National
DOJ asks Supreme Court to hear two additional DOMA cases
Obama administration has now asked for consideration of four such cases
U.S. Supreme Court (Blade file photo by Michael Key)
The U.S. Justice Department on Tuesday filed legal briefs with the Supreme Court asking justices to take up two additional cases challenging the Defense of Marriage Act upon their return from summer recess.
The Obama administration asked the high court to hear Windsor v. United States, which was filed by the American Civil Liberties Union, and Pedersen v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders. Both cases are currently pending before the U.S. Second Circuit Court of Appeals.
News of the Justice Department filing the two separate legal briefs was first reported by Reuters. Read the petition in the Pedersen brief here and the petition in the Windsor brief here.
The Justice Department asks the Supreme Court to take up the cases as sort of a backup plan in case justices decline to hear two other DOMA cases they have been asked to review: the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services and Golinski v. Office of Personnel Management.
“The Court should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski,” the Pedersen petition states. “Should the Court grant review in either of those cases, it need not grant review in this case. If the Court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant this petition to ensure a timely and definitive ruling on Section 3’s constitutionality.”
The Justice Department maintains the order in which the Supreme Court should consider the cases is Massachusetts and Golinski, then Pedersen, then the Windsor case. According to the Justice Department, the question of whether the Supreme Court can take up the latter two cases rests on whether plaintiffs “have appellate standing to seek certiorari before judgment.” But the Justice Department says justices must resolve the additional question in the Windsor case of whether New York law recognized the Canadian marriage of the plaintiff, New York lesbian Edith Windsor, at the time of her spouse’s death.
Among the petition’s signers are U.S. Solicitor General Donald Verrilli and Acting Assistant Attorney General Stuart Delery, who’s gay and has been litigating against DOMA on behalf of the Obama administration in court.
Both petitions call on the Supreme Court to answer a question that was previously asked by other parties calling on the Supreme Court to review the anti-gay law: Does Section 3 of DOMA violate the Fifth Amendment guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state?
The request from the Justice Department follows earlier requests from the Supreme Court to consider these cases from ACLU and GLAD in the wake of district court rulings in favor of plaintiffs against DOMA in the lawsuits. U.S. District Judge Barbara Jones ruled against DOMA in the Windsor case in June. U.S. District Judge Vanessa Bryant ruled against the anti-gay law in the Pedersen case in July. Following those rulings, ACLU and GLAD both asked the Supreme Court to take their respective cases in lieu of waiting for the U.S. Second Circuit Court of Appeals to make a decision.
The Justice Department had previously called on the Supreme Court to take up the consolidated Massachusetts case and the Golinski case. The filings on Tuesday mean the Justice Department now has matched all other requests from groups calling on the Supreme Court to take up different DOMA cases.
Mary Bonauto, the lead counsel for the GLAD in the DOMA cases, said the filings by the Justice Department are “procedural” because petitions requesting that the Supreme Court take up these cases were already awaiting justices.
“So now, DOJ is simply adding it’s voice, saying, ‘Yes, these cases — if some reason you don’t take up some other case — these cases are also appropriate for deciding the issue of DOMA’s constitutionality,” Bonauto said. “It is really is procedural as opposed to substantive, simply trying to essentially provide a menu of cases to the Supreme Court from which to choose.”
In February 2011, the Obama administration announced it would no longer defend DOMA against legal challenges in court and that laws related to sexual orientation should be subjected to heightened scrutiny. Previously, the Justice Department had only Golinski to draw upon because courts in the Massachusetts case ruled DOMA was unconstitutional using a rational basis standard. But after the court ruling in the Pedersen case, the Justice Department had another vehicle to express its viewpoint that heightened scrutiny should apply to laws related to sexual orientation.
“Essentially, they opened up this sample because they want a case that applies heightened scrutiny because that fits with their position and Pedersen is the only other case,” Bonauto said. “Pedersen actually does an extremely thorough job of addressing the factors at enormous length. I mean, it’s over 50 pages in the opinion. In the end, the court doesn’t apply heightened scrutiny because it doesn’t need to, but it sets forth a case for heightened scrutiny.”
The ACLU declined to comment on the Justice Department filings.
Now that the Justice Department has sent these petitions, other parties in the cases have until October 12 to respond. The Supreme Court may make its decision on whether to hear the DOMA cases in the week of September 24, but the cases may be held until a later time.
The House Republican-led Bipartisan Legal Advisory Council, under the leadership of Speaker John Boehner (R-Ohio), has taken up defense of DOMA in the administration’s stead. Legal counsel representing BLAG didn’t immediately respond to a request for comment.
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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