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President Biden falls short of 100-day goal to sign Equality Act into law

The Equality Act faces significant hurdles in the path toward passage in a Senate equally divided 50-50 along party lines

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President Joe Biden signing legislation with Vice-President Kamala Harris looking on
(Official White House Photo)

WASHINGTON – With President Biden’s first 100 days in office coming to a close, the Equality Act doesn’t appear even close to passage after his campaign promise to sign the legislation into law within that timeframe, although defenders say talks are ongoing and point to his executive actions in favor of LGBTQ rights.

Sen. Tammy Baldwin (D-Wis.), the first out lesbian elected to the U.S. Senate and a co-sponsor of the Equality Act, told the Washington Blade on Monday the Equality Act wasn’t completely dead in the water, alluding to imminent talks with fellow senators on the comprehensive LGBTQ legislation.

“Conversations continue to try to get to 60 votes,” Baldwin said. “I am hoping to personally be involved in several of those before the recess next week, but they’re still tentative.”

Asked what the reception has been to lawmakers amid talks on the Equality Act, Baldwin referenced items of traction, but wouldn’t get into details.

“I think there’s a commitment among a bipartisan group of getting to ‘yes,’” Baldwin said. “It’s just the, you know, law-making is like sausage-making.”

When the Blade pointed out Biden had said he’d sign the legislation into law within his first 100 days and asked whether the White House was being helpful, Baldwin said she had no reason to think otherwise.

“I’ve been dealing directly with my Senate colleagues, but I have no reason to believe they’re not being helpful,” Baldwin said.

Senators considered on the fence about the Equality Act wanted nothing to do with inquiries about where things stand with them on the legislation when the Blade approached them.

Sen. Joe Manchin (D-W.Va.), who remains the lone Democrat in the Senate uncommitted on the Equality Act amid efforts of trying to pry him out by winning over the junior Republican senator from his state, professed to be unaware of the legislation when asked by the Blade if anyone has reached out to him.

Manchin, who previously signaled he couldn’t support the Equality Act because of concerns over public schools having to implement the transgender protection, told the Blade he “hasn’t seen” the bill.

Sen. Susan Collins (R-Maine), who declined to co-sponsor the legislation this Congress after having previously supported it, pushed back when the Blade made similar inquiries about whether she’s involved in talks on the bill.

“I’ve talked to several people about it; I’m not going to give you a list of names,” said Collins just before a nearby aide closed down further inquiries, citing concerns about the Maine senator missing an imminent floor vote.

Although the U.S. Supreme Court ruling last year in Bostock v. Clayton County determined anti-LGBTQ discrimination is illegal under existing law in the workplace, which has application to any law banning discrimination, the Equality Act would take things further to prohibit anti-LGBTQ discrimination in public accommodations and federally funded programs.

Additionally, it would expand the Civil Rights Act of 1964 to prohibit using the 1993 Religious Freedom Restoration Act as a defense in cases of discrimination, including protections on the basis of sex in public accommodations and federal programs and expand the definition of public accommodations to include retail stores, banks, transportation services and health care services for all protected categories, including race and national origin.

Biden, whose 100th day in office as president was set for Thursday, promised the LGBTQ community in multiple forums on the campaign trail in 2020 he’d sign the Equality Act within his first 100 days in office and included his commitment to that timeframe on the LGBTQ page of his campaign website.

Even in October 2020, when the coronavirus pandemic continued to rage in the United States and it was clear that would be a priority for him upon taking office, Biden said in an interview with the Philadelphia Gay News the Equality Act would be a top priority for him within his first 100 days.

“I will make enactment of the Equality Act a top legislative priority during my first 100 days — a priority that Donald Trump opposes,” Biden said.

But the Equality Act faces significant hurdles in the path toward passage in a Senate equally divided 50-50 along party lines where 60 votes would be needed to end a filibuster. Anti-transgender groups have pounced on the issue of transgender kids in sports, which has been the focus of legislation advancing through state legislatures and may be a sticking point in talks on the bill. Although the U.S. House passed the Equality Act largely along party lines in March, the Senate Judiciary Committee hasn’t yet voted to advance the legislation, let alone hold a floor vote on the bill.

Sen. Jeff Merkley (D-Ore.) signaled through a spokesperson work continues behind the scenes on the Equality Act and important achievements have been made, including record business support announced this week.

“The Equality Act has made historic progress within the first 100 days of the Biden administration,” said Martina McLennan, a Merkley spokesperson. “In addition to passing the House with a bipartisan vote, this legislation has more Senate cosponsors than ever before, more than 400 major businesses have called for its passage, and, after the Judiciary Committee’s first-ever Senate hearing in March, the Equality Act is poised for further action soon. Sen. Merkley is continuing to have productive conversations with Senate Republicans and remains committed to achieving a bipartisan vote in the Senate and seeing this landmark legislation signed into law.”

The White House continues to insist nothing has changed in terms of Biden making the Equality Act a priority. White House Press Secretary Jen Psaki in February twice told the Washington Blade Biden “stands by” his 100-day commitment, once in February and again on the 83rd day of the administration, blaming the Senate for inaction.

“And as you know, in order to sign legislation, it needs to come to his desk,” Psaki said. “And while he has certainly been a vocal advocate in his support for the Equality Act, obviously, as you know and noted, it passed the House; it needs to work its way through the Senate. It requires the Senate passing it in order for him to sign it.”

Asked what Biden is doing to advance the Equality Act, Psaki cited a Statement of Administration Policy in favor of the legislation and vaguely mentioned talks Biden is having.

“He has talked about his view that this is legislation that should pass,” Psaki said. “And he has a range of conversations about a range of topics, but also so does our legislative team who work to move forward his agenda every single day.”

However, exactly what the White House and Biden are doing, if anything, behind the scenes to advance the Equality Act remains unclear. One Democratic insider, who spoke on condition of anonymity for greater candor, said he’s “disappointed that they haven’t allocated much energy to it compared to other items on the agenda,” later adding “hopefully they’ll plug along.”

A White House official, asked by the Blade for this article if Biden is disappointed he won’t be able to sign the Equality Act within the 100-day timeframe he envisioned, reiterated the president’s support for the legislation.

“President Biden believes the Senate needs to act now to pass the Equality Act, and will continue to prioritize this legislation so that no one can be discriminated against on the basis of sex, including gender identity and sexual orientation,” the official said.

To be sure, Biden has acted to advance LGBTQ rights through executive action during his first 100 days in office, signing an executive order on his first day in office ordering federal agencies to fully implement the Bostock ruling across the board with regard to all laws against sex discrimination.

Biden wasn’t done: Days later he signed an executive order reversing former President Trump’s transgender military ban and a memorandum directing the State Department to make LGBTQ human rights an international foreign policy priority.

Based on Biden’s Bostock order, federal agencies have signaled that they would take up cases of anti-LGBTQ discrimination as sex discrimination, including the Consumer Financial Protection Bureau and the Department of Housing & Urban Development. The Department of Education also issued a memo signaling anti-LGBTQ discrimination in school programs, including sports, is illegal under Title IX of the Education Amendments of 1972.

But the cornerstone of Biden’s campaign promise to the LGBTQ community was signing the Equality Act to enact a change in law for LGBTQ protections. Although Biden signaled he’d enforce the law consistent with the Bostock decision, signing the Equality Act into law within 100 days was what he repeatedly promised in campaign forums.

Moreover, executive actions have limits. For starters, a subsequent administration hostile to LGBTQ rights could reverse them (even though those changes would likely be challenged in court). Most notably, because no law bars sex discrimination in public accommodations, a change in law is necessary to prohibit to anti-LGBTQ discrimination in that area. Under current federal law, businesses can refuse service to customers for being LGBTQ or throw them out for holding hands with a same-sex partner without fear of legal reprisal.

Harkening back to the 2020 presidential campaign, the inability of Biden to meet his campaign promise to sign the Equality Act into law within 100 days makes prophetic concerns some Biden campaign supporters quietly expressed about the campaign or transition team not having a dedicated policy staffer on LGBTQ issues, which could have gotten the ball rolling to anticipate controversial issues with the legislation and coordinate among principals.

LGBTQ advocacy groups working to advance the Equality Act have largely kept quiet on the strategy talks behind the scenes, although they expressed solidarity with Biden despite him not being able to meet his 100-day timeframe for the legislation. The Human Rights Campaign, however, didn’t respond to a request for comment by Blade deadline Wednesday.

Mara Keisling, executive director of the National Center for Transgender Equality, said via email she remains confident Biden will sign the Equality Act into law based on his actions in his first 100 days.

“NCTE had prioritized passing the Equality Act in this Congress,” Keisling said. “We are confident that President Biden will sign the bill when we can get it through the Senate whether that’s on Day 100 or Day 1,000. President Biden has been off to a quick start on trans policy with his early Bostock Executive Order, ending the trans military ban, and so far appointing the first two trans people in history to Senate confirmable positions. We are confident of more great work during these four years.”

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California Politics

Senator Wiener’s No Tax Exemption for Insurrection Act, passes Senate

Senate Bill SB 834 strips state tax-exempt status from organizations that engage in or incite insurrection

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Screenshot/California Legislative TV

SACRAMENTO – Senator Scott Wiener (D-San Francisco)’s Senate Bill 834, the No Tax Exemption for Insurrection Act, passed the Senate by a vote of 28-0 Monday. It will now head to the Assembly for policy committee hearings. 

SB 834 is a first-in-the-nation bill that will revoke the California tax-exempt status of nonprofit organizations that participate in or incite efforts to overthrow the United States government or any state government. Nonprofit organizations have used the “Big Lie” – the fraudulent notion that the 2020 election was stolen – to fundraise for and funnel money to extremist and anti-democratic initiatives like the January 6 insurrection.

Tax-exempt status is a privilege, not a right, and organizations that engage in or incite insurrection or conspiracy to commit insurrection – both of which are illegal – should not be given this special status to help them fundraise. Moreover, non-California nonprofits should not be able to register to raise money in California if they are engaging in or inciting insurrection. 

“On January 6, 2021, the peaceful transfer of power in our democracy was threatened,” said Wiener. “And for the first time since the Civil War, people died as a result. We cannot and will not let organizations that aid and abet insurrection – that break the law by trying to overthrow the U.S. government – operate with tax-exempt status. The people of California should not be subsidizing insurrection.” 

The January 6, 2021 insurrection took place, when pro-Trump extremists – in response to the false narrative that the Democrats “stole” the 2020 election and incited by then-President Donald Trump – breached the United States Capitol. Five people were killed as a result of this insurrection, and hundreds were injured.

Vice President Pence and Speaker Pelosi were specific targets of this violent attack on the nation’s democracy. Many nonprofits that supported the insurrection and continue to perpetuate lies about the 2020 election in hopes of overturning the results still operate with tax-exempt status, both at the federal and state level. 

SB 834 clarifies the Franchise Tax Board’s authority to revoke the California tax-exempt status of a nonprofit organization if the California Attorney General determines that the nonprofit has actively engaged in, or incited: treason, misprision of treason, insurrection, seditious conspiracy, advocating overthrow of the government or the government of any State, or advocating mutiny by members of the military or naval forces of the United States (1.)

Under SB 834, if the Attorney General finds that a nonprofit organization has incited, or actively engaged in actions that are directed to or likely to imminently violate one or more of these crimes, they will notify the FTB, which then will have the ability to revoke the nonprofit’s tax-exempt status. 

For out-of-state nonprofits that engage in or incite insurrection, they will be prohibited from registering to raise money in California. 

The United States Supreme Court has ruled that the purpose of charitable organizations claiming tax-exempt status “may not be illegal or contrary to public policy.” Trying to overturn elections and violently attacking our legislators fits the bill. SB 834 will ensure that these organizations no longer claim this financial advantage. 

Tax-exempt nonprofits are not required to pay corporate income taxes and may be exempt from other taxes as well. Additionally, donations to many nonprofits are deductible from income taxes, and private foundations and donor-advised funds can only donate to tax-exempt nonprofits. Private foundations and donor-advised funds represent a major funding source for many nonprofits. 

Authoritarian and anti-democratic organizations have increasingly used the “Big Lie” to fundraise, and this narrative has driven millions of dollars in tax-exempt donations. And many new organizations have cropped up in the past year, hoping to ride the coattails of the insurrection and cash in.

These include California nonprofits and nonprofits registered in other states that fundraise in California. These organizations, which are fundamentally undermining our democracy and cheering for the destruction of free and fair elections in America, should not be allowed to operate with advantages like tax-exempt status. 

For example, the leader of the “Oath Keepers,” a national militia movement, was charged with seditious conspiracy. While the Oath Keepers does not have California tax-exempt status, it has an “educational foundation” with federal exempt status and tax-exempt branches in several states. In the words of one expert, “It can only be presumed that [funds contributed to the Oath Keepers], which [donors were] able to deduct from their federal taxes, went to transporting and lodging members of the group slated to participate in the ensuing riots.” (2.) These organizations should not be allowed, under any circumstances, to use tax write-offs to help fund illegal activities. 

There is precedent for making this distinction in California’s tax code. Under federal and California law, for instance, if a nonprofit organization supports terrorism, its tax-exempt status is suspended. The nonprofit organizations that support insurrection should receive the same treatment. 

Citations:

1. USC §§ 2381-2385, 2387

2. “Dollars against Democracy: Domestic Terrorist Financing in the Aftermath of Insurrection,” Virtual Hearing before the Subcommittee on National Security, International Development and Monetary Policy of the Committee on Financial Services, U.S. House of Representatives, Feb 25, 2021. 

Senators Josh Becker (D-Peninsula), Dave Min (D-Irvine), Josh Newman (D-Fullerton), Anthony Portantino (D-La Cañada Flintridge), Tom Umberg (D-Orange County), and Bob Hertzberg (D-Van Nuys) are co-authors of this bill. Assemblymembers Buffy Wicks (D-Oakland), Phil Ting (D-San Francisco), Cristina Garcia (D-Bell Gardens) and Marc Berman (D-Menlo Park) are also co-authors of SB 836. Assemblymember Kevin Mullin (D-San Mateo) is principal co-author.

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California Politics

Assembly passes bill protects patients & providers from anti-choice states

AB 1666 protects patients and providers in California from civil liability judgments for providing reproductive health care to patients

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California State Capitol Dome (Blade file photo)


SACRAMENTO — In a two-thirds vote Monday, the Assembly passed AB 1666, sponsored by Assemblymember Rebecca Bauer-Kahan (D – Orinda) which creates a legal shield up for California patients and providers from extremist anti-abortion laws from anti-choice states.

The language of the measure reads: “This bill would declare another state’s law authorizing a civil action against a person or entity that receives or seeks, performs or induces, or aids or abets the performance of an abortion, or who attempts or intends to engage in those actions, to be contrary to the public policy of this state. The bill would prohibit the application of that law to a case or controversy heard in state court, and would prohibit the enforcement or satisfaction of a civil judgment received under that law.”

Planned Parenthood Affiliates of California Legislative Director Molly Robson told the Blade in an emailed statement Monday;

“AB 1666 will allow California providers to continue to provide essential and timely health care, like abortion, with decreased risks of potential liability when helping people forced to seek care here in California rather than in their home state due to hostile, extreme, and dangerous restrictions or outright bans. These precautions and protections are necessary given the increased hostility and frequency of abortion bans in other states seeking to target patients and providers. Taking this action now is crucial as we prepare for the U.S. Supreme Court to overturn Roe v Wade and unleash a flood of hostile bans in more than half the states.”

Planned Parenthood Affiliates of California also noted that AB 1666 protects patients and providers in California from civil liability judgments for providing reproductive health care to patients when the claims are based on laws in other states that are hostile to abortion rights and are contrary to the public policy of California.

AB 1666 builds on a recommendation put forth by the California Future of Abortion Council recommendations released in a December report, in which Planned Parenthood Affiliates of California is a member of its “Steering Committee.”

A spokesperson for Equality California, Jorge Reyes Salinas, told the Blade Monday afternoon;

“LGBTQ+ people are directly impacted by laws that undermine abortion care. The LGBTQ+ community overall often lacks access to inclusive and affirming health care, and in particular transgender men and nonbinary people who become pregnant face significant challenges when seeking reproductive care.  In addition, many of the clinics that provide abortions also provide hormones and reduced-cost reproductive care for transgender and nonbinary people, efforts to undermine these clinics directly harm the LGBTQ+ community.

AB 1666 is a critical safeguard against the wave of proposals that will harm the health and well-being of vulnerable populations across the country. To the extent that California can provide a refuge for people seeking critical care, we have a duty to do so.”

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Religious Extremism/Anti-LGBTQ+ Activism

Right-wing extremist provocateur threatens to ‘hunt’ LGBT supporters

He has a history of right-wing extremist short videos including a harassment campaign against an Arizona wig shop that serves cancer patients

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Ethan Schmidt (Screenshot/Twitter)

PHOENIX – A twenty-four year old right-wing extremist based in the metropolitan Phoenix, Arizona area, Ethan Schmidt, posted a short video of himself accompanied by Kyle Clifton who describes himself as “authoritarian Christian nationalist,” driving in an undisclosed area announcing that he and Clifton will be “hunting ‘LGBT supporters” and people in area Target retail stores.

The video captured by Twitter account Patriot Takes, which describes itself as a group of dedicated researchers monitoring and exposing right-wing extremism and other threats to democracy, first posted the video clip Saturday.

Schmidt has a history of making right-wing extremist short videos including a harassment campaign against an Arizona wig shop that serves cancer patients.

Sunny’s Hair and Wigs, specialize in making wigs for women who have lost hair while getting treated for cancer and the store had implemented coronavirus pandemic protections including strict mask guidelines to ensure safety of their clients who are particularly vulnerable to infection.

Lisa Memberr, the owner of the shop had explained to local media outlets: “My customer base is very diverse,” and she added, “Not only do I have Caucasians, I have Afro-Americans, I have Asians, I have Latin Americans.”

Schmidt, who has ban banned by nearly all social media platforms including Twitter for spreading false and misleading COVID-19 pandemic information had been visiting numerous retail stores in the Phoenix area including Sunny’s Hair and Wigs targeting those businesses that still require customers to wear mask. He invariably creates videos of his encounters which he uploads to right-wing social media and web sites that he hasn’t been banned from.

In addition to his anti-mask campaign he has made videos with extremist conservative lawmakers including one with Arizona U.S. Republican Representative Paul Gosar telling antivaxxers “to stay the course.”

He also filmed a short with Arizona State Senator Wendy Rogers who has established herself firmly as an anti-vax, anti-LGBTQ, right wing extremist.

Clifton is a leader of the America First Union, an openly white nationalist, antisemitic, “conservative youth” organization. He also promotes former President Donald Trump’s big lie about the 2020 Presidential election being stolen by Democrats and President Joe Biden. Clifton also participated in the Arizona audit of the 2020 vote in Maricopa County, which state Sen. Rogers, had raised the visibility of her own political profile by insisting that Arizona’s vote was stolen.

Last Fall Schmidt posed with Trump endorsed Republican candidate for Arizona Governor Kari Lake as he burned a LGBTQ+ Pride flag.

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