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Carney on DOMA: ‘The administration had no choice’

Says legal issues required the administration to stop defending law

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White House Press Secretary Jay Carney (Blade photo by Michael Key)

White House Press Secretary Jay Carney on Wednesday emphasized the Obama administration “had no choice” in deciding to no longer defend the Defense of Marriage Act in court because of legal issues surrounding new litigation against the statute.

Under questioning from the Washington Blade, Carney noted the new DOMA lawsuits — Pedersen v. Office of Personnel Management and Windsor v. United States — are unique because there’s no legal precedent for handling laws relating to sexual orientation in the Second Circuit, where the cases are pending.

“The administration had no choice,” Carney said. “It was under a court-imposed deadline to make this decision. This case in the Second Circuit was unique in that it lacked the precedent upon which to defend the Defense of Marriage Act in the way that this administration defended it in previous cases, and therefore, required this decision on its constitutionality, and we had to act because of the deadline.”

The Obama administration had until March 11 to respond in court to the Pedersen case, filed by Gay & Lesbian Advocates & Defenders, and the Windsor case, filed by the American Civil Liberties Union. Both lawsuits were initiated in November.

Carney maintained the president’s position on DOMA “has been consistent” and said he’s “long opposed it as unnecessary and unfair.” Full repeal of DOMA was among Obama’s campaign promises in 2008.

Still, Carney maintained the U.S. government will remain a party to the DOMA cases to allow them to proceed and help facilitate efforts from Congress to defend the statute if lawmakers desire to do so.

“The administration will do everything it can to assist Congress if it so wishes to do that,” Carney said. “We recognize and respect that there are other points of view and other opinions about this.”

Carney also emphasized the Obama administration would continue enforcement of DOMA. Asked whether there could be any outcome at the district or appellate level that would prompt the president to discontinue enforcement of the statute, Carney replied, “You’re asking me to speculate. I would also note that the president is obligated to enforce the law.”

Asked by the Associated Press whether this decision is related to the president’s position on same-sex marriage, Carney said Obama’s position on marriage rights for gay couples is “distinct from the legal decision.” Obama has said he’s “wrestling” with the idea of same-sex marriage and suggested his position could evolve, but hasn’t yet endorsed marriage equality.

“I would refer you just to his fairly recent statements on that,” Carney said. “He’s grappling with the issue, but he, again, I want to make the distinction between his personal views, which he has discussed, and the legal issue, the legal decision that was made today.”

Carney also responded to a statement from the U.S. House Speaker John Boehner’s (R-Ohio) office criticizing the decision. In a statement to the Blade, Boehner spokesperson Michael Steel wrote, “While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

In response, Carney said the president is indeed focused on economic growth and job creation even as he makes the new decision on defending DOMA.

“We are also absolutely focused and committed on these key issues of economic growth and job creation, and we are now anticipating that this will move to the courts and the courts will decide,” Carney said. “And meanwhile, we will continue to focus on job creation and economic growth and ‘Winning the Future.'”

Carney deferred to the Justice Department in response to a question on whether the decision applies to all present and future cases or if the administration won’t defend DOMA in only the four currently pending cases — the new litigation in the Second Circuit and Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, which are pending before the First Circuit.

“My understanding is that because of the decision about the constitutionality of DOMA, and the position that the administration has taken, we will no longer defend DOMA going forward,” Carney said.

A partial transcript of Carney’s remarks on the DOMA announcement follows:

Associated Press: Could you walk us through on how the president’s position on the Defense of Marriage Act has evolved and how he came to the decision over at the Justice Department to no longer defend its constitutionality?

Jay Carney: Yes. The president’s position on the Defense of Marriage Act has been consistent. He has long opposed it as unnecessary and unfair.

Separate from that, or distinct from that, is the decision that was announced today, which was brought on by a court imposed deadline by the Second Circuit that required a decision by the administration about whether or not this case should require heightened scrutiny, heightened constitutional review, because this unlike the other cases in other circuits, there was no precedent, no foundation on which the administration could defend the Defense of Marriage Act in this case.

Therefore, it had to basically make a positive assertion about its constitutionality. The attorney general recommended that higher level of scrutiny be applied, and under that higher level of scrutiny, deemed or recommended it be viewed as unconstitutional.

The president reviewed that recommendation and concurred. Therefore, again because of the court-imposed deadline and the necessity that this decision be made, our announcement was made.

AP: But, in making that decision, is the president saying that he believes that marriage does not necessarily have to be between one man and one woman — that that cannot be constitutionally imposed?

Carney: The president’s personal view on same-sex marriage I think you all have heard him discuss as recently as the press conference at the end of last year. That is distinct from this legal decision and he — again, the attorney general and the president — were under a court-imposed deadline to make a decision in this case, and they did.

And the president — let me make a couple of points about it — the decision is that we will — the administration will not defend the Defense of Marriage Act in the Second Circuit. Furthermore, the president directed the attorney general not to defend — because of the decision that it is not constitutional — defend the Defense of Marriage Act in any other circuit in any other case.

Let me also make clear, however, that the administration that the United States government will still be a party to those cases in order to allow those cases to proceed, so that the courts can make a final determination about its constitutionality and also so that other interested parties are able to take up the defense of the Defense of Marriage Act if they so wish, in particular, Congress or members of Congress who want to proceed and defend the law in these cases. The administration will do everything it can to assist Congress if it so wishes to do that. We recognize and respect that there are other points of view and other opinions about this.

It is also important to note that the enforcement of the Defense of Marriage Act continues. The president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.

AP: This raises questions given the president has said his own personal position is evolving. Can you tell us where his position on gay marriage stands at this point?

Carney: I would refer you just to his fairly recent statements on that. He’s grappling with the issue, but he, again, I want to make the distinction between his personal views, which he has discussed, and the legal issue, the legal decision that was made today.

Let me move on.

Washington Blade: Jay, I got a few questions for you on the DOMA decision. Just — what kind of reaction are you expecting from Congress as a result of this decision and what is the administration doing to prepare for that?

Carney: Tell me again, I’m sorry, what kind of reaction?

Blade: — are you expecting from Congress. Any sort of backlash from Congress — what are doing to prepare for that?

Carney: I don’t want to speculate about how members of Congress might react. We have, I believe, and if you haven’t seen these,  you should, the attorney general has both put out a statement and there’s a notification or a letter to Congress that explains the course of action that’s being taken, but beyond that I don’t — I wouldn’t want to speculate.

Blade: I got a statement from Speaker Boehner’s office on this issue. This is from their press office: “While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.” What’s your response to that?

Carney: Well, I would say simply as I said in the beginning. The administration had no choice. It was under a court-imposed deadline to make this decision. This case in the Second Circuit was unique in that it lacked the precedent upon which to defend the Defense of Marriage Act in the way that this administration defended it in previous cases, and therefore, required this decision on its constitutionality, and we had to act because of the deadline.

We are also absolutely focused and committed on these key issues of economic growth and job creation, and we are now anticipating that this will move to the courts and the courts will decide. And meanwhile, we will continue to focus on job creation and economic growth and “Winning the Future.”

Blade: Just to be clear, just to be clear — will this decision — does it just apply to the four pending lawsuits on DOMA or does it apply to any and every lawsuit for DOMA in the future?

Carney: I would refer you — I’m not a lawyer — but I would refer you to the Justice Department. My understanding is that because of the decision about the constitutionality of DOMA, and the position that the administration has taken, we will no longer defend DOMA going forward. We will, however, continue to enforce it and we will continue to be participants in the cases to allow those cases to continue and be resolved, and so that Congress or members of Congress can pursue the defense if they so desire.

Blade: One last question. One last question. Is there any outcome at the district or appellate level that would persuade the Obama administration to volunteer discontinuing enforcement of DOMA throughout the nation?

Carney: You’re asking me to speculate. I would also note that the president is obligated to enforce the law.

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Georgia

Kemp signs Ga. healthcare ban targeting transgender, nonbinary youth

Advocacy groups condemned the law

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Georgia State Capitol (Washington Blade photo by Michael K. Lavers)

Georgia’s Republican Gov. Brian Kemp on Thursday signed a ban on guideline-directed gender-affirming healthcare for transgender and nonbinary youth that was passed earlier this week by the GOP-controlled state legislature.

The law threatens to revoke the medical licenses of physicians who administer treatments for gender dysphoria in minor patients that are overwhelmingly considered safe, effective, and medically necessary by every scientific and medical society with relevant clinical expertise.

A previous version of Senate Bill 140 applied exclusively to surgical interventions, but the version signed into law Thursday also prohibits hormone replacement therapies, although treatment with puberty blockers is still allowed.

The move by GOP legislators to expand the healthcare interventions covered by the legislation follows pressure from conservatives like far-right U.S. Rep. Marjorie Taylor Greene, who represents Georgia’s 14th Congressional District in the House and urged the state’s lawmakers last week to make the bill more restrictive.

At the time, Greene also objected to the draft bill’s “limited exceptions” carved out for cases where patients are treated for conditions other than gender dysphoria, including those diagnosed with “a medically verifiable disorder of sex development,” provided the physician can attest they are medically necessary.

These provisions were kept intact in the bill’s final iteration, which contains additional exceptions for the treatment of partial androgen insensitivity syndrome and in circumstances where the minor patient was being treated with hormone replacement therapies prior to July 1, 2023.

A chorus of objections to and condemnations of the legislation have come from LGBTQ groups, along with legal and civil rights advocacy organizations and medical societies, clinicians, and scientists, including the Georgia Psychological Association.

The Human Rights Campaign, America’s largest LGBTQ advocacy group, issued a statement shortly after Kemp signed the bill Thursday, declaring that Georgia had become “the largest state to legislatively enact such a discriminatory ban.”

“Governor Kemp should be ashamed of himself — taking life-saving care away from vulnerable youth is a disgusting and indefensible act,” Human Rights Campaign State Legislative Director and Senior Counsel Cathryn Oakley said in the statement. “This law harms transgender youth and terrorizes their families, but helps no one.”

Despite the wave of legislation across the country barring access to or criminalizing gender affirming care, in most cases for minor patients, the group noted in Thursday’s release that “polling by Patinkin Research Strategies released this month shows that only 26 percent of likely November 2024 voters in Georgia supported the legislation, while 66 percent opposed it” including 63 percent of independent and 59 percent of likely Republican voters.

According to the findings of a Human Rights Campaign study that were announced Wednesday, “more than half (50.4 percent) of trans youth (ages 13-17) have lost or are at risk of losing access to age appropriate, medically necessary gender-affirming care in their state” – care, the group stressed, that “can be lifesaving.”

Following the Georgia legislature’s passage of the SB 140 earlier this week, the ACLU warned it would “[interfere] with the rights of Georgia parents to get life-saving medical treatment for their children” and prevent “physicians from properly caring for their patients.”

The Southern Poverty Law Center released a statement by Beth Littrell, the organization’s senior supervising attorney for its LGBTQ and Special Litigation Practice Group, calling the bill a “cynical partisan attack on transgender youth, medical autonomy, and parental rights” and urging Kemp to “leave personal healthcare decisions in the capable hands of parents, children, and their doctors.”

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U.S. Federal Courts

Families with trans kids sue Fla. over trans youth healthcare ban

Republican Gov. Ron DeSantis signed bill on March 16

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Florida_Gov_Ron_DeSantis_with_Florida_Surgeon_General_Dr_Joseph_Ladapo
Florida's Governor Ron DeSantis & Surgeon General, Dr. Joseph Ladapo (Screenshot/YouTube WTXL ABC 7 Tallahassee)

A lawsuit on behalf of four families with transgender children was filed Thursday in U.S. District Court for the Northern District of Florida, challenging the state’s Boards of Medicine and Osteopathic Medicine’s ban on gender affirming healthcare for minors.

The legal groups representing the four families, GLBTQ Legal Advocates and Defenders (GLAD), the National Center for Lesbian Rights, the Human Rights Campaign and the Southern Legal Counsel, Inc., noted in the suit that the bans contradict guidelines established through years of clinical research and recommended by every major medical association including the American Academy of Pediatrics, the American Medical Association, and the American Academy of Child and Adolescent Psychiatry.

The lawsuit also spells out that the policies unlawfully strips parents of the right to make informed decisions about their children’s medical treatment and violates the equal protection rights of transgender youth by denying them medically necessary, doctor-recommended healthcare to treat their gender dysphoria. 

The enactment of Florida’s transgender healthcare ban, which went into effect on March 16 has faced considerable scrutiny as a politically-motivated process instigated at the urging of the governor and ignoring established medical and scientific consensus on medical care for transgender youth. 

Statewide LGBTQ Equality rights advocacy group Equality Florida has decried the ban saying it was little more than a cultural war maneuver by Republican Gov. Ron DeSantis who is widely expected to announce a run for the presidency in 2024.

In the summer of 2022, Florida Surgeon General Joseph Ladapo and the Department of Health asked the state Boards of Medicine and Osteopathic Medicine to adopt a categorical ban on all treatment of gender dysphoria for people under 18.

In February and March 2023, respectively, the boards adopted formal rules prohibiting all access to safe, effective medical treatments for trans youth who have received a gender dysphoria diagnosis but who have not yet begun puberty delaying medication or hormone treatments. Surgeon General Ladapo and all members of the Florida Boards of Medicine and Osteopathic Medicine are defendants in the families’ suit challenging the ban.

“This policy came about through a political process with a predetermined conclusion, and it stands in direct contrast to the overwhelming weight of the evidence and science,” said Simone Chriss, director of the Southern Legal Counsel’s Transgender Rights Initiative. “There is an unbelievable degree of hypocrisy when a state that holds itself out as being deeply concerned with protecting ‘parents’ rights’ strips parents of their right to ensure their children receive appropriate medical care. I have worked with families and their healthcare providers in Florida for many years. They work tirelessly every day to ensure the best health outcomes for their kids and patients, and they are worried sick about the devastating impacts that this ban will have.”

“The Florida Boards of Medicine chose to ignore the evidence and science in front of them and instead put families in the unthinkable position of not being able to provide essential healthcare for their kids,” said Jennifer Levi, GLAD’s Senior Director of Transgender and Queer Rights.

“Parents, not the government, should make healthcare decisions for their children,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “This policy crosses a dangerous line and should concern anyone who cares about family privacy or the ability of doctors to do their jobs without undue government interference.”    

“It’s alarming to see such a concerted, top-down effort to target a small and vulnerable population,” said Human Rights Campaign Legal Director Sarah Warbelow. “The Florida Surgeon General, Department of Health and Boards of Medicine should be focused on the real and serious public health issues Florida faces, not on putting transgender kids and their families in harm’s way.”

In a press statement by the legal teams representing them, the four families also weighed in:

“Like most parents, my husband and I want nothing more than for our daughter to be healthy, happy, and safe,” said Jane Doe speaking about her 11-year-old daughter, Susan. “Being able to consult with our team of doctors to understand what our daughter is experiencing and make the best, most informed decisions about her care has been critically important for our family. She is a happy, confident child, but this ban takes away our right to provide her with the next step in her recommended treatment when she reaches puberty. The military doctors we work with understand the importance of providing that evidence-based, individualized care. We’re proud to serve our country, but we are being treated differently than other military families because of a decision by politicians in the state where we are stationed. We have no choice but to fight this ban to protect our daughter’s physical and mental health.”

“This ban puts me and other Florida parents in the nightmare position of not being able to help our child when they need us most,” said Brenda Boe, who is challenging the ban on behalf of herself and her 14-year-old son, Bennett Boe. “My son has a right to receive appropriate, evidence-based medical care. He was finally getting to a place where he felt hopeful, where being prescribed testosterone was on the horizon and he could see a future for himself in his own body. That has been ripped away by this cruel and discriminatory rule.” 

“Working with our healthcare team to understand what my daughter is experiencing and learning there are established, effective treatments that are already helping her to thrive has been an incredible relief,” said Fiona Foe, who is challenging the ban on behalf of herself and her 10-year-old daughter, Freya Foe. “I know everyone may not understand what it means to have a transgender child, but taking away our opportunity to help our daughter live a healthy and happy life is cruel and unfair.”

“Our daughter has been saying she is a girl since she was three — it hasn’t gone away,” said Carla Coe, a plaintiff in the lawsuit along with her 9-year-old daughter, Christina Coe. “Since she started being able to live as a girl she has been so much happier and better adjusted. Having the resources and support to make the best decisions for her wellbeing has been so important for our family. I’m scared this ban will take away the essential medical care she may need when she gets older. We just want to do what’s right for our kid.”

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Florida

DeSantis eyes expansion of anti-LGBTQ “Don’t Say Gay” law

White House Press Secretary Karine Jean-Pierre condemned the move Wednesday

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Florida Gov. Ron DeSantis (R) (Photo credit: office of the Governor)

Florida’s Republican Gov. Ron DeSantis is aiming to expand the state’s controversial “Don’t Say Gay” law, officially known as the Parental Rights in Education Act, such that it would apply to public school classrooms from pre-K through grade 12.

The existing law, which was enacted last year, prohibits discussion or classroom instruction on sexual orientation and gender identity for public school students from kindergarten through third grade.

The Orlando Sentinel first reported the proposal to expand the statute, which was made at the behest of Florida’s DeSantis appointed and avowedly anti-LGBTQ Education Commissioner Manny Diaz Jr.

Exemptions are carved out in cases where otherwise prohibited materials are included in existing state standards or constitute part of reproductive health instruction, provided that parents or students are able to opt-out.

Asked for a reaction to DeSantis’s proposed expansion of the “Don’t Say Gay” law during a press briefing Wednesday, White House Press Secretary Karine Jean-Pierre spoke out against the move by the Florida Governor:

“Yeah.  It’s wrong.  It’s completely, utterly wrong.  And we’ve been crystal clear about that, when it comes to the ‘Don’t Say Gay’ bill and other — other actions that this governor has taken in the state of Florida.”

But make no mistake, this is a part of a disturbing and dangerous trend that we’re seeing across the country of legislations that are anti-LGBTQI+, anti-trans, anti the community in a way that we have not seen it in some time. And so — and it’s not just the LGBTQI+ community.  We’re talking about students.  We’re talking about educators.  We’re talking about, just, individuals.”

The President has been very clear, this administration has been very clear: We will continue to fight for the dignity of — of Americans, for the dignity and respect of the community, of opportunity that should be given to students and families in Florida and across the country.”

So, again, this is just plain wrong, and we’re going to continue to speak against — speak out against it,” Jean-Pierre said.

Brandon Wolf, Press Secretary for Equality Florida, the largest state-wide LGBTQ+ equality rights and advocacy organization, released the following statement:

“After a year’s worth of gaslighting and assurances that the Don’t Say LGBTQ law was narrowly focused, the DeSantis Administration is now saying the quiet part out loud: they believe that it is never appropriate to acknowledge the existence of LGBTQ people, or our contributions to society, in schools. This time, the governor is placing the crosshairs squarely on individual educators, threatening their professional licenses for making mention of the LGBTQ community in any grade level.

The Board of Education’s proposed rule would see more books with LGBTQ characters ripped from school shelves, more discussion of diverse families muzzled, and further character assassination of hardworking teachers in Florida. Free states don’t ban books. Free states don’t censor communities out of classrooms. Free states don’t copy/paste their political agendas from the likes of Vladimir Putin.”

This proposed rule is yet more government power being perverted to serve Ron DeSantis’ desperation to run for President. And its consequences will weigh most heavily on those who have already been forced to bear the brunt of his insatiable lust for power.“

Equality Florida also noted that while the DeSantis Administration has rejected requests to clarify the law’s vague, unconstitutional language, its proposal would add legal liability for individual educators, threatening their professional licenses for violations. The proposed rule is scheduled for a vote by the State Board of Education at their meeting on April 19 in Tallahassee.

DeSantis is considering a run for the presidency and has made culture war issues the forefront of his administration’s policies.

Former openly gay Florida Democratic State Rep. Carlos Guillermo Smith tweeted: “It was never, ever, ever, ever about kindergarten thru 3rd grade. It was always about demonizing us and censoring LGBTQ people out of existence in our schools.”

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