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Court declares Prop 8 unconstitutional

Scope of ruling limited to California; appeal planned

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In a two-to-one decision, a panel of the Ninth Circuit Court of Appeals has ruled that Proposition 8 is unconstitutional in a federal case challenging California’s marriage ban.

The opinion, authored by Judge Stephen Reinhardt, affirms Judge Vaughn Walker’s 2010 ruling that the law passed by California voters at the ballot violates the Equal Protection clause of the 14th Amendment to the U.S. Constitution because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

The court also rejected the argument that Judge Walker should have recused himself from the case because of his sexual orientation and relationship status.

Legal experts began to weigh in on the meaning of the decision immediately.

“I think the biggest story is how narrow [the majority decision] really is,” Douglas NeJaime, associate professor at Loyola Law School, Los Angeles, told the Blade Tuesday. “Which in some ways I think that might disappoint some folks who were hoping it would expand to more states, but I think in terms of setting it up for a Supreme Court review — either the Supreme Court not taking it, or approving it — for supporters of same-sex marriage, this is actually the most strategically sound way for the case to proceed.”

Legal experts agree that the decision represents a big win for same-sex couples in California, even though it was a narrow decision limited to California. The Ninth Circuit encompasses multiple Western states and some Prop 8 opponents had hoped the court’s decision would impact a wider swath of the country.

“The decision is a very narrow decision striking down Proposition 8 on grounds that are very unique to California,” NeJaime told the Blade. “What this doesn’t do is directly affect the laws of the majority of states that don’t allow same-sex couples to marry. It doesn’t announce that same-sex couples have a right to marry under the federal Constitution, and it doesn’t engage the question of whether sexual orientation-based classifications should be subjected to some heightened form of scrutiny under the federal Constitution. So it’s a very narrow ruling that only directly impacts the law in California.”

If left to stand, however, what the decision would do, NeJaime says, is allow same-sex couples to marry in California.

“What you would likely have happen is a bunch of other people would file cases in other states, and you would have more litigation, and the states that have a system most directly related to the court’s ruling here, would be states that have domestic partnership or civil union statues that allow same-sex couples to have all of the same rights and benefits of different-sex couples,” NeJaime said. “So Washington, Nevada, Oregon, Hawaii, Delaware, Illinois, Rhode Island, New Jersey, those states’ laws would probably be the first to be challenged.”

Though the court sided with the plaintiffs, the ruling is stayed until the decision goes into effect, in what is called a “mandate.” This means that same-sex couples will not be able to marry in California until the Ninth Circuit lifts the stay, the Supreme Court decides to uphold the ruling or pass on the case, or the state voters decide to overturn the law at the ballot.

Proponents of Prop 8 now have 15 days to ask for what is called an ‘en banc’ decision by a larger random panel of 11 of the court’s 24 judges — a crap shoot for proponents of the law who could not guarantee the judges assigned to the panel are sympathetic. Proponents also have 90 days to appeal directly to the Supreme Court, if they so choose to skip the ‘en banc’ rehearing.

Though at the onset of the case, gay rights advocates were excited about the prospect of the case advancing to the Supreme Court where they hoped it could be used to strike down same-sex marriage bans across the nation, some legal experts say it’s not so simple.

“Everyone thought this case was going to Supreme Court, but given how narrow this ruling is, the Supreme Court might very likely just not take the case,” NeJaime told the Blade. “The Supreme Court does not have to take the case. And they might decide ‘this only affects California. We’ll let it stand. And we’ll take a case down the road.’”

“If they take the case, then the decision by the Ninth Circuit has really set it up so that the Supreme Court can affirm the decision, meaning strike down Proposition 8, by not having to reach very far.”

NeJaime said that the Reinhardt opinion, much like the Walker opinion, borrows heavily from the case law history of swing vote Supreme Court Justice Anthony Kennedy, whom NeJaime says the opinion “aims” for. Kennedy wrote the majority opinion in the Romer v. Evans case that struck down an anti-gay constitutional amendment in Colorado’s Constitution nearly 20 years ago, but that doesn’t mean the justice will help the plaintiffs change the law across the land.

“So basically because its a narrow ruling, and because the court applied the lowest form of scrutiny for equal protection purposes, the Supreme Court could affirm the decision without having to expand much on its current case law, and without having to comment on the laws of the other states. It could issue a ruling that would allow same-sex marriage in California but doesn’t affect anything else directly. That’s the preferred course of the court, is to issue narrow, incremental, case-by-case rulings, rather than broad sweeping rulings, that invalidate the majority of states’ laws in one decision.”

In 2008, more than 18,000 same-sex couples were married in California during a brief period following the decision by the California Supreme Court that barring same-sex couples from marriage violated the California Constitution. The weddings were halted by the November 2008 voter-enacted law, but the court ruled that the 18,000 marriages performed should remain valid.

For now, same-sex couples in California who did not get married during the narrow 2008 window are in legal limbo, waiting for the stay on the original Judge Walker decision to be lifted once and for all, but that could take some time.

“The mandate would issue seven days after the time for filing a petition for rehearing expires, or seven days after the denial of a petition for a rehearing,” NeJaime told the Blade. “They have 14 days to file the petition, so technically, it could issue as soon as 21 days. But more likely it will be later than that, and if they take it for a rehearing, it would be even later than that, so the soonest would be within three weeks.

“But in the meantime, there’s probably going to be additional motions to stay, so that doesn’t mean that once the mandate is issued, same-sex couples can marry,” NeJaime added.

Despite the continued wait, LGBT rights organizations were quick to hail the victory.

“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council Executive Director Jennifer Chrisler. “They, like all Americans, understand that while love makes a family, there is no denying that marriage strengthens it. These parents have raised their children to love their country, support their friends and treat their neighbors with respect. Now they only ask for the fundamental American freedom to demonstrate their love and commitment to their family through marriage.”

California-based Courage Campaign also weighed in minutes after the announcement of the ruling upholding Judge Walker’s decision.

“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign.

Even the LGBT military group Servicemembers Legal Defense Network weighed in with a statement by outgoing executive director and Army veteran Aubrey Sarvis.

“SLDN welcomes today’s important ruling by the Ninth Circuit affirming the lower court decision that Proposition 8 is unconstitutional; indeed, fairness and equality have carried the day,” said Sarvis. “This victory strengthens our case on behalf of married gay and lesbian service members and veterans as we seek to gain equal recognition, support, and benefits for them and their families. This is an historic win for supporters of full equality in the military and in our country.”

“We’re thrilled that today the Ninth Circuit reaffirmed that under our Constitution, all loving couples must be allowed to marry, regardless of the gender of either partner,” said Transgender Law Center Executive Director Masen Davis. “The state should not be in the business of policing who can marry based on gender. I’m optimistic that full equality for all our families is on the horizon.”

 

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The White House

Hundreds protest ICE killing of Renee Nicole Good in D.C.

Married queer woman shot in Minneapolis on Wednesday

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Hundreds of people took to the streets of D. C. on Thursday night to protest the killing of a U.S. citizen by a U.S. Immigration and Customs Enforcement agent.

Protests began at the busy — and increasingly queer — intersection of 14th and U Streets, N.W. There, hundreds of people held signs, shouted, and made their way to the White House to voice their dissent over the Trump-Vance administration’s choice to increase law enforcement presence across the country.

The protest, which also occurred simultaneously in cities large and small across the country, comes in the wake of the death of Minneapolis resident Renne Nicole Good at the hands of ICE Agent Jonathan Ross. Good left behind two children and a wife, Rebecca Good.

Records obtained by the Associated Press found that Ross was an Iraq War veteran and nearly two decades into his career with U.S. Border Patrol and ICE.

Good was gunned down just blocks away from where George Floyd was killed by police in 2020, sparking weeks of national protests. Minnesota officials say the FBI has blocked their access to an investigation into the fatal shooting, according to a BBC story published on Friday.

In the nation’s capital, protesters marched from the intersection of 14th and U Street to Lafayette Square, right outside the White House. Multiple D.C. organizations led the protest, most notably Free DC, a nonprofit that works to ensure the right of “self-determination” for District residents, as many local laws can be reviewed, modified, or overturned by Congress. Free DC had organized multiple protests since the Trump-Vance administration was elected.

The Washington Blade spoke to multiple protesters towards the tail end of the protest about why they came out.

Franco Molinari, from Woodbridge, Va., crossed the Potomac to partake in his first-ever protest.

“I don’t appreciate ICE and the use of federal agents being pretty much militarized against America,” Molinari said while holding a “Justice for Renee” sign. “The video of Renee being executed cartel style in her car was enough for me to want to come out, to at least do something.”

Molinari, like many others the Blade spoke with, found out about the protest on Instagram.

“It was my friend there, Sarah … had sent a link regarding the protest to a group chat. I saw it in the morning, and I thought, ‘You know what, after work, I’m head out.’”

He also shared why protesting at the White House was important.

“I already saw the response that the president gave towards the murder of Renee, and it was largely very antagonizing,” Molinari said.

President Donald Trump, along with federal leaders under him, claimed that Good “violently, willfully and viciously ran over the ICE officer.” The president’s claims have been widely discredited through multiple videos of the incident, which show Good was attempting to leave the scene rather than attacking the officer.

“I hope that anybody would be able to see that and see the response and see for themselves that it just is not correct,” Molinari said.

The Blade also spoke with leftist influencer Dave the Viking, who has more than 52,000 followers on TikTok, where he posts anti-fascist and anti-Trump videos.

“We’re out here to make sure that this regime can’t rewrite history in real time, because we all know what we saw … we’re not going to allow them to run with this narrative that they [ICE agents] were stuck in the snow and that that poor woman tried to weaponize her car, because we all saw video footage that proves otherwise,” he told the Blade. “We’re not going to let this regime, the media, or right-wing influencers try to rewrite history in real time and try to convince us we didn’t all see what we know we saw.”

Dave the Viking continued, saying he believes the perceived power of ICE and other law enforcement to act — oftentimes in deadly and unjustifiable ways — is a product of the Trump-Vance administration.

“There’s a line between fascism and anti-fascism. These motherfuckers have been pushing that envelope, trying to label an idea a terrorist organization, to the point of yesterday, crossing that line hardcore. You face the point of looking at history and saying there was this 1989, 2003 America, where we’re just going in, raiding resources. Where is this fucking 1930s Germany, where we’re going in and we’re about to just start clearing shit and pulling knots? Yeah, nope. We proved that shit yesterday.”

Two people were injured in another shooting involving federal agents, this time Border Patrol in Portland, Ore., on Thursday afternoon.

KC Lynch, who lives near American University, also spoke about her choice to protest with a group.

“I came out today because everything that ICE has done is absolutely unacceptable, not only killing this one woman, but also the fact that they’ve been imprisoning people in places that are literally, that have been literally on record by international organizations shown to be human rights violating. It’s unbelievably evil.”

Lynch also echoed Dave’s opinion about parallels between the Trump-Vance administration and the rise of Adolf Hitler in Nazi Germany.

“It’s literally what happened before the Holocaust. We should all be scared. We should all be angry. I’m so angry about it … even talking about it — I’m sorry,” she said before getting choked up.

Lynch emphasized that despite the circumstances in which people were protesting together, the sense of community was strong and powerful.

“I feel like it’s important for people to know that we’re angry, even if no policy changes come out of it, and it’s just nice to yell and be angry about it, because I feel like we’ve probably all been feeling this way, and it’s nice to be around people that are like minded and to like have a sense of community.”

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Minnesota

Reports say woman killed by ICE was part of LGBTQ community

Renee Nicole Good shot in Minneapolis on Wednesday

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(Screen capture via @maxnextsterak/X)

A U.S. Immigration and Customs Enforcement agent shot and killed a woman in Minneapolis as she attempted to drive away from law enforcement during a protest on Wednesday.

The Star Tribune newspaper identified the victim as Renee Nicole Good, 37, a Minneapolis resident who lived blocks from where she was shot in the Central neighborhood, according to reports. Donna Ganger, Good’s mother, told the Star Tribune that her daughter lived in the Twin Cities with her wife.

Multiple videos of the shooting have gone viral on social media, showing various angles of the fatal incident — including footage that shows Good getting into her car and attempting to drive away from law enforcement officers, who had their weapons drawn.

In the videos, ICE agents can be heard telling Good to “get out of the fucking car” as they attempted to arrest her. Good, who press reports say was married to a woman, ended up crashing her car into an electric pole and other vehicles. She was later transported from the scene of the shooting and died at the hospital.

President Donald Trump defended the ICE agent on Truth Social, saying the officer was “viciously” run over — a claim that coincides with Homeland Security Secretary Kristi Noem’s assessment of the situation. Noem, a South Dakota Republican, insisted the officer “fired defensive shots” at Good after she attempted to run over law enforcement agents “in an attempt to kill them — an act of domestic terrorism.”

Multiple state and local officials disputed claims that the shooting was carried out in self-defense at the same time Noem was making those assertions.

An Instagram account that appears to belong to Good describes her as a “poet and writer and wife and mom and shitty guitar strummer from Colorado; experiencing Minneapolis, MN,” accompanied by a rainbow flag emoji.

A video posted to X after the shooting shows a woman, reportedly her wife, sitting on the ground, crying and saying, “They killed my wife. I don’t know what to do.”

“We’ve dreaded this moment since the early stages of this ICE presence in Minneapolis,” Mayor Jacob Frey said during a Wednesday press conference. “Having seen the video myself, I want to tell everybody directly that [the DHS’s claim of self-defense] is bullshit. This was an agent recklessly using power that resulted in somebody dying, getting killed.”

“I have a message for ICE. To ICE, get the fuck out of Minneapolis,” Frey continued. “We do not want you here. Your stated reason for being in this city is to create some kind of safety, and you are doing exactly the opposite. People are being hurt. Families are being ripped apart. Long-term Minneapolis residents that have contributed so greatly to our city, to our culture, to our economy are being terrorized, and now somebody is dead. That’s on you, and it’s also on you to leave.”

Across the Capitol, members of the House and the Senate condemned the actions of the officer.

“There’s no indication she’s a protester, there’s nothing that at least you can see on the video, and therefore nothing that the officers on the ground could see that identify her as someone who’s set out to try to do harm to an ICE officer,” U.S. Sen. Elizabeth Warren (D-Mass.) said Wednesday night on MS NOW’s “The Weeknight.”

“There is no evidence that has been presented to justify this killing,” House Minority Leader Hakeem Jeffries (D-N.Y.) said in a statement on his website. “The masked ICE agent who pulled the trigger should be criminally investigated to the full extent of the law for acting with depraved indifference to human life.”

“ICE just killed someone in Minneapolis,” U.S. Rep. Robert Garcia (D-Calif.) the highest-ranking Democrat on the House Oversight Committee, posted on X. “This administration’s violence against communities across our country is horrific and dangerous. Oversight Democrats are demanding answers on what happened today. We need an investigation immediately.”

In a statement to the Advocate, Human Rights Campaign President Kelley Robinson wrote, “Today, a woman was senselessly killed in Minneapolis during an ICE action — a brutal reminder that this agency and the Trump regime put every community at risk, spreading fear instead of safety. Reports that she may have been part of the LGBTQ+ community underscore how often the most vulnerable pay the highest price.”

National LGBTQ Task Force President Kierra Johnson also responded to Good’s death.

“We recognize and mourn the loss of Renee Nicole Good and extend our condolences to her family, loved ones, and community,” said Johnson in a statement. “This loss of life was preventable and reprehensible, particularly coming at the hands of federal agents.”

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U.S. in midst of ‘genocidal process against trans people’: study

Attacks rooted in Nazi ideology’s views on gender

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President Trump’s administration has orchestrated myriad attacks on the trans community. (Washington Blade file photo by Michael Key)

Earlier this week, the Lemkin Institute for Genocide Prevention and Human Security issued a haunting warning. Dr. Elisa von Joeden-Forgey, president of the Lemkin Institute, stated that the U.S. is in the “early-to-mid stages of a genocidal process against trans and nonbinary and intersex people.” Dr. Gregory Santon, former president of the International Association of Genocide Scholars, flags “a hardening of categories” surrounding gender in a “totalitarian” way. 

Stanton argues that this is rooted in Nazi ideology’s surrounding gender — this same regime that killed many LGBTQIA individuals in the name of a natural “binary.” As Von Joeden-Forgey said, the queer community, alongside other “minority groups, tends to be a kind of canary in the coal mine.” 

In his first year in office, Trump and his Cabinet’s anti-trans rhetoric has only intensified, with a report released late September by journalist Ken Klippenstein in which national security officers leaked that the FBI is planning to classify trans people as “extremists.” By classifying trans people as “Nihilistic Violent Extremists,” far-right groups would have more “political (and media) cover,” as Abby Monteil reports for them, for anti-trans violence and legislation. 

While the news is terrifying, it’s not unprecedented – the fight against trans rights and classification of trans people as violent extremists was included in Project 2025, and in the past several weeks, far-right leaders’ transphobic campaign has expanded: boycotting Netflix to pressure the platform to remove trans characters, leveraging anti-trans attack ads in the Virginia governor’s race and banning professors from acknowledging that trans people exist. In fact last month, two Republican members of Congress called for the institutionalization of trans people

It’s a dangerous escalation of transphobic violence that the Human Rights Campaign has classified as an epidemic. According to an Everytown for Gun Safety report published in 2020, the number of trans people murdered in the U.S. almost doubled between 2017 and 2021. According to data released by the Gun Safety report from February 2024, 34 percent of gun homicides of trans, nonbinary, and gender expansive people remain unsolved

As Tori Cooper, director of Community Engagement for the Transgender Justice Initiative for the Human Rights Campaign Foundation, this violence serves a purpose. “The hate toward transgender and gender expansive community members is fueled by disinformation, rhetoric and ideology that treats our community as political pawns ignoring the fact that we reserve the opportunity to live our lives full without fear of harm or death,” Cooper said.

“The genocidal process,” Von Joeden-Forgey said, “is really about destroying identities, destroying groups through all sorts of means.” And just like the Nazi regime, former genocide researcher Haley Brown said, the Trump administration is fueling conspiracy theories surrounding “cultural Marixsm” — the claim that leftists, feminists, Marxists, and queer people are trying to destroy western civilization. This term, Brown states, was borrowed directly from the Nazi’s conspiracies surrounding “Cultural Bolshevism.”

As Brown explains, historians are just beginning to research the Nazis’ anti-trans violence, but what they are finding reveals a terrifying pattern wherein trans people are stripped of their identification documents, arrested and assaulted, and outright killed. 

Before World War II, Germany – especially Berlin – was a hub for transgender communities and culture. In 1919, Dr. Magnus Hirschfield, a Jewish gay sexologist and doctor, founded the Institut für Sexualwissenschaft, the Institute for Sexual Science. The Institute was groundbreaking for offering some of the first modern gender-affirming healthcare, with a trans-affirming clinic and performing some of the first gender-affirming surgeries in the 1930s for trans women Dora Richter and Lili Elbe. 

Researchers at the institute coined the term “trassexualism” in 1923, which while outdated now, was the first modern term that Dr. Hirschfield used when working with Berlin police to acquire “transvestite passes” for his patients to help them avoid arrest under public nuisance and decency laws. During the Weimar Republic, trans people could also change their names although their options were limited. In Berlin, queer press flourished after World War I along with a number of clubs welcoming gay, lesbian and trans clientele, including Eldorado, which featured trans performers on stage. 

But as Hitler rose to power, trans people were targeted. In 1933, Nazi youth and members of the Sturmabteilung ransacked the institute, stealing and burning books – one of the first book burnings of the Nazi regime. German police stopped recognizing the “transvestite” passes and issuing new ones, and under Paragraph 175, which criminalized sexual relationships with men, trans women (who were misgendered by the police) were arrested and sent to concentration camps. 

As the Lemkin Intsitute for Genocide Prevention and Human Security wrote in a statement

“The Nazis, like other genocidal groups, believed that national strength and existential 

power could only be achieved through an imposition of a strict gender binary within the racially pure ‘national community.’ A fundamentalist gender binary was a key feature of Nazi racial politics and genocide.”

History professor Laurie Marhoefer wrote for The Conversation that while trans people were targeted, there was not extensive discussion of them by the regime. But there was evidence of the transphobia behind the regime’s violence, specifically in Hermann Ferdinand Voss’s 1938 book “Ein Beitrag zum Problem des Transvestitismus.”Voss noted that during the Nazi regime, trans people could and were arrested and sent to concentration camps where they underwent forced medical experimentation (including conversion therapy and castration) and died in the gas chambers.

While there is growing recognition that gay, bisexual, and lesbian individuals were targeted during the Holocaust, few know about the trans genocide through which trans individuals were arrested, underwent forced castration and conversion therapy, and were outright killed alongside gay, lesbian, disabled and Jewish individuals in concentration camps. Historians are just beginning to undertake this research, writes Marhoefer, and to delve further into the complex racial hierarchies that affected how trans people were treated. 

As Zavier Nunn writes for Past & Present, trans people of “Aryan” racial status and those not considered to be homosexuals were sometimes spared from the worst violence and outright murder. Depending on their skills, they could even be considered for rehabilitation into the Volksgemeinschaft, or Nazi utopian community. As Nunn highlights, trans violence was much more nuanced and individualized and should be explored separately from violence against gay and lesbian individuals during the Holocaust.

Marhoefer’s research of violence against trans women, as recorded in police files (as is the persecution of gay and lesbian individuals), is groundbreaking but rare. He gave a talk at the Museum of Jewish Heritage in 2023, shortly after a 2022 civil lawsuit about denial that trans people were victims of the Holocaust. The German court recognized that trans people were victimized and killed by the Nazi regime, but in the United States, there is still a hesitancy by the wider LGBTQ community and leftist groups to acknowledge that we are living during a time of anti-trans violence, that trans people are being used as political scapegoats in order to distract from real problems of accountability and transparency around government policy.

As anti-trans legislation escalates, it’s important to remember and call out how trans violence is not only a feminist issue, it’s a human rights one as well. While Shannon Fyfe argues that the current campaigns against trans people may not fit the traditional legal definition of a genocide, the destruction and denial of life saving care, access to public spaces, and escalating violence is still immensely devastating. 

Kaamya Sharma also notes that the term “genocide” has deep geo-political implications. As she explained, “western organisations are, historically and today, apathetic to the actual lives of people in the Global South, and put moral posturing above Brown and Black lives,” so the choice to use “genocide” is a loaded one. But as the Lemkin Institute for Genocide Prevention and Human Security writes in the same statement: “The ideological constructs of transgender women promoted by gender critical ideologues are particularly genocidal. They share many features in common with other, better known, genocidal ideologies. Transgender women are represented as stealth border crosses who seek to defile the purity of cisgender women, much as Tutsi women were viewed in Hutu Power ideology and Jewish men in Nazi antisemitism.”

Trans people are not extremists, nor are they grooming children or threatening the fabric of American identity – they are human beings for whom (like all of us) gender affirming care is lifesaving. As we remember the trans lives lost decades ago and those lost this year to transphobic violence, knowing this history is the only way to stop its rewriting.  

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