National
Prop 8 attorneys file brief before Supreme Court
Lawyers argue measure labels LGBT families as ‘second-rate’
Ted Olson was among attorneys who signed AFER’s brief against Prop 8. (Washington Blade file photo by Michael Key)
The legal team behind the challenge to California’s Proposition 8 filed its brief on Thursday before the Supreme Court asking it to declare the anti-gay measure unconstitutional.
The 54-page brief, signed by co-counsels Ted Olson and David Boies on behalf of the American Foundation for Equal Rights, asserts that Prop 8 — a ballot initiative passed by California voters in 2008 — should be struck down because prohibiting same-sex couples from marrying in California violates due process and equal protection under the U.S. Constitution.
“It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate,” the brief concludes. “That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans.”
The brief is divided into three sections. The first maintains proponents of Prop 8, such as ProtectMarriage.com, don’t have standing to defend the measure before the Supreme Court because they won’t be harmed if gay couples marry in California. Attorneys also argue their desire to defend the law is insufficient to meet standing requirements under Article III of the U.S. Constitution.
A substantial part of the brief is devoted to arguing that Prop 8 is unconstitutional based on the merits. The second section of the brief maintains the measure violates due process because the right to marry is fundamental. This section also tears into the argument that proponents outlined in their brief before the Supreme Court the purpose of marriage is procreation is incorrect based on the trial record in the case.
“Indeed, many persons become parents through adoption or assisted reproduction and exercise their constitutional rights to marry and raise those children in a recognized family unit,” the brief states. “Yet Proponents’ assertions about marriage — and that is all that they are — would leave adoptive parents and infertile couples without any constitutional protection against a State that prohibits them from marrying.”
The third section of the brief argues that denying gay couples the right to marry violates their equal protection rights — not to mention the constitutional rights of the estimated 40,000 children raised in same-sex households.
This argument is divided into three sections: 1) discrimination on the basis of sexual orientation merits heightened scrutiny, or greater assumption such laws are unconstitutional ; 2) laws that prohibit gay men from marrying don’t meet the lesser standard of rational basis review and heightened scrutiny; and 3) Prop 8 is unconstitutional because it was motivated out of desire to make gay people unequal to straight people.
“The absence of any rational justification for depriving gay men and lesbians of their right to marry, and marking their relationships as inferior to those of heterosexual couples, leads inexorably to the conclusion that Proposition 8’s principal purpose was to advance the majority’s moral disapproval of gay relationships,” the brief states.
Notably, the brief is along the lines of the ruling from U.S. District Judge Vaughn Walker against the anti-gay brief. It doesn’t delve into the narrower ruling made against Prop 8 by the U.S. Ninth Circuit Court of Appeals that the measure is unconstitutional because it took away marriage rights from gay couples after they once enjoyed them in the state after the California Supreme Court ruled in favor of marriage equality in 2008.
But during a conference call with reporters on the same day the brief was filed, Olson assured the media that the argument that attorneys are “embracing” the Ninth Circuit ruling in their brief and it’s important to all arguments against Prop 8 are being made from the top down.
The brief from AFER wasn’t the only one filed on Thursday in the Prop 8 case. The Supreme Court allowed San Francisco City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart to participate in the case. They articulated arguments against Prop 8 in a 62-page document.
That brief makes arguments along the lines made by AFER that Prop 8 violated due process and equal protection, but the brief also makes the case that Prop 8 can be invalidated even as the national debate continues on same-sex marriage.
“Petitioners’ argument derogates the most im- portant role this Court serves in our democracy: to protect the constitutional rights of minorities from encroachment by an unsympathetic majority,” the brief states. “The responsibility to protect individual rights does not transfer to the political process when the dispute happens to be “controversial.”
The next step in the process for the Prop 8 case is for opponents of the measure to file their friends-of-the-court brief before the Feb. 28 — one week from the day these briefs were filed. Opponents of Prop 8 are hoping the Obama administration will be among those filing such a brief. Oral arguments in the Prop 8 case are set for March 26.
Puerto Rico
The ‘X’ returns to court
1st Circuit hears case over legal recognition of nonbinary Puerto Ricans
Eight months ago, I wrote about this issue at a time when it had not yet reached the judicial level it faces today. Back then, the conversation moved through administrative decisions, public debate, and political resistance. It was unresolved, but it had not yet reached this point.
That has now changed.
Lambda Legal appeared before the 1st U.S. Court of Appeals in Boston, urging the court to uphold a lower court ruling that requires the government of Puerto Rico to issue birth certificates that accurately reflect the identities of nonbinary individuals. The appeal follows a district court decision that found the denial of such recognition to be a violation of the U.S. Constitution.
This marks a turning point. The issue is no longer theoretical. A court has already determined that unequal treatment exists.
The argument presented by the plaintiffs is grounded in Puerto Rico’s own legal framework. Identity birth certificates are not static historical records. They are functional documents used in everyday life. They are required to access employment, education, and essential services. Their purpose is practical, not symbolic.
Within that framework, the exclusion of nonbinary individuals does not stem from a legal limitation. Puerto Rico already allows gender marker corrections on birth certificates for transgender individuals under the precedent established in Arroyo Gonzalez v. Rosselló Nevares. In addition, the current Civil Code recognizes the existence of identity documents that reflect a person’s lived identity beyond the original birth record.
The issue lies in how the law is applied.
Recognition is granted within specific categories, while those who do not identify within that binary structure remain excluded. That exclusion is now at the center of this case.
Lambda Legal’s position is straightforward. Requiring individuals to carry documents that do not reflect who they are forces them into misrepresentation in essential aspects of daily life. This creates practical barriers, exposes them to scrutiny, and places them in a constant state of vulnerability.
The plaintiffs, who were born in Puerto Rico, have made clear that access to accurate identification is not symbolic. It is a basic condition for moving through the world without contradiction imposed by the state.
The fact that this case is now being addressed in the federal court system adds another layer of significance. This is not a pending policy discussion or a legislative proposal. It is a constitutional question. The analysis is not about political preference, but about rights and equal protection under the law.
This case does not exist in isolation.
It unfolds within a broader context in which debates over identity and rights have increasingly been shaped by the growing influence of conservative perspectives in public policy, both in the United States and in Puerto Rico. At the local level, this influence has been reflected in legislative discussions where religious arguments have begun to intersect with decisions that should be grounded in constitutional principles. That intersection creates tension around the separation of church and state and has direct consequences for access to rights.
Recognizing this context is not an attack on faith or religious practice. It is an acknowledgment that when certain perspectives move into the realm of public authority, they can shape outcomes that affect specific communities.
From within Puerto Rico, this is not a distant debate. It is a lived reality. It is present in the difficulty of presenting identification that does not match one’s identity, and in the consequences that follow in workplaces, schools, and government spaces.
The progression of this case introduces the possibility of change within the applicable legal framework. Not because it resolves every tension surrounding the issue, but because it establishes a legal examination of a practice that has long operated under exclusion.
Eight months ago, the conversation centered on ongoing developments. Today, there is already a judicial finding that identifies a violation of rights. What remains is whether that finding will be upheld on appeal.
That process does not guarantee an immediate outcome, but it shifts the ground.
The debate is no longer theoretical.
It is now before the courts.
National
LGBTQ community explores arming up during heated political times
Interest in gun ownership has increased since Donald Trump returned to office
By JOHN-JOHN WILLIAMS IV | As the child of a father who hunted, Vera Snively shied away from firearms, influenced by her mother’s aversion to guns.
Now, the 18-year-old Westminster electrician goes to the shooting range at least once a month. She owns a rifle and a shotgun, and plans to get a handgun when she turns 21.
“I want to be able to defend my community, especially being in political spaces and queer spaces,” said Snively, a trans woman. “It’s just having that extra line of safety, having that extra peace of mind would be important to me.”
Snively is among what some say is a growing number of LGBTQ gun owners across the United States. Gun rights organizations and advocates say interest in gun ownership appears to have increased in that community since President Donald Trump returned to the White House last year.
The rest of this article can be read on the Baltimore Banner’s website.
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.”
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