Trump admin argues transgender workers aren’t protected by civil rights law in new Supreme Court filing

The Trump administration on Friday filed a brief with the Supreme Court arguing that federal civil rights laws do not protect transgender workers.

The filing relates to the case of Aimee Stephens, a transgender woman who was fired as the funeral director of R.G. & G.R. Harris Funeral Homes Inc. in Detroit after she told owner Thomas Rost that she planned to transition from male to female and would be representing herself as a woman while at work.

In March 2018, the 6th Circuit Court of Appeals ruled the funeral home had violated Title VII anti-discrimination laws in the decision, with the court ruling that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and therefore protected under Title VII of the Civil Rights Act of 1964.

However, in their court filing submitted Friday, Solicitor General Noel J. Francisco and Department of Justice attorneys argued that the specific Civil Rights Act provision “does not bar discrimination because of transgender status,” meaning the Michigan funeral home was within its right to fire Stephens.

“In 1964, the ordinary public meaning of ‘sex’ was biological sex. It did not encompass transgender status,” the brief reads. “In the particular context of Title VII — legislation originally designed to eliminate employment discrimination against racial and other minorities — it was especially clear that the prohibition on discrimination because of ‘sex’ referred to unequal treatment of men and women in the workplace.”

If the Supreme Court sides with the Trump administration, it would overturn the previous ruling by the 6th Circuit Court of Appeals, and mark a major blow to LGBT rights. 

The move comes hours after the Log Cabin Republicans endorsed President Trump‘s 2020 reelection bid, reversing its decision four years ago when the conservative LGBT organization declined to endorse then-candidate Trump in 2016.  

The group said Friday in its decision that Trump has helped advance LGBT rights through policies seeking to end the spread of HIV/AIDS as well as his push to get other countries to conform to modern human rights standards.

Trump has referred to himself as the “most pro-LGBT presidential nominee in the history of the Republican Party,” but has come under fire for his transgender military ban, which reversed the Obama-era policy of allowing transgender individuals to openly serve in the military.

The ban was formally upheld by the Supreme Court earlier this year after facing multiple legal challenges.

[The Hill]

Doctors Could Refuse to Treat People Based on Race and Age Under Trump’s New Rule

A new Trump administration proposal would change the civil rights rules dictating whether providers must care for patients who are transgender or have had an abortion. News stories have mainly focused on how the proposal might affect LGBTQ rights and abortion rights, but the sweeping proposal has implications for all Americans, because the Department of Health and Human Services seeks to change how far civil rights protections extend and how those protections are enforced.

Roger Severino, the director of the HHS Office for Civil Rights, has been candid about his intentions to overturn an Obama-era rule that prohibited discrimination based on gender identity and termination of a pregnancy. In 2016, while at the conservative Heritage Foundation, he co-authored a paper arguing the restrictions threaten the independence of physicians to follow their religious or moral beliefs. Supporters of the approach say it protects the freedom of conscience, but opponents say it encourages discrimination.

His office unveiled the proposed rule on May 24, when many people were focused on the start of the long Memorial Day holiday weekend.

The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week another directive was proposed by the Department of Housing and Urban Development that would allow homeless shelters to turn away people based on their gender identity.

The public was given 60 days to comment on the HHS proposal. Here’s a rundown of what you need to know about it.

What would this proposal do?

Fundamentally, the proposed rule would overturn a previous rule that forbids health care providers who receive federal funding from discriminating against patients on the basis of their gender identity or whether they have terminated a pregnancy.

The Trump administration proposal would eliminate those protections, enabling providers to deny these groups care or insurance coverage without having to pay a fine or suffer other federal consequences.

That may mean refusing a transgender patient mental health care or gender-confirming surgery. But it may also mean denying patients care that has nothing to do with gender identity, such as a regular office visit for a bad cold or ongoing treatment for chronic conditions like diabetes.

“What it does, from a very practical point of view, is that it empowers bad actors to be bad actors,” Mara Keisling, executive director of the National Center for Transgender Equality, told reporters.

The proposal would also eliminate protections based on sexual orientation and gender identity from several other health care regulations, like non-discrimination guidelines for the health care insurance marketplaces.

Does it affect only LGBTQ people?

The proposal goes beyond removing protections for the LGBTQ community and those who have had an abortion.

It appears to weaken other protections, such as those based on race or age, by limiting who must abide by the rules. The Trump proposal would scrap the Obama-era rule’s broad definition of which providers can be punished by federal health officials for discrimination, a complicated change critics have said could ease requirements for insurance companies, for instance, as well as the agency itself.

And the proposal erases many of the enforcement procedures outlined in the earlier rule, including its explicit ban on intimidation or retaliation. It also delegates to Severino, as the office’s director, full enforcement authority when it comes to things like opening investigations into complaints lodged under the non-discrimination rule.

Why did HHS decide to change the rule?

The Obama and Trump administrations have different opinions about whether a health care provider should be able to refuse service to patients because they are transgender or have had an abortion.

It all goes back to a section in the Affordable Care Act barring discrimination on the basis of race, color, national origin, age, disability or sex. President Barack Obama’s health officials said it is discrimination to treat someone differently based on gender identity or stereotypes.

It was the first time Americans who are transgender were protected from discrimination in health care.

But President Donald Trump’s health officials said that definition of sex discrimination misinterprets civil rights laws, particularly a religious freedom law used to shield providers who object to performing certain procedures, such as abortions, or treating certain patients because they conflict with their religious convictions.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Severino said in a statement. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives.”

Much of what the Office for Civil Rights has done under Severino’s leadership is to emphasize and strengthen so-called conscience protections for health care providers, many of which existed well before Trump was sworn in. Last year, Severino unveiled a Conscience and Religious Freedom Division, and his office recently finalized another rule detailing those protections and their enforcement.

The office also said the proposed rule would save about $3.6 billion over five years. Most of that would come from eliminating requirements for providers to post notices about discrimination, as well as other measures that cater to those with disabilities and limited English proficiency.

The rule would also save providers money that might instead be spent handling grievances from those no longer protected.

The office “considers this a benefit of the rule,” said Katie Keith, co-founder of Out2Enroll, an organization that helps the LGBTQ community obtain health insurance. “Organizations will have lower labor costs and lower litigation costs because they will no longer have to process grievances or defend against lawsuits brought by transgender people.”

Why does this matter?

Research shows the LGBTQ community faces greater health challenges and higher rates of illness than other groups, making access to equitable treatment in health care all the more important.

Discrimination, from the misuse of pronouns to denials of care, is “commonplace” for transgender patients, according to a 2011 report by advocacy groups. The report found that 28 percent of the 6,450 transgender and gender non-conforming people interviewed said they had experienced verbal harassment in a health care setting, while 19 percent said they had been refused care due to their gender identity.

The report said 28 percent had postponed seeking medical attention when they were sick or injured because of discrimination.

Critics fear the rule would muddy the waters, giving patients less clarity on what is and is not permissible and how to get help when they have been the victims of discrimination.

Jocelyn Samuels, the Obama administration official who oversaw the implementation of the Obama-era rule, said that for now, even though the Trump administration’s HHS will not pursue complaints against those providers, Americans still have the right to challenge this treatment in court. Multiple courts have said the prohibition on sex discrimination includes gender identity.

“The administration should be in the business of expanding access to health care and health coverage,” Samuels told reporters on a conference call after the rule’s release. “And my fear is that this rule does just the opposite.”

[VICE]

Trump admin tells U.S. embassies they can’t fly pride flag on flagpoles

The Trump administration is rejecting requests from U.S. embassies to fly the rainbow pride flag on embassy flagpoles during June, LGBTQ Pride Month, three American diplomats told NBC News.

The U.S. embassies in Israel, Germany, Brazil and Latvia are among those that have requested permission from Trump’s State Department to fly the pride flag on their flagpoles and have been denied, diplomats said.

Although the pride flag can and is being flown elsewhere on embassy grounds, including inside embassies and on exterior walls, the decision not to allow it on the official flagpole stands in contrast to President Donald Trump’s claim to be a leader in supporting LGBTQ rights overseas. Trump’s administration has announced a campaign to decriminalize homosexuality overseas and this month issued a tweet and formal statement to “celebrate LGBT Pride Month and recognize the outstanding contributions LGBT people have made.”

The denials to U.S. embassies have come from the office of the State Department’s undersecretary for management, Brian Bulatao, a longtime associate of Secretary of State Mike Pompeo who also worked for him at the CIA. Under State Department policy, embassies that want to fly the flag on their flagpoles are expected to obtain permission from Washington.

During the Obama administration, the government granted blanket permission to embassies overseas to fly the pride flag during June. This year, U.S. diplomats said, embassies were told they can display the pride flag in other places, including inside embassies, but that requests to fly it on the flagpole must be specifically approved. No approvals have been granted.

The denial to the U.S. Embassy in Berlin is particularly jarring because the ambassador to Germany, Richard Grenell, is spearheading an administration push to end the criminalization of homosexuality in roughly 70 countries that still outlaw it, as NBC News first reported in February. Grenell, the most senior openly gay person in Trump’s administration, has secured support for that campaign from both Trump and Vice President Mike Pence.

“The President’s recognition of Pride Month and his tweet encouraging our decriminalization campaign gives me even more pride to once again march in the Berlin Pride parade, hang a huge banner on the side of the Embassy recognizing our pride, host multiple events at the Embassy and the residence, and fly the gay pride flag,” Grenell said Friday in a statement to NBC News.

Asked specifically whether the embassy will fly the flag on its flagpole outside the building, just steps from the iconic Brandenburg Gate, embassy spokesman Joseph Giordono-Scholz said only: “The pride flag will be on as many places as it can at the Embassy.”

In Germany, pride celebrations continue into the month of July for a European LGBTQ event known as Christopher Street Day that occurs on different days in various parts of Europe.

Numerous embassies are displaying the pride flag this month in other ways, including the U.S. Embassy in Seoul, South Korea, which put up a large rainbow banner on the side of the building. It’s unclear whether other embassies may be flying the flag on their flagpoles without having sought permission from Washington.

The State Department in Washington did not immediately respond to requests for comment, nor did the U.S. embassies in Jerusalem and Brasilia. The U.S. Embassy in Riga, Latvia, referred questions about the flag to the State Department.

The denials by Washington have alarmed U.S. diplomats serving around the world who are LGBTQ, with several raising the issue this week in a private group chat for members of Gays and Lesbians in Foreign Affairs Agencies, known as GLIFAA, several of the group’s members told NBC News. The board of GLIFAA did not respond to a request for comment.

After the publication of this story, the advocacy group GLAAD, tweeted, “Remember last week when President Donald Trump was pretending to celebrate Pride Month?”

Trump’s public declarations of support for LGBTQ rights have been sharply criticized by rights groups who say his record since taking office tells a different story.

Earlier this month, a Trump administration rule took effect barring transgender people who have undergone a gender transition or been diagnosed with gender dysphoria from enlisting in the U.S. military. In the U.K. this week, Trump defended that policy by saying that transgender people “take massive amounts of drugs,” apparently referring to hormones.

His administration has also rolled back Obama administration rules designed to prevent health care discrimination against transgender people. And human rights groups have expressed concern that a new Commission on Unalienable Rights announced by the State Department this month to guide U.S. human rights policy, which emphasizes “our nation’s founding principles of natural law and natural rights,” is designed to de-emphasize efforts to protect LGBTQ people and woman.

The news comes as pride celebrations are set to take place in Washington over the weekend, with WorldPride taking place in the U.S. for the first time this year, throughout June in New York.

[NBC News]

Trump administration bans CDC from saying ‘diversity,’ transgender,’ ‘fetus,’ and more

The Trump administration has banned seven words from the Centers for Disease Control’s upcoming budget documents, the Washington Post reports. The words are “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.”

CDC analysts were not given a reason for the banned words, they were simply informed of the new policy. Some phrases can be replaced or retooled, like by saying “CDC bases its recommendations on science in consideration with community standards and wishes” – an actual alternate phrase offered to CDC analysts in the first briefing about these words.

But not all the words are as easy to work around. It’s no secret that the current administration is anti-abortion and pushing back significantly in the fight for trans rights. Banning these words from CDC documentation directly affects communication around HIV/AIDS and the Zika virus, among others. 

This isn’t the first attempt to curb the use of language that threatens the Trump administration’s regressive policies. In March, the U.S. Department of Health and Human Services (HHS) removed questions about sexual orientation and gender identity from two surveys of elderly people. The department also archived a webpage containing resources for LGBTQ+ people and their families.

On a more fundamental level, this aligns directly with the Trump administration’s mistrust of words and facts, and its tendency to dismiss whichever words and facts conflict with the administration’s views and messaging. The inclusion of “diversity,” “entitlement,” and “vulnerable” in the new list reflects this directly; it erases the words from relevant discourse and by extension threatens to sweep larger problems under the rug. 

Matt Lloyd, an HHS spokesperson, said that the department “will continue to use the best scientific evidence available to improve the health of all Americans. HHS also strongly encourages the use of outcome and evidence data in program evaluations and budget decisions.”

[Mashable]

Trump Administration to Make It Easier for Adoption Agencies to Reject Same-Sex Parents

The Trump administration is reportedly mulling two plans that would make it easier for adoption agencies to reject same-sex couples, senior administration officials told Axios. One option under consideration is to rescind entirely an Obama-era policy that prevented adoption and foster-care agencies from receiving federal funding if they refused to work with same-sex couples. The other would be to add an exemption for religious organizations. The discussion is “mainly about which approach would hold up better in court,” Axios reports. The change, which could be announced as early as July, is the latest Trump administration attempt to undo the previous administration’s policies. Religious organizations have consistently bristled at Obama’s adoption policy, arguing that they’re being forced to contradict their beliefs.

[The Daily Beast]

HUD moves to allow discrimination against homeless transgender people

The Department of Housing and Urban Development is moving to roll back protections for homeless transgender people by enabling HUD-funded providers of shelters to consider a person’s sex or gender identification in determining whether they can be admitted.

The proposal, included in the department’s spring rule list out Wednesday, contradicts a pledge that HUD Secretary Ben Carson made to lawmakers just yesterday.

It would turn back requirements under an Obama-era rule that operators of single-sex shelters who receive HUD funding “provide equal access to programs, benefits, services, and accommodations in accordance with an individual’s gender identity.”

Carson told lawmakers on Tuesday that he was “not currently anticipating changing” the Equal Access Rule under questioning from Rep. Jennifer Wexton (D-Va.).

“Yesterday, I asked Secretary Carson directly if he was anticipating any changes to HUD’s Equal Access Rule, and he said no,” Wexton told POLITICO. “The announcement today that HUD will now allow anti-trans discrimination in shelters demonstrates that he either lied to Congress or has no idea what policies his agency is pursuing. Either way, it’s unacceptable.”

HUD said the proposal would give more leeway to shelter providers on the admission of people who “may misrepresent their sex.”

“Later this year, HUD will be proposing a change to the 2016 rule that will offer local homeless shelter providers greater flexibility when making decisions about individuals who may misrepresent their sex to access sex-specific shelters,” a spokesperson said in an emailed statement. “HUD is, and will always be, committed to ensuring that every person accessing its programs can do so without discrimination.”

The proposal says shelter providers “may establish a policy, consistent with state and local law, by which such Shelter Provider considers an individual’s sex for the purposes of determining accommodation within such shelters and for purposes of determining sex for admission to any facility or portion thereof.”

Providers would be able to “consider a range of factors in making such determinations, including privacy, safety, practical concerns, religious beliefs, any relevant considerations under civil rights and nondiscrimination authorities, the individual’s sex as reflected in official government documents, as well as the gender which a person identifies with,” according to the proposal.

[Politico]

Trump ‘likes Taylor Swift 25% less’ after political post

Taylor Swift’s endorsement of two Democrats for the upcoming US mid-term elections has sparked a huge response – including from President Donald Trump.

Mr Trump has told reporters he likes “Taylor’s music about 25% less now”.

The singer-songwriter, 28, had previously deliberately steered clear of politics, but said events in “the past two years” had changed her mind.

Her latest comments were praised by many – but also sparked a fierce backlash from Republican supporters.

Swift broke her silence on politics on Sunday, publicly endorsing two Democrats in Tennessee, her home state, in a post on Instagram, where she has 112m followers.

“In the past I’ve been reluctant to publicly voice my political opinions, but due to several events in my life and in the world in the past two years, I feel very differently about that now,” she wrote.

A Buzzfeed News report quotes Vote.org’s Kamari Guthrie, who says the site has seen a “registrations spike specifically since [her] post” in Tennessee, and also a bump in voter registration nationwide.

Swift particularly criticised Republican Senate nominee Marsha Blackburn for her voting record on gender equality.

“Her voting record in Congress appals and terrifies me,” she wrote, citing the politician’s votes against equal pay and domestic violence legislation.

Speaking on Monday, Mr Trump said Ms Blackburn was “doing a very good job” in Swift’s home state.

“She’s a tremendous woman,” he said. “I’m sure Taylor Swift doesn’t know anything about her.”

In previous tweets posted in 2012, the US President had described Swift as “fantastic” and “terrific”, and had thanked her for taking a picture with him.

Swift’s post has been “liked” more than 1.6m times since she shared it on Sunday, including by model Chrissy Teigen, singer Katy Perry and actress Reese Witherspoon.

However, she has attracted criticism from conservative commentators and Republicans.

“What I used to love about Taylor Swift is she stayed away from politics,” Charlie Kirk, founder of the conservative student organisation Turning Point, told Fox News on Monday.

Meanwhile, the National Republican Senatorial Committee criticised her “attitude”, and said Swift had “[come] down from her ivory tower to tell hardworking Tennesseans” how to vote.

Swift did not publicly back any candidate in the 2016 election when other stars like Beyonce and Lady Gaga hit the campaign trail on behalf of Hillary Clinton.

In 2012, Swift told Time magazine she didn’t talk about politics “because it might influence other people”.

“I don’t think that I know enough yet in life to be telling people who to vote for,” she said at the time.

[BBC News]

Trump administration halts visas for same-sex partners of diplomats, UN employees

President Donald Trump’s administration began denying visas to the unmarried, same-sex partners of foreign diplomats and officials and employees of the United Nations this week — making marriage a requirement to be eligible for a visa.

The policy was made effective Monday.

It comes despite the fact that the majority of countries do not recognize same-sex marriage and many same-sex couples face prosecution in their own countries.

The shift was detailed in a memo circulated at the United Nations’ headquarters in New York last month but unveiled in July, according to the State Department.

The policy shift gives the same-sex partners of foreign diplomats and U.N. workers until the end of the year to get married or leave the country.

The State Department said in a briefing Tuesday that the policy will affect about 105 families in the USA, 55 of which have links to various international organizations. It was not clear how many foreign diplomats and U.N. employees with pending U.S. posts will be affected by the policy change.

Twelve percent of the 193 U.N. member states represented in New York allow same-sex marriage, according to Samantha Power, a former U.S. ambassador to the United Nations who served under President Barack Obama.

The Trump administration said the new policy is more consistent with the Supreme Court ruling in 2015 that legalized same-sex marriage. The heterosexual partners of foreign diplomats and U.N. employees are also not eligible for U.S. visas.

Critics of the move argued the policy would create hardship for gay couples from countries that ban same-sex marriage or offer only civil unions. Those who marry in the USA to secure their visa status could face criminal proceedings once they return to their home nations.

“Those not yet in the country will need to show they’re married to secure a visa, potentially forcing those living in countries without marriage equality to choose between a posting at UN headquarters or family separation,” Akshaya Kumar, deputy U.N. director at Human Rights Watch, wrote in a blog post.

UN Globe, which advocates for non-discrimination of LGBTI staff at the United Nations and in its peacekeeping operations, said it was an “unfortunate change in rules, since same-sex couples, unlike opposite-sex couples, have limited choices when it comes to marriage.”

Power, the former ambassador, described the policy in a tweet as “needlessly cruel and bigoted.” The State Department said the rule change would promote equal treatment. It said it recognized that not all countries permit same-sex marriage and it was prepared to work with individual cases to find a solution for those not able to marry.

[USA Today]

Trump expands federal contractors’ ability to cite religious freedom in discrimination cases

The Trump administration issued a directive earlier this month that critics argue will allow federal contractors to assert their right to a religious exemption from LGBT discrimination charges.

The Department of Labor directive, issued on Aug. 10, expands the circumstances under which federal contractors can claim they have a religious exemption when battling discrimination charges.

The directive addresses an executive order enacted in 1965 that blocks businesses that work with the federal government from discriminating against people on the basis of sex, gender identity, race, sexual orientation and other factors.

The new notice cites recent Supreme Court decisions, including a ruling in favor of a baker who refused to bake a cake for a same-sex couple and the 2014 Burwell v Hobby Lobby decision that certain corporations can be exempt from regulations over religious objections.

It also cites recent executive orders by President Trump, including his order earlier this year directing federal agencies to respect and protect religious liberty and political speech.

Critics told BuzzFeed News that the new directive would contradict a promise Trump made when he took office last year to not to touch an executive order issued by former President Obama that banned federal contractors from engaging in LGBT discrimination.

Department of Labor and White House officials told the news outlet that the Obama-era executive order remains in place, but declined to answer questions on when the religious exemption directive could be utilized by contractors.

“The purpose of Directive 2018-03 is to ensure [the Office of Federal Contract Compliance Programs] guidance on the religious exemption is consistent with federal law related to religious freedom and religious accommodation, including recent U.S. Supreme Court precedents and Executive Orders, which OFCCP is obligated to follow,” a Labor Department official told BuzzFeed News.

The official noted that the executive order enacted in 1965 allows “religious organizations to make employment decisions on the basis of religion.”

The new directive also states that it “supersedes” a Frequently Asked Questions (FAQ) memo on the illegality of anti-LGBT discrimination.

“The previous FAQ did not reflect recent Supreme Court decisions regarding religious freedoms,” the Department of Labor official told BuzzFeed News.

“President Trump and his Administration are working diligently to improve the lives of all Americans, including faith-based and LGBT communities,” White House deputy press secretary Lindsay Walters told BuzzFeed News. “We will continue to ensure anti-discrimination protections are in place for all Americans.”

Advocates opposing the new directive told the news site that the policy opens the door for contractors to cite religious exemptions when discriminating against LGBT employees.

“This Administration apparently recognizes — correctly, in our view — that rescinding [Obama’s 2014] executive order outright would cause a huge public outcry,” Shannon McGowan, a former lawyer in the Department of Justice’s Civil Rights Division and the current head of Lambda Legal, told BuzzFeed News. “So instead, this Administration is trying to accomplish the same end through different means.”

McGowan noted that a fifth of the federal workforce is employed through federal contractors, telling the news site that the “damage that could be done here cannot be overstated.”

[The Hill]

Trump nominates homophobic former Family Research Council chief to board of ‘religious freedom’ crusaders

It was announced Tuesday that President Donald Trump nominated Gary Bauer to be the latest member of the Commission on International Religious Freedom.

Bauer once led the Family Research Council, the anti-LGBT organization that advocates that homosexuals are harmful to society. The group has even been labeled a hate group by the Southern Poverty Law Center.

Before that, Bauer was known for his opposition to having an LGBT advisor to former President Ronald Reagan’s Commission on the HIV/AIDS Epidemic in the 1980s.

“Millions of Americans try to raise their children to believe that homosexuality is immoral,” he wrote in a 1987 memo. “In many states homosexual practices are illegal, including sodomy. For you to appoint a known homosexual to a Presidential Commission will give homosexuality a stamp of acceptability. It will drive a wedge between us and many of our socially conservative supporters.”

Candidate Donald Trump boasted of his support for LGBT Americans during the 2016 campaign.

“Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs,” Trump even wrote in a June, 2016 tweet.

[Raw Story]

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