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Justice Dept. brief against DOMA lauded as ‘watershed moment’

Administration says law ‘unconstitutionally discriminates’

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LGBT rights supporters are heralding a recently filed legal brief against the Defense of Marriage Act — the first of its kind against the anti-gay law from the Obama administration — as a landmark document that will aid in bringing about the end of DOMA.

Filed on July 1 by the Justice Department, the 31-page brief argues that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional because laws related to sexual orientation under precedent of the U.S. Supreme Court should be subject to heightened scrutiny, or must be shown to advance a significant government interest to stay on the books.

“Section 3 of the Defense of Marriage Act … unconstitutionally discriminates,” the brief states. “It treats married same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons.”

The Justice Department contends LGBT people are a suspect class, or a group likely subject to differential treatment, because they’ve been subject to a history of discrimination, they exhibit immutable characteristics, and they’re minorities with limited political power. Additionally, the brief contends sexual orientation bears no relation to a person’s ability to contribute to society.

The brief argues that Congress enacted DOMA in 1996 out of motivation “in substantial part by animus toward gay and lesbian individuals and their intimate relationships” and states Congress advanced no other material interest in passing the law.

Joe Solmonese, president of the Human Rights Campaign, said in a statement that the brief represents “a watershed moment” in the LGBT rights movement.

“Now the federal government has taken that historic stand a step further and put real meat on the bones of why there is no basis for DOMA to stand,” Solmonese said. “This step represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.”

Notably, the brief recalls the U.S. government’s role in discriminating against LGBT people in its description of the ways in which LGBT people have received different treatment over the course of history. The Justice Department recalls that former President Eisenhower signed an executive order adding “sexual perversion” as grounds for dismissal for federal employees.

“The federal government enforced Executive Order 10450 zealously, engaging various agencies in intrusive investigatory techniques to purge gays and lesbians from the civilian workforce,” the brief states. “The State Department, for example, charged ‘”skilled” investigators’ with ‘interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms,’ used polygraphs on individuals accused of homosexuality who denied it, and sent inspectors to ‘every embassy, consulate and mission’ to uncover homosexuality.'”

The brief was filed in the case of Golinski v. U.S. Office of Personnel Management. Plaintiff Karen Golinski, a lesbian federal court employee, sought medical coverage for her spouse, but the U.S. government denied this coverage because of DOMA. The Justice Department asks the federal court not to dismiss this claim.

Tara Borelli, a Lambda Legal staff attorney who’s representing Golinski in the litigation, said the “very forthright way” that the brief looks at the history of discrimination against LGBT people from the U.S. government — as well as state and local governments — is particularly striking.

“It is a very honest look at the painful way that the government has discriminated against gay people and the toll that’s taken on our community,” Borelli said.

The Justice Department also responds to an earlier brief that the House, which was filed in defense of the law under the direction of Speaker John Boehner (R-Ohio). The brief was written by private attorney Paul Clement, whom Boehner hired to litigate on behalf of DOMA in the lawsuits against the anti-gay law.

At one point, the brief disputes the House’s claim that marriage should be left between one man and one woman because that union is the best situation for child-rearing.

“There is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing,” the brief states. “To the contrary, many leading medical, psychological and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and parents are as likely to be well-adjusted as children raised by heterosexual parents.”

John Aravosis, the gay editor of AMERICAblog who drew attention to the anti-gay rhetoric in the first brief in supporting DOMA that came out of the Obama administration in 2009, said the language in the most recent Justice Department brief “looked pretty amazing.” Still, he criticized the administration for filing it late on a Friday night before a holiday weekend.

“Why didn’t the president announce the existence of this brief two days earlier when meeting with the community’s leaders in the White House to celebrate the Stonewall anniversary?” Aravosis said. “The brief appears to be quite historic, so why attempt to hide it? It’s hard not to conclude that this brief was intentionally buried by the administration in order to minimize mainstream media coverage.”

The Obama administration notified plaintiffs in a document June 3 that it intended to file a brief against DOMA in the Golinski case. Tracy Schmaler, a Justice Department spokesperson, said the decision to litigate against DOMA is consistent with U.S. Attorney General Eric Holder’s announcement on Feb. 23 that the Obama administration determined that the anti-gay law is unconstitutional.

Doug NeJaime, a gay law professor at Loyola Law School, said the Golinski brief marks the “fullest elaboration of the administration’s new position” on DOMA that Holder announced to Congress in a February letter.

“We had the Holder letter and now we have a whole brief sort of spitting out the arguments that Attorney General Holder made in that letter,” NeJaime said. “It’s a really substantial brief explaining why sexual orientation should get heightened equal protection, and it fits all of the main arguments that gay rights lawyers have been hitting and that are necessary for the court to find that there’s what the administration argues are a quasi-suspect classification.”

NeJaime added he expects similar briefs in other pending lawsuits challenging the constitutionality of DOMA: Gill v. OPM, Commonwealth of Massachusetts v. Department of Health & Human Services, Pedersen v. OPM and Windsor v. United States.

Observers say the Justice Department’s decision to take an active role in attacking DOMA in these lawsuits would make the courts more apt to declare the law unconstitutional.

Borelli said the brief from the Justice Department should prompt the courts to “look with even deeper suspicion” at DOMA.

“It should help hasten DOMA’s demise because it’s very powerful that the federal government admits that gay discrimination under the law is simply not suitable,” she said.

Similarly, NeJaime said the brief from the Obama administration gives the argument against the anti-gay law “a more objective and non-advocacy type flavor.”

“It’s not just the adversarial parties before the court, it’s actually the government now saying this is the proper way to analyze this, so I think it carries a lot of weight,” NeJaime said.

But whether the administration’s brief would mean a quicker end to DOMA remains in question. Advocates previously said they expect DOMA litigation to come to the Supreme Court in 2013.

NeJaime added the Obama administration’s position on DOMA may in fact mean the process for striking down DOMA could take longer.

“If anything it may have the effect of delaying the litigation because now we have the House involved as well, and so it actually makes the litigation a little more complicated, but I do think it’s something that favors the courts striking down and eventually getting this up to the Supreme Court,” NeJaime said.

 

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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami

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Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)

 

MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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