National
Legal experts disagree over Obama action on ‘Don’t Ask’
Does Oath of Office force presidents to defend all laws?
Nan Hunter, a Georgetown University law professor and prominent gay rights attorney, says President Obama has done the right thing in appealing a decision by a federal judge that overturned the ‘Don’t Ask, Don’t Tell’ law.
Hunter’s view contradicts the position of nearly all national LGBT rights groups, which have urged Obama not to appeal the decision. But she is joined by a number of other legal and constitutional experts who oppose ‘Don’t Ask, Don’t Tell’ but believe U.S. presidents are obligated to defend laws passed by Congress under most circumstances.
“I think the president, through the Justice Department, should defend federal laws, including this one,” Hunter said. “Otherwise you just get way too much. You get the president being able to ignore laws that are passed by Congress, and that’s not a good situation.”
Hunter cautioned LGBT activists that dismantling the longstanding tradition that presidents should defend duly enacted laws — even unpopular ones — could result in the refusal by a different president to enforce laws beneficial to LGBT people.
Other legal experts, including constitutional specialists with the American Civil Liberties Union and the LGBT litigation group Lambda Legal, agree that presidents generally should defend federal laws. But they say the obligation to defend a law should not apply to cases where strong evidence exists that the law is unconstitutional and a court issues a ruling overturning the law on constitutional grounds.
“The ACLU recognizes the Executive’s duty to ‘take care that the laws be faithfully executed,’” said ACLU Executive Director Anthony Romero in an Oct. 14 open letter to Attorney General Eric Holder.
“This duty includes the responsibility to defend Acts of Congress in court, provided there is at least a reasonable argument in favor of the Act’s constitutionality,” Romero said. “At the same time, the Executive is duty bound to ‘preserve, protect and defend the Constitution of the United States,’ which guarantees that no person is ‘deprived of life, liberty or property without due process of law.’”
Romero noted that U.S. District Court Judge Virginia Phillips in California ruled in September that the ‘Don’t Ask, Don’t Tell’ law is unconstitutional on those same grounds.
“The question is no longer whether the Executive will defend an Act of Congress, but whether the Executive will appeal from a well-reasoned, obviously correct federal court ruling based on findings of fact that are exceedingly unlikely to be reversed,” he said in his letter.
“Given these findings and the proper legal standard of review to be applied, there is no reasonable argument for the constitutionality of the policy, and no reason for the government to appeal,” he said.
Hunter, who personally opposes ‘Don’t Ask, Don’t Tell,’ said following that course could become a “political disaster” that prompts a possible Republican Congress next year to take action to reinstate the law or attempt to force the president to continue to enforce it.
A far better course of action, according to Hunter, would be for the administration to appeal the decision and use a careful, strategic approach to presenting its arguments before the appeals court.
“There are many, many possibilities for how the administration could respond,” she said. “It could respond by filing the appeal so that the case goes to the appeals court and then making arguments that represent the president’s view that it’s a bad law…And then the court of appeals will decide, and that will have much more authority than one District Court judge.”
Susan Sommer, director of constitutional litigation for Lambda Legal, says Obama should not have appealed Judge Phillip’s decision to overturn ‘Don’t Ask, Don’t Tell.’
“It’s really a shame that the Obama administration is appealing this decision,” Sommer said. “The president is in no position to appeal a decision on a policy that the courts say is unconstitutional. He has an obligation to uphold the Constitution.”
Sommer said she agrees that Obama has an obligation to uphold laws as well as the Constitution.
“But he does not have an obligation to defend a statute whose constitutionality is being challenged in court,” she said. “There have been precedents of a president not defending a law under court challenge. The Justice Department exercises discretion all the time on whether to take cases or not, both civil and criminal.”
David Rittgers, legal policy analyst for the Cato Institute, a libertarian think tank, and an attorney with the Army Reserves, called the ‘Don’t Ask, Don’t Tell’ case a “unique situation” that involves all three branches of the federal government.
Saying he’s speaking for himself and not the Army, Rittgers said he sides with those who believe the president should defend laws, including this one.
“Congress ultimately has to answer this question,” he said. “This will not be a settled issue until Congress acts. This is constitutionally within the realm of Congress.”
Susan Low Bloch, a Georgetown University law professor who specializes in constitutional law, said presidents have refused to enforce laws or chosen not to appeal court decisions overturning them mostly in cases where the law interferes with the president’s or the executive branch’s ability to carry out its duties.
“That’s not the situation with ‘Don’t Ask, Don’t Tell,’” she said. “And that’s why it’s not at all surprising to me that the administration has chosen to defend the law, even though they don’t like it. The way to get rid of it is to undo it the proper way—to get Congress to undo it.”
“Now if the court strikes it down, I’m sure behind the scenes the president will be very happy. But he’s not supposed to go into court and undermine it,” she said.
Asked whether she believes a president should wait for the Supreme Court to strike down a law before he or she can stop enforcing it, Bloch said, “Yes, that’s right.”
“People really shouldn’t be surprised at this course because … clearly this is the way the system has worked and I think should work,” she said.
(Obama photo by Michael Key)
Pennsylvania
Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.
State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate
Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.
In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”
“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.
Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.”
In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.
He has been an active surrogate in the Biden-Harris 2024 reelection campaign.
The White House
White House debuts action plan targeting pollutants in drinking water
Same-sex couples face higher risk from environmental hazards
Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.
The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.
In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”
“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”
Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.
“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”
The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.
An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.
During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.
New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.
The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”
“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.
With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.
Maine
Maine governor signs transgender, abortion sanctuary bill into law
Bomb threats made against lawmakers before measure’s passage
BY ERIN REED | On Tuesday, Maine Gov. Janet Mills signed LD 227, a sanctuary bill that protects transgender and abortion providers and patients from out-of-state prosecution, into law.
With this action, Maine becomes the 16th state to explicitly protect trans and abortion care in state law from prosecution. This follows several bomb threats targeting state legislators after social media attacks from far-right anti-trans influencers such as Riley Gaines and Chaya Raichik of Libs of TikTok.
An earlier version of the bill failed in committee after similar attacks in January. Undeterred, Democrats reconvened and added additional protections to the bill before it was passed into law.
The law is extensive. It asserts that gender-affirming care and reproductive health care are “legal rights” in Maine. It states that criminal and civil actions against providers and patients are not enforceable if the provision or access to that care occurred within Maine’s borders, asserting jurisdiction over those matters.
It bars cooperation with out-of-state subpoenas and arrest warrants for gender-affirming care and abortion that happen within the state. It even protects doctors who provide gender-affirming care and abortion from certain adverse actions by medical boards, malpractice insurance, and other regulating entities, shielding those providers from attempts to economically harm them through out-of-state legislation designed to dissuade them from providing care.
You can see the findings section of the bill here:
The bill also explicitly enshrines the World Professional Association of Transgender Health’s Standards of Care, which have been the target of right-wing disinformation campaigns, into state law for the coverage of trans healthcare:
The bill is said to be necessary due to attempts to prosecute doctors and seek information from patients across state lines. In recent months, attorneys general in other states have attempted to obtain health care data on trans patients who traveled to obtain care. According to the U.S. Senate Finance Committee, attorneys general in Tennessee, Indiana, Missouri, and Texas attempted to obtain detailed medical records “to terrorize transgender teens in their states … opening the door to criminalizing women’s private reproductive health care choices.”
The most blatant of these attempts was from the attorney general of Texas, who, according to the Senate Finance Committee, “sent demands to at least two non-Texas entities.” One of these entities was Seattle Children’s Hospital, which received a letter threatening administrators with arrest unless they sent data on Texas patients traveling to Seattle to obtain gender-affirming care.
Seattle Children’s Hospital settled that case out of court this week, agreeing to withdraw its Texas business registration in return for Texas dropping its investigation. This likely will have no impact on Seattle Children’s Hospital, which has stated it did not treat any youth via telemedicine or in person in Texas; the hospital will be able to continue treating Texas youth who travel outside of Texas to obtain their care. That settlement was likely compelling due to a nearly identical law in Washington that barred out-of-state investigations on trans care obtained solely in the state of Washington.
The bill has faced a rocky road to passage. A similar bill was debated in January, but after coming under intense attack from anti-trans activists who misleadingly called it a “transgender trafficking bill,” the bill was voluntarily withdrawn by its sponsor.
When LD 227 was introduced, it faced even more attacks from Gaines and Libs of TikTok. These attacks were followed by bomb threats that forced the evacuation of the legislature, promising “death to pedophiles” and stating that a bomb would detonate within a few hours in the capitol building.
Despite these threats, legislators strengthened both the abortion and gender-affirming care provisions and pressed forward, passing the bill into law. Provisions found in the new bill include protecting people who “aid and assist” gender-affirming care and abortion, protections against court orders from other states for care obtained in Maine, and even protections against adverse actions by health insurance and malpractice insurance providers, which have been recent targets of out-of-state legislation aimed at financially discouraging doctors from providing gender-affirming care and abortion care even in states where it is legal.
See a few of the extensive health insurance and malpractice provisions here:
Speaking about the bill, Gia Drew, executive director of Equality Maine, said in a statement, “We are thrilled to see LD 227, the shield bill, be signed into law by Gov. Mills. Thanks to our pro equality and pro reproductive choice elected officials who refused to back down in the face of disinformation. This bill couldn’t come into effect at a better time, as more than 40 percent of states across the country have either banned or attempted to block access to reproductive care, which includes abortions, as well as transgender healthcare for minors. Thanks to our coalition partners who worked tirelessly to phone bank, lobby, and get this bill over the finish line to protect community health.”
Destie Hohman Sprague of the Maine Women’s Lobby celebrated the passage of the bill despite threats of violence, saying in a statement, “A gender-just Maine ensures that all Mainers have access to quality health care that supports their mental and physical wellbeing and bodily autonomy, including comprehensive reproductive and gender-affirming care. We celebrate the passage of LD 227, which helps us meet that goal. Still, the patterns of violence and disinformation ahead of the vote reflected the growing connections between misogyny, extremism, and anti-democratic threats and actions. We must continue to advocate for policies that protect bodily autonomy, and push back against extremist rhetoric that threatens our states’ rights and our citizens’ freedoms.”
The decision to pass the legislation comes as the Biden administration released updated HIPAA protections that protect “reproductive health care” from out-of-state prosecutions and investigations.
Although the definition of “reproductive health care” is broad in the new HIPAA regulations, it is uncertain whether they will include gender-affirming care. For at least 16 states, though, gender-affirming care is now explicitly protected by state law and shielded from out-of-state legislation, providing trans people and those seeking abortions with protections as the fight increasingly crosses state lines.
****************************************************************************
Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
******************************************************************************************
The preceding article was first published at Erin In The Morning and is republished with permission.
After Biden signs TikTok ban its CEO vows federal court battle
Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.
Bowser budget proposal calls for $5.25 million for 2025 World Pride
White House debuts action plan targeting pollutants in drinking water
Health care for Marylanders with HIV is facing huge cuts this summer
Daniel Zamudio murderer’s parole request denied
State Department releases annual human rights report
‘Amm(i)gone’ explores family, queerness, and faith
Joe Vogel campaign holds ‘Big Gay Canvass Kickoff’
