Sainz, vice president of the Human Rights Campaign, on the other hand, said as the hearing was ongoing his organization needed more time to reassess the nomination.

“We remain very concerned about his record and his approach as a judge,” Sainz said. “Once his hearing concludes, we will review his testimony and based on that decide how to proceed.”

Although the issue of marriage came up, Democratic senators on the panel primarily questioned Boggs about his support for keeping the confederate symbol within the Georgia state flag and his opposition to abortion rights. Boggs said he believed he was acting on behalf of his constituents and his personal views wouldn’t influence his rulings as a federal judge.

Whether Boggs was being completely forthcoming with the committee was also an issue with Democratic senators. Blumenthal expressed concern that he added new material to his record that previously wasn’t disclosed prior to his hearing, asking whether he had disclosed the entirety of his public statements. Sen. Al Franken (D-Minn.) suggested Boggs was less than truthful when he told the senator his initial vote on the Confederate flag would have brought the issue to referendum when, in fact, it did not.

Obama selected Boggs as a judicial nominee as part of a deal with the Republican U.S. senators in the state — Sens. Saxby Chambliss and Johnny Isakson — to move forward a group nominees to fill judicial vacancies in the state.

Boggs was among seven judicial nominees who faced their confirmation hearing before the Senate Judiciary Committee on Tuesday. Blumenthal presided over the hearing.


Support for ENDA crumbles

GetEQUAL, Employment Non-Discrimination Act, ENDA, gay news, Washington Blade, religious exemptions

A sharp divide within the LGBT community has taken place over ENDA because of its religious exemption. (Washington Blade file photo by Michael Key)

A deep rift has opened up within the LGBT community over the Employment Non-Discrimination Act as several groups this week announced they were dropping support for the bill, while others continue to lobby for its passage.

The split makes it increasingly difficult — perhaps impossible — to see how ENDA has a chance to pass in a chamber of Congress where Republican control already made efforts to advance the bill a long shot.

The issue is the religious exemption in ENDA, which would allow religious organizations to continue discriminating against or firing LGBT employees in non-ministerial positions.

The language — adopted in the Senate version to ensure the support of the 10 Republicans who voted for the bill (as well as some conservative Democrats) — is broader than the religious exemption under Title VII of the Civil Rights Act of 1964, which protects workers on the basis of race, gender, religion and national origin.

Concerns about the religious exemption aren’t new, but they intensified following the rejection of the “turn away the gay” bill in Arizona that would have allowed businesses to discriminate against LGBT people for religious reasons. Many national LGBT groups faced criticism from grassroots activists for continuing to support the current version of ENDA.

On Tuesday, the National Gay & Lesbian Task Force Action Fund announced it now “opposes” ENDA because of the religious exemption.

Rea Carey, executive director of the National Gay & Lesbian Task Force, drew heavily on the U.S. Supreme Court’s decision in the Hobby Lobby case in explaining her decision to come out against the current version of ENDA, saying religious-based discrimination has to end.

“The campaign to create broad religious exemptions for employment protections repeats a pattern we’ve seen before in methodically undermining voting rights, women’s access to reproductive health and affirmative action,” Carey said. “It is time for fair-minded people to block this momentum, rather than help speed it into law. We need new federal non-discrimination legislation that contains a reasonable religious accommodation.”

A spokesperson for the Task Force, Mark Daley, followed up by saying he made no assessment prior to the announcement that ENDA couldn’t pass the U.S. House. In the event that a version of ENDA with a broad religious exemption reaches President Obama’s desk, the Task Force would call on the president to veto the legislation, Daley said.

The Task Force is also set to withdraw from the steering committee of Americans for Workplace Opportunity, a $2.2 million campaign dedicated to passing ENDA, Daley said.

In a separate statement, five legal groups that advocate on behalf of the LGBT community — the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, the Transgender Law Center, the National Center for Lesbian Rights and Lambda Legal — affirmed they are withdrawing support from ENDA. That announcement was followed by a third statement from the LGBT labor group Pride at Work, which also announced it was withdrawing support for the bill.

Politicians are beginning to reconsider as well. In a statement to the Blade, Rep. Jerrold Nadler (D-N.Y.), known for his progressive views, said he was “very concerned” about the religious exemption and pledged to work to narrow the language, indicating he was unsure at this time whether he could vote for the bill on the House floor.

Meanwhile, groups and lawmakers that continue to support ENDA have begun to weigh in.

“HRC supports ENDA because it will provide essential workplace protections to millions of LGBT people,” said Fred Sainz, vice president of communications for the Human Rights Campaign.

HRC President Chad Griffin, who has steadfastly refused Blade interview requests for months, penned an op-ed for Buzzfeed in which he called on “allies in Congress to improve this bill’s overly broad religious exemption.”

Mara Keisling, executive director of the National Center for Transgender Equality, said she continues to focus on her organization’s upcoming lobby day on Capitol Hill between July 14-15, when supporters of transgender rights are set to lobby for ENDA.

“I think we all understand that trans people urgently need job protections and that having 200 trans people and allies in D.C. next week educating Congress about that is a very good thing,” Keisling said. ”Right now, what should be front and center are trans people and people who love them who are coming to D.C. to tell their stories about what they need to make a living and care for their families.”

Notably, the Task Force is among the six groups sponsoring the upcoming lobby day, even though it now opposes the legislation the event is designed to advance. Kylar Broadus, the Task Force’s counsel on civil rights, confirmed for the Blade the organization is still a “proud supporter” of the lobby day.

Freedom to Work didn’t respond to a request for comment. The White House also did not immediately respond to an inquiry.

Despite the blow the current version of ENDA received this week, no source was willing to declare the legislation dead for the remainder of this Congress. Those who support the legislation, including several who spoke on condition of anonymity, say they’ll continue to seek additional co-sponsors for the bill in hopes of passage after the Senate attaches the legislation to some kind of appropriations legislation.

A common theme among LGBT groups that withdrew support from ENDA was the impact of the Hobby Lobby decision on ENDA, which allowed closely held corporations to deny contraception coverage for religious reasons.

Rep. Jared Polis (D-Colo.), who’s gay and chief sponsor of ENDA, said in a statement to the Blade that he’s reviewing the implications of the court decision on ENDA in the aftermath of the controversy.

“I am consulting stakeholders and constitutional scholars on the implications of the Hobby Lobby decision on the current language of the Employment Non-Discrimination Act to ensure that LGBT workers will have the right to be judged solely on the quality of their work, not who they love or who they are,” Polis said.

Another possible explanation for why these groups withdrew support for ENDA at this time is the planned executive order from President Obama prohibiting anti-LGBT workplace discrimination among federal contractors.

A group of faith leaders, including Saddleback Church pastor Rick Warren, wrote to Obama last week asking him to include an exemption in the executive order for religious organizations that still want to receive federal contracts. One of their arguments for the inclusion of a religious exemption was the agreement on a broad religious exemption in the Senate-passed version of ENDA.

LGBT groups unanimously stated they want no religious exemption in the planned executive order, or one that’s no greater than the one found in Executive Order 11246, the directive that prohibits federal contractors from discriminating based on race, color, religion, sex or national origin. Continuing to support ENDA despite its religious exemption may have given the appearance of sending mixed messages.

By coming out against ENDA because of its religious exemption, LGBT groups can more firmly state without any nuance objections to the inclusion of an exemption within the executive order.

Ian Thompson, the ACLU’s legislative representative, said his organization’s position on the executive order has already been clear, but acknowledged withdrawing of support from ENDA aligns with its views on the directive.

“There were certain individuals and groups who pointed to the exemption in ENDA as somehow justifying an endorsement by President Obama of taxpayer-funded discrimination against LGBT people,” Thompson said. “What should be crystal clear today is that sweeping discrimination exemptions are neither acceptable in ENDA nor in the EO.”

Activists are that opposed to the religious exemption have called for a broader civil rights bill that would cover employment, housing and public accommodations in lieu of ENDA. The withdrawal of support for ENDA could be intended as a way to set the stage for a broader bill in a subsequent Congress.

Such a bill may come in the form of an amendment to the Civil Rights Act of 1964, although that would cover only employment and public accommodations because the Fair Housing Act of 1968 relates to housing.

Andrew Miller, a member of the New York-based grassroots group Queer Nation, articulated his opposition to ENDA’s religious exemption and hopes for a comprehensive bill in a statement to the Blade.

“ENDA is dangerous not only because of its religious exemption but because it signals that LGBT Americans do not deserve the same legal protections as our fellow Americans,” Miller said. “A comprehensive civil rights bill will guarantee LGBT people equality not just in employment but in housing, public accommodations, education, credit, and federal programs, just as the Civil Rights Act of 1964 does for people of color and women. Queer Nation will continue to educate the community and lobby for comprehensive civil rights legislation in Congress. Our community deserves—and expects—nothing less.”


Where does the LGBT movement go in 2014?

Winter Olympics, John Boehner, Sean Eldridge, Supreme Court, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

New advancements on LGBT rights are expected in 2014 in the aftermath of a milestone year in 2013. (Photo of the Winter Olympics public domain; Washington Blade photos of John Boehner, Sean Eldridge and activists in front of the Supreme Court by Michael Key)

Although 2013 will be a tough act to follow in terms of achievements for the LGBT community, some advocates say significant new battles and potential victories are on the horizon for 2014.

Additional court rulings on marriage and the upcoming Olympic Games in Sochi will attract attention, but the focus will also be on the lead-up to the mid-term elections in November 2014. Voters are expected to decide the issue of marriage equality at the ballot and make decisions in candidate elections that would shape LGBT rights in the future.

Next month, all eyes will be on the Winter Olympics to see what impact gay athletes coming to compete in Sochi, Russia, might have on the anti-gay laws there, including the now notorious law prohibiting pro-gay propaganda. The Olympics will be held between Feb. 6 and 23.

It remains to be seen whether any of the athletes who’ll compete in the games — or any of the three openly gay members of the U.S. delegation to the Olympics — will speak out against the anti-gay policies, and whether the Russian government will subject them to punishment under the propaganda law for doing so.

In terms of the advancement of marriage equality, no one is predicting movement in the state legislatures as seen in 2013, but action is expected at the ballot and as a result of numerous court cases filed throughout the country.

In Oregon, activists are preparing for a campaign to legalize same-sex marriage at the ballot. They’re already touting 118,176 signatures, which is more than 116,284 needed by July 3 to place the measure before voters. Success at the ballot would mean Oregon would become the first state in the country to overturn a state constitutional amendment banning same-sex marriage through a ballot initiative.

Another effort is underway in Ohio, where the group Freedom Ohio is touting a new poll showing 56 percent of Ohio residents support marriage equality as part of an effort to place a measure on the ballot in 2014. National LGBT groups, however, aren’t behind this endeavor and reportedly have said 2014 isn’t the year to bring marriage equality to the ballot in Ohio.

But 2014 may also see the return of state constitutional amendments at the ballot banning same-sex marriage. Opponents of same-sex marriage in Indiana are seeking a vote in the legislature on such an amendment, which would bring the issue before voters in the 2014 election.

It’s possible that a similar amendment may appear on the 2014 ballot in New Mexico, where anti-gay lawmakers unhappy with the state Supreme Court’s recent decision to legalize same-sex marriage have threatened to take action. However, the legislature needs to approve the amendment before it goes to voters, which is unlikely because Democrats control both the House and Senate.

Amid efforts to place the marriage issue on the ballot, courts may issue rulings in favor of marriage equality in any of the at least 23 states with pending marriage litigation. Such rulings could happen in Michigan, where a trial on the ban same-sex marriage has been set for February, or in Pennsylvania. A federal court in West Virginia may respond to a request for summary judgment filed Tuesday by Lambda Legal on behalf on same-sex couples seeking to wed in the state.

For the first time since the Supreme Court ruling against the Defense of Marriage Act, federal appeals courts will also take up the issue of marriage equality. The U.S. Tenth Circuit Court of Appeals will review the marriage lawsuit in which U.S. District Judge Robert Shelby recently instituted marriage equality in Utah, and the U.S. Ninth Circuit Court of Appeals will review Nevada’s ban on same-sex marriage in the case known as Sevcik v. Sandoval.

It’s possible that rulings at the appellate level could send the issue of marriage equality back to the Supreme Court as soon as next year.

Marc Solomon, national campaign director for Freedom to Marry, said the endeavors to advance marriage equality in 2014 will foster a better climate for the Supreme Court to make a “national resolution” in favor of marriage equality.

“We really don’t know, and nobody knows, which case is going to be that case that gets to the Supreme Court, when it’s going to happen, if it’s going to happen next year, if it’s going to happen in five years,” Solomon said. “Basically, we are full-steam ahead with what we call our ‘Roadmap to Victory’ to win more states, grow public support, get more unexpected allies, and demonstrate that the country is completely ready.”

Solomon said his organization also plans to participate in public education campaigns in Arizona, Ohio, Michigan, Colorado and Nevada in anticipation of going to the ballot to win marriage equality in 2016 in addition to a similar campaign in Pennsylvania to foster a climate for a court ruling in favor of marriage equality in the Keystone State.

Advancement of pro-LGBT federal legislation may also take place, although the chances such legislation will reach President Obama’s desk are low — to say the least — because Republicans control the House.

Supporters of the Employment Non-Discrimination Act are pushing for a vote in the Republican-controlled chamber following a bipartisan vote in the Senate in favor of the legislation. Although the legislation has 201 sponsors in a chamber where 218 votes are needed for passage, House Speaker John Boehner (R-Ohio) has repeatedly said he opposes the legislation when asked if he’ll bring up the bill for a vote.

Issues for married same-sex couples in the aftermath of the U.S. Supreme Court decision striking down Section 3 of the Defense of Marriage Act are also expected to surface. Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) has pledged to hold a hearing on these outstanding issues.

Among them is the Social Security Administration’s continued hold on benefits claims for married same-sex couples in non-marriage equality states. Passage of the Respect for Marriage Act would address these issues by ensuring married same-sex couples would be able to receive federal benefits wherever they move in the country.

The Senate early this year may also take up a version of No Child Left Behind reauthorization — reported out on a party-line basis in June by the Senate Health, Education, Labor & Pensions Committee — that contains anti-bullying provisions along the lines of the Student Non-Discrimination Act and the Safe Schools Improvement Act.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the successes of 2013 are “much to celebrate,” but said they also highlight more work is necessary at the federal level — not just on LGBT-specific issues, but other areas like immigration reform and restoration of the Voting Rights Act.

“Every victory we achieve makes clearer the inequalities that remain — the painful gap between progress and true freedom,” Carey said. “That’s why we need the House to pass the Employment Non-Discrimination Act; fair immigration reform legislation; and to restore the heart of the Voting Rights Act, so unceremoniously gutted by the Supreme Court this past year. We must win on these issues in 2014; we can win on these issues in 2014.”

Meanwhile, campaigns are ramping up for elections in 2014. For the first time ever, at least two openly gay candidates may appear as gubernatorial candidates representing a major party.

In Maryland, lesbian Del. Heather Mizeur is running against two other candidates in a bid for the Democratic nomination for governor. Her primary is June 24.

And in Maine, Rep. Mike Michaud (D-Maine), who came out as gay in 2013, is seeking to oust Republican Gov. Paul LePage. Michaud is the only declared candidate on the Democratic side.

In Congress, six openly LGB members of the U.S. House will be seeking to retain their seats. Those running in moderate districts who may face more challenging re-election bids are Reps. Mark Takano (D-Calif.), Kyrsten Sinema (D-Ariz.) and Sean Patrick Maloney (D-N.Y.).

Sean Eldridge, an entrepreneur known for his work advocating for marriage equality in New York and also known for being married to Facebook co-founder Chris Hughes, is seeking to unseat incumbent Republican Chris Gibson to represent New York’s 19th congressional district.

Other gay newcomers are on the Republican side. Former Massachusetts State Sen. Richard Tisei, who narrowly lost a challenge to Rep. John Tierney (D-Mass.) in 2012, is considering a rematch in 2014.

Former San Diego City Council member Carl DeMaio is seeking to represent the San Diego area in the U.S. House and University of New Hampshire administrator Dan Innis has launched a bid to unseat Rep. Carol Shea-Porter (D-N.H.).

Despite openly gay candidates on the Republican side, LGBT advocates will likely also work for Democratic majorities in Congress — achieving it in the House and preserving it in the Senate — to foster a better climate for passing pro-LGBT legislation.

That may be an uphill battle. A recent survey from CNN/ORC International shows Republicans have increased their edge in the race for control of Congress. Republicans lead Democrats by 49 percent to 44 percent among registered voters asked to pick between unnamed candidates from each party in their district. That’s up from a smaller two-point edge in favor of Republicans last month.

Stuart Rothenberg, editor of the Rothenberg Political Report, said he doesn’t think the House will be in play given the abysmal state of President Obama’s polling numbers, and Republicans have a strong chance of winning the Senate.

“The Senate definitely is up for grabs,” Rothenberg said. “It’s probably close to 50-50 that Republicans will net the six seats that they will need to get to 51 seats. But there is plenty of time for events to occur that could change the current outlook.”

Whatever happens in Congress, LGBT advocates pledge to work at all levels of the government — federal, state and local — to continue to advance rights for the LGBT community.

Fred Sainz, the Human Rights Campaign’s vice president of communications, said 2014 will present “tremendous opportunities” for the LGBT community in the aftermath of 2013′s victories.

“We will continue to advance all measures of equality in the states, most importantly non-discrimination laws that affect the greatest number of LGBT people,” Sainz said. “And federally, we will continue to grow support for ENDA toward its eventual passage — as well as other bills that are part of our legislative agenda.”


Amid controversy, White House continues to support ENDA

Josh Earnest, White House, Barack Obama Administration, press, gay news, Washington Blade

White House Press Secretary Josh Earnest said the Obama administration continues to support ENDA. (Washington Blade photo by Michael Key)

Although a number of LGBT groups withdrew their support for the Employment Non-Discrimination Act this week over the bill’s religious exemption, the White House insists the Obama administration’s support hasn’t wavered.

Under questioning from the Washington Blade on Friday, White House Press Secretary Josh Earnest said the administration is aware of concerns over ENDA, but continues to support the bill.

“I know that advocates have changed their position on this, and we’re certainly aware of their changing position, but this administration has not changed ours,” Earnest said.

Five legal groups that advocate for the LGBT community withdrew their support from ENDA this week, along with Pride at Work, and the National Gay & Lesbian Task Force announced it now opposes the bill. Their concern is ENDA’s religious exemption, which is broader than language under existing civil rights law protecting workers based on race, religion, gender and national origin.

A spokesperson for the Task Force told the Blade the organization would urge President Obama to veto the legislation if it came to his desk with a broad religious exemption.

But Earnest rejected the idea that Obama opposes the religious exemption or would veto ENDA over the language. Asked by the Blade whether Obama would veto the current version of ENDA, Earnest replied, “No. We continue to support ENDA legislation.”

Earnest said the president’s position on ENDA is clear when asked if Obama would welcome a narrowing of the religious exemption in the current version of the bill.

Despite the administration’s continued support for ENDA, Earnest cast significant doubts about the prospects of the legislation passing by the end of this Congress, saying they’re “not very good.”

Earnest based this assessment not on the withdrawal of support from LGBT groups, but on the refusal of House Republicans thus far to bring up the bill, as well as a busy congressional schedule with many other pieces of legislation pending, such as comprehensive immigration reform.

“I would acknowledge as I did a few weeks ago that the prospects for passing it through the House are not very good, and that’s unfortunate,” Earnest said. “That’s one of the reasons why the president’s considering doing something using his executive authority.”

Amid concerns over ENDA, groups that continue to support the bill, including the Human Rights Campaign and Freedom to Work, endorsed the idea of broader legislation that would cover not just employment, but other categories like public accommodations, housing and education.

However, Earnest would only say the White House would “consider” a comprehensive bill and wouldn’t affirm that Obama would support such legislation if it were introduced in Congress.

“We’d consider it, Chris, but not I’m personally familiar with it,” Earnest said.

There’s speculation that groups withdrew support from ENDA over its religious exemption to place themselves in a better position to oppose similar language in a planned executive order barring anti-LGBT bias among federal contractors.

Despite the withdrawal of support from LGBT groups, Earnest said he wasn’t in a position to rule out the possibility of a religious exemption in the planned executive order.

“I’m not prepared at this point to talk about any of the contents of any executive order that president may sign,” Earnest said.

A House aide familiar with ENDA, who spoke on condition of anonymity, said congressional leaders are reviewing options for the best path forward for ENDA in the aftermath of LGBT groups withdrawing support from the bill.

While the aide said no avenue at this time — such as reintroduction of ENDA with a narrow religious exemption — is off the table, no option is more likely than another. The aide anticipated having a resolution to the concerns expressed by LGBT groups “within the next week,” but declined to give information on what form the resolution would take.

“People are working diligently, we want to have this resolved and be able to move forward,” the aide said.

The transcript of the exchange between Earnest and the Blade follows:

Washington Blade: Questions on the Employment Non-Discrimination Act. A number of LGBT groups withdrew support from the bill this week because of its religious exemption. In fact, the National Gay & Lesbian Task Force now opposes the bill. The president has stated support for ENDA numerous times, but he is aware of the concerns expressed by these groups, and would he considering vetoing it if it came to his desk with the current religious exemption?

Josh Earnest: Chris, the president has long supported an inclusive ENDA, and we continue to believe that Congress needs to pass legislation that protects LGBT Americans from employment discrimination. The president has talked often about his opposition to any sort of policies or views that discriminate against any individuals because of who they are, or the color of their skin, their name or who they love. And that is the principle that the president believes should be enshrined into federal law, in this case, through an inclusive-ENDA.

We’re certainly aware of the ongoing conversations about ENDA, and look forward to working with lawmakers and advocates to achieve this important goal.

Blade: But is he concerned about the religious exemption in ENDA and would that prompt him to veto the legislation?

Earnest: No. We continue to support ENDA legislation.

Blade: But would the president welcome a narrowing of that exemption in the bill?

Earnest: Well, I think I’ve been pretty clear about what our position is. I know that advocates have changed their position on this, and we’re certainly aware of their changing position, but this administration has not changed ours.

Blade: Following the withdrawal of support from these groups, does the White House realistic see any chance of ENDA passing this year, or is the legislation dead?

Earnest: Well, when we talked about the fact that the president is considering an ENDA EO a few weeks ago, we noted that it had passed through the Senate with bipartisan support, but was stuck in the House. We noted that the prospects in the House, like so many other pieces of common-sense, worthwhile legislation, have hit a dead-end there, unfortunately, because of the obstruction of congressional Republicans. So, I would acknowledge as I did a few weeks ago that the prospects for passing it through the House are not very good, and that’s unfortunate. That’s one of the reasons why the president’s considering doing something using his executive authority.

Blade: Amid this controversy, a number of groups, including the Human Rights Campaign, have endorsed the idea of a more comprehensive bill that in addition to employment, would cover public accommodations, housing and credit. Would the president support such a bill?

Earnest: We’d consider it, Chris, but not I’m personally familiar with it.

Blade: And, finally, one last question. With the concern about the religious exemption in ENDA on the table, are you in a position to rule out the possibility of a similar religious exemption appearing in the planned executive order barring anti-LGBT discrimination among federal contractors?

Earnest: I’m not prepared at this point to talk about any of the contents of any executive order that president may sign.


Rubio wins battle against gay black judicial nominee

Marco Rubio, Florida, Republican Party, United States Senate, gay news, Washington Blade

Sen. Marco Rubio (R-Fla.) won his battle against a gay black judicial nominee. (Washington Blade file photo by Lee Whitman)

Sen. Marco Rubio (R-Fla.) has won his battle against the White House over the confirmation of a gay black judicial nominee to the federal bench.

At the start of the year, the White House submitted to the Senate a list of more than 200 nominations previously named by Obama. But, as first reported by The Huffington Post, William Thomas, whom Obama named for a seat on the U.S. District Court for the Southern District of Florida, isn’t among the nominees.

A White House official confirmed for the Washington Blade that Thomas wasn’t resubmitted.

“The nomination of Judge William Thomas was returned by the Senate and Sen. Rubio has made his objection clear, so the president chose not to renominate him,” the official said.

Had Thomas been confirmed by the Senate, he would have been the first openly gay black male to sit on the federal bench. (Deborah Batts, confirmed to the federal bench in 1994 and the first-ever out person to sit on the federal judiciary, is also black.)

Fred Sainz, vice president of communications for the Human Rights Campaign, was among those expressing disappointment that the Thomas nomination didn’t succeed.

“We supported the Thomas nomination,” Sainz said. “We are disappointed that Judge Thomas was not re-nominated but we know that Sen. Rubio’s opposition to Thomas is unwavering and that the senator would not have let this exceptionally qualified judge move forward.”

Over the course of more than a year since Obama first nominated Thomas in November 2012, the nomination has been blocked. Rubio refused to hand in the “blue slip” to the Senate Judiciary Committee to allow the nomination to go forward, even though the Florida senator initially recommended Thomas and the nominee received a rating of “well-qualified” from the American Bar Association.

Faced with accusations that he was holding up Thomas because of his race and sexual orientation, Rubio pointed to the way Thomas as a state judge in the Miami-Dade Circuit handled two cases as reasons for holding up the nomination. The objection in one case was for being too lenient; the objection in the other was for being too harsh.

One was the case of Michael Traverso, who killed a cyclist in a hit-and-run accident while driving on a suspended license. Rubio’s office cites concerns that Thomas sentenced Traverso to the minimum sentence of 22.8 months in jail, less time served, amounting to only 364 days.

The other involves Joel Lebron, who took part in the 2002 gang rape and murder of 18-year-old Ana Maria Angel. According to Rubio’s office, Thomas twice suppressed confessions of perpetrators of the crime including the confession of Lebron, who pulled the trigger.

The reasons that Rubio’s office offered for blocking the nomination are in dispute. Attorneys involved in the cases wrote letters to Rubio last year, saying Thomas acted responsibly.

A Senate staffer confirmed for the Blade this week that Rubio had never returned his “blue slip” to allow the Thomas nomination to move forward.

LGBT advocates who had been pushing the Thomas expressed disappointment over the missed opportunity of confirming the first openly gay black male to the federal bench.

Rea Carey, executive director of the National Gay & Lesbian Task Force, said the fallout was troublesome because more diversity is needed on the federal bench.

“We need more diversity in the federal judiciary, not less and it’s disappointing that Judge William Thomas was not included among the nominees the White House submitted to the Senate this week,” Carey said. “Sen. Marco Rubio’s procedural maneuvering to stop this nominee was unacceptable and harmful given that the vacancy on the Southern District Court of Florida has been classified as a judicial emergency.”

Denis Dison, a spokesperson for the Gay & Lesbian Victory Fund, also expressed disappointment that the Thomas nomination didn’t succeed. The Presidential Appointment Project, a Victory Fund-led initiative, recommended Thomas to the White House.

“It’s hard to see how Sen. Rubio’s bizarre behavior with regard to this nomination is anything but politically motivated, and that’s a shame,” Dison said. “Judge Thomas is highly qualified and his nomination enjoyed broad support. The fact that he is openly gay should have no bearing on the Senate confirmation process.”

But Thomas wasn’t the only pending LGBT judicial nominee before the Senate. One other remains: Judith Levy, a lesbian whom Obama nominated in July for a seat on the U.S. District Court for the Eastern District of Michigan. Her nomination is still before the Senate Judiciary Committee.

Brooke Sammon, a Rubio spokesperson, pointed to a previous statement she issued on Thomas when asked if the Florida senator was satisfied his nomination didn’t succeed.

“The nomination of Judge Thomas has also been thoroughly reviewed, and Sen. Rubio has determined that Thomas’s record on the state court raises serious concerns about his fitness for a lifetime federal appointment,” Sammon said. “Those concerns include questions about his judicial temperament and his willingness to impose appropriate criminal sentences, particularly in the two high-profile cases of Michael Traverso and Joel Lebron last year. After reviewing Thomas’s record, Sen. Rubio cannot support moving forward with the nomination.”