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Trans Houston attorney becomes judge, N.J. adopts anti-bullying bill and more

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Phyllis Frye (Photo courtesy of Outsmart Magazine)

 

Transgender Houston attorney becomes judge

HOUSTON — Thirty years ago, Phyllis Frye, a longtime LGBT activist, could have been arrested for wearing women’s clothing in the Houston City Council chamber. The Associated Press reported that Frye, a transgender Houston attorney born as Phillip Frye, fought back tears last week as the mayor appointed her to a municipal bench in the same room where she helped repeal Houston’s “cross-dressing ordinance” in 1980.

The 63-year-old will hear traffic ticket cases and other low-level misdemeanor trials, according to the AP report. Municipal judges are not elected. Frye said she would be the first transgender judge in Texas.

She knows of at least two transgender judges in other parts of the country. Frye applied for the position several months ago and was vetted before being appointed by Mayor Annise Parker, a lesbian, on Wednesday with seven other new associate judges.

“I don’t want to underplay this, because I understand it is very significant,” the AP quoted Frye as saying. “But I don’t want to overplay it either. I don’t want people to think I am anything other than an associate municipal court judge.” There was some quibbling over the appointment from the Houston Area Pastor Council, the AP reported. One local minister said she represented an “anti-family lifestyle.”

Fort Worth drops charges in gay bar fracas

FORT WORTH, Texas — More than a year after a controversial bar inspection at the Rainbow Lounge in Forth Worth, Texas, sent protesters to the streets and vaulted the city into the national spotlight, city officials have dropped charges against four bar patrons, the Fort Worth Star-Telegram reported.

The dismissals came two-and-a-half weeks before Chad Gibson, who suffered a head injury in the June 28, 2009, incident, and George Armstrong had been set to go on trial on public intoxication charges. They had both pleaded not guilty, and Gibson had also pleaded not guilty to assaulting an agent with the Texas Alcoholic Beverage Commission, the paper said.

In a statement released last week, city spokesman Jason Lamers confirmed that the misdemeanor charges against Gibson and Armstrong had been dropped. Public intoxication cases against Dylan Brown, 24, and Jose Macias, 32, were also dropped. Within hours of the fracas at the Rainbow Lounge, local and national protests erupted as patrons accused the officers of using excessive force and questioned whether the bar was targeted because of its mostly gay clientele. Investigations by Fort Worth police and the alcohol commission concluded that no excessive force was used. The commission, however, fired two agents who participated and their supervisor, citing policy violations, the Star-Telegram reported.

La. hospitals announce new visitation rules

NEW ORLEANS — The New Orleans state Department of Health and Human Services announced regulations last week that will require hospitals that receive Medicare or Medicaid financing to drop any visitation policies that discriminate against gays, lesbians and trans people, the New Orleans Times-Picayune reported.

The new rule, which will take effect in January, requires that hospitals have a written policy that must be explained to all patients and allows patients to determine who may visit them, regardless of legal relationships. Hospitals may limit visitation only if there is a clinical reason to do so, according to the rule, which will be added to the conditions for participating in the Medicaid and Medicare programs, the Times-Picayune said.

The rule will trump previous practices in many American hospitals that restricted visitors for some patients — particularly in emergency rooms and intensive care units — to spouses and immediate family, a limitation that often cut off gay and lesbian patients from their partners. The final version, which follows a draft released in June, will go into effect Jan. 16, 60 days after Wednesday’s publication in the federal register and eight months after President Barack Obama first raised the issue in a directive to Health and Human Services Secretary Kathleen Sebelius.

N.J. approves sweeping anti-bullying bill

TRENTON, N.J. — The state legislature voted by overwhelming majorities this week to approve a sweeping anti-bullying bill that could become a model for similar measures across the country, according to media reports and statements from Garden State Equality.

“As someone brutally bullied in my own youth, I can’t even begin to describe how the passage of this bill is a moment of deeply poignant, personal healing for me and thousands of others who have been bullied,” said Steven Goldstein, chair of Garden State Equality. “The best revenge is to make the world a kinder place. This legislation will make our state a kinder, safer place for students for generations to come.”

The Anti-Bullying Bill of Rights applies to schools from kindergarten through 12th grade, strengthens an existing cyber bullying law, applies to bullying off school grounds that carries into schools, and has a section that applies to the state’s public universities, according to Garden State Equality.

It is the first such bill to set deadlines for incidents of bullying to be reported, investigated and resolved. Teachers and other school personnel will have to report incidents of bullying to principals on the same day as a bullying incident. An investigation of the bullying must begin within one school day. A school will have to complete its investigation of bullying within 10 school days, after which there must be a resolution of the situation, the statewide LGBT rights group announced.

The bill passed the Senate 30-0 and the Assembly 72-1.

Philly’s settlement with Scouts draws ire of gay leaders

PHILADELPHIA — Prominent gay leaders in Philadelphia are voicing criticism of a proposed legal settlement between the city and the regional Boy Scouts organization, and a key City Councilman is balking at the deal, the Philadelphia Gay News reported.

The proposal calls for the Boy Scouts group to pay the city $500,000 to buy its 13,000-square-foot headquarters in Logan Square, the focus of a civil-rights dispute that began over the Scouts’ national ban on gay members. The price tag is less than half the appraised value of the building. But the settlement would end an expensive legal fight and the risk that city taxpayers would eventually have to pay the Scouts’ legal bills, now approaching $1 million.

Gay rights advocates say the city’s lawyers are putting financial concerns ahead of principle, appearing to subsidize the Scouts’ discrimination, Philadelphia Gay News reported. City Solicitor Shelley Smith and the Scouts’ attorney, Sandra Girifalco, had issued a joint statement last week describing their agreement as a “win-win situation” for both their clients, predicting that a necessary ordinance would be introduced the next day in City Council. But Councilman Darrell Clarke, whose district includes the property, said he wasn’t ready to introduce anything. The settlement statement had been “premature,” he said, because there hadn’t been enough communication with neighborhood residents or the gay community.

The dispute began with a 5-4 U.S. Supreme Court decision in 2000 that upheld the legality of the national organization’s ban on gay Scouts and troop leaders. That put the Scouts organization in conflict with the city charter’s ban on discrimination rooted in sexual orientation.

Former GLAAD official to head S.F. AIDS Foundation

SAN FRANCISCO — The San Francisco AIDS Foundation has appointed Neil Giuliano as its new chief executive. He’ll start Dec. 13.

Giuliano was previously head of the Gay & Lesbian Alliance Against Defamation (GLAAD) and produced its annual awards programs. He was also the mayor of Tempe, Ariz., for 10 years beginning in 1994. He plans to publish a memoir next year. The Foundation works to end HIV.

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Anti-LGBTQ Colorado baker loses Trans birthday cake court case

Phillips violated Colorado’s ant-discrimination law citing the fact that at issue was a ‘product’ not freedom of speech or expression

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Jack Phillips (Washington Blade file photo by Michael Key)

DENVER – A Colorado State District Court Judge ruled against the baker who had previously refused to bake a cake for a same-sex wedding and won at the U.S. Supreme Court a partial narrow victory in that case in 2018.

CBSN Denver reported that Denver District Judge A. Bruce Jones order that Jack Phillips violated Colorado’s anti discrimination law Tuesday citing the fact that at issue was a ‘product’ not freedom of speech or expression.

In court documents, Jones said that Phillips refusal to make the plantiff, Autumn Scardina a cake made with blue icing on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status but without a written message, was in violation of the law. Phillips was ordered to pay a $500 fine.

Jones noted in his ruling that Phillips testified during a trial in March that ‘he did not think someone could change their gender’ and he would not celebrate “somebody who thinks that they can.”

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others,‘” the judge wrote.

The Scottsdale, Arizona based Alliance Defending Freedom, an anti-LGBTQ legal group that has been place on the Southern Poverty Law Center’s Hate Watch List for spreading propaganda and lies about LGBTQ people, told CBSN that the group would appeal Jones’ ruling.

“Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” ADF’s general counsel, Kristen Waggoner, said in a media statement.

The maximum fine for each violation of Colorado’s Anti-Discrimination Act is $500. But it was not clear from the ruling if the fine was for the two attempts that Scardina made to order the cake or just one.

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Supreme Court rules for religious agency seeking to reject LGBTQ families

Unanimous decision bottled up to context of city contract

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The U.S. Supreme Court ruled on Thursday in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, issuing a decision with limited reach that determined the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.

In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.

Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.

Becket Law, which had argued in case on behalf of Catholic Social Services, crowed in a statement over its win at the Supreme Court.

“It’s a beautiful day when the highest court in the land protects foster moms and the 200-year-old religious ministry that supports them,” said Lori Windham, senior counsel at Becket. “Taking care of children, especially children who have been neglected and abused is a universal value that spans all ideological divides.

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.

“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”

The American Civil Liberties Union, which had argued before the Supreme Court in the case and sided with the City of Philadelphia, claimed a small victory after the decision.

“The decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue here,” Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project, said in a statement. “This is good news for the more than 400,000 children in foster care across the country, who are the ones who get hurt the most if placement decisions are made based on an agency’s religious beliefs rather than the child’s best interest. And this decision does not allow discrimination in other taxpayer-funded government programs such as homeless shelters, disaster relief programs and health care.”

Marianne Duddy-Burke, executive director of the LGBTQ Catholic group DignityUSA, initially issued a statement saying the decision opened the door to discrimination against LGBTQ families, but subsequently updated it with a reaction more attune to the decision’s language.

“While we are disappointed in the specifics of today’s ruling, we are relieved that the court did not allow a broad exemption to nondiscrimination provisions in foster and adoption care,” Duddy-Burke said. “It remains deeply problematic that some religiously affiliated agencies continue to seek the ability to ban same-sex couples from opening their hearts and homes to children in need and undermine our hopes for expanding our families. The biases that lie at the heart of this case need to be eradicated.”

David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.

“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”

The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.

Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”

“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.” 

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U.S. Senate to consider apology for past anti-LGBTQ discrimination

Report shows 70-year history of gov’t persecution, purges of ‘sex deviates’

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Pioneering activist Frank Kameny, who was fired from his government job for being gay, received an apology from the government decades later, but that apology did not extend to the thousands of other LGBT Americans persecuted by their government. (Blade file photo by Michael Key)

U.S. Sens. Tammy Baldwin (D-Wisc.) and Tim Kaine (D-Va.) are preparing to introduce a first-ever resolution calling on the Senate to acknowledge and apologize for the federal government’s discrimination against LGBTQ federal workers and members of the military over a period of at least 70 years.

The two senators have agreed to introduce the proposed resolution at the request of the Mattachine Society of Washington, D.C., an LGBTQ group that specializes in archival research into the federal government’s decades-long policy of banning LGBTQ people from working in federal jobs and serving in the U.S. military and purging them when found to be in those positions.

The Mattachine Society, in partnership with the international law firm McDermott Will & Emery, prepared a 28-page white paper reporting in extensive detail the U.S. government’s history of what it calls discrimination and persecution of LGBTQ federal workers and LGBTQ military service members.
The white paper is entitled, “America’s Promise of Reconciliation and Redemption: The Need for an Official Acknowledgement and Apology for the Historic Government Assault on LGBT Federal Employees and Military Personnel.”

In a statement, the Mattachine Society says the paper is the product of a two-year research project involving a team of five attorneys with the McDermott Will & Emery firm and Mattachine Society.

“Over many decades, the United States government, led by teams within the Federal Bureau of Investigation (FBI), the Office of Personnel Management (OPM), and nearly every agency and branch of government, began the process of investigating, harassing, interrogating, court-martialing, terminating, hospitalizing, and, in some cases, criminally prosecuting LGBT Americans for no other reason than their sexual orientation or gender expression,” the paper says.

“This wholesale purging left tens of thousands in financial ruin, without jobs, with personal lives destroyed, and, in many cases, completely estranged from their own families,” the paper states.

“A straightforward acknowledgement of the mistreatment of these military and civilian employees and an official apology is overdue,” the paper continues. “Both the Congress and the Executive Branch were complicit in this pervasive mistreatment of LGBT citizens.”

The paper points out that over the past 30 years Congress has officially acknowledged and apologized on six different occasions for U.S. mistreatment of other marginalized groups.

Among the subject areas of those apologies were the enslavement of African Americans, the failure to enforce anti-lynching laws to protect African Americans, the internment of Japanese Americans during World War II, the mistreatment of Native Hawaiians, the mistreatment of Native Americans, and government polices of exclusion of Chinese immigrants.

The paper says the time has come for the federal government to issue its own “acknowledgement and apology” to the LGBT community by following the precedent established by Congress with respect to apologies to the other marginalized groups.

Jeff Trammell, a Mattachine Society board member who led the project to prepare the white paper, said Baldwin and Kaine were in the process of lining up other senators to sign on as co-sponsors of the resolution.

Baldwin is the Senate’s only out lesbian member. Kaine is a longtime supporter of LGBTQ rights.
Trammell said Mattachine of Washington considers the Senate resolution the first step in an ongoing effort to obtain a similar resolution in the U.S. House of Representatives and a possible similar statement of acknowledgement and apology from the executive branch, including the Biden administration.

He said he and the resolution’s supporters were hopeful that most senators, including Republicans, would view it as non-controversial and as a nonpartisan measure because it seeks only the acknowledgement of historical facts. Trammell noted that unlike other resolutions of apology pertaining to other minorities approved by Congress in the past, the LGBT apology resolution does not call for any financial reparations.

The eight-page proposed resolution addresses that question by stating, “Nothing in this resolution…authorizes or supports any claim against the United States or serves as a settlement of any claim against the United States.”

Trammell noted that under the Obama administration, John Berry, the director of the U.S. Office of Personnel Management, issued an official government apology for the firing of D.C. gay rights pioneer Frank Kameny from his government job in the late 1950s. But Trammell said the apology to Kameny, which was considered important and groundbreaking, did not extend to the thousands of other LGBTQ employees fired or harassed in the years before and after Kameny’s firing.

The white paper also points out that at least seven U.S. allied nations have issued apologies for past mistreatment of their own LGBTQ citizens. Among them are Spain, Canada, United Kingdom, Australia, Germany, Brazil, and The Netherlands.

“We believe the time has come to understand and acknowledge the historical animus that LGBT federal employees and military personnel faced for generations from their own government to ensure it can never happen again,” Trammell said.

The white paper can be accessed here.

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