Congress has been in session fewer than 30 days but already its first out transgender member has attracted more animus and admirers than a typical freshman in the U.S. House of Representatives.

In her first one-on-one interview with an out trans journalist, U.S. Rep. Sarah McBride (D-Del.) told the Washington Blade on Feb. 12 she seeks to emulate the example of another trailblazer who came face to face with hate and oppression as he broke barriers: Baseball icon Jackie Robinson. But she started with a caveat.

“I, in no way would compare what I’m going through with what he went through, what our community is going through, with what people of color have gone through in this country,” McBride said before making her point. “I think that Jackie Robinson, like so many trailblazers throughout history, understood the microscope that a ‘first’ is under, understood that strength is often in being dignified and graceful under attack.”

McBride, 34, was born two decades after Robinson died. She, like many of her generation, came to know the story of the first Black player in Major League Baseball from the 2013 film, “42,” starring the late Chadwick Boseman and Harrison Ford.

“And in that movie, one thing that is said to Jackie Robinson as he prepared to become the player with the Brooklyn Dodgers is that if you respond to a slur, they’ll only hear your slur. If you meet a punch with a punch, they’ll say you’re the aggressor. And I think that is true in a lot of circumstances, and it has informed the way I and others have conducted ourselves, I think, in the position of being a ‘first.’”

McBride spoke to the Blade following an event at Politics and Prose at the Wharf in D.C., to celebrate “Cleavage,” the new memoir by bestselling author Jennifer Finney Boylan. McBride served as Boylan’s interviewer, posing questions about the book, just as Boylan did for McBride when she promoted her first memoir in 2018, “Tomorrow Will Be Different.”

Both Boylan and activist Mara Keisling are models for the congresswoman, she said, in “the compassion and care and thoughtfulness and the calmness” that they exude in their approach to the work they do. McBride said she knew throughout her campaign and in now serving her constituents in Delaware that she would come under attack from the right, and that trans people in particular would feel just as wounded by those attacks.

“They’re going to throw things at me and my job will be not to give them a response they seek,” she told the Blade. “They will misgender me and my job will be not to respond in the way that they hope I will respond. And people seem to understand that in the abstract. I think it’s harder in the reality when you’re seeing it, because when you are a ‘first,’ people viscerally feel your highs, but they also viscerally feel the lows. And I think it’s understandable that when people see behavior toward me in Congress, they feel it themselves.”

“And so it hurts. And I get that. And I am sorry that that there is that effect.”

“But it doesn’t change the need for me to, I believe, not give them the response they need, they want, not incentivize that behavior by giving them that response,” said McBride. “And to give an alternative view of who trans people are to the public, because we have been caricatured by the right as self-obsessed, as hysterical, as the ‘pronoun police.’ And I think it is important for us to have a broader diversity of messages, messengers, and images of who trans people are.”

McBride was asked who inspired her to choose Jackie Robinson as a role model, instead of someone like Rosa Parks, the Black woman arrested in Alabama for refusing to give up her seat on a crowded bus to a white person. She cited the support of her parents, acknowledging that not every trans person is so fortunate.

“My journey coming out to my parents and walking with them to not only coming out publicly, but just this entire journey, I have seen the power of grace in opening hearts and changing minds and moving people,” she said. “My parents were wonderful from the start. I was very lucky from the start, but there is no question that they’ve experienced growth during the course of the last decade to 12 years since coming out.”

“And I think part of that has been because I’ve been willing to walk with them at their pace,” said McBride. “Sometimes I’m pulling them a little bit, but I’m always holding their hand. I’m always within arm’s distance.”

McBride is a widow, a life-changing experience that followed by four days the joy of being a newlywed. Her husband, Andrew Cray, a trans man, succumbed to oral cancer on Aug. 28, 2014. A decade later, she said Andy is never far from her thoughts.

“I think about it every day,” said McBride. “You know, he was both principled and pragmatic in the way he sought to create change. And I have always sought to emulate that and reflect that approach … Andy was my sherpa into change-making.”

A change in her own self-confidence followed her election to Congress, she said. As she struggled, she considered, “What would Andy do?”

“This has been the first time where I’ve wondered, I’ve questioned whether I’m hitting the right note, and what he would think. I think he would agree. I think he would approve. But I’ve struggled with it.”

But amid the struggle, McBride still finds joy.

She recounted a recent experience with a man she described as one of her late husband’s best friends, an advocate working to expand access to healthcare for the LGBTQ community.

McBride said he paid her a visit in her office on Capitol Hill, wearing a tie that had belonged to Andy. He provided validation that, she said, “Andy would have completely approved of what I have done and what I am doing.”

“What was amazing in that moment, as I was getting that validation from my friend and Andy’s best friend, was I thought I had lost my wedding ring. And it’s a miracle that I had been able to keep it for a decade,” she recalled. “I just came to the conclusion that I would never get it back and that it was lost for good. We’re having this conversation—and I talk with my hands—and I hit my purse and it falls over and the wedding ring falls right out. So, it’s this beautiful, beautiful moment.”

(VIDEO BY DAWN ENNIS)

Powerful companies and well known organizations have made headlines in the weeks since President Donald Trump’s Jan. 20 executive order targeting diversity, equity, and inclusion in the private sector, whether by announcing changes or rollbacks to their DEI programs, by defending their policies and practices, or by declining to wade into the debate at this early stage.

Danielle Conley, a partner at Latham & Watkins who leads the law firm’s anti-discrimination and civil rights practice, spoke with the Washington Blade on Wednesday about how companies and organizations are navigating an uncertain and rapidly evolving landscape.

“So much of this is it just comes down to what is the risk tolerance of the leadership of your company or your organization,” she said, noting that some firms have taken steps to avoid scrutiny from the federal government while others are standing firm in their policies and practices concerning DEI with the expectation that they would be ruled lawful if challenged. “We’ve seen organizations and institutions on both ends of the spectrum.”

Conley said private sector companies and the types of organizations specified in Trump’s order are working on “making sure that they’re on the right side of the legal lines, in the way that the civil rights laws exist right now, and also reviewing their practices and policies for political risks, and seeing whether there are potential changes that they need to make in order to not come under federal scrutiny.”

She stressed, however, that this type of audit is “very difficult to do in light of all of the uncertainty” about how to interpret the orders and how the lawsuits challenging them will ultimately be decided.

“Folks expected that there would be a domestic policy priority around diversity, equity and inclusion issues,” as Trump promised during his campaign, “but at the same time, the language of those executive orders sweep very broadly, and so there were certainly aspects of the executive orders that clients are still very much grappling with and trying to understand the implications of,” she said.

Issued on the first day of Trump’s second term, the first order stipulates that “the director of the Office of Management and Budget (OMB), assisted by the attorney general and the director of the Office of Personnel Management (OPM), shall coordinate the termination of all discriminatory programs, including illegal DEI and “diversity, equity, inclusion, and accessibility” (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.”

The directive issued on the following day includes a section titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences,” which mandates that the attorney general takes “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” “deter” such “programs or principles” and “identify … potential civil compliance investigations” to accomplish such “deter[rence.]”

Conley noted that DEI is not well defined, nor has the administration given “any specifics about what amounts to illegal DEI,” let alone an indication of “how the federal government is going to read the civil rights laws and interpret the civil rights laws to preclude certain DEI programs, and where they’re going to draw those particular lines.”

Risks and how to mitigate them

On one end of the spectrum are the “things that we’ve always known that you couldn’t do under the law, like using race based and gender based preferences in hiring programs,” she said—conduct covered by longstanding federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964, which prohibits “employers from considering race or gender in employment based decisions outside very narrow circumstances.”

On the other hand, “In light of the failure to really define DEI or to really set out any specific guidance of the kinds of programs that the government believes, under their interpretation of the civil rights laws, run afoul of those particular laws, that’s where the questions are coming from,” Conley said.

Companies, their lawyers, and the broader public are likely to soon find out, though, how and in which circumstances the Trump administration will bring an enforcement action or file a lawsuit against a company over “illegal” DEI.

The second executive action directs Attorney General Pam Bondi “to within 120 days of this order, in consultation with the heads of relevant agencies and in coordination with the Director of OMB, shall submit a report to the Assistant to the President for Domestic Policy containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”  

Along with other types of information and recommendations, the report must include “a plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated “DEI” or otherwise) that constitute illegal discrimination or preferences. As a part of this plan, each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, state and local bar and medical associations, and institutions of higher education with endowments over one billion dollars.”

Broadly, the sectors targeted by each agency will correspond with its remit, Conley said. “HHS has an office for civil rights, and they enforce both Title VI, which prohibits race discrimination in federally funded programming, and also section 1557 of the Affordable Care Act, which prohibits race and gender-based discrimination and other forms of discrimination in health care programming.”

She continued, “So, based on their authority, you can imagine the Office for Civil Rights at HHS, would open up investigations, potentially, into health care companies, medical schools, other health care providers.”

Meanwhile, “the Department of Education has an Office for Civil Rights. Obviously, their enforcement authority is over institutions of higher education that receive federal funds. They enforce VI, that same statute that prohibits race based discrimination in federally funded programming. And so you can imagine the Department of Education opening up investigations into colleges and universities over these issues.”

With the DOJ’s authority under Title VI, the department would be able to investigate and bring enforcement actions or litigation against healthcare companies or institutes of higher education or “any company that receives any sort of federal funding,” Conley said.

In the meantime, as companies look for clarity as evaluate the extent to which their policies and practices may draw legal or political scrutiny, Conley said there has been an “uptick in private litigation” over DEI, which means recent cases have been brought before federal courts—and, in some cases, have been decided by their judges.

These lawsuits have tended to focus on “scholarship, internship, or fellowship programs” or “grant programs” that “are restrictive on the basis of race,” or “supplier diversity initiatives” that might “have very prescriptive guidance” like requirements that a certain percentage of a company’s vendors are Black or brown or women-owned businesses, Conley explained.

Still, she cautioned, “It’s super hard to speculate, because some of this stuff just hasn’t made its way through the courts,” she said.

While firms can expect these policies and practices targeted by private litigants are likely to be a focus for the Trump administration, the question, she said, will will be how far “beyond the kind of race based restrictions that we’ve already seen come under significant challenge in the context of private litigation, how far beyond those kinds of programs will they go, as potentially being violative of the civil rights laws?”

Conley added that these firms should focus not on programs and policies that present negligible or no legal risk, like dedicating a private room in an office space for nursing mothers. Rather, she said, they should consider questions like, “What do we do in the hiring and promotion space? What are we doing with respect to scholarship programs, internship programs and our outside partnerships? What are we doing with respect to any grants that we give? Where do we have risk? Do we have any programs that are explicitly race conscious? Because we know that if we do, the legal risk there is significantly elevated.”

The process is about “really assessing each of those buckets,” she said, adding “It’s that careful analysis—it’s really all you can do in this environment, again, as things are sort of constantly shifting.”

At the same time, Conley said, “we have to remember that the vast majority of DEI programs really do remain completely lawful under any interpretation of the civil rights laws.”

“A lot of these programs were put into place to ensure and to protect against discrimination in organizations,” she said. A consequence of “the executive orders and the uncertainty around how the federal government will be interpreting the civil rights laws and the kinds of programs that may violate them could cause a lot of organizations to overcorrect.”

“Big picture,” Conley said:

• “Anytime something restricted on the basis of race, we’ve talked about how that really heightens legal risk. But I would also say [there tends to be risk] anytime that there’s a benefit being given that can be traced to race, or a burden that’s being imposed that can be traced to race.”
• “So, for example, employee resource groups at companies have been completely lawful, and plenty of companies and organizations have them. You can imagine that there could be a legal argument that if there’s an employee resource group where those members are getting certain benefits that would help them in the promotion process, that’s something that could potentially be attacked as being potentially violative of Title VII.”

• “There’s actually danger in in saying this program violates the law and this program doesn’t, because it’s super nuanced, and really does depend on the facts and circumstances of these programs and how they’re designed.”
• “Because, again, I just want to make sure that I’m not on the record [saying] that, like, employee resource groups are illegal. They’re not.”
• “But I do think that if there could be arguments made that those employee resource groups, when they’re not open to all (most are) and those employee members are getting certain benefits that could potentially help them in, let’s say, a promotion process—that could be something that, I would say, as their counsel, that could elevate your legal risk.”

Risks specific to pro-LGBTQ and pro-trans DEI in the private sector

Responding to a question about whether pro-transgender DEI programs will face heightened risk amid the administration’s broader attacks against trans and gender diverse communities, Conley pointed to provisions of Trump’s executive order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

“That sort of set out this notion that it was the policy of the United States that there were only two sexes, male and female, and that federal funds shouldn’t be used to promote unlawful gender ideology, which seems specifically aimed at transgender individuals,” she said.

In practice, Conley said, “to the extent that an organization is receiving a federal grant, and that federal grant is being used in a way that the government [claims] is promoting unlawful gender ideology, then there’s a very real threat that that grant money will stop.”

Asked whether the administration may target a company for its financial, charitable support for trans people and causes, she noted that “some challenges that we’ve seen have been not to corporate giving, but to grants that were racially restrictive.”

“In the context of corporate giving,” though, “where you’re just talking about a gift—again, this is very fact specific, but if you’re just talking about a gift, then it’s hard to see how just a straight gift violates any federal civil rights laws,” Conley said.

She added, “An internship, a scholarship, something that’s reciprocal, something that is a contract, that’s a different analysis, right? But it is not, to my mind, nor have I ever seen a case suggesting that it’s illegal for organization X to write a $20,000 check to X civil rights organization.”

LGBTQ-focused nonprofit and nongovernmental organizations and charities are grappling with the loss of federal grant funding, particularly for overseas work. If the business community’s move away from DEI means declined corporate giving, these groups would struggle to continue their work, which includes efforts to push back against the administration’s attacks against LGBTQ and especially trans communities.

Courts will soon step in

Importantly, “all of these EOS are caught up in litigation right now,” Conley said, noting that parts of the DEI executive actions were struck down on Feb. 21 by the U.S. District Court for the District of Maryland.

Earlier this month, a federal judge struck down Trump’s executive orders restricting access to transgender medicine for patients younger than 19 and requiring trans women to be housed with cisgender men in prisons.

“I am watching closely to see what happens in the challenges to the DEI executive orders,” Conley said, noting that the Trump administration has already appealed the case, which “will go to the 4th Circuit pretty quickly.”

If the U.S. Supreme Court weighs in, “especially around the arguments that the executive order was unconstitutional because of the lack of clarity and guidance it gave to organizations about what violates the law in a way that wouldn’t allow them to comply, I’m watching that one, because it’ll be interesting to see how the 4th Circuit and maybe even the Supreme Court addresses that particular argument,” she said.

U.S. Rep. Robert Garcia (D-Calif.) is pushing back after President Donald Trump’s interim U.S. Attorney for D.C., Ed Martin, disclosed his office’s inquiry into whether the congressman’s remarks about Elon Musk earlier this month constituted a threat against a public official.

“This is completely ridiculous, to essentially threaten me with possible prosecution [and] investigations through the U.S. Department of Justice because I used a metaphor to criticize Elon Musk,” Garcia told The Bulwark’s Tim Miller during an interview on Thursday.

At issue is a Feb. 12 appearance on CNN during which, as Martin said in a letter to the congressman’s office on Monday, “When asked how Democrats can stop Elon Musk, you spoke clearly: ‘What the American public wants is for us to bring actual weapons to this bar fight. This is an actual fight for democracy.'”

He continued, “This sounds to some like a threat to Mr. Musk – an appointed representative of President Donald Trump who you call a ‘dick’ – and government staff who work for him. Their concerns have led to this inquiry.”

Garcia’s comments came just after he participated in the first House subcommittee hearing on Musk’s DOGE, the Department of Government Efficiency, which was established by an executive order issued on the first day Trump took office.

In a statement to the Washington Blade, House Democratic Leader Hakeem Jeffries (N.Y.) said “Rep. Robert Garcia is a thoughtful, hardworking and law abiding legislator who serves his constituents and the nation with distinction. House Democrats will not be intimidated by far right extremists who are determined to weaponize the criminal justice system against Congress.”

Garcia serves on the powerful House Oversight Committee as well as in the Congressional Equality Caucus, as one of its 11 LGBTQ co-chairs. In November, he was elected the Democratic Caucus Leadership Representative.

“I’ve talked to a lot of folks, members of the House and others, who have been very supportive.” he said on Thursday. “I said, ‘Look, we can’t allow this singling out of me. It’s not really about me, right? This is about silencing critics and critics in Congress.'”

Later in the interview, he added “we’re talking to the appropriate folks, and of course, talking to folks in the Democratic leadership” who understand the broader stakes in terms of “our job” as House Democrats to “be the loyal opposition.”

U.S. Rep. Gerald Connolly (Va.), the Oversight Committee’s top Democrat, also issued a statement condemning Martin’s letter on Wednesday:

“This is a shameful attempt to silence and stifle congressional oversight. Mr. Martin – an organizer, financier, and legal representative for the January 6th insurrection – is weaponizing the Justice Department to carry out the President’s retribution tour.

“This ‘Operation Whirlwind’ is a smokescreen meant to distract from the true intentions of the Trump Administration: silencing criticism and snuffing out any attempt to exercise oversight of their misdeeds and perversion of the law. I can assure you that Congressman Garcia and our fellow Oversight Democrats will not be deterred by these threats, and we will continue to fight to safeguard our democracy and protect the rights of the American people we serve.”

Martin on Wednesday announced “Operation Whirlwind,” a new initiative to prosecute threats against public officials at all levels of government, which some critics and legal experts believe is primarily intended as a means of silencing criticism.

In addition to Garcia, Martin has sent letters to the Senate’s Democratic Leader Chuck Schumer (N.Y.) on Jan. 21, Feb. 3, and Feb. 11, indicating plans to review remarks he made in 2020 to see if they constituted unlawful threats against two of Trump’s U.S. Supreme Court nominees, Brett Kavanaugh and Neil Gorsuch.

“I want to tell you, Gorsuch,” Schumer said, “I want to tell you, Kavanaugh — you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” 

The top Senate Democrat was speaking during a rally about the conservative jurists’ potential revocation of decades-old constitutional protections for abortion, which they ultimately did in 2022 with their 5-4 decision in Dobbs v. Jackson Women’s Health Organization.

As detailed by aide to the senator in his response to Martin, “on March 5, 2020, the day after the comments referenced in your letter, Senator Schumer made the following remarks” from the Senate floor:

“Now, I should not have used the words I used yesterday. They didn’t come out the way I intended to. My point was that there would be political consequences–political consequences–for President Trump and Senate Republicans if the Supreme Court, with the newly confirmed Justices, stripped away a woman’s right to choose.

“Of course, I didn’t intend to suggest anything other than political and public opinion consequences for the Supreme Court, and it is a gross distortion to imply otherwise. I am from Brooklyn. We speak in strong language.

“I shouldn’t have used the words I did, but in no way was I making a threat. I never—never— would do such a thing. Leader McConnell knows that, and Republicans who are busy manufacturing outrage over these comments know that too.”

The aide concluded, “As Senator Schumer’s statement on the Senate floor confirmed, the comments were not a threat to physically harm any person. I hope that this clarifying information is helpful.”

Shortly after Trump’s appointment of Martin, the conservative lawyer and activist dismissed pending cases against rioters who sacked the Capitol building on Jan. 6 2021, fired the prosecutors who were involved, and began investigations into those who brought obstruction charges that were ultimately invalidated by a U.S. Supreme Court decision in June.

Barbara McQuade, a former federal prosecutor who teaches law at the University of Michigan and serves as a legal analyst for NBC News and MSNBC, told the Washington Post she had “never seen anything like these letters from a U.S. attorney,” who would typically assign agents to lead such a probe while abiding the Justice Department’s policy of not confirming or denying the existence of any investigation.

“It seems like a fair inference that these letters are designed more to chill free speech than to seek clarification, as they purport to do,” McQuade added.

Garcia agreed, telling Miller on Thursday that the effort “could have a chilling effect on other folks that actually want to come out and criticize and oppose” Trump, Musk, the administration, or their allies.

Looking ahead, Martin has “given me, by the way, till Tuesday to respond to this letter,” Garcia noted. When asked about what he planned to do, the congressman said “we’re having some conversations about that” but “what we’re not going to do is is stay silent.”

“The lesson here is not to retreat,” he said. “The lesson here is to push harder and continue to let people know they are literally trying to limit free speech.”

Discussing his remarks about Musk during an appearance on CNN Thursday, Garcia said “what’s really critical at this moment, I think, for all of us to understand, is that we should be allowed to speak freely, and we certainly should be allowed to use figures of speech, and anyone that watches that can see that as a figure of speech or a metaphor in the way we’re describing this fight.”

The congressman added, “And it is a fight. This is a fight for democracy.”

Trump’s Department of Justice is targeting me for criticizing Elon Musk. Members of Congress have a right to speak freely and oppose the Administration – especially as they try to destroy our agencies and federal institutions. We won’t back down. pic.twitter.com/y3ykpOxzyE

— Congressman Robert Garcia (@RepRobertGarcia) February 20, 2025