Don’t Ask, Don’t Tell, Don’t Be
By Glenn Weiser
Metroland, April 8, 2004

Activist lawyers in the Bush administration try to strip federal employees of antidiscrimination protections

If you’re here and you’re queer, have fear. That is the message gay federal employees got recently when the president’s appointee at the Office of Special Counsel, the mission of which is “protecting federal employees and applicants from prohibited personnel practices,” broke with longstanding antidiscrimination policy and said gays could be fired from the 2.7-million-strong federal civilian workforce simply for their sexual orientation. After six weeks of sitting on the sidelines while members of Congress and a former special counsel protested the move, the White House finally distanced itself from its appointee, Scott J. Bloch, by condemning his decision and threatening to prosecute those responsible for any antigay firings in the government. Too little, too late, critics said.

The brouhaha began in mid-February when employees at the Treasury Department noticed that all references to discrimination based on sexual orientation had been deleted from Web pages of the Office of the Special Counsel. In a Feb. 18 Washington Post report, Bloch explained he had ordered the information pulled because he was unsure that a provision of a 1978 civil-service law prohibiting discrimination against federal workers and job seekers “on the basis of conduct which does not adversely affect the performance of the employee or applicant” protected those claiming unfair treatment for being gay, bisexual, or even heterosexual. Federal GLOBE, an umbrella organization representing gay, lesbian and bisexual groups in federal agencies, criticized Bloch’s position as “mere political pandering to the conservative right,” according to the Post.

The Post also quoted Elaine Kaplan, special counsel under President Bill Clinton, who cited precedents dating back to 1973 that proved, she contended, that Bloch was in error. These include a 1998 executive order from Clinton making it illegal to discriminate against gay employees. President George W. Bush has not rescinded that order.

Shortly afterward, Bloch started getting some irate mail from Capitol Hill. On Feb. 23, the Post reported that Sens. Susan Collins (R-Maine), Carl M. Levin (D-Mich.), Daniel K. Akaka (D-Hawaii) and Joseph I. Lieberman (D-Conn.) of the Governmental Affairs Committee wrote him a letter Feb. 19, informing him his statements appeared at odds with his testimony before the committee during his confirmation process as a presidential nominee. “You had assured us you were committed to protecting federal employees against unlawful discrimination related to their sexual orientation,” they wrote. Reps. John Conyers Jr. (D-Detroit) and Jerrold Nadler (D-N.Y.) of the House Judiciary Committee also wrote Bloch to say his position was “directly at odds with established practice, the plain meaning of the law, and how that law has been interpreted for decades.”

Apparently unfazed by all this, Bloch made news again on March 10 when he told Federal Times he thought federal employees could not be fired for activities such as attending a gay pride rally, but could in fact be fired for being gay. “People confuse conduct and sexual orientation as the same thing, and I don’t think they are,” Bloch said, adding that he did not believe gays, lesbians and bisexuals were a protected class under the law. Kaplan quickly denounced Bloch’s conclusion as “dead wrong.”

Tensions escalated when a group of 70 House Democrats wrote Bloch a letter March 4 disagreeing with his interpretations. Receiving no reply, the lawmakers insisted that the president take a stand. The Log Cabin Republicans, the national gay Republican organization, also called on Bush to honor his 2000 campaign promise to protect gay and lesbian federal employees from discrimination, noting that Bush’s pledge had been key to their 2000 endorsement of him.

On March 31, the White House finally reacted when spokesman Trent Duffy said Bush “believes that no federal employee should be subject to unlawful discrimination, and federal agencies will fully enforce the law against discrimination, including discrimination based on sexual orientation,” according to The Boston Globe. Duffy also said that Bloch had acted on his own.

Commenting by e-mail, Christopher R. Barron, political director for the Log Cabin Republicans, said, “We are certainly pleased at the statements from the White House. However, we think it is unfortunate that it has even come to this. The reality is that Mr. Bloch’s actions represent a rollback of 30 years’ worth of protections for gay and lesbian employees and mark a specific breach of a campaign promise by the administration. We certainly hope that the administration will work to ensure that basic protections for gay and lesbian federal employees are not jeopardized.”

Given other recent comments on gay rights from the White House, Keith Hornbrook, executive director of the Capital District Gay and Lesbian Community Council, thought it unfair to say Bloch acted alone. “When the president of the United States . . . advocates for a policy that diminishes or creates a second class of people from its citizens, then a national cultural policy is created,” he said. “This results in a trickle-down effect when civil policy is created and interpreted. Scott Bloch’s policy was only called into question by the White House when criticized by a significant group of members of the House and his predecessor.”

List of Metroland Stories by Glenn Weiser                      ©2004 by Glenn Weiser. All rights reserved.

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