GLAA makes case against Nickles as D.C. Attorney General
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GLAA Makes Case Against Nickles as D.C. Attorney General


Gay and Lesbian Activists Alliance of Washington, DC
P.O. Box 75265, Washington, DC 20013
202-667-5139

Testimony on Confirmation of Peter J. Nickles as D.C. Attorney General

Delivered Before the Committee on Public Safety and the Judiciary

October 17, 2008


Good afternoon, Chairman Mendelson, Mr. Evans, Ms. Alexander, Mr. Graham, and Ms. Schwartz. I am Rick Rosendall, Vice President for Political Affairs of the Gay and Lesbian Activists Alliance of Washington, D.C. (GLAA), the oldest continuously active GLBT civil rights organization in the country.

As this Committee well knows, the GLBT community is a substantial segment of the wider D.C. community, and deserves the same protection of the law as other residents. We in GLAA do not seek an adversarial relationship with our government. Rather, we have always striven to cooperate as partners in advancing the welfare of all residents of our city.

Unfortunately, the Office of the Attorney General (OAG) has a long history of abuse against the District’s GLBT community. Instead of confronting what appears to be an entrenched culture of homophobia and transphobia within OAG, Peter Nickles has further exacerbated the problem during his tenure as Acting AG. We urge the Council to address the concerns detailed below with Mr. Nickles, and to refuse to confirm him unless and until he:

  1. Stops efforts to weaken the rules enforcing transgender protections under the D.C. Human Rights Act (DCHRA);
  2. Ends OAG’s opposition to Bill 17-0727, the Domestic Partnership Judicial Determination of Parentage Act of 2008; and
  3. Commits to consulting our community on legal protections for GLBT people and their families—protections that consistently win overwhelming support from our city’s democratically elected legislators—rather than consult those who would demonize and disenfranchise us while being shielded from the wrath of District voters.


The OAG Under Nickles

As demonstrated in its October 3 response to the complaint filed by transgendered activist Jeri Hughes,1 the OAG under Mr. Nickles has ignored detailed refutations2 of its defense of the Department of Corrections (DoC) policy of housing transgendered inmates according to their genitalia, in defiance of the prohibition in DCHRA against discrimination on the basis of gender identity or expression. When the District’s Inspector General notified DoC earlier this year that this policy violated the law, OAG came to DoC’s defense by issuing proposed regulations exempting D.C. agencies that may hold transgendered persons in custody. In so doing, OAG ran roughshod over the Human Rights Commission, an independent agency charged with defending DCHRA rather than with defending any DC government agency policy at any cost. OAG’s October 3 response also invokes the “business necessity” clause of DCHRA, setting a potentially devastating precedent that would create an enormous loophole in the law. This response ignores the culture of transphobia embedded within DoC, as demonstrated (for example) by its longstanding policy, only recently reversed, of refusing prison visitations by persons who dressed according to their gender identity rather than their genitalia.

The OAG has persisted in raising ill-informed objections to Bill 17-0727, the Domestic Partnership Judicial Determination of Parentage Act of 2008. This bill would amend Title 16 to clearly establish the relationship of a child to both of its parents in a domestic partnership,3 and is consistent not only with existing District policy on legal equality for domestic partners but with laws in several states. OAG did not bother sending anyone to testify at this Committee’s July 11 hearing on the bill, and replied to several advocates’ refutations of its July 10 letter to you, Mr. Chairman,4 merely by claiming that we had misunderstood OAG’s good intentions.5 As Senator Obama said the other day, I think we understand quite well.

We learned recently that on May 23 of this year, Mr. Nickles sought an opinion on the Parentage bill from the Office of Child Support Enforcement (OCSE) in the federal Department of Health & Human Services. It is outrageous that a D.C. official would fail to consult advocates in our own community while seeking help from the notoriously homophobic Bush Administration. After taking this step, Mr. Nickles did not inform this Committee of his action, nor did his office send OCSE copies of the testimony and supplemental testimony that addressed OAG’s concerns.6 As a result, OCSE on September 24 weighed in on an outdated version of the bill.7

As Professor Nancy Polikoff stated in her October 7 letter to you, Mr. Chairman: “While it is of course the job of the OAG to review bills and comment upon them, I would hope they would want — as they say in their September 3 letter to you — to support laws that protect same-sex couples and their children. Towards that end, I would hope that, in the first instance, they would work with knowledgeable advocates in the city. This would have been especially desirable since, as the OAG letter of July 10 demonstrated, the OAG was completely unaware of kinds of families same-sex couples form, the ways in which straight and gay people alike use assisted reproduction to add children to their families, and the laws currently in place in other states that address the needs of such families.”8

As Acting Attorney General, Mr. Nickles has ignored constitutional objections raised by the ACLU and others against the Metropolitan Police Department’s Neighborhood Safety Zones initiative that led to checkpoints in the Trinidad neighborhood. “I don't anticipate us being sued,” Mr. Nickles said. “But if you do want to sue us, the courts are open.”9 This cavalier attitude could cost District taxpayers millions of dollars, just as the city lost millions in previous lawsuits filed by people who were arbitrarily arrested during mass demonstrations in the past.


The OAG Before Nickles

Of course we cannot blame Mr. Nickles for wrongs committed by OAG prior to his arrival. Nonetheless, we wish to provide highlights from that troubled history because they point to a need for someone at the helm who understands the strong protections for GLBT people under District law and is committed to defending them.

In 1991, the Office of the Corporation Counsel (as it was then known) submitted a deeply offensive brief to the D.C. Superior Court in a case involving recognition of same sex marriages. As we said at the time, “The brief makes numerous appeals to canon law and religious traditions, displaying a flagrant disregard for the separation of church and state required by the First Amendment’s establishment clause.”10 Even after we strongly protested this, the Corp Counsel’s office repeated the offense in subsequent arguments to the Court.11

The Corp Counsel raised several spurious legal arguments in its multi-year battle against the mother of Tyra Hunter, who sued the District after the death of her transgendered daughter Tyra Hunter, who was grossly mistreated by a Fire/EMS first responder when he discovered her male genitalia as she lay gravely wounded in the street in August 1995. The city’s false arguments included the claim that Tyra could not have been offended by the responder’s crude insults because she must have been used to it; a claim that Mrs. Hunter’s complaint was invalid because the incident had not occurred inside a firehouse; and a claim that Mrs. Hunter had no right to sue the city.12 The court rejected the latter argument as it had in previous cases. The Corp Counsel’s office withdrew some of the worst of its other arguments, but dragged its feet for years, only reaching a settlement after GLAA led a petition drive pressing then-Mayor Williams to step in.

The Corp Counsel’s office similarly dragged its feet in fighting a lawsuit filed by Kenda Kirby for discrimination by the Fire/EMS Department, even resisting orders for an equitable settlement after the court had ruled decisively in Kenda’s favor.13 There is nothing that requires the city’s attorneys to apply such zeal in defending the indefensible.


Summary

Given its history of disregard for the rights of GLBT people, OAG clearly requires better supervision. The work of OAG staff attorneys should be reviewed before it goes out. In addition, the Attorney General and his staff need to demonstrate a greater respect for all of the people they are sworn to serve, such as by consulting knowledgeable community advocates and treating our concerns seriously. Finally, OAG attorneys should draft rulemakings that are truly designed to implement the underlying laws rather than rewrite them.

As always, we will be eager to work in good faith and a constructive spirit with whoever is confirmed as our Attorney General. But we are not happy with the work product of that office as it affects our community.

Ultimately, we hold Mayor Fenty himself responsible for the actions of his appointees. The Mayor has been clear in his public support for equality for GLBT people and our families. That support should be reflected in the actions of his administration.

Thank you.

[Rick’s notes from the hearing: I introduced myself to Mr. Nickles prior to the hearing. Then I sat with members of the D.C. Trans Coalition. Alison Gill, who testified for DCTC, was tenth on the witness list, and I was eleventh. She was in the panel right before mine; she will submit written testimony before the committee’s deadline. Before I was even called as a witness, several councilmembers expressed their eagerness to hear from me, which was a welcome indication of the respect in which GlAA is held. After I gave a shortened version of GLAA’s testimony due to the 3-minute limit (while pointing people to the online version), I received friendly questions from committee members Phil Mendelson, Jack Evans, and Yvette Alexander, as well as from Councilmember Jim Graham, who was in attendance. Councilmember Carol Schwartz, a non-committee member who also attended, did not ask questions but emphasized, in agreement with me and other witnesses, that the Attorney General—as distinct from the Mayor’s General Counsel—should act as the entire city’s attorney and in defense of the law, rather than just serving the wishes of the Mayor.

[Another committee member, Councilmember Mary Cheh, arrived while I was still at the witness table. She did not ask questions, but she indicated she had followed the testimony, and stated that she does not treat the confirmation of someone to such a key position to be automatic. We know that she shares our concerns; for example, she sent a letter to OHR General Counsel Alexis Taylor on August 7 urging withdrawal of the proposed transgender rulemaking.

[Incidentally, the first panel of four witnesses included some illustrious names: former NFL Commissioner Paul Tagliabue; Hope House DC Executive Director Carol Fennelly, previously of the Community for Creative Non-Violence; former U.S. Secretary of Veterans Affairs Togo West; and Police Chief Cathy Lanier. That panel was a love fest for Nickles, partly in appreciation for the pro bono legal work he has done over the years. One of the things Lanier cited in support of Nickles was his efforts in support of her Neighborhood Safety Zones initiative, which of course is one of the things we have a problem with. Once again Chief Lanier stated that the residents of the Trinidad neighborhood, where she set up police checkpoints last June, support her initiative. In fact, everyone in Trinidad did not support the checkpoints, as I learned in June when I visited Montello Avenue along with leaders of the local chapters of ACLU, NAACP, and other civil rights groups. Lanier seems disinclined to hear from community members unless they are acolytes. Her predecessor, former Chief Charles Ramsey, was more politically savvy in this regard.

[After I was done as a witness, I met Mr. Nickles in the hallway and we chatted amiably. I emphasized the need for better review of staff work on GLBT issues. He said that he had no predisposition. He showed no trace of hostility. I reiterated GLAA’s eagerness to work constructively with him, and pointed out that our community advocates are a free resource for his office. He agreed that, regardless of our disagreements, we are better off conferring with one another earlier rather than later.

[Committee member Jack Evans and non-member Jim Graham indicated in their opening remarks that they were inclined to support Nickles but were keeping an open mind while hearing the concerns of witnesses. Committee member Cheh seemed to be leaning against Nickles. Committee member Alexander specifically mentioned her sympathy with the transgender concerns, but it was hard to get a reading from her as to how she'll vote. Non-committee-member Schwartz sounded like she might vote no. Committee member Muriel Bowser did not appear while I was there, but as I write this I am watching the hearing on TV and Ms. Bowser is questioning Nickles. There was a finance-related meeting going on elsewhere in the building at the same time as the Nickles hearing, so things are jumping this week at the Council.]


Notes

1 OAG Response to Complaint by Jeri Hughes, October 3, 2008,
http://www.glaa.org/archive/2008/doc2hughes1003.pdf

2 GLAA Objects to Proposed Rulemaking on DCHRA, July 21, 2008,
http://www.glaa.org/archive/2008/glaaontransprotections0721.shtml

3 GLAA Endorses Domestic Partnership, Parentage Bills, July 11, 2008,
http://www.glaa.org/archive/2008/glaaondpbills0711.shtml

4 OAG Letter on Parentage Bill, July 10, 2008,
http://www.glaa.org/archive/2008/OAG2Mendelson0710.html

5 OAG Letter on Parentage Bill, September 3, 2008,
http://www.glaa.org/archive/2008/oagresponseondpbill0903.pdf

6 Nancy Polikoff's response to OAG, July 24, 2008,
http://www.glaa.org/archive/2008/polikoffrefutesoag0724.pdf

7 HHS Comments on Parentage Bill, September 24, 2008,
http://www.glaa.org/archive/2008/hhsonarentagebill1003.pdf

8 Polikoff Responds to OAG and HHS on Parentage Bill, October 7, 2008,
http://www.glaa.org/archive/2008/polikoffonparentagebill1007.pdf

9 “D.C. Police to Check Drivers In Violence-Plagued Trinidad,” The Washington Post, June 5, 2008,
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/04/AR2008060402205_2.html

10 Daniels Protests to Mayor Dixon on Corporation Counsel Brief, September 26, 1991,
http://www.glaa.org/archive/1991/corpcounsel0926.shtml

11 Coudriet Details Complaints Against Office of Corporation Counsel, May 16, 1994,
http://www.glaa.org/archive/1994/corpcounsel0516.shtml

12 GLAA Testifies at Oversight Hearing on DCFD and Office of the Corporation Counsel, February 9, 1999,
http://www.glaa.org/archive/1999/judiciarytestimony0209.shtml

13 GLAA Urges District to Settle with EEO Expert Wronged by FEMS, May 22, 2007,
http://www.glaa.org/archive/2007/newsreleaseonkirbycase0522.shtml


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