hunter of justice

New HUD regulation bars housing discrimination against lgbt persons and families

The Department of Housing and Urban Development has issued its final rule prohibiting discrimination based on sexual orientation or gender identity in HUD-assisted or -financed housing. The rule also bans inquiries as to these characteristics, and specifically defines "family" to include lgbt families. The regulation will be published in the Federal Register next week, and go into effect 30 days after the date of publication. 

HUD's summary of its provisions:

• Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied.  HUD will institute this policy in its rental assistance and homeownership programs, which include the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs. 
• Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing.  FHA’s current regulations provide that a mortgage lender’s determination of the adequacy of a borrower’s income “shall be made in a uniform manner without regard to” specified prohibited grounds.  The rule will add actual or perceived sexual orientation and gender identity to the prohibited grounds to ensure FHA-approved lenders do not deny or otherwise alter the terms of mortgages on the basis of irrelevant criteria. 
• Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs. In the majority of HUD’s rental and homeownership programs the term “family” already has a broad scope, and includes a single person and families with or without children.  HUD’s rule clarifies that otherwise eligible families may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship. 
• Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. In response to comments on the proposed rule, HUD has clarified this final rule to state that this provision does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements. 

 

Judge invites challenge to HHS decision that blocked access to emergency contraception

The Center for Reproductive Rights announced Tuesday that it will reopen a lawsuit filed in 2005 in order to challenge unnecessary age restrictions on emergency contraceptives imposed last week by the Obama administration. The lawsuit - Tummino v. von Hamburg -  was originally filed against the FDA. At a hearing on Tuesday, U.S. District Judge Edward Korman invited the Center to refile and expand the case in order to contest the action by U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius overruling the FDA’s recent approval of "Plan B" contraceptives. 

According to AP:

...[Judge] Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process. On Tuesday, he said "it seems to me like we're going through a re-run."

In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages. She said the studies submitted to the government did not include data on all ages...

Korman repeatedly questioned the lawyer for the government on whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly. Assistant U.S. Attorney Scott Landau said he couldn't answer that question, both because it was proprietary information and because the issue hadn't actually been raised for the court to rule on.

In his 2009 decision ordering the FDA to reconsider the position it had taken in 2003 that access must be available by prescription only to girls 17 and older, Judge Korman found that the agency under the Bush Administration had "acted in bad faith and in response to political pressure," "departed in significant ways from the agency's normal procedures," and engaged in "repeated and unreasonable delays." In addition, the court found that the FDA's justification for denying over-the-counter access to 17 year olds "lacks all credibility," and was based on "fanciful and wholly unsubstantiated ‘enforcement' concerns."  

Rape endemic in immigration detainee facilities; Holder still dithers on new standards

As I have noted before, Attorney General Holder is obligated under the Prison Rape Elimination Act (PREA) to promulgate national standards to curb rape in prisons and other detention facilities. He testified a year and a half ago about the cruelty of prison rape, stating that the standards were needed "yesterday." 

There are still no final standards.

And as common as rape of women and trans prisoners is in general population and maximum security prisons, there is good reason to believe that it may be even more widespread in detention facilities run by the Department of Homeland Security.  In light of that, it is outrageous that the draft standards issued by DoJ do not apply to DHS facilities. Unless AG Holder broadens the scope of the final standards, those prisons will remain uncovered. 

PREA was enacted in 2003 with a broad definition of prisons and jails and no exclusion of immigration facilities. (117 Stat. 988) Eight years later, however, DHS was created as a separate Cabinet-level agency. Attorney General Holder is electing to interpret this accident of timing as a reason not to cover DHS facilities. You can sign a petition sponsored by the ACLU urging him to reverse that position. 

From Just Detention International:

[Esmeralda Mayra Soto, a] transgender woman, fled to the US in 2002 after being raped many times in Mexico. More than a year later, she was taken into custody at her place of employment for not having a work permit and detained at a California immigration facility. During her first days there, while she was waiting to see a lawyer, an officer twice forced her to perform oral sex on him. She is now in this country legally, having obtained a form of asylum, but except in the most technical sense the US has hardly given her refuge...

Immigration detention, which is run primarily through DHS’s Immigration and Customs Enforcement division (ICE), is the fastest-growing system of incarceration in the United States. In 2006, approximately 250,000 people passed through it. This October the Obama administration, evidently determined to prove itself a strict enforcer of immigration law, announced it had deported nearly 400,000 people through the DHS system in fiscal year 2011...

Immigrants in civil detention actually have fewer legal rights than their criminal counterparts.

Extraordinary Clinton speech: "The moral imperative of equality"

Speaking at the United Nations Human Rights Council on Tuesday, Secretary of State Clinton delivered what I believe is the most eloquent and expansive statement framing lgbt rights as human rights ever made by a high-ranking American official. Part of what is so remarkable is that she did not just use lgbt rights as one example, in the typical litany of injustices that must be overcome.  After several introductory paragraphs noting the anniversary of the Universal Declaration of Human Rights (the occasion for the speech), Secretary Clinton dedicates the entire speech to condemning human rights crimes against people because of their sexuality. Most progressive politicians want to claim enormous credit for just mentioning lgbt rights to any audience not already on board. Boy did she raise the bar for that!

Here's the text, which was followed, according to the NY Times, by a standing ovation:

Today, I want to talk about the work we have left to do to protect one group of people whose human rights are still denied in too many parts of the world today. In many ways, they are an invisible minority. They are arrested, beaten, terrorized, even executed. Many are treated with contempt and violence by their fellow citizens while authorities empowered to protect them look the other way or, too often, even join in the abuse. They are denied opportunities to work and learn, driven from their homes and countries, and forced to suppress or deny who they are to protect themselves from harm.

I am talking about gay, lesbian, bisexual, and transgender people, human beings born free and given bestowed equality and dignity, who have a right to claim that, which is now one of the remaining human rights challenges of our time. I speak about this subject knowing that my own country's record on human rights for gay people is far from perfect. Until 2003, it was still a crime in parts of our country. Many LGBT Americans have endured violence and harassment in their own lives, and for some, including many young people, bullying and exclusion are daily experiences. So we, like all nations, have more work to do to protect human rights at home.

Now, raising this issue, I know, is sensitive for many people and that the obstacles standing in the way of protecting the human rights of LGBT people rest on deeply held personal, political, cultural, and religious beliefs. So I come here before you with respect, understanding, and humility. Even though progress on this front is not easy, we cannot delay acting. So in that spirit, I want to talk about the difficult and important issues we must address together to reach a global consensus that recognizes the human rights of LGBT citizens everywhere.

The first issue goes to the heart of the matter. Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same. Now, of course, 60 years ago, the governments that drafted and passed the Universal Declaration of Human Rights were not thinking about how it applied to the LGBT community. They also weren’t thinking about how it applied to indigenous people or children or people with disabilities or other marginalized groups. Yet in the past 60 years, we have come to recognize that members of these groups are entitled to the full measure of dignity and rights, because, like all people, they share a common humanity.

This recognition did not occur all at once. It evolved over time. And as it did, we understood that we were honoring rights that people always had, rather than creating new or special rights for them. Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights.

It is violation of human rights when people are beaten or killed because of their sexual orientation, or because they do not conform to cultural norms about how men and women should look or behave. It is a violation of human rights when governments declare it illegal to be gay, or allow those who harm gay people to go unpunished. It is a violation of human rights when lesbian or transgendered women are subjected to so-called corrective rape, or forcibly subjected to hormone treatments, or when people are murdered after public calls for violence toward gays, or when they are forced to flee their nations and seek asylum in other lands to save their lives. And it is a violation of human rights when life-saving care is withheld from people because they are gay, or equal access to justice is denied to people because they are gay, or public spaces are out of bounds to people because they are gay. No matter what we look like, where we come from, or who we are, we are all equally entitled to our human rights and dignity.

USAID Broadens Anti-Discrimination Language for Contractors

USAID has announced a new policy of including language in its contracts that "strongly encourages all its contractors (at all tiers) to develop and enforce comprehensive nondiscrimination policies for their workplaces" that include the same prohibitions that USAID applies to itself.  These prohibited bases include sexual orientation and "sex (including pregnancy and gender identity)."

The new policy acknowledges that the contract language cannot be mandatory. Contractors are barred by existing law and regulation from discriminating based on certain characteristics, but not explicitly sexual orientation or gender identity. Businesses could argue that additional requirements, if mandatory, would contradict current law. 

What is required in order for USAID (and the rest of the federal goverment) to do more is an Executive Order adopting new rules for all federal contractors. Mr. President...

HUD promotes its lgbt anti-discrimination initiatives

A pretty impressive list in a pretty impressive place, from today on the White House blog:

In a recent survey of 6,450 transgender and gender non-conforming persons, 19 percent reported having been refused a house or an apartment because of gender identity, and 19 percent reported having been homeless because of gender identity.  Findings of a 2007 Michigan study indicate that same sex couples face bias and discriminatory treatment based on sexual orientation when trying to access rental housing. 

Recognizing these issues and utilizing its authority to promote decent housing and a suitable living environment for all, the U.S. Department of Housing and Urban Development (HUD) has taken important steps over the past two years to ensure that lesbian, gay, bisexual, and transgender (LGBT) persons have equal access to housing and HUD programs.   

• Through its notices of funding availability, HUD required recipients of approximately $3.5 billion in HUD funding to comply with state and local laws that prohibit sexual orientation and gender identity housing discrimination.
• HUD recognized that, under the Fair Housing Act prohibition of sex discrimination, it has authority to pursue complaints from LGBT persons alleging housing discrimination because of non-conformity with gender stereotypes.  HUD accepted and proceeded with enforcement efforts on 114 such complaints, about three times more than in the prior two years.
• HUD launched a webpage that includes resources for LGBT victims of housing discrimination.
• HUD initiated the first nationwide study of LGBT housing discrimination that will provide national data on the nature and extent of housing discrimination against same sex couples.
• HUD published a rule that proposes regulatory changes to further ensure LGBT equal access, including clarification that a “family,” which is the term used to define persons eligible for HUD-funded programs, includes persons regardless of sexual orientation, gender identity, or marital status.  HUD anticipates publishing the final version of this rule by the end of the year.  

To get the word out, HUD designed and implemented Live Free, a national media campaign to raise awareness about housing discrimination. Live Free includes digital videos, podcasts, Facebook postings, and print ads targeted to specific populations, including the LGBT community.  To view the LGBT Live Free ads, click here.

More needs to be done to address LGBT housing discrimination in the United States.  If you have ideas on what else HUD can do, send us an email at LGBTfairhousing@hud.gov.

Social Security ends no-match letters for gender differences

According to an announcement from the National Center for Transgender Equality:

The Social Security Administration (SSA) has confirmed that it has ended the practice of allowing gender to be matched in its Social Security Number Verification System (SSNVS). This will result in the immediate cessation of SSA sending notifications that alert employers when the gender marker on an employee's W-2 does not match Social Security records.

"Ending this practice, which has endangered transgender people and our jobs, has been a priority for NCTE and we are pleased that the SSA has updated its policy. Alerting employers about differences in someone's gender threatened people's jobs and did not accomplish what this verification system was designed for. There was absolutely no reason for it and it was extremely dangerous for transgender people, who still face significant disrespect, discrimination and violence in the workplace." [Mara Keisling]

An NCTE briefing paper provides background information about no-match letters. A Freedom of Information Act request from NCTE showed that 711,488 gender no-match letters were sent in 2010. This year the no-match letter program, intended to detect fraud, has been off and on because of budget issues.

Asked about the decision, White House spokesman Shin Inouye told MetroWeekly, "The White House welcomes this move by the Social Security Administration."

Murky status quo on deportation of same-sex spouses

From the LA Times, reporting on the impact on same-sex couples of new, more compassionate guidelines on deportation issued last month by the Obama administration:

...As the nation remains entrenched in a debate over what to do about an estimated 11 million illegal residents, the Obama administration has released new guidelines to provide flexibility in individual cases without conflicting with other federal laws. Because [DoMA] remains the law, the administration has stopped short of a blanket policy change on deportation cases involving married same-sex couples.

Instead, John Morton, director of Immigration and Custom Enforcement, sent a memo in June instructing his agents and lawyers to focus their deportation efforts on illegal immigrants who are criminals, gang members or security threats. He also urged them to "exercise discretion" in favor of illegal residents who have a "spouse, child or parent" who is a U.S. citizen or who is "primary caretaker" for someone who is ill, disabled or a child.

The directive did not mention legally married same-sex couples. So [same-sex married] couples ... must navigate a muddled and subjective process, one that gives immigration officers the power to allow illegal same-sex spouses to remain in the country — provided the agent does not cite marriage as the reason — or to proceed with deportations.

Gay rights advocates say the flexibility helps, but means married same-sex couples remain vulnerable to a range of outcomes.

Two weeks ago in New Jersey, Los Angeles attorney Lavi Soloway, who represents a number of married same-sex couples in deportation cases, scored a victory when the government agreed to stop the deportation of Henry Velandia, a Venezuelan man who is legally married to Josh Vandiver, a 30-year-old graduate student at Princeton University. Immigration officials said the deportation was not a priority. "That was a good sign, but it was only one case," Soloway said.

On Wednesday, a Southern California couple — Doug Gentry and Venezuelan native Alex Benshimol, who married last year in Connecticut — appeared before a San Francisco judge and asked the government to use its discretion to drop deportation proceedings against Benshimol. Judge Marilyn Teeter gave immigration officials 60 days to respond. Teeter postponed the next deportation hearing until September 2013 if the government does not drop the case.

Soloway, who is also their attorney, praised the judge's "compassion and understanding" and said he would "continue to advocate for termination of these proceedings and a moratorium on all deportations of spouses of lesbian and gay Americans."

The discretion directive came too late for Richard Dennis and Jair Izquierdo. Last December, Dennis, a New York banker, watched as his partner was put on a plane back to Peru. The two had a civil union in New Jersey and had applied for a green card, but that did not deter the government from deporting Izquierdo after his tourist visa expired.

"We just got a perfunctory 'denied' from them, with no explanation given.... The whole system seems very arbitrary," Dennis said.

The administration has sent a mixed message on the Defense of Marriage Act... Based on the [Holder letter declining to defend DoMA], Democrats in Congress asked in April for a suspension of deportations involving legally married same-sex couples until the New England case is resolved. The administration refused, saying it could not grant relief "to the entire category of cases" involving married gay couples. Obama has said that as president, he has a duty to enforce laws on the books, even if he disagrees with them.

Typically, married couples do not face the threat of deportation, even if one spouse is not a U.S. citizen. Immigration law favors family reunification, and a U.S. citizen usually can obtain documents to keep a foreign-born spouse in the U.S. Gay rights advocates interpreted Morton's memo as a signal that, despite the marriage act, the administration does not view deportations of illegal same-sex spouses as a priority.

"This is the head guy saying to them: 'We have limited resources, so go after drug dealers and terrorists. Don't devote your resources to splitting up a law-abiding couple,' " said David Leopold, a Cleveland attorney and past president of the American Immigration Lawyers Assn.

But Morton's memo drew a sharp rebuke from the union that represents immigration agents and from Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee. Chris Crane, who represents 7,000 immigration agents, accused Morton of creating a "law enforcement nightmare" for immigration agents. His comments raised the prospect that agents around the country may not follow Washington's guidance... 

Steve Ralls, a spokesman for Immigration Equality, a group pushing for an end to deportations of same-sex couples, said "we would like a clarification from the administration. No doubt something is changing, but there is no blanket policy. It is an unofficial evolution."

The nadir of lawmaking: the enactment of DoMA

Kudos to Chris Geidner at MetroWeekly for producing this first draft of history:

''Given your stated and longstanding opposition to gay marriage, we believe there would not be a substantive basis for you not to sign the proposed legislation if it were to be adopted by Congress,'' White House counsel Jack Quinn, senior advisor to the president George Stephanopoulos, and White House gay and lesbian liaison Marsha Scott wrote to President Bill Clinton on May 10, 1996 — three days after Rep. Bob Barr (R-Ga.) introduced the Defense of Marriage Act in Congress. ''It is therefore our recommendation that you should sign this legislation if it is enacted,'' the trio continued.

It would be two weeks until Clinton made his first remarks on the bill, but the interceding two weeks — if there ever was a question — sealed the fate of the bill and showed the extent to which Democrats were completely unprepared to address the issue at all, let alone present any sort of unified approach in opposition.

From a Department of Justice letter stating that there were no constitutional problems with the bill, to disputes in the House about how to oppose the bill, to a muddled White House message that resulted in conflicted and confused statements all around, the disorganized Democratic strategy allowed the Republicans to create a vigorously anti-gay record for the bill and move it successfully through the House in less than 10 weeks.

The May 10 letter was one of several about same-sex marriage directed to Clinton, Vice President Al Gore and senior White House staff that were provided to Metro Weekly as part of its review of the circumstances surrounding the consideration and passage of the 1996 law. The letters, unsurprisingly from the established history of DOMA, show a staff that appeared to dislike the bill but was attempting to find the least harmful way of addressing the legislation in light of Clinton's opposition to same-sex unions.

At the other end of Pennsylvania Avenue, however, the House was in its second year of being run by the ''Contract with America'' Republicans and House Speaker Newt Gingrich (R-Ga.). Bills like DOMA moved fast. A week after Barr introduced the bill, Rep. Charles Canady (R-Fla.) — the chairman of the Judiciary Committee's subcommittee on the Constitution — held hearings into the bill.

Robert Raben, who served as the minority counsel for the Democrats on the subcommittee, explained the nature of the House, and particularly the Constitution subcommittee, at the time.

''[W]hen [the Republicans] took control of the legislature in January of 1995, there was a fantastic pent-up energy and demand for just a mind-boggling amount of social legislation, economic too. And a huge percentage of it … happened to go through the judiciary committees,'' he says. ''So, for those of us who were literally doing the work, it wasn't like the ban on gays in the military, which was volcanic — out of place to everything else going on that year, in terms of attention, voter turnout, angst.

''This was, 'It's Tuesday, so we're banning affirmative action.'

Although Raben says DOMA was ''particularly excruciating'' for him and the only openly gay House Democrats at the time – Rep. Barney Frank (D-Mass.) and Rep. Gerry Studds (D-Mass.) – the social conservative agenda was uniformly painful.

HHS takes lead in laying foundation for data-driven policies on lgbt health issues

From Metro Weekly:

Today, the Department of Health and Human Services announced a plan to include sexual orientation and gender identity in health data collection, a result of discretion granted to the secretary of HHS in a provision of the Affordable Care Act addressing data collection regarding health disparities. 

Specifically, today's plan requires "HHS [to] integrate questions on sexual orientation into national data collection efforts by 2013 and begin a process to collect information on gender identity." 

The release notes that the plan includes the testing of questions on sexual orientation to potentially be incorporated into the National Health Interview Survey.  According to today's information, HHS also intends to convene "a series of research roundtables with national experts to determine the best way to help the department collect data specific to gender identity."

Under section 4302 of the Affordable Care Act, data collection efforts to understand health disparities relating to race, ethnicity, sex, primary language and disability status are required. The secretary, however, has authority to require additional standards.

The moves, advocates say, are a first step in determining standards for inclusion of sexual orientation and gender identity questions in all HHS surveys, which include agencies like the Centers for Disease Control and nationwide surveys like the Youth Risk Behavior Survey. 

In a release announcing the move, Sebelius said, "Health disparities have persistent and costly affects for minority communities, and the whole country. Today we are taking critical steps toward ensuring the collection of useful national data on minority groups, including for the first time, LGBT populations. The data we will eventually collect in these efforts will serve as powerful tools and help us in our fight to end health disparities."

Explaining the significance of the move, Center for American Progress senior vice president for external affairs Winnie Stachelberg said, "It's foundational. One of the things that we always try to do here at a think tank is quantify the problem and understand the problem – and base your solutions on facts. 

"You can't do that unless you have the data about the gay and transgender community. And finally we'll be able to collect that data so that we can develop solutions that actually address the problems – not the notional problems, but the actual ones that are data driven."

Williams Institute scholar Dr. Gary Gates responded to the news in a statement, saying, "As was clearly stated in the findings from the recent Institutes of Medicine report on LGBT health disparities, the need for more data is acute. I urge HHS to move as quickly as possible to include sexual orientation and gender identity questions on the NHIS." ...

Secretary Sebelius makes "fantastic" commitment to data on sex/o and GI

From the Blade:

Secretary of Health & Human Services Kathleen Sebelius committed on Tuesday to start the collection LGBT data as part of federal health surveys, although she said the questions that would be used to gather the information must first be market-tested before they’re made as part of any questionnaire. 

During a news conference at the White House, Sebelius said in response to a question from the Washington Blade that the Department of Health & Human Services “fully intend[s] to collect LGBT data” through federal surveys. 

“So it is definitely a commitment,” Sebelius said. “We will be adding data questions to the national health surveys. And right now we are looking at developing a slew of questions, market-testing them, coming back and making sure we have the right way to solicit the information that we need.” 

Sebelius said including LGBT questions on federal health surveys has been difficult because the federal government hasn’t engaged in such data collection before and hasn’t settled on the right way to ask such questions. The secretary asserted the Department of Health & Human Services is market-testing questions to make sure they’re worded in the right way to collect the necessary information.... 

Gary Gates, distinguished scholar at the Williams Institute at the University of California in Los Angeles, called the commitment from Sebelius “fantastic,” but said questions on sexual orientation and gender identity “need not start from scratch.”

“We know a great deal already about how to measure sexual orientation and some recent studies have also highlighted promising approaches to measuring gender identity,” Gates said. “HHS now has a real opportunity to develop an open and transparent process as they assess how to best utilize this body of research to inform how they achieve LGBT inclusion in their data collection. That process must be transparent and involve experts from both inside and outside of the government as well as experts from the LGBT community.”

Obama issues new rules for faith-based programs funded with federal dollars, continues exemption for discrimination

Virtually unnoticed by the press, President Obama issued an Executive Order in November establishing criteria for federal agency funding of social services provided by religious organizations. Executive Order 13559 modified Executive Order 13279, the much criticized 2002 order issued by President Bush. The new order made no changes to policies established by President Bush on the issue of religious bias in hiring by faith-based charities that receive federal funds. 

Under both the Bush and Obama orders, religious organizations receiving public funds are allowed to discriminate on the basis of religion in their employment policies. Also under both orders, funding recipients are prohibited from discriminating against beneficiaries on the basis of religious affiliation or belief or the refusal to hold a belief or to attend services.

Under Title VII, religious organizations have long had the same kind of exemption allowing them to discriminate based on religion in their hiring and firing decisions. However, the Bush and now the Obama executive orders have extended that exemption to include organizations that are supported with government funds. 

The Obama order did add provisions requiring federal agencies to provide alternatives for people who do not want to receive social services from religious groups and to list recipient organizations on agency web sites.

Challenge to USAID anti-prostitution pledge in 2d Circuit

Excerpts from a report by Katherine Franke on the oral argument in Alliance for Open Society International v. USAID:

...[which is] a case brought by the Brennan Center challenging the 2003 Bush era regulations that required any entity receiving USAID under the Global AIDS Act to sign a pledge that “no funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”  22 U.S.C. Sec. 7621(f).  It also prohibits recipients from saying or doing anything that the Government deems “inconsistent with [an] opposition to prostitution,” 75 Fed. Reg. 18,760 (Apr. 13, 2010).

The lawsuit claims that the “anti-prostitution pledge” requires Plaintiffs to espouse the government’s viewpoint on prostitution, conditions Plaintiffs’ eligibility for public funds on holding favored beliefs, and prohibits Plaintiffs from saying or doing anything contrary to the government’s viewpoint with their private funds...

The government itself has trouble explaining exactly what recipients of Global AIDS Act money must do to comply with the pledge, assuming they’re willing to sign it.  The government has said that beyond a prohibition on advocating for a ban on legalization of sex work, the pledge may, MAY, also include a ban on advocating for a reduction in penalties for sex work, or even helping sex workers unionize.  So too, any work helping sex workers to prevent police abuse might also violate the act if were merely a fig leaf for legalization.  Worse yet, even using the term “sex work” or “sex worker” might violate the Act since the underlying politics of these terms might indicate support or legalization.

Read the complaint and other documents in the lawsuit describing the real and anticipated problems that health advocates working with sex workers, oops, prostitutes will have in both accomplishing their harm reduction mission and complying with the pledge.  They’re all available here.

In 2006 the plaintiffs won in the trial court – opinion here – and it’s been up and back to the Second Circuit, and the argument today was on whether the Obama Administration’s April 2010 interpretation of the pledge requirement cured the pledge of any constitutional problems.

Hearing the case were Judges Chester J. Straub, Rosemary Pooler, and Barrington Parker Jr.  Arguing for the Brennan Center was Rebekah Diller and for the government was Ben Torrance (Columbia Law School ‘00).

Shortly after Torrance got started he was interrupted by Judge Parker who asked him: “Could the government require organizations to write into their charter that marriage is between a man and wife, on the grounds that a major spread of AIDS is homosexual conduct?”

Torrance hemmed and hawed, and returned the discussion to the government’s judgment that there is a strong causal relationship between prostitution and HIV transmission.

Shortly thereafter Parker lept in again: “What does it mean to oppose prostitution?  If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?...Must an OSI intern on the streets of Mumbai cable Washington to get ok before proceeding in her work?”

US to seek reinstatement of gay-specific anti-discrimination provision in UN resolution

According to Reuters, the Obama administration next week will seek to restore a gay specific provision in a U.N. General Assembly resolution against unjustified execution.

The assembly passes a resolution condemning extrajudicial, summary and arbitrary executions and other killings every two years. The 2008 declaration included an explicit reference to killings committed because of the victims' sexual preferences.

But this year, Morocco and Mali introduced an amendment on behalf of African and Islamic nations that called for deleting the words "sexual orientation" and replacing them with "discriminatory reasons on any basis." That amendment narrowly passed last month by a 79-70 vote in an assembly committee dealing with human rights.

U.S. Ambassador Susan Rice told a gay and lesbian event at the United Nations that she was "incensed" by the committee vote and would seek to have the reference put back when the resolution goes to the full assembly on Dec. 20.

 UPDATE: The reference to sexual orientation was restored.

Georgetown Law hosts conference of experts on DADT

With signs increasing that the Senate actually will take up DADT repeal as part of the defense authorization bill in the week after Thanksgiving, but no guarantee that the effort will succeed, some of the top experts on seeking reform in the administrative, judicial and congressional arenas gathered at Georgetown Law to analyze the possibilities. It's an impressive program available via webcast. 

In the first panel, Professors Diane Mazur and Jackie Gardina, together with Aaron Tax from SLDN, lay out possible avenues for executive action if repeal fails. Attorneys in the Log Cabin Republicans case (Dan Woods) and Witt case (Aaron Caplan), together with counsel for Victor Fehrenbach (Seth Galanter), discuss litigation strategies in the second panel. The third panel focuses on Congress, with reps from SLDN, HRC, and Servicemembers United, among others. Yours truly does the wrap-up at the end.

Mucho congratulations to the Georgetown students for organizing such an outstanding event.

On a related note - for a lovely tribute to one of the early pioneers on this issue, see Karen Ocamb's interview with former Sgt. Miriam ben-Shalom, who in 1987 won one of the few judgments ever entered in favor of a gay soldier. Last week, ben-Shalom returned to the White House fence where she had also protested in 1993, and once again did her duty.