It was only a matter of time before the anti-LGBT forces in Washington set their sights on the trans-inclusive record of an Equal Employment Opportunity Commission leader nominated for another term with the federal agency.
And in a Tuesday fundraising pitch, that's exactly what the right-wing Family Research Council, certified as an anti-LGBT hate group, did — employing discredited, transphobic scare tactics in an effort to drum up opposition to the reconfirmation of the EEOC's general counsel, an attorney who helped file landmark federal lawsuits challenging antitrans discrimination.
Claiming that the "Obama Left is trying to use the period before the new Congress is sworn in on January 6 to attack your family, values and freedom," FRC president Tony Perkins alleges that Obama's nomination of David Lopez to serve a second term as EEOC general counsel is "a dagger aimed at freedom of religion."
Mischaracterizing the landmark EEOC lawsuits filed in September against two U.S. companies that are accused of firing transgender women after they announced their intent to transition, the FRC's email erroneously claims that the EEOC lawsuit is trying "to force [companies] to employ staff members who claim to be 'transgender' and who are undergoing sex change procedures. This is ... intended to silence people of faith, intimidate employers who possess traditional values and indoctrinate working Americans," the group says.
In reality, the lawsuits — which are the first of their kind filed by a federal agency on behalf of transgender Americans — seek monetary damages and a conclusive ruling that the companies in question unlawfully discriminated against the two trans women who filed complaints with the EEOC. When the suits were first filed in September, LGBT advocates lauded them as a historic step toward recognizing that the Civil Rights Act of 1964's prohibition on sex discrimination extends to gender identity as well.
Lopez, in his capacity as EEOC general counsel, was involved in the decision to file those lawsuits. As general counsel (a position he's held since 2010), Lopez "runs the Commission's litigation program, overseeing the agency's 15 Regional Attorneys and a staff of more than 325 lawyers and legal professionals who conduct or support Commission litigation in district and appellate courts across the country," according to the EEOC's website.
But to hear FRC explain it, the lawsuits are a surreptitious effort to pass the long-languishing Employment Non-Discrimination Act, which has stalled in Congress since the Senate passed it with a bipartisan majority last November. The legislation, introduced in every Congress except one since 1996, would make it illegal to fire, refuse to hire, or decline to promote someone because of their sexual orientation or gender identity. As the bill was passed in November, it included a "religious exemption" that would allow faith-based employers to disregard the federal law. That exemption has been critiqued as overly broad, prompting several major LGBT organizations to withdraw support for the legislation in its current form.
Perkins's email outright admits that he believes "the EEOC is trying to build momentum for Congress to pass the notorious Employment Non-Discrimination Act (ENDA), a law that would force Christians to hire openly homosexual or even cross-dressing employees."
That simply isn't true. Perkins's rhetoric is characteristically reactionary, calling ENDA "one of the most dangerous proposed laws ever." If ENDA were to pass, Perkins contends that "'free exercise of religion' will become a meaningless phrase" and Christian employees will be required "to affirm same-sex propaganda at work — and thus deny important aspects of their faith to keep their jobs."
But LGBT advocates in Washington see through Perkins's scare tactics.
"It's not surprising that Tony Perkins and other anti-LGBT extremists would attack President Obama's very well qualified nominees to lead the EEOC, but it's just plain sad to see Perkins use such foul anti-trans bigotry as the stated reason," Freedom to Work's Tico Almeida tells The Advocate. "The truth is both David Lopez and [commissioner nominee] Charlotte Burrows are incredibly accomplished lawyers with long and impressive careers devoted to the public interest, and they will make outstanding additions to the EEOC's leadership team. Freedom to Work has been lobbying Senate offices to vote yes on their confirmation next week because these votes will go a long way toward determining whether LGBT Americans get a fair shot on the job."
How We Got Here
In the wake of the midterm election, which saw Republicans reclaim control of both chambers of Congress, progressive advocates have urged the president to introduce and press to confirm as many nominees as possible under the current Congress, before the new, GOP-controlled Congress can presumably block the confirmation of liberal-leaning nominees.
Earlier this year, President Obama announced two nominees to fill upcoming vacancies on the powerful EEOC, a federal oversight agency that handles complaints — and sometimes files lawsuits — alleging employment discrimination. Both nominees have long histories supporting progressive causes, including LGBT rights.
In September the president announced that he was nominating Charlotte Burrows to serve as a commissioner, and he then announced in October that he was nominating the current EEOC general counsel, David Lopez, to serve a second term in his position leading the commission.
A longtime litigator and stalwart defender of civil rights — including immigrant and migrant worker rights and the rights of the disabled — Lopez was critical in making the EEOC's decision to file those federal lawsuit against U.S. companies that allegedly fired transgender women after they announced their intent to transition on the job.
And while those lawsuits were the first filed by the federal government on behalf of transgender women, the EEOC, under Lopez's guidance, has filed a number of lawsuits and amicus briefs supporting an expanded, LGBT-inclusive definition of the groups protected by the Civil Rights Act of 1964.
Last Wednesday the Senate Health, Education, Labor, and Pensions Committee approved both Burrows and Lopez's nomination, after an initial hearing that notably focused much of ire of conservative senators at Lopez. The hearing was impressively absent of criticism for either nominee's pro-LGBT past litigation records. With the Senate HELP Committee's approval, both nominees now go to the full Senate for a confirmation vote, which is expected to occur the week after Thanksgiving.