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Appeals court stays Prop 8 ruling

Same-sex marriages in Calif. on hold during appeal

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A federal appeals court has reversed a decision last week by a lower court judge to lift the stay on his Aug. 4 ruling overturning Proposition 8, dashing the hopes of same-sex couples in California to quickly regain their right to marry.

A three-judge panel of the Ninth Circuit U.S. Court of Appeals in San Francisco on Monday granted a request by supporters of Prop 8 to keep the stay in place until the completion of their appeal, which is expected to continue through December.

In their two-page order, the judges said only, “Appellants’ motion for a stay of the district court’s order of Aug. 4, 2010 pending appeal is granted.”

They were referring to the Aug. 4 decision by U.S. District Court Judge Vaughn Walker declaring Prop 8’s ban on same-sex marriage null and void because it violates the U.S. Constitution’s equal protection and due process clauses.

But in an action viewed as favorable to same-sex marriage advocates, the appeals court judges also ordered that the case move forward on an expedited basis, setting strict deadlines for lawyers on both sides to file their briefs between September and November. They directed that arguments before the court would take place during the week of Dec. 6.

The action by appeals court judges Sidney Thomas, Michael Hawkins, and Edward Leavy reversed an Aug. 12 decision by Walker to lift a stay that he put in place nine days earlier.

Rather than allow same-sex marriages to resume in the state immediately upon issuing his Aug. 4 decision, Walker placed a stay on his own ruling, saying he wanted to give supporters and opponents of Prop 8 a chance to submit briefs arguing why a stay should or should not be kept in place during the appeal process.

After considering the arguments, Walker ruled Aug. 12 that a stay was not justified because allowing same-sex marriage to resume would not cause any harm to the state or its people. But he extended his stay to Aug. 18 to give the Ninth Circuit Court of Appeals a chance to decide the matter.

Unlike Walker, who issued an 11-page ruling explaining why he believed the stay should be lifted, the appeals court panel gave no explanation for its action.

However, while it rejected Walker’s decision to lift the stay, the appeals court panel appears to have given credence to Walker’s assertion in his Aug. 12 ruling that Prop 8 supporters may not have legal standing to appeal the case.

Walker noted in his Aug. 12 ruling that called for lifting the stay that the State of California may have sole legal standing to appeal a case like the one involving Prop 8. California Gov. Arnold Schwarzenegger and the state’s attorney general, Jerry Brown, have refused to defend Prop 8, forcing private advocates backing the same-sex marriage ban law to defend it in court.

Schwarzenegger and Brown have said they also oppose an appeal of Walker’s decision overturning Prop 8 and that the state would not be a party to the appeal.

“In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing,” the appeals court panel noted in its ruling Monday.

Officials with the California-based American Foundation for Equal Rights, which initiated the lawsuit by two same-sex couples that led to Walker’s decision to overturn Prop 8, sought to put an optimistic spin on the appeals court’s decision Monday to keep the stay in place.

“This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of plaintiffs’ claims on their merits,” the group said in a statement.

Ted Olson, one of the two attorneys that argued for overturning Prop 8 at the district court trial earlier this year, called the expedited appeals court schedule significant.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possibly by issuing this extremely expedited briefing schedule,” he said.

But one of the attorneys that defended Prop 8 in court had a different assessment of Monday’s decision to keep the stay in place.

“It made no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard,” said Jim Campbell, litigation staff counsel for the Alliance Defense Fund. “Refusing to stay the decision would only have created more legal confusion surrounding any same-sex unions entered while the appeal is pending. … ADF and the rest of the legal team is confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld.”

Evan Wolfson, executive director of Freedom to Marry, a same-sex marriage advocacy group, called the appeals court action “a disappointing delay for many Californians who hoped to celebrate the freedom to marry and full inclusion in society as soon as possible.”

Wolfson said that while the lawyers representing same-sex couples continue to argue the case in court, “we have more months in which to make our case in the court of public opinion.”

Rev. Anthony Evans, a D.C. minister and one of the leaders of the campaign to oppose same-sex marriage in Washington, said the appeals court’s action reflects “the will of the people and the word of God,” which he said “will prevail.”

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State Department

State Department releases annual human rights report

Antony Blinken reiterates criticism of Uganda’s Anti-Homosexuality Act

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(Photo courtesy of the Library of Congress)

Secretary of State Antony Blinken on Monday once again reiterated his criticism of Uganda’s Anti-Homosexuality Act upon release of the State Department’s annual human rights report.

“This year’s report also captures human rights abuses against members of vulnerable communities,” he told reporters. “In Afghanistan, the Taliban have limited work opportunities for women, shuttered institutions found educating girls, and increasing floggings for women and men accused of, quote, ‘immoral behavior,’ end quote. Uganda passed a draconian and discriminatory Anti-Homosexuality Act, threatening LGBTQI+ individuals with life imprisonment, even death, simply for being with the person they loved.”

Ugandan President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Uganda’s Constitutional Court earlier this month refused to “nullify the Anti-Homosexuality Act in its totality.” More than a dozen Ugandan LGBTQ activists have appealed the ruling.

Clare Byarugaba of Chapter Four Uganda, a Ugandan LGBTQ rights group, on Monday met with National Security Council Chief-of-Staff Curtis Ried. Jay Gilliam, the senior LGBTQI+ coordinator for the U.S. Agency for International Development, in February traveled to Uganda and met with LGBTQ activists who discussed the Anti-Homosexuality Act’s impact. 

“LGBTQI+ activists reported police arrested numerous individuals on the basis of their sexual orientation or gender identity and subjected many to forced anal exams, a medically discredited practice with no evidentiary value that was considered a form of cruel, inhuman, and degrading treatment and could amount to torture,” reads the human rights report.

The report, among other things, also notes Ugandan human rights activists “reported numerous instances of state and non-state actor violence and harassment against LGBTQI+ persons and noted authorities did not adequately investigate the cases.”

Report highlights anti-LGBTQ crackdowns in Ghana, Hungary, Russia

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The country’s president, Nana Akufo-Addo, has said he will not sign the measure until the Ghanaian Supreme Court rules on whether it is constitutional or not.

The human rights report notes “laws criminalizing consensual same-sex sexual conduct between adults” and “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons” are among the “significant human rights issues” in Ghana. 

The report documents Hungarian Prime Minister Viktor Orbán and members of his right-wing Fidesz party’s continued rhetoric against “gender ideology.” It also notes Russia’s ongoing crackdown against LGBTQ people that includes reports of “state actors committed violence against LGBTQI+ individuals based on their sexual orientation or gender identity, particularly in Chechnya.”

The report specifically notes Russian President Vladimir Putin on July 24 signed a law that bans “legal gender recognition, medical interventions aimed at changing the sex of a person, and gender-affirming care.” It also points out Papua New Guinea is among the countries in which consensual same-sex sexual relations remain criminalized.

The Hungarian Parliament on April 4, 2024. Prime Minister Viktor Orbán and his right-wing Fidesz party in 2023 continued their anti-LGBTQ crackdown. (Washington Blade photo by Michael K. Lavers)

The Cook Islands and Mauritius in decriminalized homosexuality in 2023.

The report notes the Namibia Supreme Court last May ruled the country must recognize same-sex marriages legally performed outside the country. The report also highlights the Indian Supreme Court’s ruling against marriage equality that it issued last October. (It later announced it would consider an appeal of the decision.)

Congress requires the State Department to release a human rights report each year. 

The Biden-Harris administration in 2021 released a memorandum that committed the U.S. to promoting LGBTQ+ and intersex rights abroad.

The full report can be read here.

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Same-sex couples vulnerable to adverse effects of climate change

Williams Institute report based on Census, federal agencies

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Beach erosion in Fire Island Pines, N.Y. (Photo courtesy of Savannah Farrell / Actum)

A new report by the Williams Institute at the UCLA School of Law finds that same-sex couples are at greater risk of experiencing the adverse effects of climate change compared to different-sex couples.

LGBTQ people in same-sex couple households disproportionately live in coastal areas and cities and areas with poorer infrastructure and less access to resources, making them more vulnerable to climate hazards.

Using U.S. Census data and climate risk assessment data from NASA and the Federal Emergency Management Agency, researchers conducted a geographic analysis to assess the climate risk impacting same-sex couples. NASA’s risk assessment focuses on changes to meteorological patterns, infrastructure and built environment, and the presence of at-risk populations. FEMA’s assessment focuses on changes in the occurrence of severe weather events, accounting for at-risk populations, the availability of services, and access to resources.

Results show counties with a higher proportion of same-sex couples are, on average, at increased risk from environmental, infrastructure, and social vulnerabilities due to climate change.

“Given the disparate impact of climate change on LGBTQ populations, climate change policies, including disaster preparedness, response, and recovery plans, must address the specific needs and vulnerabilities facing LGBTQ people,” said study co-author Ari Shaw, senior fellow and director of international programs at the Williams Institute. “Policies should focus on mitigating discriminatory housing and urban development practices, making shelters safe spaces for LGBT people, and ensuring that relief aid reaches displaced LGBTQ individuals and families.”

“Factors underlying the geographic vulnerability are crucial to understanding why same-sex couples are threatened by climate change and whether the findings in our study apply to the broader LGBTQ population,” said study co-author Lindsay Mahowald, research data analyst at the Williams Institute. “More research is needed to examine how disparities in housing, employment, and health care among LGBT people compound the geographic vulnerabilities to climate change.”

Read the report

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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