Interior Department Cut ‘Sexual Orientation’ From Anti-Discrimination Guideline

Its explanation shows that the administration is talking out of both sides of its mouth when it comes to LGBTQ rights.

President Donald Trump’s Interior Department removed “sexual orientation” from a statement in the agency’s ethics guide regarding workplace discrimination.

“You shall adhere to all laws and regulations that provide equal opportunities for all Americans regardless of race, color, religion, sex, age, or handicap,” reads one of 14 principles of ethical behavior in the agency’s 2017 guidelines. The 2009 version President Barack Obama’s Interior Department issued included the categories “race, color, religion, gender, sexual orientation, age, or disability.”

The phrase was also cut from an August 2017 letter that then-Deputy Interior Secretary David Bernhardt sent to agency staff his first day on the job, according to internal agency documents that environmental nonprofit Friends of the Earth obtained in November through a Freedom of Information Act request and shared with HuffPost. An undated draft of the letter shows “sexual orientation” crossed out in red, as well as several other minor changes. It is not apparent who made the edits.

A screenshot of the draft letter showing edits made by Interior staff. The final version David Bernhardt sent to employees can be found <a href="" target="_blank" role="link" class=" js-entry-link cet-external-link" data-vars-item-name="here" data-vars-item-type="text" data-vars-unit-name="5dff99e3e4b0b2520d0ca480" data-vars-unit-type="buzz_body" data-vars-target-content-id="" data-vars-target-content-type="url" data-vars-type="web_external_link" data-vars-subunit-name="article_body" data-vars-subunit-type="component" data-vars-position-in-subunit="3">here</a>.
A screenshot of the draft letter showing edits made by Interior staff. The final version David Bernhardt sent to employees can be found here.
Friends of the Earth/FOIA

Interior chalked the exclusion up to a simple clarification in language. Agency spokeswoman Carol Danko said Interior complies with the Equal Employment Opportunity Commission’s interpretation that Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion and sex, extends to LGBTQ workers.

“Per the Equal Employment Opportunity Commission, under Title VII the term ‘sex’ includes gender, gender identity, transgender status, sexual orientation, and pregnancy,” Danko said in an email.

While that is true, it’s a rather perplexing explanation from an administration that recently made the exact opposite argument before the U.S. Supreme Court. In an August brief, the Department of Justice asked the court to set a legal precedent that would make it legal to fire a person for being transgender, arguing that Title VII only protects against discrimination based on a person’s biological sex, as HuffPost previously reported.

Danko did not respond to HuffPost’s specific questions about the change or how Interior’s position on Title VII conflicts with that of DOJ. Instead, she accused HuffPost of chasing “a non-story seeking controversy where none exists.”

“Under Secretary Bernhardt’s leadership, the Interior Department has a zero tolerance policy for discrimination or harassment of any kind,” she wrote. “In fact, our internal policies have been redrafted with a broader brushstroke to explicitly capture inappropriate conduct beyond the legal standards of harassment and discrimination such as political affiliation, sexual orientation, marital status, national origin, and status as a parent.”

A separate anti-harassment policy Trump’s Interior issued in March 2018 does include more comprehensive language about the department’s commitment to “providing a work environment free of discrimination and harassment based on race, color, religion, sex (including pregnancy and gender identity), sexual orientation, national origin, age, disability, genetic information (including family medical history), status as a parent, marital status, or political affiliation, and free from illegal retaliation.”

Bernhardt took over as agency chief in April 2019.

U.S. President Donald Trump listens to U.S. Interior Secretary David Bernhardt speak during an event at the White House in July.
U.S. President Donald Trump listens to U.S. Interior Secretary David Bernhardt speak during an event at the White House in July.
Carlos Barria / Reuters

The language in Interior’s ethics guide now mirrors that of President George H.W. Bush’s 1990 executive order that established 14 principles of ethical conduct for federal employees. That order has not been amended to specifically include lesbian, gay, bisexual and transgender workers, but subsequent orders by presidents Obama and Bill Clinton prohibit discrimination on the basis of sexual orientation and gender identity. LGBTQ federal employees are also protected from discrimination in personnel decisions under the Civil Service Reform Act or 1978, according to the EEOC.

The change doesn’t impact the legal rights of LGBTQ federal employees. But it could ultimately lead to more workplace discrimination, said Robin Maril, associate legal director at the LGBTQ advocacy nonprofit Human Rights Campaign.

“Departmental mission statements and guidance documents do set a tone for employees and for overall operations,” Maril said in an email. “Removing these protections sends a dangerous signal to workers and supervisors that non-discrimination protections are no longer a priority.”

She added: “To the extent that the Department provides federally-funded programs and services these statements do hold individual workers accountable to deliver these services in a nondiscriminatory way. Sex, sexual orientation, and gender identity are not explicitly covered in statute in the context of federal funding. If these protections are omitted in the context of program administration it could increase risk for discrimination for these groups.”

When it comes to the LGBTQ community, the administration has a history of saying one thing and doing another. Trump has vowed to protect LGBTQ rights as his administration has worked to chip away at them. Those anti-LGBTQ policies include banning trans people from serving in the military and a rule that would allow health care providers to refuse to perform abortions and gender transitions because for moral or religious reasons.

In June 2017, the Department of Commerce similarly removed sexual orientation and gender identity from its equal employment policy, as BuzzFeed reported. The agency quickly revised the policy amid public backlash.

“I want to assure you that the EEO statement was never intended to change policy or exclude any protected categories,” Commerce Secretary Wilbur Ross wrote in an email to agency staff, according to BuzzFeed. “The Department of Commerce remains committed to nondiscrimination on the basis of transgender status and sexual orientation.”

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