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New Trump administration memo on Obama order alarms LGBT advocates

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Former President Obama signed an executive order barring anti-LGBT workplace discrimination among federal contractors (Blade file photo by Michael Key)

In the aftermath of the U.S. Supreme Court’s ruling the Masterpiece Cakeshop case, the Trump administration has issued new guidance that seeks to uphold “religious freedom” in the implementation of former President Obama’s executive order against anti-LGBT workplace discrimination among federal contractors — a move troubling to LGBT rights supporters.

The Aug. 10 guidance from the Labor Department purports to “incorporate recent developments in the law regarding religion-exercising organizations and individuals” with the enforcement of the executive order, taking note of the narrow ruling in decision of Colorado baker Jack Phillips as well as other recent rulings in favor of religious freedom, such as the Supreme Court decision in the Hobby Lobby case.

The guidance also takes into account recent executive orders signed by President Trump in favor of “religious freedom,” saying they “have similarly reminded the federal government of its duty to protect religious exercise — and not to impede it.” Trump signed a directive last year with the stated purposed of bolstering religious freedom under federal law and his order ensuring faith-based organizations have access to federal grants.

“In line with the longstanding constitutional requirement that government must permit individuals and organizations, in all but the most narrow circumstances, to participate in a government program ‘without having to disavow [their] religious character,’ OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of EO 11246,” the guidance says.

As a result, the Office of Federal Contract Compliance Programs under the Labor Department is instructed to take into accounts “religious freedom” when enforcing Executive Order 11246 in numerous ways, barring the agency making a “condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status.”

Signed by Obama in 2014, EO 11246 prohibits anti-LGBT discrimination among companies that do $10,000 a year or more in business with the U.S. government in addition and barrs discrimination against federal workers who are transgender.

The instructions seem aimed at allowing religiously-affiliated non-profits to discriminate against workers for being lesbian, gay, bisexual or transgender despite the executive order. Heretofore, religiously non-profits, including religious schools and universities, were required to abide by the executive order and received no religious exemption.

The latest directive is one of two issued by the Labor Department on Aug. 10 related to the Executive Order 11246. But the other directive doesn’t seem aimed at non-discrimination protections or “religious freedom.” It calls for “a portion of future scheduling lists” to include focused reviews on three authorities OFFCP enforces: EO 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

LGBT rights groups said the “religious freedom” directive is an attempt by the Trump administration to gut the non-discrimination protections in the executive order — which covers an estimated 34 million workers, or about 22 percent of the Americans workforce — and demonstrates the negative impact of the Masterpiece Cakeshop decision.

Sharon McGowan, legal director for Lambda Legal, said her organization has “serious cause for concern” the OFFCP will interpret the mandate with broad view and allow for exemptions to discriminate under the executive order.

“Apparently, this Administration believes – correctly – that rescinding the EO outright would cause a huge public and politically damaging outcry,” McGowan said. “So instead, they are trying to accomplish the same end through different means.”

The directive comes down from the Labor Department about a year-and-a-half after the White House announced in a statement Trump would keep the executive order in place and is “respectful and supportive of LGBTQ rights,” a statement contradicted by subsequent anti-LGBT actions from the Trump administration.

McGowan said nothing in the Masterpiece Cakeshop decision compelled the Labor Department to issue the directive, but Lambda is “not surprised to see this administration seize on the decision as a way to justify its ongoing assault on the civil rights of the LGBT community.”

“We hope that non-discrimination has become part of the standard operating procedures for the overwhelming majority of federal contractors, and they will continue to recognize that a workplace open to all is not only the right thing to do, but also makes smart business sense,” McGowan said. “But in the same way that the Masterpiece Cakeshop decision has embolden anti-LGBT forces to paint themselves as the victims of LGBT equality, these directives from OFCCP sends an encouraging signal to those individual employees within these larger entities who want to insist on a license to discriminate.”

Harper Jean Tobin, director of policy at the National Center for Transgender Equality, said in a statement “is an attempt to encourage businesses to take taxpayer dollars and then fire people for being transgender.”

“Religious organizations have ample protections under federal law, but they are not allowed to use federal money to discriminate against people,” Tobin said. “The language of this directive is so broad and so vague because it is part of a long line of attempts by this administration to sow confusion and encourage any employer to act on their worst prejudices. No employer should be allowed to use taxpayer dollars to fire someone because of who they are.”

A Labor Department spokesperson said in response to the Washington Blade’s inquiry about the directive OFCCP “will follow the law” and non-discrimination provisions in the executive order remain in place.

“FCCP remains committed to enforcing compliance with all of the protections in EO 11246, Section 503 and VEVRAA,” the spokesperson said. “Collectively, these laws prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran.”

The Masterpiece Cakeshop decision was in favor of Phillips, but was based on the facts of his case and didn’t find a First Amendment right to refuse to make custom-made wedding cakes for same-sex couples as he was seeking. As a result, LGBT non-discrimination protections remain in effect in the aftermath of the decision regardless and any instructions to take the ruling into account when enforcing them shouldn’t be enough to change their outcome.

Dale Carpenter, a conservative law professor at the SMU Dedman School of Law who’s written about LGBT rights, echoed those views and said nothing in the guidance is cause for alarm.

“Indeed, on its face, that guidance purports only to require what is already mandated by the Constitution, federal statute, or executive branch policy,” Carpenter said. “I don’t foresee any significant erosion of EO 11246 protections.”

Embedded in the directive is a sign more is to come. The instructions conclude with a line saying they remain in force “in anticipation of an addition to the department’s regulatory agenda followed by rule-making informed by public comment,” suggesting future changes to the executive order — a religious exemption or a revocation — are forthcoming.

Asked the about those words and the nature of any new rule, the Labor Department spokesperson said, “The Department cannot comment on a future rule-making.”

David Stacy, government affairs director for the Human Rights Campaign, said the directive is the latest attempt by the Trump administration “to implement a license to discriminate against LGBTQ people by providing unsound guidance in implementing Obama-era regulations.”

“The erroneous application of the Supreme Court’s narrow ruling in Masterpiece and recent Trump executive orders is meant to aggressively marginalize hardworking Americans because of their sexual orientation and/or gender identity,” Stacy said. “The American people will not tolerate discrimination, and LGBTQ people will not be erased.”

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California Politics

Kick Big Tobacco OUT of California Political Campaigns launches

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Los Angeles Blade graphic

LOS ANGELES — The OUT Against Big Tobacco coalition supported by Equality California Institute launched a pledge last week urging California legislators and candidates to voluntarily refuse campaign contributions from the tobacco industry.

A total of sixteen legislators and candidates have taken the pledge thus far, with more expected to sign on as the 2022 campaign season gets underway.

The pledge was launched in conjunction with the American Cancer Society’s Great American Smokeout, a national day in recognition of tobacco users who are looking to quit tobacco for good. LGBTQ+ people are more than TWICE as likely to smoke as our non-LGBTQ+ peers, and nearly 30,000 LGBTQ+ people across the country die every year of tobacco-related causes.

Initial signers of OUT Against Big Tobacco’s pledge not to take tobacco industry campaign contributions include:

  • Senator Lena Gonzalez (D-Long Beach)
  • Senator Dave Min (D-Irvine)
  • Senator Scott Wiener (D-San Francisco)
  • Assemblymember Sabrina Cervantes (D-Corona) 
  • Assemblymember Tasha Boerner Horvath (D-Encinitas)
  • Assemblymember Cottie Petrie-Norris (D-Laguna Beach)
  • Annie Cho, candidate for Assembly District 38
  • Supervisor Matt Haney, candidate for Assembly District 17
  • Daniel Hertzberg, candidate for Senate District 18
  • Mayor Christy Holstege, candidate for Assembly District 42
  • Bilal Mahmood, candidate for Assembly District 17
  • Mayor Lily Mei, candidate for Senate District 10
  • Caroline Menjivar, candidate for Senate District 18 
  • Andrea Rosenthal, candidate for Assembly District 36
  • Rick Chavez Zbur, candidate for Assembly District 50

“For decades, Big Tobacco has used their profits to place themselves as friends of our community. This year we are kicking them OUT; out of our Pride, out of our organizations, and out of our politics,” said Equality California Program Manager, Dr. Shannon Kozlovich. “We are calling all 2022 California State legislative candidates to stand with us and pledge to run tobacco free campaigns.

“The tobacco industry is killing our children, killing people of color, killing people that have underlying health conditions. We have to take a stand by not accepting tobacco contributions!” said Senator Lena Gonzalez.

In California’s 2020 Senate and Assembly election cycle, tobacco companies spent $6 million on campaign contributions, while spending millions more lobbying against legislation to prohibit the sale of flavored tobacco products — products disproportionately targeted towards LGBTQ+ people, people of color and our young people. 

“The tobacco industry serves no purpose other than to make people sick. Tobacco money is not essential for people to win” states Senator Scott Wiener. 

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California Politics

California voters in a new poll say society will completely break down

QUESTION: Agree or disagree: I am worried that a complete breakdown in American society could happen in my lifetime

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Graphic courtesy of Probolsky Research

NEWPORT BEACH – A new poll released last Thursday by Probolsky Research found that a near majority of California voters think that a complete breakdown in American society could happen in the next couple of decades or so where no one shows up to work, armed mobs roam the streets, and the government cannot continue to operate.

QUESTION: Agree or disagree: I am worried that a complete breakdown in American society could happen in my lifetime where no one shows up to work, armed mobs roam the streets, and the government cannot continue to operate.

The results are even more dramatic among Republicans, 69% of whom say they are worried, and those fifty and older who say American society is on the brink. Black voters too.

Full majorities in Los Angeles County, the Central Valley and Northern California also believe Californians are doomed, as do a majority of those who prefer to speak Spanish.

The multi-mode poll was conducted by telephone and online among 900 California voters from November 12 – 18, 2021. A survey of this size yields a margin of error of +/-3.3% and a 95% confidence level. This survey question was not sponsored by a third party, the results are being released for public interest.

Probolsky Research which conducted the poll is a non-partisan Latina- and woman-owned research firm with corporate, election, government, and non-profit clients.

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California Politics

Assembly Speaker strips Evan Low of committee chair- no reason stated

Speaker Anthony Rendon under fire from LGBTQ, diversity groups for sidelining one of California’s top gay legislators

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Assemblymember Evan Low (Screenshot via KGO-TV 7 ABC News Bay Area)

SACRAMENTO – The Speaker of the California Assembly Anthony Rendon (D-Los Angeles)  abruptly stripped Assemblymember Evan Low (D-Campbell) of both of his positions as chairman and member of the Assembly’s Business and Professions Committee Wednesday without a stated reason.

In a letter to Sue Parker, the Chief Clerk of the Assembly, Rendon named Assemblymember Marc Berman (D-Palo Alto) as Low’s replacement without explanation. Low, who has served as chair of the committee for the past five legislative sessions, offered no direct comment instead stating in a release via his office; “It has been an honor to serve as chair of the Assembly’s Business and Professions Committee, where my colleagues and I crafted legislation to help small businesses, combat the opioid crisis, implement a system to regulate legal cannabis, and work with Governor Newsom to protect patients and health professionals during the COVID-19 pandemic.”

Low serves as Chair of the California Legislative LGBTQ Caucus and Vice Chair of the California API Legislative Caucus, his removal brought immediate condemnation from groups aligned with those marginalised communities.

We are deeply disappointed to see Assemblymember Low removed as Chair of the Assembly Business and Professions Committee without any explanation. At a time when the API community faces a surge in hate, violence and discrimination, and state legislatures across the country relentlessly attack the LGBTQ+ community, Assemblymember Low has provided critical representation for our communities in Sacramento,” Equality California said in a statement. “He has chaired the B&P Committee for the last five years with policy-driven and solution-oriented leadership. Removing Assemblymember Low as chair is an unfortunate example of people of color — especially API people — being sidelined from leadership roles despite demonstrated success and a commitment to strengthening and diversifying the Legislature.”

The Washington D.C. based non-profit OCA-Asian Pacific American Advocates, a 48 year-old group that has chapters in all 50 states, dedicated to advancing the social, political, and economic well-being of Asian Americans and Pacific Islanders, tweeted their displeasure:

Assembly sources told the Blade over the past two days that Rendon’s actions appear to be politically driven retaliation stemming from several factions who had approached Low to campaign for the Speaker’s gavel this past summer, unhappy with Rendon’s handling of the legislative calendar as well as his handling of certain matters on the Democratic agenda.

One source pointed out that “stripping him [Low] of his chair was ridiculous and a petty move that smacked of revenge on the Speaker’s part given that he [Low] has held a personal fundraiser for Rendon and raised $120 thousand for the Speaker.”

A legislative staffer speaking to the Blade on background Friday said that the optics of the Speaker’s action was terrible. “You remove the gay lawmaker who heads the LGBT caucus and vice-chairs the Asian-PI caucus without reason? Look its clearly revenge- but Evan told those people he wasn’t going to do an end run on the Speaker and he didn’t.”

“Speaker Rendon has the right to replace any committee chair, but he also has the responsibility to explain why. To remove Evan Low – the only out LGBTQ AAPI committee chair in the Assembly – from his position without explanation is problematic, especially with no other LGBTQ people serving as chairs. At a time when the LGBTQ community and the AAPI community face increasing harm, we need more bold leadership like Evan Low’s, not less.”

Annise Parker, LGBTQ Victory Institute President & CEO

Movement is afoot inside Assembly circles as disbelief is turning to anger. Another source speaking to the Blade on background said that the Speaker’s action looks like it will backfire. “I’ve heard that some are saying they will go on the record in the next week- and some are really pissed off. He’s [Rendon] annoyed the Black caucus, now the Asian caucus- the people thinking about to go on the record, that momentum is building.”

The Speaker is not commenting nor making public statements as of Friday. One source told the Blade that a prominent non-profit leader had texted Rendon expressing grave concerns over what appeared to be a capricious move in removing Low and received no answer other than “Message received.”

One of oldest LGBTQ non-profit political groups, The Bay Area Municipal Elections Committee (BAYMEC) a four-county LGBTQ political action committee (PAC) which has been advocating for the civil rights of LGBTQ people since 1984 in the central coast counties of San Mateo, Santa Clara, Santa Cruz, and Monterey, took to Twitter expressing its outrage.

The Bay Area Reporter noted that the Sacramento Bee first reported about Low being stripped of his chairmanship. His being removed means he no longer chairs any committees, as per Assembly rules its members are only given one chairmanship per legislative session. Low remains a member of the communications and conveyance; elections; governmental organization; and higher education committees.

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