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House Dems to urge Supreme Court to strike down DOMA

Other briefs filed by businesses, ‘red state’ coalition, GOP

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House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court (Washington Blade file photo by Michael Key)

House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court. (Washington Blade file photo by Michael Key)

House Democrats are circulating a legal brief that will argue against the constitutionality of the Defense of Marriage Act before the Supreme Court, the Washington Blade has learned.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said his boss will lead other Democrats in the friend-of-the-court brief before the Supreme Court, which is due on Friday. The case pending before the court is known as Windsor v. United States.

“There will be a strong expression of support from the House Democratic Caucus in support of overturning DOMA and casting DOMA into the dustbin of history,” Hammill said.

Hammill declined to provide additional details about the filing, so it’s unknown what the argument of the brief will be. It will likely counter the arguments presented by the House Republican-led Bipartisan Legal Advisory Group that the committee speaks for the House as a whole.

The individual House members who signed the brief and the total number of signatures wasn’t immediately known. But Ilan Kayatsky, a spokesperson for Rep. Jerrold Nadler (D-N.Y.), said his boss is the principal signer of the brief. Rep. Mark Takano (D-Calif), the only openly gay Asian-American in Congress, and Rep. Kyrsten Sinema (D-Ariz.), the only bisexual member, independently told the Washington Blade they would sign the brief.

It’s not surprising House Democrats are preparing a brief because they’ve participated in each of the DOMA challenges pending before appellate courts.

They filed a brief before the U.S. Second Circuit Court of Appeals when the Windsor case was before that court. House Democrats also filed a brief before the First Circuit in the combined case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services, and another before the Ninth Circuit in the case of Golinski v. United States.

House Democrats are preparing their brief amid a flurry of news regarding other briefs that have been submitted in the case against DOMA before the Supreme Court as well as Hollingsworth v. Perry, the case challenging California’s Proposition 8.

LGBT advocates are also eagerly waiting to see whether the Obama administration will take part in the lawsuit against Prop 8 before the Supreme Court. The deadline for the Justice Department to do so is Thursday.

Following the White House news briefing on Wednesday, the Blade shouted out to White House Press Secretary Jay Carney an inquiry on whether the Justice Department would file a brief. Without turning around to answer as he left the room, Carney replied, “I don’t have anything for you on that.”

A group of 278 businesses and organizations — including tech companies like Xerox and Microsoft as well as web companies like Google, Twitter and eBay — filed a friend-of-the-court brief before the Supreme Court on Wednesday arguing that DOMA is bad for business.

In the 36-page brief, the companies argue that DOMA imposes compliance burdens upon employers because they treat benefits — such as health care benefits and family leave — differently for straight married employees and gay married employees.

“Although marriages are celebrated and recognized under state law, DOMA, a federal law withholding marital benefits from some lawful marriages but not others, requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful,” the brief states. “DOMA thus impairs employer/employee relations and other business interests.”

The brief also argues that DOMA requires companies to affirm discrimination they believe is injurious to their corporate missions and is contrary to non-discrimination laws and policies.

“DOMA imposes on amici not simply the considerable burden of compliance and cost,” the brief states. “DOMA conscripts amici to become the face of its mandate that two separate castes of married persons be identified and separately treated.”

Also among the signatories is the U.S. Conference of Mayors, the official non-partisan organization of all United States cities with populations of 30,000 or more.

Philadelphia Mayor Michael Nutter, president of the U.S. Conference of Mayors and a member of the group Mayors for the Freedom to Marry, said the conference is proud to take part in the brief.

“Mayors want their citizens and businesses to prosper, and that means supporting them against discrimination – from any level of government,” Nutter said. “Married means married, and mayors and businesses agree that DOMA can’t stand.”

Another brief was filed on Wednesday by a coalition of groups representing Red States where same-sex marriage isn’t legal. The “Red State” brief, which responds to both the Prop 8 and DOMA cases, was signed by groups like Kentucky Equality Federation, Equality Virginia, the Utah Pride Center and the the Utah Pride Center and the Campaign for Southern Equality.

The 34-page brief argues that the Supreme Court should find laws related to sexual orientation should be subject to heightened scrutiny, citing laws that demean gay students in the education system as well as bans on adoption and same-sex marriage.

“The keystone of existing systems of de jure denigration of gay Americans is the denial of their right to marry,” the brief states. “It is both the crux of the matter and the root of other forms of discrimination against gay citizens. The heartbreaking message to committed, gay couples: Your love is unworthy of marriage.”

And The New York Times reported that more than two-dozen Republicans have signed onto the brief against Prop 8 being circulated by gay former Republican National Committee Chair Ken Mehlman, which received significant media attention this week. The additional reported signers include former Rep. Charles Bass of New Hampshire, who signed on as co-sponsor of DOMA repeal late last year, and Beth Myers, who was an adviser to former Republican presidential candidate Mitt Romney.

The Times initially reported that former congresswoman Marilyn Musgrave, who authored the Federal Marriage Amendment while in Congress, was another signer. But Musgrave denied to local Denver media that she signed the brief and the Times later ran a correction saying the signer was in fact B. J. Nikkel, who last year was the only Republican on the Colorado House Judiciary Committee to vote in support of civil unions and worked as district director for Musgrave.

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Pennsylvania

Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.

State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate

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President Joe Biden, Malcolm Kenyatta, and Vice President Kamala Harris (Official White House Photo by Adam Schultz)

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.

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The White House

White House debuts action plan targeting pollutants in drinking water

Same-sex couples face higher risk from environmental hazards

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President Joe Biden speaks with reporters following an Earth Day event on April 22, 2024 (Screen capture: Forbes/YouTube)

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.

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Maine

Maine governor signs transgender, abortion sanctuary bill into law

Bomb threats made against lawmakers before measure’s passage

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Maine Gov. Janet Mills congratulates members of Maine Women's Basketball. In March the team won the America East championship. (Photo courtesy of Mills’s office)

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.” 

Related

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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