National
GOP att’y strongly defends DOMA in N.Y. widow’s lawsuit
Second Circuit hears arguments in Windsor case in NYC

Edith ‘Edie’ Windsor testifies in her Federal Court case against DOMA. (Washington Blade file photo by Michael Key)
NEW YORK CITY — The House Republican attorney defending the Defense of Marriage Act in court took particular issue on Thursday with an octogenarian lesbian’s case against by the law by suggesting the timing and location of her marriage makes challenge invalid.
Paul Clement, a former U.S. solicitor general under the Bush administration, claimed before a federal appeals court that Edith Windsor doesn’t have a case because she married in Canada and her spouse, Thea Spyer, died in 2009 — two years before New York legalized same-sex marriage.
“The critical question isn’t 2012, the critical question is 2009,” Clement said.
Clement added that the issue of whether the marriage is sufficient for a challenge against DOMA should be brought to certification before the New York Court of Appeals, the highest state court in New York.
James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project, told the Blade after the oral arguments that Clement was “grasping at straws” when making these claims.
“There’s clear law in New York that New York in 2004 recognized the marriages of same-sex marriage performed in Canada and in other states that allowed same-sex couples to marry,” Esseks said.
Esseks acknowledged that the high court in New York hasn’t affirmed those marriages, but said that three lower courts have recognized those marriages as legitimate as well as the governor and attorney general.
“There’s just no debate about it; It’s quite clear,” Esseks said. “I think we heard from the court today — it’s difficult to make any predictions — but based on what I heard from the court, I don’t think that that’s how the court’s going to decide this question. They’re not going to duck the constitutionality of the Defense of Marriage by saying we’re not sure whether she’s actually married or not.”

Edith Windsor (right) speaks with the ACLU’s James Esseks to reporters following oral arguments in the Second Circuit (Washington Blade photo by Chris Johnson)
A three-judge panel on the appellate court heard from three attorneys during oral arguments in the case, known as Windsor v. United States. The lawsuit was filed by the American Civil Liberties Union on behalf of Windsor, who was forced to pay $363,000 in estate taxes upon the death of her spouse because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.
The panel consisted of Chief Judge Dennis Jacobs, who was appointed by President George H.W. Bush; Judge Chester Straub, who was appointed by former President Bill Clinton; and Judge Christopher Droney, who was appointed by President Obama.
It’s the second time a federal appellate court has considered the constitutionality of DOMA. In April, the U.S. First Circuit of Appeals heard oral arguments in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appeals issued a decision against DOMA as result of that consideration.
Lawyers presented before the Second Circuit starkly different views on the the Defense of Marriage Act on Thursday before judges reviewing Windsor’s challenge to the anti-gay law, which was passed by Congress in 1996.
In addition to questioning whether Windsor has standing, Clement, who’s DOMA in court on behalf of the House Republican-led Bipartisan Legal Advisory Group, drew upon the cases of Baker v. Nelson, a 1972 Minnesota case seeking the legalization of same-sex marriage that the U.S. Supreme Court declined to hear for lack of substantive federal question.
Clement acknowledged the case is 40 years old and times may have changed since then, but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.”
Plaintiffs in the case had another view. Roberta Kaplan, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued against DOMA on behalf of Windsor, saying the law be struck down because states can already decide on their own what decisions to make about who can marry within their borders.
“The problem supposedly solved by uniformity is a problem that our federalist principles have already dealt with,” Kaplan said.
Kaplan added the case against DOMA isn’t about any federal right to marry because even with the law in place, gay couples haven’t been discouraged from marrying across the country, nor have they been discouraged from adopting.
Acting U.S. Assistant Attorney General Stuart Delery, who’s gay, assisted in the litigation against by presenting arguments on behalf of the Obama administration, saying the court should strike down because of the long history of discrimination against LGBT people — including the criminalization of homosexuality and being barred from military service.
“Sexual orientation is a fundamental part of person’s identity that says nothing about a person’s ability to contribute to society,” Delery said.
Questions from judges hit on several topics, although the questioning from didn’t reveal much in terms of what how they’d rule in the case. Many inquiries were posed about the extent to which gays and lesbians enjoy political power within the U.S. government. Opponents of DOMA have argued the anti-gay law is unconstitutional because gays and lesbians lack political power, but BLAG contends the LGBT community has significant influence.
Asked by Jacobs about whether the test of political power is whether gays and lesbians have any power at all or whether power is diminished, Clement replied, “I think it’s the former, and I don’t think it’s not a overwhelmingly difficult test. … It’s a matter of whether you get the attention of lawmakers.”
Clement pointed to a friend-of-the-court brief signed by 145 House Democrats filed in the case on behalf of plaintiffs as evidence that the LGBT community has influence over the political process as he asserted the LGBT community should look to the legislative process to repeal DOMA, saying “This is an issue that could be left to the Democratic process.”
But Kaplan said the 30 marriage amendments that passed in state throughout the country are evidence that gay and lesbians are politically powerless, even though she emphasized these amendments have no bearing on the case at hand against DOMA.
The degree of scrutiny under which laws related to sexual orientation should face before the courts also came up the during the hearing. Judges asked whether they should overturn DOMA on the basis that such laws should be subjected to strict scrutiny, or more intermediate level of heightened scrutiny or be examined under a rational basis review. The level of scrutiny they apply could have implications on court cases related to sexual orientation.
In the event the court decided to rule against DOMA, Clement said the court asked the court not to apply heightened scrutiny, noting it would be the first appellate court to do so because the First Circuit Court of Appeals when struck down DOMA in May under rational basis review.
Kaplan said she was arguing for the higher level of review called strict scrutiny as opposed to the more intermediate heightened scrutiny because “being gay or lesbian is closer to being African-American than being a woman.” Laws related to gender have been subjected to heightened scrutiny, but laws related to race have been subjected to strict scrutiny.
But Delery didn’t articulate the same view, saying he was arguing against DOMA on the basis that it violated heightened scrutiny. While he acknowledged arguments could be made that DOMA fails rational basis, he wouldn’t commit to saying that should be struck down under that standard.
Another question for Delery, which came from Droney, was why the Justice Department had appealed the Windsor to the Second Circuit even though his side won at the district court level when U.S. District Judge Barbara Jones ruled against the law. Delery provided a explanation, prompting Droney to quip that the Justice Department must have a predilection for seeking appellate court rulings in all cases, eliciting laughter from those in attendance at the hearing.
Yet another question was raised by Jacobs on whether withholding benefits from gay couples with the intention of saving money for the federal government is a good enough constitutional reason to keep DOMA in place. Kaplan denied this assertion and said saving money isn’t sufficient rationale unless it’s coupled with another justification.
But Clement pounced on these remarks in the rebuttal allotted to him at the end of the oral arguments, saying preserving federal coffers are absolutely a good reason to preserve DOMA and Congress was “preserving the scope of the benefits programs the way they’ve always been.”
Clement also during his rebuttal asserted that Congress has acted in other areas besides gay and lesbian with regard to marriage. He noted lawmakers have acted to protect against fraud, and, going back to the 19th Century, require states to prohibit polygamy so territories like Utah could enter into the union.
Following the oral arguments, Windsor appeared outside the court building to speak with reporters. Windsor, who recently turned 83, said, “I look forward to the day when the federal government will recognize the marriages of all Americans, and I am hopeful that this day will come during my lifetime.”
Windsor further invoked the memory her deceased spouse — with whom she shared a life for 40 years — saying she believes she’s was present in the court in spirit and “would have been so proud to see how far we’ve come.”
Now that oral arguments are done, judges will confer to determine the steps they’ll take in the case and the process that will lead to them making a decision. There’s no set time for when they have to make a ruling; it could be a matter of days, months or a year.
The ACLU’s Esseks said he wasn’t in a position to predict in what way judges would rule as a result of what was said during the oral arguments.
“Lawyers never want to predict the outcomes,” Esseks said. “There are some arguments that you come out of and you’re like I’m willing to take a guess here. This argument didn’t give me clear sense one way or the other. I wouldn’t be surprised about a win and I wouldn’t be shocked about a loss either.”
Windsor’s attorneys and the Justice Department have asked the Supreme Court to take up the Windsor case for consideration. If the Supreme Court accepts the request, the high court would take up jurisdiction of the lawsuit and the Second Circuit proceedings would be halted.
Federal Government
Todd Blanche’s record on LGBTQ issues comes under scrutiny as he takes over DOJ
Blanche was confirmed by the Republican controlled Senate 50-49.
Todd Blanche, President Trump’s former personal lawyer, was sworn in as attorney general of the United States on Monday.
Blanche secured the position as the country’s 88th chief law enforcement officer on Sunday night after a contentious Senate confirmation process, ultimately ending with a 50-49 vote in his favor. All Democrats, as well as Republican Sens. Susan Collins and Lisa Murkowski, voted against him.
The confirmation hearing — and subsequent vote — brought questions surrounding Blanche’s credibility and integrity, as well as concerns about Trump’s ethical dilemmas surrounding cronyism, to the forefront.
The attorney general acts as the head of the Department of Justice, responsible for enforcing federal laws, representing the U.S. in court, and advising the president.
Blanche has a long history in Washington, beginning when he attended American University for his undergraduate education, like fellow former Trump attorney Michael Cohen. He began his legal career as an intern in the U.S. Attorney’s Office in Washington, which eventually became a full-time position.
That job eventually led him to work as a paralegal in the U.S. Attorney’s Office for the Southern District of New York while attending Brooklyn Law School at night. Blanche graduated cum laude in 2003.
Blanche left the public sector in 2014, taking a job in the Manhattan office of the law firm WilmerHale. In September 2017, he moved to Cadwalader, Wickersham & Taft LLP, where he was a partner in the White Collar Defense and Investigations practice.
There, Blanche represented several figures associated with President Donald Trump, including former New York City Mayor Rudy Giuliani and Trump’s former campaign manager Paul Manafort.
In 2024, Blanche switched from Democrat to Republican and moved from New York City to Palm Beach, Fla., where he would be closer to Trump’s primary legal residence at Mar-a-Lago.
He then served as Trump’s personal defense attorney in the New York state case that led to Trump’s 2024 conviction on 34 felony counts of falsifying business records to cover up hush-money payments to adult film star Stormy Daniels.
While serving as acting head of the Department of Justice before his official confirmation, Blanche played a central role in overseeing the department and was involved in leadership decisions tied to several controversial actions affecting LGBTQ people.
One of the first issues was transgender rights and gender-affirming care, particularly for minors — an issue the White House and Republican Party have made a key part of their broader cultural agenda and federal policy efforts.
In a letter to New York Attorney General Letitia James, Blanche declared that the Justice Department “will not sit idly by while you attempt to use your office to force harmful procedures on our most vulnerable population.”
The letter came before NYU Langone ended its gender-affirming care at the behest of the president, forcing the hospital system to stop prescribing puberty blockers and hormones to minors.
The hospital’s change in policy came after the Trump-Vance administration threatened to pull all federal funding if it continued providing the care.
Blanche wrote that “the Justice Department believes the law is clear, and anti-discrimination laws cannot be used to force NYU Langone to perform sex-rejecting procedures on children.”
“As just one example, your office’s position would require a hospital to prescribe certain medications for certain diagnoses, regardless of the hospital’s or its doctors’ independent medical determination about the propriety of such treatment,” he continued in the letter.
In addition to his anti-transgender positions, Blanche also echoed his predecessor, Pam Bondi, in taking a public stance on limiting LGBTQ-related protections at the federal level.
He aligned with Bondi’s sentiments in June 2025 regarding the U.S. Supreme Court’s 6–3 decision that restricted LGBTQ history lessons in schools and limited lower federal courts from issuing nationwide injunctions — rulings that have often blocked Trump administration policies.
Blanche called it “another great decision that came down today,” arguing the ruling “restores parents’ rights to decide their child’s education.”
“It took the Supreme Court to set the record straight, and we thank them for that,” he said. “Now that ruling allows parents to opt out of dangerous trans ideology and make the decisions for their children that they believe is correct.”
In December 2025, a Justice Department memo stated that, “effective immediately,” prisons and jails would no longer be held responsible for violations of standards meant to protect LGBTQ people from harassment, abuse and rape under the Prison Rape Elimination Act.
The law, passed unanimously by Congress in 2003, requires that incarcerated people be screened for their risk of sexual assault, including consideration of LGBTQ status, and applies to all correctional facilities.
Additionally, when the Justice Department, under Blanche’s deputy leadership and at Trump’s behest, attempted to force Children’s National Hospital in D.C. to turn over medical records related to gender-affirming care, U.S. District Judge Julie R. Rubin ruled that the effort “appears to have no purpose other than to intimidate and harass.”
Blanche also faced scrutiny over a slew of other issues surrounding his leadership during his tenure as acting AG.
The Justice Connection, a watchdog organization that works to protect current and former civil servants working in the U.S. Department of Justice, called his work so far “devastating.”
The organization said Blanche “harmed the department’s workforce, advanced the politicization of the department, undermined the rule of law, and threatened public safety.”
The group cited several issues, including what it described as Blanche minimizing the violent reality of the January 6 insurrection led by Trump supporters; investigating and attempting to prosecute President Trump’s perceived political enemies; the botched release of the Epstein Files to Congress and the public, including the release of victim and witness details and censorship surrounding the scope of Trump’s relationship with the convicted sex trafficker and pedophile; and the expansion of federal immigration enforcement in Minnesota which lead to the death of two U.S. citizens by federal officials.
Sharon McGowan, senior vice president of Policy & Litigation at the Human Rights Campaign, the largest LGBTQ advocacy group in the country, provided a statement to the Blade about Blanche’s confirmation calling it “chilling.”
“The last thing Todd Blanche deserves is a promotion,” McGowan said via email. “For months, Blanche has used his position as Acting Attorney General to advance President Trump’s personal and financial interests and to weaponize the Justice Department against the President’s enemies, whether they be transgender kids or civil rights organizations trying to help people vote. His notion of justice is warped and dangerous, and LGBTQ+ Americans deserve better.”
National
HRC condemns DoE removal of LGBTQ bullying data from federal survey
Organization cites rise in homophobic, transphobic policies, worse mental health outcomes
The Human Rights Campaign is slamming the White House — and the Department of Education — following their removal of some LGBTQ bullying data from federal data collection.
The Civil Rights Data Collection is a mandated survey of all public school districts that collects figures on a wide variety of statistics about students — including demographics that include race, ethnicity, sex, disability status, and English learner status; course-level enrollment data, such as how many students are enrolled in advanced placement or honors classes; and school climate information, such as rates of bullying, harassment, suspensions, and expulsions.
That data collection has been ongoing since 1968 — nearly six decades — but now has a major change in what questions are being asked, or not asked, that advocates are largely attributing to the Trump-Vance administration’s culture war fight on LGBTQ children in the country.
Changes to the 2025-2026 survey questions — approved by the Office of Budget and Management in July — eliminated a space for schools to report how many students identify as nonbinary, how often those students are victims of harassment and bullying, and whether school districts have policies prohibiting gender identity-based incidents.
K-12 Dive, a publication that focuses its reporting on news related to K-12 education, first published a list of these data collection changes from 2024-2025 to 2025-2026.
These questions, as well as others that included LGBTQ student topics on treatment in schools, were added to the CRDC under the Biden-Harris administration. By including these questions, policymakers hoped this would lead to increased investigations into discrimination complaints, initiate compliance reviews, and provide policy guidance to districts, according to Education Department documents.
The CRDC also eliminated the mention of “gender identity” from the definition of rape and sexual assault. The prior collection of data (before the Trump-Vance administration changed it) defined rape as something that could be done to “all students, regardless of sex, or sexual orientation, or gender identity.” Now, the new data collection questions say, “All students, regardless of sex, or sexual orientation can be victims of rape,” removing “gender identity” from the new definition.
By removing and changing definitions, this could have a real-world impact on some of the school’s most vulnerable students. According to CRDC data from 2021-2022, more than 1,800 school districts reported enrolling one or more nonbinary students.
Additional data also shows that the changes to data collection is harming public school students. U.S. Sen. Bernie Sanders (I-Vt.), the ranking member of the Senate Health, Education, Labor, and Pensions Committee released a report in April finding that the Trump-Vance administration’s efforts to all but close the Department of Education Office for Civil Rights has left students facing discrimination and harassment throughout the country without the federal recourse they are entitled to under federal law.
The Williams Institute, a think tank that collects data and conducts research on issues related to sexual orientation and gender identity, has data indicating the true number of nonbinary and transgender children is much higher — they estimate that for children ages 13 to 17, nearly 724,000 identify as nonbinary or trans.
This is in line with a slew of policies pushed by the Trump-Vance administration since their federal takeover. Within his first day in office, President Donald Trump signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” This directive attempts to make the federal definition of gender unchangeable, determined by sex assigned at birth alone.
Within his first month of his second term, Trump issued Executive Order 14187, titled “Protecting Children from Chemical and Surgical Mutilation.” The order directs federal agencies to restrict gender-affirming medical care — including puberty blockers, hormone therapy, and surgeries — for individuals under the age of 19.
He also pushed multiple anti-trans executive orders, including Executive Order 14201, “Keeping Men Out of Women’s Sports,” and Executive Order 14183, “Prioritizing Military Excellence and Readiness,” targeting trans athletes and military members, respectively.
These policies have a real-world impact on trans people.
The Trevor Project, a nonprofit dedicated to crisis and suicide prevention for LGBTQ people under 25, reported that, for the seventh year in a row, LGBTQ youth are at higher risk for suicide as a result of mistreatment and stigmatization.
Trevor Project data showed that nearly 60 percent of LGBTQ young people ages 13-17 said they were bullied in the past year, and that 36 percent of LGBTQ youth seriously considered suicide in the last year. The data shows a bigger discrepancy for trans youth, with that number hovering around 40 percent considering suicide.
HRC President Kelley Robinson issued a statement following the approval of the new data collection questions that leaves LGBTQ students’ bullying statistics under — if not completely unreported.
“If there was even a shadow of a doubt, this latest move by the Trump administration makes it abundantly clear they do not care about the safety of LGBTQ+ students, and trans students in particular,” Robinson said. “These are adults who should be protecting our kids. And instead, they are making sure bullying and harassment are not tracked. If they are not tracked, bullying and harassment cannot be prevented or stopped — which is exactly what the Trump administration wants. Parents deserve to know their kids are safe at school, and every single young person deserves dignity and safety at school. Anything less is plain evil.”
HRC has a “Welcoming Schools” initiative that they say is the “most comprehensive” bias-based bullying prevention program in the nation. The program includes LGBTQ and gender-inclusive resources for schools, help navigating special education and disability resources for LGBTQ-identifying students, and other tools to help schools become more inclusive.
This program has been in effect for nearly two decades and, according to HRC, reaches nearly 750,000 students.
The Washington Blade reached out to both the Department of Education and Office of Management and Budget for comment but did not receive a response by publication time.
Michigan
Progressives score victory as El-Sayed wins Mich. Senate primary
Democratic newcomer will face Rogers in November
Michigan held its primary on Tuesday, allowing the two major political parties to select their nominees to go head-to-head for the state’s U.S. Senate seat.
NBC News called the Democratic race early, giving the victory to physician Abdul El-Sayed over incumbent U.S. Rep. Haley Stevens (D-Mich.) in an extremely close primary. El-Sayed won 48.5 percent of the primary vote, with Stevens trailing by just one percentage point at 47.5 percent.
Both candidates have campagined on supporting the LGBTQ community through different avenues— for El-Sayed he focused on his past promoting HIV and PrEP funding and research. Stevens focused on her legislative history working to support transgender rights in the state.
This is a major win for progressive Democrats, who have been bearing the brunt of political attacks from President Donald Trump, the Republican Party, and centrist Democrats.
El-Sayed, a former health director in Detroit, ran his campaign largely on making life in the Great Lakes State more affordable amid rising costs. His policies include promoting “Medicare for All,” pushing health policy that targets the regressive efforts of the Trump-Vance administration that rolls back funding for both Women and LGBTQ people, minimizing the growing amount of money in politics, and he was very vocal in his criticism of Stevens for supporting aid to Israel. He was endorsed by two major progressives — U.S. Sen. Bernie Sanders (I-Vt.) and U.S. Rep. Alexandria Ocasio Cortez (D-N.Y.).
Stevens, the four-term congresswoman, is much closer to establishment Democrats on policy than El-Sayed.
During her time in the federal government, she has consistently supported the Equality Act, which would add sexual orientation and gender identity as protected classes under the Civil Rights Act of 1964. She has also emphasized supporting local manufacturing and lowering housing costs in the state.
She was named to Advocates for Trans Equality’s 118th Congressional Champions list for her pro-trans policies and was endorsed by establishment heavy hitters Michigan Gov. Gretchen Whitmer and Senate Minority Leader Chuck Schumer (D-N.Y.).
The contentious race boiled down not only to Michigan affairs but also extended to international conflicts — namely Palestine. (South Africa has filed a case in the International Court of Justice in The Hague that accuses Israel of committing genocide in the Gaza Strip after Oct. 7.) This primary also acted as one of the first major races that pushed back against AIPAC, a lobbying group that works to promote pro-Israel candidates in U.S. elections. The group has been involved in domestic politics since 1954.
AIPAC devoted a massive amount of money to this race.
The Associated Press reported that the pro-Israel lobbying group spent more than $30 million on ads against El-Sayed because of his vocal denunciation of Israel and his continued criticism of its policies towards Palestine.
Michigan has a large Muslim and Arab American population, which could, in part, explain how El-Sayed was able to win.
The Republican side was far less competitive. Former U.S. Rep. Mike Rogers (R-Mich.) ran unopposed and clinched the GOP nomination. He has consistently held anti-LGBTQ positions, going as far as voting multiple times for a federal constitutional amendment to ban same-sex marriage, voting against repealing the military’s “Don’t Ask, Don’t Tell” policy, and supporting efforts to directly target the attempted expansion of Title IX protections to include trans people.
El-Sayed will face off against Rogers in November for Michigan’s Senate seat — one that could have lasting impacts not only on the state’s politics but also on the Republicans’ narrow Senate majority and Trump’s political agenda.
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