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Election Day brings more out gays to Congress

But balance of power will likely prevent action on LGBT bills

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U.S. House candidate Sean Patrick Maloney

Sean Patrick Maloney was among the openly gay people elected to Congress (Washington Blade file photo by Michael Key)

The results on Election Day were hailed as a milestone as a record number of openly LGBT people were elected to Congress, although prospects for the passage of pro-LGBT legislation next year don’t look promising.

In addition to re-electing President Obama and approving the marriage equality side on ballot initiatives in four states, voters elected at least six openly LGB lawmakers to Congress in addition to electing pro-LGBT lawmakers like Elizabeth Warren in Massachusetts and Sherrod Brown in Ohio.

Tammy Baldwin made history by becoming the first openly gay person elected to the U.S. Senate (see related story) as incumbent Reps. Jared Polis (D-Colo.) and David Cicilline (D-R.I.) were re-elected. Joining them will be Sean Patrick Maloney, who’ll be the first openly gay congressman from New York; Mark Pocan, who’ll occupy the seat Baldwin held in the House; and Mark Takano, a California Democrat who’ll be the first openly gay person of color elected to Congresss.

As of press time, the race to represent Arizona’s 9th congressional district between bisexual Democratic candidate Kyrsten Sinema and Republican Vernon Parker wasn’t yet called. However, Sinema maintained a slim lead in the votes that were already tabulated. If elected, Sinema would be the first bisexual member of Congress.

Chuck Wolfe, CEO of the Gay & Lesbian Victory Fund, acknowledged the night resulted in historic wins in terms of LGBT representation at the federal level of U.S. government.

“It’s without a doubt historic,” Wolfe said. “I think you can talk about the fact that it was history-making, and those that won will be making history for years to come.”

The election results means Congress will look very different in terms of LGBT representation in the wake of Rep. Barney Frank’s (D-Mass.) retirement and Baldwin leaving the House for the Senate. The results also mean that number of openly gay House members will go from four to at least six.

Gay candidates who didn’t win were Republican Richard Tisei, who lost his bid to unseat pro-LGBT Rep. John Tierney (D-Mass.), and lesbian Democrat Nicole LaFavour, who lost her bid to unseat Rep. Mike Simpson (R-Idaho). LaFavour wasn’t endorsed by the Victory Fund.

Despite the excitement, the Election Day results in some respects resulted in the status quo for the legislative and executive branch of the U.S. government from what existed after the 2010 election when no pro-LGBT legislation passed Congress. Democrats retained control of the White House and the Senate, while Republican remain in control of the House.

As of press time, the Senate was poised to have 54 senators caucus with the Democrats and 45 senators caucus with the Republicans, although the Senate race in North Dakota remained too close to call. That would mean a net gain of one Democrat in the Senate. In the House, Republicans retained control of the chamber, but had a slimmer majority of 232 seats while Democrats claimed 191 seats ā€” with 12 races being too close to call.

Chad Griffin, president of the Human Rights Campaign, acknowledged in a conference call with reporters on Wednesday that these results still mean a pro-LGBT majority doesn’t exist in Congress, making the passage of favorable legislation difficult.

On the issue of federal workplace non-discrimination protections, which remain an outstanding issue for the LGBT community, Griffin said in response to a question from the Washington Blade the votes won’t be there to pass legislation known as the Employment Non-Discrimination Act.

“We need to acknowledge that although we certainly made some gains in the Senate, and potentially some gains in the House, we are still short of having a vote for an inclusive ENDA in the House,” Griffin said. “We need to be realistic about that.”

Griffin said “more successes could be seen” on the state and local level and called on the White House to revisit the idea of an executive order barring federal contractors from discriminating against LGBT people, which it said in April it wouldn’t issue at the time.

“It is my hope and belief that we can get an executive order out of this White House,” Griffin said. “It is something that should be done and we will continue to urge our newly re-elected president to do. That would not be the full solution, but it would be a step toward the end goal.”

Tico Almeida, president of Freedom to Work and one of the leading advocates of the executive order, also said it’s time for the White House to reconsider to its decision in the wake of the Election Day results.

“Yesterday was a turning point for our LGBT movement and President Obama has proven that elected officials can stand strongly on the side of LGBT fairness without fear of voter backlash,” Almeida said. “We will continue to push for the president to sign the executive order as soon as possible because every day that passes is another day in which taxpayer money can be squandered on anti-LGBT workplace harassment and discrimination.”

Asked whether the White House would revisit this idea, Shin Inouye, a White House spokesperson said, “I have no updates for you on that issue.”

Almeida also said action could be seen in the Senate to pass ENDA and called for a hearing, mark-up, and full Senate voteĀ Ā in 2013 when lawmakers convene at the start of the next Congress.

“One lesson from recent LGBT advocacy efforts is that we should not wait until the second year of a congressional session to move legislation forward because thatā€™s when some elected officials start getting nervous about the upcoming election and the legislative clock starts to run out of legislative days,” Almeida said.

In the addition to workplace non-discrimination protections, action could be done at the federal level to repeal the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. Griffin said during the conference call HRC would “continue to push forward” in Congress, but expressed skepticism about passage of any legislation.

“We do have to remember the leadership in the House of Representatives is not a pro-equality set of leaders, so we still have a lot of work to do there, but I can believe we can continue this momentum,” Griffin said.

Griffin placed greater emphasis action from the Supreme Court, which on Nov. 2o will determine whether it will take up litigation challenging California’s Proposition 8 and Section 3 of DOMA. If the court declines to hear the Prop 8 case, it would mean same-sex marriage would almost immediately return to California.

Another question is which states will advance pro-LGBT legislation or relationship recognition bills in the wake of the Election Day results. Griffin said he expects progress there, but said it’s “very early” to determine which states will see action.

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

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 ā€œderisive, 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 ā€œit 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 ā€œtext, 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.

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Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

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U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

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.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther 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.ā€ 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.Ā 

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.

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Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

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Washingtonporn Blade graphic

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.Ā 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā 

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™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. 

Texas users are greeted with this notice.

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 ā€œineffective, haphazard, and dangerous.ā€ 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 DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™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 driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™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.

Texas users are greeted with this notice.

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.

ā€œAs 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.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ 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 toĀ 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.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile 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.ā€

Courthouse News reportedĀ that after Virginiaā€™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.Ā Ā 

ā€œWe 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,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

Beyond the U.S. in the European Union, Pornhub and two more of the worldā€™s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUā€™s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ 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 EUā€™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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