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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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The White House

EXCLUSIVE: Garcia, Markey reintroduce bill to require US promotes LGBTQ rights abroad

International Human Rights Defense Act also calls for permanent special envoy

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The U.S. Embassy in El Salvador marks Pride in 2023. (Photo courtesy of the U.S. Embassy of El Salvador's Facebook page.)

Two lawmakers on Monday have reintroduced a bill that would require the State Department to promote LGBTQ rights abroad.

A press release notes the International Human Rights Defense Act that U.S. Sen. Edward Markey (D-Mass.) and U.S. Rep. Robert Garcia (D-Calif.) introduced would “direct” the State Department “to monitor and respond to violence against LGBTQ+ people worldwide, while creating a comprehensive plan to combat discrimination, criminalization, and hate-motivated attacks against LGBTQ+ communities” and “formally establish a special envoy to coordinate LGBTQ+ policies across the State Department.”

 “LGBTQ+ people here at home and around the world continue to face escalating violence, discrimination, and rollbacks of their rights, and we must act now,” said Garcia in the press release. “This bill will stand up for LGBTQ+ communities at home and abroad, and show the world that our nation can be a leader when it comes to protecting dignity and human rights once again.”

Markey, Garcia, and U.S. Rep. Sara Jacobs (D-Calif.) in 2023 introduced the International Human Rights Defense Act. Markey and former California Congressman Alan Lowenthal in 2019 sponsored the same bill.

The promotion of LGBTQ and intersex rights was a cornerstone of the Biden-Harris administration’s overall foreign policy.

The global LGBTQ and intersex rights movement since the Trump-Vance administration froze nearly all U.S. foreign aid has lost more than an estimated $50 million in funding.

The U.S. Agency for International Development, which funded dozens of advocacy groups around the world, officially shut down on July 1. Secretary of State Marco Rubio earlier this year said the State Department would administer the remaining 17 percent of USAID contracts that had not been cancelled.

Then-President Joe Biden in 2021 named Jessica Stern — the former executive director of Outright International — as his administration’s special U.S. envoy for the promotion of LGBTQ and intersex rights.

The Trump-Vance White House has not named anyone to the position.

Stern, who co-founded the Alliance for Diplomacy and Justice after she left the government, is among those who sharply criticized the removal of LGBTQ- and intersex-specific references from the State Department’s 2024 human rights report.

“It is deliberate erasure,” said Stern in August after the State Department released the report.

The Congressional Equality Caucus in a Sept. 9 letter to Rubio urged the State Department to once again include LGBTQ and intersex people in their annual human rights reports. Garcia, U.S. Reps. Julie Johnson (D-Texas), and Sarah McBride (D-Del.), who chair the group’s International LGBTQI+ Rights Task Force, spearheaded the letter.

“We must recommit the United States to the defense of human rights and the promotion of equality and justice around the world,” said Markey in response to the International Human Rights Defense Act that he and Garcia introduced. “It is as important as ever that we stand up and protect LGBTQ+ individuals from the Trump administration’s cruel attempts to further marginalize this community. I will continue to fight alongside LGBTQ+ individuals for a world that recognizes that LGBTQ+ rights are human rights.”

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US bishops ban gender-affirming care at Catholic hospitals

Directive adopted during meeting in Baltimore.

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A 2024 Baltimore Pride participant carries a poster in support of gender-affirming health care. (Washington Blade photo by Michael Key)

The U.S. Conference of Catholic Bishops this week adopted a directive that bans Catholic hospitals from offering gender-affirming care to their patients.

Since ‘creation is prior to us and must be received as a gift,’ we have a duty ‘to protect our humanity,’ which means first of all, ‘accepting it and respecting it as it was created,’” reads the directive the USCCB adopted during their meeting that is taking place this week in Baltimore.

The Washington Blade obtained a copy of it on Thursday.

“In order to respect the nature of the human person as a unity of body and soul, Catholic health care services must not provide or permit medical interventions, whether surgical, hormonal, or genetic, that aim not to restore but rather to alter the fundamental order of the human body in its form or function,” reads the directive. “This includes, for example, some forms of genetic engineering whose purpose is not medical treatment, as well as interventions that aim to transform sexual characteristics of a human body into those of the opposite sex (or to nullify sexual characteristics of a human body.)”

“In accord with the mission of Catholic health care, which includes serving those who are vulnerable, Catholic health care services and providers ‘must employ all appropriate resources to mitigate the suffering of those who experience gender incongruence or gender dysphoria’ and to provide for the full range of their health care needs, employing only those means that respect the fundamental order of the human body,” it adds.

The Vatican’s Dicastery for the Doctrine of the Faith in 2024 condemned gender-affirming surgeries and “gender theory.” The USCCB directive comes against the backdrop of the Trump-Vance administration’s continued attacks against the trans community.

The U.S. Supreme Court in June upheld a Tennessee law that bans gender-affirming medical interventions for minors.

Media reports earlier this month indicated the Trump-Vance administration will seek to prohibit Medicaid reimbursement for medical care to trans minors, and ban reimbursement through the Children’s Health Insurance Program for patients under 19. NPR also reported the White House is considering blocking all Medicaid and Medicare funding for hospitals that provide gender-affirming care to minors.

“The directives adopted by the USCCB will harm, not benefit transgender persons,” said Francis DeBernardo, executive director of New Ways Ministry, a Maryland-based LGBTQ Catholic organization, in a statement. “In a church called to synodal listening and dialogue, it is embarrassing, even shameful, that the bishops failed to consult transgender people, who have found that gender-affirming medical care has enhanced their lives and their relationship with God.” 

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Federal Government

Federal government reopens

Shutdown lasted 43 days.

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(Washington Blade photo by Michael Key)

President Donald Trump on Wednesday signed a bill that reopens the federal government.

Six Democrats — U.S. Reps. Jared Golden (D-Maine), Marie Gluesenkamp Perez (D-Wash.), Adam Gray (D-Calif.), Don Davis (D-N.C.), Henry Cuellar (D-Texas), and Tom Suozzi (D-N.Y.) — voted for the funding bill that passed in the U.S. House of Representatives. Two Republicans — Thomas Massie (R-Ky.) and Greg Steube (R-Fla.) — opposed it.

The 43-day shutdown is over after eight Democratic senators gave in to Republicans’ push to roll back parts of the Affordable Care Act. According to CNBC, the average ACA recipient could see premiums more than double in 2026, and about one in 10 enrollees could lose a premium tax credit altogether.

These eight senators — U.S. Sens. Catherine Cortez Masto (D-Nev.), Dick Durbin (D-Ill.), John Fetterman (D-Pa.), Maggie Hassan (D-N.H.), Tim Kaine (D-Va.), Angus King (I-Maine), Jacky Rosen (D-Nev.), and Jeanne Shaheen (D-N.H.) — sided with Republicans to pass legislation reopening the government for a set number of days. They emphasized that their primary goal was to reopen the government, with discussions about ACA tax credits to continue afterward.

None of the senators who supported the deal are up for reelection.

King said on Sunday night that the Senate deal represents “a victory” because it gives Democrats “an opportunity” to extend ACA tax credits, now that Senate Republican leaders have agreed to hold a vote on the issue in December. (The House has not made any similar commitment.)

The government’s reopening also brought a win for Democrats’ other priorities: Arizona Congresswoman Adelita Grijalva was sworn in after a record-breaking delay in swearing in, eventually becoming the 218th signer of a discharge petition to release the Epstein files.

This story is being updated as more information becomes available.

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