Federal agency fails to roll back LGBT rights for employees

There are still underlying concerns for advocacy groups, however

Participants march during a Flag Day 'Raise the Rainbow' rally, 14 June 2017 in New York City. The event honored LGBT rainbow flag creator Gilbert Baker, who died in March 2017. (Drew Angerer/Getty Images)

A government agency has corrected a provision in its equal employment policy so that it once again protects the LGBTQ community, but there are underlying concerns.

The Department of Commerce website with the statement has been updated to include the phrases “sexual orientation” and “gender identity,” though this change did not occur until Buzzfeed reported on the change.

The inclusion is welcomed by the LGBTQ community but David Stacy, Human Rights Campaign’s Government Affairs Director, told The Independent there are concerns surrounding the message it sends and the US Census, which is run by the agency.

The Department of Commerce had not made a formal announcement or press release about the change but added it to the Federal Register, the official journal of the US government which includes agency rules, changes, and public notices.

The earlier 2017 statement, signed by the head of Commerce Wilbur Ross had read: "The Department of Commerce does not tolerate behavior, harassment, discrimination or prejudice based on race, color, religion, sex, national origin, age, or disability...We will also provide reasonable accommodations for applicants and employees with disabilities."

In January, the White House had announced that LGBTQ rights in the federal government, including protections outlined in orders signed by Presidents Barack Obama and Bill Clinton, would "remain intact".

LGBTQ federal workers were still legally protected from harassment and discrimination through a 2015 amendment the Civil Service Reform Act despite the initial change in the wording of the Commerce policy.

Government agencies do “not have the power to abrogate federal law,” Mr Stacy said.

LGBTQ federal contractors and vendors are also still protected through the Department of Labour regulations thanks to an executive order signed by Mr Obama.

But, there are bigger, underlying issues, according to Mr Stacy.

Jessica Stern, Executive Director of OutRight International, said that though no rights were taken away by Commerce’s initial change, it sends a “hostile message” and causes confusion.

She said: “If I worked in the Commerce Department, I would treat this statement as significant and intimidating, and I'd be asking myself whether I should look for another employer.”

Normally, if an employee that identified as LGBTQ had a workplace issue within their federal agency, they go to that agency’s Equal Employment Office.

Policy changes such as what Commerce tried to do are cause for worry because - before the change - it “causes confusion and sends a signal” to LGBT employees: “don’t come to us, we won’t help you,” said Mr Stacy.

Employees would have had to go to the federal government’s Office of Special Counsel, separate from any other federal agency, to seek help.

There is nothing to stop other federal agencies from instituting similar changes to their equal employment statements.

For the time being, advocacy groups are keeping a close eye on the Federal Register because this is not the first time the Trump administration have issued changes without press releases or other public announcements.

The US Census, conducted every ten years, and the annual American Community Survey are the basis for federal funding of programmes in health and human services, voting districts, and crucial demographic information.

To underscore the importance of these surveys to how all levels of government help citizens, Mr Stacy said: “If you’re not counted, you don’t count”.

“Data is critical to understanding what challenges LGBTQ community faces,” Mr Stacy explained.

In a report to Congress on the Census and American Community Survey earlier this year, Commerce detailed what questions may be asked in the upcoming rounds of data gathering.

There have never been questions about gender or sexual orientation in the surveys, however, in the index of the report to Congress, there was an entry for such questions.

However, there was no such section of questions in the actual report, meaning a change was made, said Mr Stacy.

Another similar incident occurred with the Department of Health and Human Services (HHS) survey on aging populations in the US.

It is a “very large and important” statistical report that helps the government identify the particular challenges older Americans are facing when it comes to employment, healthcare, housing, and other issues.

That survey, conducted every three years, has had a sexual orientation question on it.

The HHS under the Trump administration said in the Federal Register that “no changes” had been made to the survey, said Mr Stacy.

However, they had actually pulled the sexual orientation question from the survey.

During the open comment period, nearly 10,000 advocates wrote in to address the issue.

The US Census and other surveys also address problems with vulnerable homeless populations, a particularly important issue because nearly 40 per cent of homeless youth identify as LGBTQ.

Relying on anecdotal evidence in all these areas is not enough because solutions tend to be stop-gap rather than long term. Having data would help solve problems for the community through funding, targeted advocacy, and public awareness, according to policy experts.