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BREAKING: Senate confirms first out gay male to federal bench

Oetken approved by vote of 80-13

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J. Paul Oetken (Blade file photo by Michael Key)

The U.S. Senate made history on Monday by confirming for the first time ever an openly gay male to serve as a federal judge.

By a vote of 80-13, the Senate confirmed J. Paul Oetken, whom President Obama nominated in January to sit on the U.S. District Court for the Southern District of New York. A simple majority was required to confirm Oetken.

Joe Solmonese, president of the Human Rights Campaign, praised the Senate for what he said was a “historic vote” in confirming an openly gay male to the federal bench.

“Confirmation of Paul Oetken serves as a role model for all LGBT people interested in serving on the judiciary and shows LGBT youth that hard work pays off,” Solmonese said.

Shin Inouye, a White House spokesperson, also commended the Senate for confirming Obama’s nomination in a statement, although he made no mention of the nominee’s sexual orientation.

“The president welcomes the confirmation of Mr. Oetken and is confident that he will serve the American people with distinction from the district court bench,” Inouye said.

Denis Dison, spokesperson for the Gay & Lesbian Victory Fund, said the LGBT community still has “a lot of ‘firsts’ to achieve” and the Oetken confirmation is “great news.” The Victory Fund has been advocating for LGBT appointments in the Obama administration through its Presidential Appointments Project.

“It wasn’t even two decades ago that openly LGBT people had a hard time even being considered for a presidential appointment, and some who got nominated faced fierce opposition in the Senate,” Dison said. “Today, more than 200 LGBT Americans have been appointed by President Obama, and more than 25 of those were nominated for Senate-confirmable positions.”

No Democrat voted against the Oetken nomination. The Republican votes against the nomination were Sens. Roy Blunt (R-Mo.), John Boozman (R-Ark.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Jim DeMint (R-S.C.), Orrin Hatch (R-Utah), Kay Bailey Hutchison (R-Texas), Mike Lee (R-Utah), Jerry Moran (R-Ky.) James Risch (R-Idaho), Pat Roberts (R-Kansas) and Roger Wicker (R-Miss.) as well as Senate Minority Leader Mitch McConnell (R-Ky.).

Senators who didn’t vote on the nomination were Sens. Kay Hagan (D-N.C.), James Inhofe (R-Okla.), Lisa Murkowski (R-Alaska), Rand Paul (R-Ky.), Marco Rubio (R-Fla.), Pat Toomey (R-Pa.) and David Vitter (R-La.).

Oetken is first openly gay male to be confirmed to the federal bench, but not the first openly LGBT person. U.S. District Judge Deborah Batts, an out lesbian who currently sits on the U.S. District Court for the Southern District of New York, is considered the first openly LGBT person to sit on a federal court. She was appointed during the Clinton Administration.

U.S. District Judge Vaughn Walker, who ruled against California’s ban on same-sex marriage Proposition 8 last year, has also come out as gay. However, he only told reporters about his sexual orientation after he retired from the bench.

With only two openly gay people confirmed by the Senate to the federal bench, Solmonese said greater representation of LGBT people is still needed on the judiciary.

“The federal bench is greatly lacking LGBT diversity and with thousands of qualified LGBT attorneys in the [United States], there is no reason why the federal bench should not better reflect the composition of our country,” Solmonese said.

The Senate confirmed Oetken to the position after 30 minutes of debate in which senators from both sides of the aisle praised Oetken and encouraged senators to vote for his nomination.

Sen. Chuck Schumer (D-N.Y.), who recommended the nomination to Obama, praised Oetken on the Senate floor for his excellence in legal work and the moderation of his views, but also made special note of his sexual orientation.

“As the first openly gay man to be confirmed as a federal judge and to serve on the federal bench, he will be a symbol of how much we have achieved as a country in just the last few decades,” Schumer said. “And importantly, he will give hope to many talented young lawyers who, until now, thought their paths might be limited because of their sexual orientation. When Paul becomes Judge Oetken, he will be living proof to all those young lawyers that it really does get better.”

Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, which approved Oetken unanimously by voice vote in April, also extolled how the confirmation of Oetken and said people should be proud of President Obama “for taking this critical step to break down another barrier and increase diversity in the federal judiciary.”

“All of us in the Senate can also be proud that Mr. Oetken was reported with the support of every member of the Judiciary Committee — Democratic and Republican — and will be confirmed by what I believe will be an overwhelming vote in the Senate,” Leahy said. “It is a sign that, as a nation, we have taken a new and welcome step on the path of ensuring that our Federal judiciary better reflects all Americans.”

Sen. Charles Grassley (R-Iowa), ranking Republican of the Senate Judiciary Committee, also spoke favorably of Oetken on the Senate floor — calling the nominee “qualified” and noting the nominee hails from his home state of Iowa — while encouraging other senators to vote for the nomination. However, Grassley didn’t mention Oetken’s sexual orientation on the floor of the Senate.

“I support this nomination and congratulate him on his professional accomplishments,” Grassley said.

Oetken has practiced law at Debevoise and Plimpton, and since 2004, served as associate general counsel at Cablevision. From 1999 to 2001, Oetken was associate counsel to President Clinton and specialized in First Amendment issues, presidential appointments, ethics, civil rights, and legal policy.

Additionally, Oetken served in various capacities as an LGBT advocate. The nominee has been involved with Lambda Legal and the American Civil Liberties Union. Oetken also co-authored a U.S. Supreme Court friend-of-the-court brief in Lawrence v. Texas, which struck down sodomy laws throughout the country.

Oetken isn’t the only openly gay judicial nominee that the Senate has advanced closer to a position on the federal bench. Last week, the Senate Judiciary Committee approved by a vote of 14-4 the nomination of Alison Nathan, an out lesbian whom Obama also selected to serve on the U.S. District Court for the Southern District of New York.

Another openly gay judicial nominee, Edward DuMont, has been nominated for a position on the U.S. Court of Appeals for the Federal Circuit. The Senate Judiciary Committee has yet to take up his nomination.

UPDATE: In a statement provided to the Washington Blade, Hagan, one of the senators who didn’t vote on the Oetken nomination, praised the Senate confirmation of the appointee.

“I applaud the overwhelming bipartisan support for the nomination of Paul Oetken to the U.S. District Court for the Southern District of New York,” Hagan said. “A great day for the LGBT community and the nation.”

Sadie Weiner, a Hagan spokesperson, said the North Carolina Democrat didn’t vote on the Oetken nomination because the senator was delayed while traveling by aircraft.

“On Monday, Senator Hagan was in Charlotte to speak to a camp for high-school aged young women interested in pursuing studies and careers in high technology industries,” Weiner said. “Her scheduled flight from Charlotte back to Washington was delayed several times causing her to miss the Senate vote on Judge Oetken’s nomination.”

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Dance parties: End-of-summer fun or monkeypox super-spreaders?

Health officials urge precautions as cases reach 12,689

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Health officials are urging precautions on monkeypox amid end of the summer gay dance parties. (Blade file photo by Daniel Truitt)

This is the time of year when gay men say farewell to summer with trips to the beach and resort towns for festivities, parties, and other revelry consisting of shirtless dancing and various forms of intimate contact — now a potential health risk as super-spreader events amid a monkeypox outbreak that continues to spread among men who have sex with men.

With the number of reported cases of monkeypox in the United States reaching 12,689 and demand for vaccines failing to keep up with supply, questions remain about taking precautions like those seen during the coronavirus epidemic as health experts and event organizers point to existing guidance to ensure a reasonable degree of safety.

Wes Combs, president of the CAMP Rehoboth board of directors, said his organization from the beginning of the monkeypox outbreak has been engaging with health officials at the state level in Delaware about what people should be looking for in terms of symptoms, as well as information about how people in high-risk categories can sign up to get vaccinations.

“As is everywhere in the country right now, where LGBTQ communities have big populations people are concerned, so we have received a number of calls about more information about monkeypox, about whether or not people can get vaccinated at CAMP Rehoboth,” Combs said.

A monkeypox town hall hosted by CAMP Rehoboth in conjunction with Delaware state health officials took place Tuesday, providing an opportunity to offer the latest information and answer questions about the monkeypox outbreak. CAMP Rehoboth announced it has been identified as one of two additional sites for vaccinations in addition to what the Department of Health provides from its health centers.

Rehoboth is among the many places in the United States where gay men are expected to flock to celebrate, along with Fire Island and Provincetown on the East Coast, making vaccinations against monkeypox in high demand at a time when the Biden administration is facing criticism for not making them more widely accessible. (Gay cruises for the summer, however, may not be among these events. A Carnival Cruise Line spokesperson said the charters team has no LGBTQ cruises coming up.)

Brad Perkins, chief medical officer at Karius, Inc., when asked about appropriate guidance for these end-of-summer events advised “trying to encourage community awareness and responsibility to isolate yourself and not infect others if you believe that you’ve been exposed or know that you’re infected.”

“But the longer game here is that we don’t want this disease to become endemic in the United States,” Perkins added. “And I think there’s a short-term threat, there’s a long term threat, both of them are really important [and] I think should weigh on decisions like the one you’re suggesting people need to make.”

Perkins said Karius, which works on advanced molecular technology for diagnosis of infectious diseases, is seeking to apply microbial cell-free DNA technology to create monkeypox tests earlier than options currently available, which require a sample from already developed skin lesions. The proposed testing has detected the virus in hospital patients, Perkins said, and following research over the course of the next few months may be available on an outpatient basis.

In Rehoboth, Combs said CAMP Rehoboth as a result of work with state officials is set to obtain 200 doses of JYNNEOS vaccine and, per guidance from the Centers for Disease Control & Prevention, plans to distribute them in a two-dose regimen, with the first dose set for Aug. 23 and second one on Sept. 28. As of Tuesday, Combs said CAMP Rehoboth has already scheduled appointments for 135 shots in the two-doze regimen, which is more than two-thirds of the total available shots.

“We are in talks with the state to [see] if they are able to get additional doses to create a larger vaccination site that’s capable of having more people vaccinated,” Combs added. “Right now, it’s one person every five minutes — over the span of from nine o’clock to three — and that’s the rate based on the number of doses. But if we can get more, we will do more, and we tell that to the state.”

Many of these end-of-summer events consist of gay men engaging in shirtless dancing in close proximity with each other as well as other intimate contact, creating ideal opportunities for a disease transmitted by skin-to-skin contact.

Be honest: While participants aren’t engaging in sexual activity as part of these events per se, they can lead to sexual encounters in the aftermath with a causal partner (or causal partners should these participants elect to have group sex to close out the night).

The CDC has guidance on its website for safer sex and social gatherings amid the monkeypox outbreak, which suggests festivals, events, and concerts where attendees are fully clothed and unlikely to share skin-to-skin contact are safer, as well as being mindful of activities (even kissing) that might spread monkeypox. Enclosed spaces, such as private and public sex parties where intimate and often anonymous sexual contact with multiple partners occurs, the CDC says, may have a higher likelihood of spreading monkeypox.

During the COVID epidemic, many group events required proof of vaccination and were even cancelled in an effort to mitigate the spread of the dangerous and potentially fatal disease. The same, however, cannot be said about events during the monkeypox outbreak, where the disease can be painful, but not fatal, and the availability of vaccines has not kept up with demand.

Combs said he’s unaware of any event being cancelled in Rehoboth due to monkeypox and, in fact, its biggest fundraiser of the year, the annual Sundance dance party is on track to happen over Labor Day weekend. Additionally, Combs said he cannot foresee a proof of vaccination requirement “largely because the availability of vaccines is so difficult to get right now, and there’s…high demand and low supply.”

“Certainly we understand what worked well with COVID, and that was getting information education out to the public about how this virus is transmitted and providing as much access to vaccines as possible,” Combs said. “So the one thing that is different is the number of vaccines available seems to be much lower, so I know that there’s lots of pressure being placed on the government at all levels to ensure that they get more supply to meet the demand that appears to be there.”

Perkins, asked whether precautions taken during COVID would be appropriate for monkeypox, drew a distinction between the two diseases, pointing out “the sort of positive take on monkeypox is that we’re somewhat prepared for this threat, mostly through efforts to prepare for smallpox.”

“Certainly, the most relevant one I think the community at this point is if you think you have been exposed, or, particularly if you’ve been exposed and you’re ill, getting vaccine, accessing the vaccine that’s available, or at least discussing being vaccinated as prophylaxis or at least, if not prophylaxis, prevention of infection, at least decreasing the severity of illness if it does occur,” Perkins said. “I think as is you know, it’s one of the good news stories of the efforts that have been taken to date.”

Although to date the transmission of monkeypox has been overwhelmingly among men who have sex with men, Perkins predicted that could change.

“In fact, we’re starting to see more cases outside that circle,” Perkins said. “I would expect that that will increase unless we control this epidemic. I think that will be a certainty moving forward that we’ll see a broader distribution of cases, because certainly the transmission of this infection, unlike HIV…includes routes of transmission that are non-sexual.”

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Court rules transgender people have legal protections under ADA

Judge writes gender dysphoria not excluded under law

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A federal appeals court has become the first to rule transgender people have protections under ADA.

Transgender people have additional protections from discrimination under federal law for having a disability if they experience gender dysphoria, the U.S. Fourth Circuit Court of Appeals ruled Tuesday in a consequential decision that marks a first for a federal appeals court.

A three-judge panel on the Fourth Circuit, which has jurisdiction over Virginia, North Carolina, and South Carolina, determined the Americans with Disability Act prohibits discrimination against people with gender dysphoria — despite explicit language in the law excluding “transsexualism” and “gender identity disorder” as protected classes.

U.S. Circuit Court Judge Diana Gribbon Motz, an appointee of Bill Clinton, wrote in a 56-page decision gender dysphoria doesn’t fall under the those two categories in the law because “gender dysphoria is not a gender identity disorder.”

“[T]he ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment,'” Motz writes. “But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identity disorder’ excluded from ADA protection.”

As a result, the appeals court remanded the case for additional review to the lower trial court, which had come to the opposite conclusion and determined transgender people aren’t covered under ADA.

The case was filed by Kesha Williams, a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center. Although she was initially housed in a women’s prison, she was transferred to a man’s prison when officials learned she was transgender and was faced with delays in getting transition-related care as well as harassment from fellow inmates and prison officials.

Among the group advocating in the case for additional protections under ADA were LGBTQ groups, including GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights, which filed a friend-of-the-court brief before the Fourth Circuit.

Jennifer Levi, GLAD’s transgender rights project director, said in a statement the decision is a “huge win” for transgender advocates because “there is no principled reason to exclude transgender people from our federal civil rights laws.”

“It’s incredibly significant for a federal appeals court to affirm that the protections in our federal disability rights laws extend to transgender people,” Levi said. “It would turn disability law upside down to exclude someone from its protection because of having a stigmatized medical condition. This opinion goes a long way toward removing social and cultural barriers that keep people with treatable, but misunderstood, medical conditions from being able to thrive.”

The idea transgender people are covered under ADA has been controversial even among transgender people. On one hand, reading the law to include transgender people gives them added legal protections. On the other hand, transgender advocates have been fighting for years to make the case that being transgender isn’t a mental disorder. The American Psychiatric Association removed “gender identity disorder” as a type of mental disorder with the publication of DSM–5 in 2013, replacing it with “gender dysphoria.”

Although the Fourth Circuit is the first federal appeals court to rule transgender people have protections under the Americans with Disabilities Act, other courts have come to the same determination. In 2017, a federal trial judge in Pennsylvania ruled transgender people are able to sue in cases of discrimination under ADA despite the exclusions under the law.

CORRECTION: An earlier version of this post misattributed and mischaracterized the change to DSM-5. The Washington Blade regrets the error.

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Pennsylvania

Pennsylvania Governor bans conversion therapy using state funds

Tom Wolf signs executive order directing agencies to discourage practice

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Pennsylvania Governor Tom Wolf (D). (Photo courtesy of the Office of the Governor of Pennsylvania)

Pennsylvania Governor Tom Wolf, (D) signed an executive order Tuesday that banned use of state funds for conversion therapy and also directs state agencies to discourage conversion therapy. The order will also put measures in place to ensure state offices implement culturally appropriate care and services to LGBTQ constituents.

“Conversion therapy is a traumatic practice based on junk science that actively harms the people it supposedly seeks to treat,” said Governor Wolf in a press statement. “This discriminatory practice is widely rejected by medical and scientific professionals and has been proven to lead to worse mental health outcomes for LGBTQIA+ youth subjected to it. This is about keeping our children safe from bullying and extreme practices that harm them.”

Advocates from The Trevor Project attended Tuesday’s signing of the executive order, commemorating it as a victory for LGBTQ young people in the state. On Wednesday, The Trevor Project will be hosting a town hall meeting in Philadelphia to discuss the impact of the executive order with community members.

“Taxpayers’ dollars must never again be spent on the dangerous and discredited practice of conversion ‘therapy’ — which has been consistently associated with increased suicide risk and an estimated $9.23 billion economic burden in the U.S.,” said Troy Stevenson, Senior Campaign Manager for Advocacy and Government Affairs of The Trevor Project.

“Thank you Gov. Wolf for your leadership and for taking bold action to protect and affirm LGBTQ young people across the Commonwealth. We urge the state legislature to pass comprehensive state-wide protections and for governors across the nation to follow the Keystone State’s lead in ending this abusive practice.”

After the signing the Governor also noted:

“The Trevor Project’s Youth Mental Health Survey showed that rates of negative mental health outcomes among LGBTQIA+ youth are much lower in communities, schools and families that are accepting and supportive of LGBTQIA+ people. That’s why I signed this executive order to protect Pennsylvanians from conversion therapy and the damage it does to our communities. Because all of our youth deserve to grow up in a commonwealth that accepts and respects them.

“I want LGBTQIA+ youth and individuals across Pennsylvania to know that I stand with you. I see you, I respect you and I support you. My administration will continue to support policies to keep children safe from bullying and harmful practices.”

“We have worked tirelessly over the last year to collaboratively get this executive order drafted, through discussions with advocates, parents, and many stakeholders. With this action, the practice of conversion therapy has its days numbered in Pennsylvania​,” said Rafael Alvarez Febo, executive director of the Pennsylvania Commission on LGBTQ Affairs. “Young people should never be punished for being who they are and that’s what socalled conversion therapy does, while causing sometimes irreparable trauma to individuals.” 

With the signing of this executive order, Pennsylvania is now the 27th state in the country to enact statewide protections against the practice of conversion therapy.

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