Posts Tagged ‘ENDA’

All-Hit Radio(?)

March 1st, 2011 No comments

Tomorrow, I’m to be the guest for the first full hour of the Dave Scott Show. It’s available, live at 1 pm EST and via podcast thereafter, at this web address:

I’ll be talking about marriage equality, with an emphasis on the recent development in the Defense of Marriage Act cases, and probably lots more of interest to everyone, whether in the LGBT community or not: DADT repeal; the Employment Non-Discrimination Act, state and federal responses to bullying, and who knows what else.

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Catching up to Reality on Blood Donations by Gay Men

March 7th, 2010 No comments

When Obama was seeking the Presidency, the GLBT community had a well-defined punch list of action items, and he promised big things on all of them: repeal of DADT; repeal of DOMA (although he doesn’t support marriage equality); passing ENDA; passing inclusive hate crimes law (the only hole punched so far). A few others, notably the administrative implementation of the-then recent repeal of the insane prohibition against HIV-positive immigrants, were perhaps further down on the list, but also up for discussion. Conspicuously absent from the mainstream agenda has been an item of interest to the public health community: lifting of the ban on gay blood donors.

So I was buoyed to see that just a few days ago, a group of sixteen U.S. Senators sent a letter to FDA Commissioner Margaret Hamburg, urging the agency to reconsider its twenty-seven-year-old lifetime ban (“deferral” is the quaint term used, but it’s politely Orwellian in this case) on blood donations for men who have had even one sexual encounter with another man.

The policy is long overdue for an overhaul. As the letter notes, the policy is inconsistent with various other exclusions, and is an artifact of a time when all that was really known of HIV infection — and we weren’t even calling it that, in 1983 — is that it disproportionately struck gay men. Even today, MSM (“men who have sex with men,” which is the term used by the CDC because it focuses on sexual behavior, rather than on orientation) are prohibited, forever, from donating blood if they have had sex, even once, with another man, at any time since 1977. The Senators’ letter points out the many inconsistencies in the policy, including the fact that there’s no exclusion of those who have had high-risk, unprotected heterosexual sex, no matter how recently. Even more absurdly, those who have had heterosexual sex with those known to have HIV are only deferred for one year; not for 33! And “sex” isn’t defined when it comes to MSM: the safest kind of protected sexual acts are, in theory, treated the same as the riskiest.

It should go without saying that none of this can be justified from a public health perspective.

These inconsistencies should be enough to sink the policy which, as the letter notes, has lately been repudiated by the major blood banking organizations, most significantly including the Red Cross. But the problems are much deeper and more serious than even the letter recognizes. A few years ago, I discussed the issue in detail in this law review article. Here, I’ll summarize the arguments I made there that weren’t explicitly raised in the letter.

First, while the CDC is careful to distinguish behavior — men having sex with men — from identity, the FDA policy undermines this sound epidemiological distinction by effectively collapsing the two. By excluding any man who’s had any kind of “sex” (not defined!) with even one other man during the past thirty-plus years, the FDA has created a policy that isn’t about relevant behavior, but about some weirdly expansive view of (gay) sexual orientation. Because if it were about behavior, the line would have been drawn in an entirely different place; say, for a year after specifically identified, high-risk behavior.

Second, the policy undermines trust in public health in a few related ways. Obviously, as a practical matter the policy isn’t enforceable, and the sheer breadth of it has doubtless caused many to ignore it. People aren’t stupid: Gay men who know they have an HIV-negative serostatus might give blood, understanding that they pose no threat. (According to this very unscientific poll over at, almost 200 of 800 respondents admitted to having lied about their sexual practices on the questionnaire.) But by attempting to fence them out, the FDA has sent gay men an unwelcome message that could undermine the community’s trust in other ways. One important public health principle is that it recognizes the long-term value of respecting the dignity of all populations.

Why has the policy persisted for so  long? One argument seems sensible, at first blush: If the exclusion were changed to, say, one year, there would be some infinitesimal increase in the number of HIV-positive blood transfusions (well less than one in a million, it’s estimated), so why do anything to increase the risk? But the “let’s not do anything if there’s a tiny risk of harm” canard — which, by the way, is also prevalent in arguments against marriage equality — wouldn’t be, and hasn’t been, applied to any other category of people, or of conduct. Of course there will be some tiny uptick, not  because of the three-week window period between infection and ability to identify it, which any contemplated new rule would  easily accommodate, but because of the irreducible human error associated with the process: If you add more people, some will get through who should not. But this could be said of any proposal to add donors; it’s just that “MSM” have had such a draconian policy applied to them for so long that the donor baseline is essentially zero for this group.

It seems that uprooting this policy is fairly far down on the priority list for the LGBT community. Indeed, this story seems to have attracted but little attention. But messages matter. The radical, embarrassingly outdated FDA policy sends a terrible signal that ought to concern us. It’s good to see that someone is finally suggesting action. Will Obama back them up?

Public Health and Welfare in State of the Union Speech

January 28th, 2010 1 comment

State of the Union

Despite my current frustration with Obama — or maybe because of it — I watched the entire State of the Union speech. I’m sure it’s being endlessly picked apart by all kinds of talking heads, bloggers, and the like. Me, I’m watching the Australian Open. (The indomitable Serena Williams just beat back a tough challenge from the letter-limited Li Na to advance to the final. No news there.) But I do want to pause to grant some limited props to Obama for mentioning two of my pet issues: Public health and the repeal of “Don’t Ask, Don’t Tell.”

The promise on DADT had generated an anticipatory, bloggy buzz, and it was heartening to hear the President speak to it. I’m confident it will happen. (Missing, though, was any mention of the Employment Non-Discrimination Act which I had thought was also likely to pass into law this year. I was reminded that this issue had been raised in a State of the Union as long ago as the end of the Clinton Administration. Can we please get there? The goal seems to shimmer and recede….)

The DADT comment came towards the very end of a pretty good speech, and very close in time to another issue near and dear to me: public health. Of course, everything the President mentions is public health to me (health care reform is just the most obvious example, but I can’t bear to talk about it right now). But to hear him pledge energy, money and effort to public health efforts to fight terrorism and infectious disease — now that was something. My night was made in five minutes.

Now, to bed. Oh, wait…the recently unretired Justine Henin is taking the court….

On and On and On….

October 12th, 2009 No comments

Here’s a story you likely know, at least in broad outline:

During his campaign, Obama promises progress on gay rights. Once in office, his rhetoric cools and — to be charitable — he doesn’t seem to be moving very fast. Then he makes things much worse with a dreadful brief his Justice Department files in defending the Defense of Marriage Act. Critics (including this one) erupt.

Chastened, Obama signs a memorandum extending a few lousy benefits to partners of federal employees. Then the lifting of the ban on HIV-positive travelers moves closer to reality. Hate crimes law should be a reality any day now, but other promises, like the repeal of “Don’t Ask, Don’t Tell (DADT)” and (especially) the Defense of Marriage Act remain just…promises.

Then, this past Saturday night, Obama headlines the gay dinner-to-end-all-dinners — the HRC soiree in DC — where he “opens” for the ubiquitous Lady Gaga.1 His speech makes more concrete (but with no timeline) his goal of repealing DADT and of passing ENDA (the federal non-discrimination law).

Some bloggers continue continue to howl. “When”? “Give us concrete times and dates!” In this vein, Andrew Sullivan titles his post on the speech “Much Worse Than I Expected.”2   Others read it differently. Nan Hunter, for example, thinks that the focus on DADT has occluded Obama’s subtle but important move towards the language of moral equality. (Her post is really worth your time; so is her blog, in general.) Sullivan would say (and has, in almost these words): “We know the man can give a great speech. Now he needs to shut up and do something.”

There’s the story. Now the question: Where to stand?

I’m trying to find some way of accommodating these two truths: First, Obama is an advocate (except on marriage). Second, so far and perhaps for good, he isn’t willing to expend much political capital on LGBT rights; so he moves slowly or (perhaps in the case of DOMA), not at all. This is advocacy in name (and soaring rhetoric) only.

Here are a few suggestions to help maintain your sanity. So far, they are working for me:

  1. Focus on the states, where marriage equality will continue to play out. Right now, Maine is hugely important. If Question 1, asking the voters to repeal the recently enacted marriage equality law, is voted down, then the right can’t argue about courts — or, weirdly, even legislatures — subverting the will of the people. Of course, some leadership from Obama wouldn’t hurt in this regard, either. (So far, silence).
  2. Be practical — not ridiculous, as in waiting for 2017 to render judgment, but realistic. If we get hate crimes and ENDA this year, as well as the regulatory repeal of the HIV travel ban, and the end of DADT next year, I’d swallow my disappointment over DOMA (not for long) and congratulate Obama on some actual accomplishments. (As I wrote here in summarizing the remarks of Chai Feldblum and others, getting legislation through Congress is tough because of the difficulty of getting their time and attention.)
  3. Continue agitating, and criticizing the Administration. Consider supporting organizations other than the HRC, at least until they can show something, anything, for their decades of black-tie fund-raising efforts.

Maybe this is too timid, maybe I’m too critical, maybe…I should go to bed.

  1. Who sang a freshly kitted-out version of John Lennon’s “Imagine” that stands with the Elton John/Bernie Taupin retread of “Candle in the Wind” (to fit Princess Diana’s memorial) in the “lazy songcraft” pantheon. I’m sure the guests would rather have heard “Pokerface.”
  2. Some context is useful here. Earlier, Sullivan had leveled HRC Pres Joe Solomonese for a letter he’d sent out supporting Obama, and suggesting that we wait until 2017(!) to evaluate his Presidency. Although some of the post is needlessly incendiary (esp. the title), Sullivan was right in the essentials, and it’s hard not to read Obama’s speech in light of the HRC’s bland acceptance of almost anything he says or promises to do.

Obama’s (Mini) Down Payment on Gay Rights: Federal Domestic Partner Benefits

June 17th, 2009 No comments

The issue of causation confounds philosophers and scientists alike, but allow me to identify one instance of clear cause-and-effect that few would dispute: The furor over the DOJ’s filing of the motion to dismiss in the DOMA case — not to mention the hemorrhaging of financial support for the upcoming DNC fund-raiser — led directly to President Obama’s actions tonight. Here’s what happened:

The actual legal step is teensy. Federal employees get a few crummy benefits; not the truly valuable stuff like health care or retirement benefits. Obama barely mentions the benefits  he’s able to confer with the stroke of a pen, because they’re mostly peanuts. (Not to those directly affected, though. During Equality Forum, I spoke to Michael Guest, the moderator of a panel on LGBT Rights and Challenges in Russia. Guest is the former U.S. Ambassador to Romania, and he discussed his constant frustration with how his same-sex spouse couldn’t do any of the simple  things that spouses of opposite-sex couples could, including attending basic learning  sessions on “do’s and  “don’t’s” for spouses living in other countries. My  conversation with Guest is worth its own post; maybe someday soon….)

But Obama’s action wasn’t about these benefits; they were just the handiest vehicle for his now desperately needed effort to calm the LGBT community. There were two ways for him to have done so: He could have delivered a major, sweeping  speech on gay rights, with a mea culpa for the vilified DOJ brief (for which he’s ultimately accountable). In my fantasy world, I  still hope that he might deliver such a speech, and a few posts ago, I took the liberty of writing one for him.  The model for that is the “race speech” he gave last year here in Philadelphia.

This brief signing ceremony cum photo op was the alternative. It wasn’t a grand “gay rights” speech, focusing instead on DOMA — not coincidentally, the act that was the subject of the recent firestorm — and on the smaller steps, like the Domestic Partners Benefits and Obligations Act, that could be taken leading up to DOMA’s repeal.

Given its focus on DOMA, as a short speech it was good. He neither apologized for nor explained the DOJ brief, but he did acknowledge that he hadn’t done anything yet: “Among the steps we have not taken is repeal of DOMA.” He then reminded us that, yes, he still supports repealing a statute that is “discriminatory” and “interferes with states’ rights.”

The “states’ rights” reason is important to the legal ear. Recall that DOMA does two things: It allows states to refuse recognition of sister states’ same-sex marriages, and denies federal marriage benefits to same-sex couples even if validly married in their home states. The DOJ’s argument in defense of the second provision was the one that drew all of the outrage, arguing, as it did, that the government shouldn’t spend federal tax money on the “novelty item”  that is same-sex marriage, and (incredibly) that same-sex couples weren’t being discriminated against by being excluded from federal benefits. Tonight, Obama effectively stepped back from these arguments by saying that DOMA should  be repealed precisely because it doesn’t respect a state’s decision to confer the status of marriage on same-sex couples. Not bad, although likely lost on non-lawyers (unless you are lucky enough to be reading this!)

Beyond DOMA, his rhetoric was more general, and — happily! — more reminiscent of his campaign’s. There’s “more work to do to ensure that government treats all of its citizens equally.” He’s committed to fighting “injustice and intolerance in all its forms to bring about that more perfect union.” There, he consciously echoed the race speech, which began with this quote from the Preamble to the U.S. Constitution: “We  the people, in order to form a more perfect union….” (The speech also ended with the idea of “perfecting” that union.)

And then, in further answer to the question: “What the hell are you doing on LGBT issues?”, he committed his administration to working “tirelessly” to secure the repeal of DOMA.

Will this action succeed in quelling the outrage? It’s impossible to tell at this point. For once, I’ve purposely refrained from reading other blogs before posting this, because I wanted to voice my own first reaction, unaffected by the cacophony that’s surely out there. My guess is that it buys him a little time — not much — to actually start working on the signature LGBT issues of his campaign. If DOMA gets moved to the front of the pack (ahead of supposedly easier sells, like hate crimes and the Employment Non-Discrimination Act), that would be real progress.

But the honeymoon is over.