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Supreme Court makes two pro-LGBT rulings

Non-discrimination, disclosure issues decided

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The U.S. Supreme Court made pro-LGBT rulings in two cases during the final week of its term, which ended Monday.

Justices ruled in favor of the constitutionality of a California law school’s non-discrimination policy as well as state disclosure laws that would make public the names of those who signed a petition to put an anti-gay referendum on the Washington State ballot.

In the case of Christian Legal Society v. Martinez, the court upheld Monday in a 5-4 decision the University of California, Hastings College of Law’s non-discrimination policy against a legal challenge from a Christian group that aimed to discriminate against LGBT people.

The school’s Hastings Christian Fellowship sought to overturn a non-discrimination policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers. The group contended the school’s policy violated the chapter’s freedom of association and speech under the First Amendment.

But U.S. Associate Justice Ruth Bader Ginsburg — who wrote the majority opinion in the ruling — said the school’s policy is constitutional because it’s “a reasonable, viewpoint-neutral condition on access to the student-organization forum.”

“In requiring [Christian Legal Society] — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” she writes.

Joining Ginsburg in the majority opinion were Associate Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor. Associate Justice John Paul Stevens marked his final day on the bench by filing a concurring opinion.

While upholding Hastings’ policy, the court also remanded to the Ninth Circuit Court of Appeals an assertion by the Christian Legal Society that Hastings has been selectively applying its non-discrimination policy.

Associate Justice Samuel Alito filed the dissent. In his opinion, Alito writes that the Supreme Court didn’t properly address the constitutionality of Hastings’ policy and is setting precedent that could stifle free speech.

“Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups,” Alito writes.

Joining Alito in the dissenting opinion were Chief Justice John Roberts as well as Associate Justices Antonin Scalia and Clarence Thomas.

In the majority opinion, Ginsburg notes as an official group, the Christian Legal Society chapter would be entitled to financial assistance from the school derived from mandatory student fees. She says current policy “ensures that no Hastings student is forced to fund a group that would reject her as a member.”

Additionally, Ginsburg emphasizes that although Hastings may exclude the Christian Legal Society chapter as an official group — or as a registered student organization — the organization still has some capacity to meet and communicate on campus.

“In this case, Hastings offered [Christian Legal Society] access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events,” Ginsburg writes. “Although [Christian Legal Society] could not take advantage of [certain] methods of communication … the advent of electronic media and social-networking sites reduces the importance of those channels.”

In a statement, Christopher Stoll, senior attorney for the National Center of Lesbian Rights, said the decision “affirmed the longstanding doctrine” that non-discrimination policies don’t “violate free speech when applied in a consistent and even-handed way.”

“The court rejected the dangerous argument that anti-gay groups must be given a special exemption from non-discrimination policies,” Stoll said.

NCLR was among the groups representing Outlaw, Hastings’ LGBT student group, which intervened to defend Hastings’ non-discrimination policy.

Paul Smith, who represented Outlaw, said all the respondents are “gratified” by the court’s decision said it reflects the views articulated in briefs to the court.

“The Hastings policy that all recognized and subsidized student groups have to be open to all comers is designed to … assure that educational opportunities are equally open to all, and … promote the open interchange of ideas among students,” he said.

The Hastings College of Law and the Christian Legal Society didn’t immediately respond to the Blade’s request for comment.

In a separate decision June 24, the court ruled against people seeking to keep secret the names of people who last year signed a petition to put an anti-gay referendum on the Washington State ballot.

The court determined 8-1 in Doe v. Reed that public disclosure of referendum petitions doesn’t — as a general rule — violate the First Amendment rights of signers.

But the decision left room for anti-gay activists to succeed at a lower court on the more focused question of whether making public the signatures for Referendum 71 specifically runs contrary to the U.S. Constitution. Roberts wrote the majority opinion in the decision. The sole dissenting voice in ruling came from Thomas.

The initiative in question, Referendum 71, came before Washington State residents in 2009 and threatened to abrogate the expansion of the state’s domestic partner registry. But 53 percent of the electorate voted in favor of upholding the law, keeping the registry in place.

Concurrent with the campaign against the law, people who put the anti-gay initiative on the ballot — led by Protect Marriage Washington — challenged Washington State’s Public Records Act, which requires public disclosure of the names of petition signers who put referenda on the ballot.

The U.S. District Court of the Western District of Washington issued a preliminary injunction blocking the publication of signatures, and the issue made its way to the Supreme Court.

Plaintiffs argued the law could put people who signed the petition in danger after their names became public. In defense of the statute, Washington State argued disclosure contributes to electoral integrity of the ballot process and allows the public to double-check in case a mistake is made.

Roberts affirms in the majority opinion the arguments that public disclosure promotes electoral integrity and concludes the disclosure law enables the public to find potential mistakes or instances of forgery.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” he writes. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Roberts also rejects the assertion from plaintiffs that the court should overturn the disclosure law on the basis that disclosure of the names of people who signed the Referendum 71 petition would place these signers in danger.

The chief justice says the question before the court isn’t whether “disclosure violates the First Amendment with respect to those who signed the R-71 petition,” but whether this disclosure “in general violates the First Amendment rights of those who sign referendum petitions.”

“The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R-71 petition, or on similarly controversial ones,” Roberts writes.

Roberts says the court must reject this broad challenge to all disclosure laws, but says this ruling doesn’t necessarily “foreclose a litigant’s success” in a narrower challenge before the district court. The chief justice recalls how the court previously determined withholding names may be appropriate in some instances with “reasonable probability” that individuals would be harassed.

In a statement, Anne Levinson, chair of Washington Families Standing Together, which fought to maintain the state’s domestic partnership law, praised the high court’s decision.

She said the Supreme Court made clear that public disclosure laws ensure “measures are not put on the ballot by fraudulent means or mistake.”

“Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights,” she said. “Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error.”

But Larry Stickney, president of the Washington Values Alliance, said he’s “optimistic” anti-gay activists will be able to keep the petition names secret following action from the district court.

“Likely we’re going to be back in district court and we’ll be able to bring out some of the harassment and intimidation efforts that were made against Protect Marriage Washington,” he said. “We’re happy that that effort will carry on.”

Levinson dismissed the idea that people working on the campaign to overturn the domestic partner registry faced harassment and said there’s “absolutely no evidence of harassment” of signers.

“What the petitioners cite to by way of threats or other harassment, they talk about their campaign manager or other leadership in their campaign,” she said. “Those are the folks like me who were debating on TV or radio or leading a campaign effort, so that’s irrelevant to making any case about petition signers.”

Jon Davidson, legal director for Lambda Legal, said he didn’t think plaintiffs had a shot keeping the names of petitions signers under wraps in light of the “reasonable probability” standard the Supreme Court established.

“I think they are very unlikely to have any success because the standard that the Supreme Court imposed here is — in a particular case — you can only prevent disclosure if you can show a reasonable probability that disclosure will subject to threats, harassment or reprisal,” he said. “So not the possibility — not that it could happen — but a reasonable probability that it will happen.”

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Tennessee

Tenn. lawmakers pass transgender “watch list” bill

State Senate to consider measure on Wednesday

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Tennessee, gay news, Washington Blade
Image of the transgender flag with the Tennessee flag in the shape of the state over it. (Image public domain)

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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Glisten’s 30th annual Day of Silence to take place April 10

Campaign began as student-led protests against anti-LGBTQ bullying, discrimination

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(Photo courtesy of Glisten)

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.”

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South Carolina

Man faces first S.C. ‘hate intimidation’ charge 

Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1

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The South Carolina flag waving over the state. (Washington Blade Photo by Michael K. Lavers)

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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