National
Two new lawsuits target DOMA
GLAD, ACLU argue no ‘legitimate reason’ for statute
LGBT rights groups are continuing efforts to strike down the Defense of Marriage Act with two new federal lawsuits challenging the constitutionality of the statute.
On Tuesday, Gay & Lesbian Advocates & Defenders and the American Civil Liberties Union filed two separate lawsuits against Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriage.
Mary Bonauto, GLAD’s civil rights project director, said Tuesday in a conference call with reporters that the federal government has no valid reason to engage in the regulation of marriage.
“We think there’s no legitimate reason whatsoever for the federal government to take one group of people who are already married and treat them differently from every other married couple,” she said.
Bonauto added that the authority to determine who can marry in the United States has traditionally been left to the states and said DOMA is the only federal law in U.S. history “that puts the federal government in the marriage business.”
The cases contend that DOMA violates the equal protection rights of same-sex couples under the U.S. Constitution.
James Esseks, director of the ACLU’s lesbian, gay, bisexual transgender and AIDS project, said DOMA is unconstitutional because the U.S. government “defers to state’s determination of whether a couple is married in every single context except when the couple is a same-sex married couple.”
“In that case, the federal government pretends that the couple isn’t married, but instead are strangers one to the other,” Esseks said. “That’s discrimination, and it violates the Constitution’s equal protection guarantee.”
The GLAD lawsuit, known as Pedersen v. Office of Personnel Management, is pending before the U.S. District Court of Connecticut and was filed on behalf of five married same-sex couples and a widower who reside in Connecticut, Vermont and New Hampshire.
Each of the plaintiffs was denied the federal benefits of marriage in one respect or another, such as Social Security or the right to care for a spouse under the Family Medical Leave Act.
Joanne Pedersen, 57 and a Waterford, Conn., resident, said she’s participating in the lawsuit because although she’s a retiree of the Department of Naval Intelligence, DOMA prohibits her from insuring her spouse and partner of 12 years, who has a chronic lung condition.
“The naval community treated Ann just like other spouses, except when it came to sharing my benefits,” Pedersen said. “We both have some serious health challenges, and Ann has chronic health issues that make working stressful and draining for her. But Ann can’t hope to retire because DOMA prevents us from sharing health benefits.”
The ACLU lawsuit, known as Windsor v. United States, is pending before the U.S. District Court of Southern District of New York and was filed on behalf of a New York resident who had to pay $350,000 in federal estate taxes to receive her spouse’s inheritance.
Edith Windsor was partnered with Thea Spyer for 44 years before Spyer died last year after a battle with multiple sclerosis. The two married in Canada in 2007 and their marriage was recognized by the state of New York.
“After Thea died, the fact that the federal government refused to recognize our marriage was devastating,” Windsor said in a statement. “In the midst of my grief at the loss of the love of my life, I had to deal with my own government saying that we weren’t a family.”
Now that the organizations have filed the suits, the U.S. government has 60 days to respond. The Justice Department didn’t immediately respond to the Blade’s request for comment, but has previously defended DOMA against other lawsuits.
Esseks noted the Justice Department has a few months to answer. With regard to the ACLU lawsuit, he said “it’s too early to talk in any meaningful way” about the timeline for the case.
For the GLAD lawsuit, Bonauto said she hopes the case would be resolved at the district court level within 12 to 15 months. She said she doesn’t think the litigation would go to the U.S. Supreme Court before 2013.
The two new lawsuits come on the heels of other rulings by the U.S. District Court of Massachusetts in July determining that Section 3 of DOMA is unconstitutional.
U.S. District Court Judge Joseph Tauro made the decisions in case of Gill v. Office of Personnel Management, which was also filed by GLAD, and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.
Following the district court’s decision to rule that part of DOMA is unconstitutional, the U.S. government appealed the cases to the U.S. First Circuit Court of Appeals, where the litigation is pending.
Bonauto said the additional GLAD lawsuit is necessary to continue to educate people about the “harms imposed by DOMA.” Additionally, she noted many of the plaintiffs in the Pedersen live in Vermont and Connecticut, which is in the Second Circuit, and wouldn’t be affected by a ruling in the First Circuit as a result of the Gill case.
“We are in a different federal judicial circuit here, so we have a chance to press once again the basic claim that DOMA is legally unconstitutional in terms of having a double-standard imposed only on gay and lesbian married couples,” Bonauto said.
If both the Gill and the Commonwealth cases reach the Supreme Court at the same time as justices take up the Pedersen case, Bonauto said she thinks the newer lawsuits could be combined with the older ones.
The filing of the lawsuits has inspired different reactions among advocacy groups that work on marriage. In a statement to the Blade, Maggie Gallagher, chair of the National Organization for Marriage, chided LGBT groups for continuing to challenge DOMA in the wake of Election Day results.
“After Tuesday’s election, in which gay marriage lost big, it’s pretty clear gay marriage advocates have failed to win the majority of Americans and so are turning once again to courts to impose views and values they’ve failed to persuade their friends, neighbors and fellow citizens to support,” she said.
But Joe Solmonese, president of the Human Rights Campaign, said in a statement that the litigation provides further evidence that DOMA is “not simply an abstract insult to the dignity of same-sex couples and their families — although it is indeed a deeply offensive law.”
“DOMA causes real harm to people like Joanne Pedersen, Ann Meitzen and Edie Windsor, denying them economic security, health coverage and other critical federal rights and benefits that other married couples take for granted,” Solmonese said.
One legal expert praised the GLAD and ACLU lawsuits for their potential in striking down DOMA. Nan Hunter, a lesbian and law professor at Georgetown University, said forecasting the outcome of any particular lawsuit is difficult, but said the way DOMA is challenged in these cases is “quite promising.”
“It allows the courts to rule on a law that changed the status quo by singling out only gays and reversing — only for that one group — the federal government position of recognizing all marriages that were valid under state law,” she said.
Hunter said the litigation strategy is similar to what was presented in Romer v. Evans, a 1996 case before the U.S. Supreme Court that overturned a Colorado ban on making gays a protected class in the state. Hunter recalled that in the Romer case, the high court “invalidated a state provision that singled out gays for having to meet a higher barrier in order to enact a civil rights law.”
CORRECTION: An earlier version of this article misspelled the name of the name of James Esseks. The Blade regrets the error.
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.
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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.
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The preceding article was first published at Erin In The Morning and is republished with permission.
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