National
Byrd ‘evolved’ on LGBT issues
Despite mixed track record, W.Va. senator was beloved
U.S. Sen. Robert Byrd of West Virginia, who died Monday after serving a record 57 years in the U.S. Senate, evolved from a socially conservative Democrat who opposed nearly all LGBT civil rights initiatives to an elder lawmaker who backed several important pro-gay bills.
“I think you can say that he moved forward and started to understand the basic humanity of all West Virginians, including LGBT West Virginians,” said Stephen Skinner, an attorney who serves as president of the board of the statewide LGBT group Fairness West Virginia.
Skinner, a native West Virginian who said he spoke with Byrd many times over the years, acknowledged that the senator said many “bad things” about LGBT-related issues.
But Skinner joined many political observers in West Virginia to remember Byrd this week more for the massive infusion of federal funds and resources he secured for his state that resulted in economic development and jobs for residents long plagued by poverty.
“I would say he was universally beloved, including by the LGBT people in the state, whose affection for him often override most of his decisions” on LGBT-related issues, Skinner said.
“Everywhere you go, we were all affected by what he did. And everybody believes he did so much for the country that everything he did for the state was deserved,” said Skinner.
Allison Herwitt, director of legislative affairs for the Human Rights Campaign, pointed to HRC’s congressional scorecard ratings for Byrd, which range from a low of 13 of 100 for the 108th Congress to a high of 60 two years ago in the 110th Congress, the most recent rating.
HRC gave him ratings in the 25-to-35 range in most years beginning in the 1990s. The ratings are based on votes, stances and attitudes toward LGBT- and AIDS-related issues.
“Over the years he’s had a very mixed record on LGBT equality,” Herwitt said.
Among other things, Byrd voted in 1996 for the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages. That same year, he voted against the Employment Non-Discrimination Act, which would have banned most private-sector employers from engaging in employment discrimination based on sexual orientation.
In a lengthy floor speech during the Senate debate on DOMA, Byrd cited how some historians linked the decline and fall of the ancient Roman Empire to homosexuality.
“But when it came to being there for hate crimes and on ‘Don’t Ask, Don’t Tell,’ he voted for equality and moving forward,” Herwitt said. “And so he is one of those people that, over the course of his political career, he certainly has evolved on our issues.”
Byrd voted last year for a hate crimes measure that authorizes the federal government to prosecute crimes that target people for their sexual orientation or gender identity. The measure became the first LGBT-inclusive civil rights bill to pass Congress.
Earlier this year, Byrd supported a compromise provision to repeal “Don’t Ask, Don’t Tell” in a close vote in the Senate Armed Services Committee. Capitol Hill sources said Byrd’s staff on the committee helped draft the compromise language that was credited with persuading enough members of the panel to pass it.
Byrd’s position on a proposed constitutional amendment to ban same-sex marriage was less clear. When same-sex marriage opponents proposed the Federal Marriage Amendment before the Senate in 2004, Byrd voted to end a filibuster backed by Senate Democratic leaders, who sought to block the measure from coming up for a full vote.
A motion to end the filibuster failed by a vote of 48 to 50; two senators were absent at the time of the vote. Sixty votes are needed to end filibusters.
Some observers considered a vote for ending the filibuster a sign that senators supported the amendment. But Skinner said members of Byrd’s staff told him that Byrd “opposed messing with the constitution” on matters of same-sex marriage and planned to vote against the amendment if it reached the floor for a direct vote.
A gay former member of Byrd’s staff, who spoke this week on condition of anonymity, said Byrd was a strong advocate of full debate on important issues before the Senate. The former staffer agreed with Skinner’s assessment that Byrd, a recognized constitutional scholar, would likely have voted against the same-sex marriage amendment in a direct Senate vote.
“I don’t think he understood gays,” said the former staffer. “It was not part of his social lexicon. Yet it was clear that there had been an evolution on gay issues.”
Herwitt said Byrd appeared to have been influenced by the greater visibility of LGBT people in his home state and throughout the country.
“I think as the country evolves on our issues, so do peoples’ understanding of what LGBT equality means for people,” she said. “I’m sure in the beginning of his career, when people weren’t out and living open and honestly, it was different. As he made it through the end of his career, he was working on Capitol Hill where people who are working for you and working for other senators are out and openly gay, so I think that also has an impact.”
U.S. Supreme Court
Supreme Court declines to hear case over drag show at Texas university
Students argue First Amendment protects performance
The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.
The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.
When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.
The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows “derisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”
The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that “it is not clearly established that all drag shows are inherently expressive.”
Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on “text, history and tradition.”
Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.
Federal Government
EXCLUSIVE: USAID LGBTQ coordinator visits Uganda
Jay Gilliam met with activists, community members from Feb. 19-27
U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.
Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.
Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.
Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.”
“I really wanted to meet with community members and understand the impacts on them,” he said.
Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.”
The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.
“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.
“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.
Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.
“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.
Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.
Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.
US sanctioned Ugandan officials over Anti-Homosexuality Act
The U.S imposed visa restrictions on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announced the suspension of new loans to Uganda.
The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act “further increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.” The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act.
Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.
Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act.
Gilliam noted authorities have arrested and charged Ugandans under the law.
Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.
The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.
“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”
The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.”
“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.”
Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.
“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.
Texas
Pornhub blocks Texas accessing site over age verification law
Court battle forced statute to take effect
Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.
Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.
A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.
“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the three judge panel of the 5th Circuit explained. “Therefore, the age-verification requirement does not violate the First Amendment.”
While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower court’s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements.
The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as “ineffective, haphazard, and dangerous.” The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.
Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.
The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMV’s Wallet app, which contains a mobile driver’s license.
Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the state’s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driver’s licenses or other methods.
The Associated Press reported this past October that an adult entertainment group’s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.
Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.
“As you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.”
“Mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,” the statement continues. “As we’ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.”
“Until a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]” the message ends with.
The company previously blocked Utah on May 7, 2023. CNN reported at the time:
Affected users are shown a message expressing opposition to Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.
“As you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,” the message said. “While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.”
Courthouse News reported that after Virginia’s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.
“We passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,” Lucas said on X, formerly Twitter. “We will continue our work to keep pornography out of the hands of minors … but we will also work to ensure that this Governor’s error does not put the privacy of Virginians at further risk.”
Beyond the U.S. in the European Union, Pornhub and two more of the world’s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EU’s Digital Services Act.
According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as “very large online platforms” subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EU’s executive branch.
They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.
In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.
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