HRC President Memo on 2009

If you're wondering what's going through the head of HRC president Joe Solmonese as 2009 and the Obama administration's first year draw to a close, here's a memo he sent to HRC's board of directors.

TO: Human Rights Campaign Board Members

FROM: Joe Solmonese

RE: Progress on LGBT Equality in 2009

DATE: December 16, 2009

Introduction

Progress for full lesbian, gay, bisexual and transgender (LGBT) equality in 2009 made significant strides even while the national stage was dominated by the economy, health care and war. Even marriage equality, while losing on Maine's November ballot and receiving a recent setback in New York, was adopted in Vermont, New Hampshire, Iowa and the District of Columbia. The Connecticut legislature even chose to put its imprimatur on the state Supreme Court decision to grant full marriage equality. And on January 10, 2010, loving same-sex couples can legally marry in New Hampshire.

While this report will by no means capture everything in the LGBT universe in 2009, it does attempt to set out benchmarks for the year and, therefore, assist in identifying the opportunities and challenges ahead in 2010.

Without question, possibilities loomed large with the inauguration of President Barack Obama, someone who championed LGBT causes throughout his campaign. Additionally, more fair-minded members of Congress came into office -- including Colorado's openly gay Congressman Jared Polis -- bringing the LGBT count to three in the House. Collectively, there was, for the first time in a decade or more, the potential for real change at the federal level.

Concurrently, at the state level, there was a wellspring of LGBT and elected leadership which produced not only movement early in 2009 toward full marriage equality, but also significant progress toward fully inclusive non-discrimination measures, expanded relationship recognition laws and anti- bullying measures.

Also overlooked, but equally important to many LGBT individuals and families, 2009 saw continued growth in the private sector, where companies recognized the value of inclusive and welcoming employee programs. In fact, even in a down economy, a record 305 corporations and businesses received a 100% on our Corporate Equality Index. However, workplace climate for LGBT employees remains challenging, with a majority still closeted in the workplace -- highlighting the need to help corporate America gauge and address their LGBT employees' engagement on the job.

Finally, 2009 will also be remembered as a time when many LGBT people and their allies stood up to demand equality, whether at the local, state or national level. Whether in response to the loss of marriage rights in California at the close of 2008, or perceived inaction on signature measures in Congress, 2009 saw an infusion of energy and personal involvement that must be accelerated to secure greater progress in 2010.

It must also be noted that 2009 solidified the emergence of the National Organization for Marriage (NOM) as a major opponent to equality. NOM's budget shot up from $400,000 in 2007 to $8 million in 2009. That's explosive growth in a period when most companies and non-profits weathered losses. NOM was the largest single contributor to the anti-marriage campaigns in both California and Maine, and has promised to be a key player in Iowa, New Jersey and the District of Columbia in their marriage battles. NOM is also moving its offices from New Jersey to the nation's capital.

Two religious institutions bear continual notice for their activity in 2009: the Roman Catholic Church and the Church of Latter-day Saints, commonly referred to as the Mormon Church.

The United States Conference of Catholic Bishops has clearly decided to make its opposition to LGBT equality a central part of its mission. In the District of Columbia, the Archbishop has threatened to shut down its work on behalf of the poor and homeless should the marriage equality law remain in place. In Maine, the campaign manager for Yes on 1 was the public affairs director for the Roman Catholic Diocese of Portland, a position he returned to after the election.

The Church also ordered its Maine parishes to collect money to stop marriage equality during Sunday services, and the Diocese's direct contribution of more than $500,000 accounted for more than 80% of the in-state money reported by the Yes campaign (data taken from fivethirtyeight.com article, "Despite Claims, Anti-Gay Group in Maine More Dependent on Out-of-State Funds"). Finally, the Yes campaign's closing political ad promoted domestic partnerships as a solution to the marriage battle, even though the Diocese formally opposed DP legislation in 2003 and 2004. Finally, let's not forget the Knights of Columbus, the largest Catholic fraternal organization in the world, which makes significant financial contributions in each and every marriage battle.

Turning to the Mormon Church, which faced nationwide demonstrations and outcry following its leadership role in the Prop 8 battle in California, this year saw the church retreat -- at least publicly -- from its longstanding and well-financed opposition to marriage equality. The church did not, for example, play a public role in Maine. In fact, the church announced its support for an anti- discrimination measure in Salt Lake City after consistent and vocal advocacy both inside and outside the church. Nonetheless, with NOM aggressively fighting disclosure of its donor base, many speculate that it is the beneficiary of the church's decision to be less transparent about its decades-long opposition to full equality.

With that backdrop, what follows is a thumbnail sketch of LGBT equality advances and setbacks in 2009.

FEDERAL GOVERNMENT

In Congress

It is worth noting that while we benefit from pro-equality leadership in Congress, among the rank and file members, we do not have a solid pro-LGBT majority in either chamber. As a result, every vote requires not just strategic and intensive lobbying efforts, but massive constituent pressure to reach the necessary 218 majority in the House and 60 votes in the Senate. That is why efforts like HRC's No Excuses Campaign must continue and be accelerated to ensure that members of Congress know, for example, that while 89% of Americans support equal job protections, so do many of their constituents and, indeed, their donors.

The political is often personal, particularly when we are talking about LGBT equality. We know how powerful it is when LGBT people tell their stories. In addition, having open, elected LGBT officials play a key leadership role in Congress is invaluable to our progress. Congressman Barney Frank (D-MA) and Congresswoman Tammy Baldwin (D-WI), joined this year by Congressman Jared Polis (D-CO), have led our efforts in Congress, from speaking out publicly to one-on-one conversations.

We also lost one of our biggest and truest champions in 2009, Senator Ted Kennedy. Whether battling Jesse Helms in the early days of the AIDS epidemic or leading the fight to defeat the Federal Marriage Amendment, in many ways the legislative table was set by his unflagging leadership and advocacy in the Senate.

Without question, the signature success -- the first time Congress has enacted a pro-LGBT bill -- was the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, signed into law by President Obama on October 28.

In other legislative action:

-- The fully inclusive Employment Non-Discrimination Act (ENDA) received its first full committee hearing before the House in October and in the Senate in November. ENDA has nearly 200 House co-sponsors -- more than any LGBT bill in history.

-- In November, the House passed health reform legislation that includes several important
LGBT provisions: inclusion of LGBT people in health disparities programs and data collection; a broad non-discrimination provision; an end to the unfair tax burden of domestic partner health benefits; and an option for the states to cover early HIV treatment under Medicaid. The latter two provisions have long been part of HRC's legislative agenda as stand-alone bills: the Tax Equity for Health Plan Beneficiaries Act (DP Tax) and the Early Treatment for HIV Act (ETHA).

-- A four-year extension of the Ryan White CARE Act passed Congress and was signed into law by the President in October.

-- The Domestic Partnership Benefits and Obligations Act (DPBO) was approved by the House Committee on Oversight and Government Reform in November, marking its first consideration by a standing committee. In the Senate, the Homeland Security and Governmental Affairs Committee held a hearing on the bill in October. While often overlooked outside of Washington, DPBO would impact the largest employer in the United States -- the federal government -- by extending full benefits to the same-sex partners of federal employees across the country.

-- The first bill to fully repeal the discriminatory Defense of Marriage Act, titled the Respect for Marriage Act, was filed in September by Congressman Jerry Nadler (D-NY) with nearly 100 co-sponsors.

-- For the first time, the Uniting American Families Act (UAFA), important legislation to allow U.S. citizens and permanent residents to sponsor their same-sex partners for family-based immigration, was included as part of a broader immigration reform bill: the Reuniting Families Act, introduced by
Congressman Mike Honda (D-CA) in June. Additionally, the Senate Judiciary Committee held its first-ever hearing on UAFA that month.

-- The House passed the Foreign Relations Authorization Act in June, including language that requires the State Department to take a more active role in documenting and responding to violence and discrimination against LGBT people around the world.

-- Through the appropriations process, President Obama and Congress directed the Department of Health and Human Services to end funding for disproven, scientifically inaccurate abstinence-only education programs in favor of more comprehensive, evidence-based efforts.

-- The multi-year effort to repeal the discriminatory "Don't Ask, Don't Tell" law governing the military gained a forceful voice when Congressman Patrick Murphy (D-PA), an Iraq War veteran, became the lead House sponsor of the Military Readiness Enhancement Act (MREA). A concerted effort is underway to secure a repeal leader in the Senate.

-- Finally, in an historic move, the House held a joint hearing in July by two Education and Labor subcommittees on school bullying. This hearing included discussion of the discrimination and harassment faced by LGBT students.

In the Administration

While it is clear that we have a strong ally in the White House, we are also navigating a new relationship where advocates must balance praise with strong rebuttal when necessary. That change was signaled early with the choice of Rick Warren to deliver the invocation at the inauguration. The ensuing outcry prompted the inclusion of openly gay Episcopal Bishop Gene Robinson, but it also demonstrated the need to charter these new waters with great anticipation, certainly, but also with care.

As 2009 comes to a close, we see a lengthy list of LGBT accomplishments even as we increase our pressure and advocacy for additional and long overdue advancements.

-- President Obama has nominated more openly LGBT people for administration positions in his first year in office than any previous administration has in its first four years. Among those serving in or nominated for top positions in the Obama Administration are: John Berry, director of the Office of Personnel Management (OPM); Nancy Sutley, chairperson of the Council for Environmental Quality; Kristina Johnson, the Under Secretary of Energy; Fred Hochberg, chairman of the Export-Import Bank; Jenny Durkan to be U.S. Attorney for the Western District of the state of Washington; Chai Feldblum to be commissioner at the Equal Employment Opportunity Commission; and David Huebner as ambassador to New Zealand.

-- The administration sent high-profile representatives to testify in support of key LGBT bills on Capitol Hill. For example, Attorney General Eric Holder testified in support of the hate crimes bill in the Senate; OPM Director Berry testified before the House and Senate in support of the Domestic Partnership Benefits and Obligations Act; and acting EEOC Chair Stuart Ishimaru and Assistant Attorney General for Civil Rights Tom Perez testified before Congress in support of the Employment Non-Discrimination Act.

-- In June, President Obama issued a memorandum directing all federal agencies to extend whatever benefits possible under current law to the domestic partners of their employees, and he encouraged Congress to pass the Domestic Partnership Benefits and Obligations Act, which would extend health, retirement and other benefits. In response, the Office of Personnel Management (OPM) has made clear that protections for LGBT federal workers will be part of the guidance given to all federal agencies. And OPM has issued proposed regulations extending sick and funeral leave as well as long-term care insurance to same-sex partners of federal employees.

-- The State Department, under Secretary Hillary Clinton, extended numerous benefits to partners of Foreign Service officers, including diplomatic passports, access to overseas medical and training facilities, inclusion in housing allocations and access to emergency evacuations. The department also reversed a Bush Administration policy that refused to use a marriage license of a same-sex couple as evidence of a name change for passports.

-- The Department of Housing and Urban Development (HUD) announced a proposed regulation in October to prohibit discrimination against LGBT people and their families in HUD housing programs and FHA-insured mortgages. HUD also announced it would conduct the first-ever nationwide survey of discrimination based on sexual orientation and gender identity in housing.

-- The Department of Health and Human Services (HHS) finalized a regulation that will go into effect in January that finally lifts the ban on HIV-positive visitors and immigrants. In the meantime, the Department of Homeland Security suspended the denial of green cards to otherwise-qualified HIV- positive applicants.

-- The Census Bureau overturned the Bush Administration's overly broad interpretation of the Defense of Marriage Act (DOMA) and agreed to release data on married same-sex couples along with other demographic data from the 2010 Census.

-- The first response by the Department of Justice (DOJ) to the suit brought by the Gay &
Lesbian Advocates & Defenders challenging the constitutionality of DOMA was extremely disappointing. Despite some improvement in subsequent briefs, we still believe the administration does not have an obligation to defend DOMA.

-- President Obama launched a National AIDS Strategy, a move advanced by AIDS advocates during the campaign, with the key goals of lowering the number of new HIV infections, increasing the number of people receiving care and reducing racial disparities. President Obama also announced a new, five-year outreach and prevention project titled Act Against AIDS, which targets populations most at risk.

-- In March, the Obama Administration and the State Department formally endorsed a United Nations resolution condemning criminalization and persecution based on sexual orientation and gender identity -- a measure the United States, under President Bush, refused to support.

-- Finally, President Obama awarded the Presidential Medal of Freedom to LGBT icon Billie Jean King and, posthumously, to LGBT hero Harvey Milk.

Looking ahead, there are several outstanding regulatory and administration-controlled actions that bear continued advocacy and pressure. Those include the following: prohibiting discrimination against LGBT people by companies contracting with the federal government; ensuring that LGBT people and their families can access Federal Emergency Management Agency resources in a crisis without facing discrimination or harassment; protecting same-sex victims of domestic violence and stalking under the Violence Against Women Act; and ensuring that travel security requirements are less burdensome and needlessly invasive for transgender people.

STATE AND MUNICIPAL ACTIVITY

Significant gains were once again realized this year at the local level, with almost half the states making gains for LGBT citizens regarding relationship recognition, employment non-discrimination or school safety. Among the year's highlights are the following:

-- Early in 2009, marriage equality became law in Iowa, New Hampshire, Vermont and Maine. Because Maine has a People's Veto provision, the law was challenged in a referendum battle in November and expunged. Nonetheless, state coalition partners believe their base of 270,000 Maine supporters bodes well for future efforts.

-- Domestic partnership benefits were either enacted or expanded in four states: Colorado,
Nevada, Washington and Wisconsin. It should be noted that Washington State successfully defended its DP benefits law in its own statewide referendum battle this fall.

-- Delaware Gov. Jack Markell signed a bill amending the state's anti-discrimination law to include sexual orientation as a protected class for the purposes of employment, housing and public accommodation.

-- Employment protections based on sexual orientation and gender identity were passed in a range of municipalities including Akron and Cleveland, OH; Columbia, SC; Forth Worth, TX; Salt Lake City, UT; and Tampa, FL. In addition, two electoral bright lights at the ballot this year were the results in Gainesville, FL and Kalamazoo, MI, where there were successful campaigns to defend those cities' inclusive employment protection measures.

-- Bullying in school received government attention in three states. North Carolina enacted an anti-bullying law that specifically protects students based on sexual orientation and/or gender identity. In Alabama and Wyoming, anti-bullying legislation was passed without enumerating specific protected classes but certainly put the spotlight on the issue in schools statewide. And the school board of Birmingham, AL passed an anti-bullying resolution that specifically pointed out the harassment of students based on their sexual orientation or gender identity.

-- With the advancements came some setbacks. In addition to the marriage equality losses in Maine and New York, the Arkansas ban on unmarried couples adopting or fostering children went into effect in 2009. Additionally, the Kentucky and Tennessee legislatures came close to enacting those bans. That leaves Florida as the only state where LGBT prospective parents are specifically banned from becoming adoptive parents.

-- It was terrific to close out the year with the election of Annise Parker as the mayor of
Houston. Not only a milestone for Houston, Parker now becomes the highest-serving municipal official in the country.


Conclusion

In closing, we trust that this audit of 2009 federal, state and local advancements will provide the community and our allies with a template of what lies ahead. There is no question that to achieve full equality, whether at the state or federal level, we must remain fully engaged and attentive to both the opportunities and the challenges. The last year demonstrated that it takes an enormous effort to achieve change and that our opponents, recognizing the last gasp of their anti-LGBT fight, will use every resource possible to stop us.