National
Calif. federal court rules against DOMA
Anti-gay law declared unconstitutional in Golinski case
A federal district court in California has declared the Defense of Marriage Act unconstitutional in a case involving a lesbian federal employee seeking benefits for her spouse.
In a decision made public on Wednesday, U.S. District Judge Jeffrey White of the U.S. District Court for the Northern District of California ruled against DOMA in the case of Golinski v. United States on the basis that the anti-gay law “unconstitutionally discriminates against married same-sex couples.”
“In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse,” White writes.
As part of the decision, White issued a “permanent injunction” preventing the U.S. government from interfering with the enrollment of Golinski’s wife in the Federal Employees Health Benefits Program.
Tara Borelli, staff attorney in Lambda Legal’s Western Regional Office in Los Angeles, praised the court for its decision.
“The court agreed with us that sexual orientation discrimination by the government should receive heightened scrutiny under the constitution,” Borelli said. “It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive.”
Lambda, along with Morrison & Foerster LLP, filed the case in 2008 on behalf of Karen Golinski, who was denied spousal health benefits by her employer, the U.S. Ninth Circuit Court of Appeals in San Francisco. Golinski has been partners with Amy Cunninghis for more than 20 years, and the two were legally married in 2008 under California law before Proposition 8 took away marriage rights for gay couples in the state.
Chief Judge Alex Kozinski ruled that it violates the Ninth Circuit’s non-discrimination policies to deny Golinski the same benefits for her spouse that the spouses of straight court employees have. But the Office of Personnel Management maintained it couldn’t grant Golinski spousal benefits because of DOMA.
The case evolved into a lawsuit over DOMA. After the Obama administration declared DOMA unconstitutional in February 2011, the Justice Department filed a brief in the Golinksi case against the anti-gay law. In April, Lambda filed an amended complaint in the case directly challenging the constitutionality of DOMA.
But the House Bipartisan Legal Advisory Group also filed briefs in the case in defense of DOMA. The group took up defense of the law in the administration’s stead at the direction of House Speaker John Boehner (R-Ohio) after voting on a party-line basis to defend the statute.
In a statement, House Minority Leader Nancy Pelosi (D-Calif.), who also represents San Francisco and Golinski in Congress, called the ruling “a victory for the liberty, civil rights, and equality of LGBT Americans and, indeed, all Americans.”
“By declaring the Defense of Marriage Act unconstitutional, we can right a wrong of our past; we can move closer to ending a fundamental unfairness in our nation; and we can look forward to the day when we discard this discriminatory law in the dustbin of history,” Pelosi said. “With this decision, our country has taken a step forward for marriage equality – a step toward a time when all of America’s families enjoy the blessings of equal protection under the law.”
Pelosi also took a dig at the BLAG for taking up defense of DOMA in the administration’s stead, saying the majority of Democrats don’t want to defend DOMA in court.
“In rejecting the arguments of the Bipartisan Legal Advisory Group, the court’s ruling also reaffirmed a core belief of the majority of House Democrats: that the House is not united in this case; that the BLAG lawyers do not speak for Congress; and that BLAG’s intervention remains a waste of taxpayer resources,” Pelosi said. “The court made it clear that there is no legitimate federal interest in denying married gay and lesbian couples the legal security, rights, and responsibilities guaranteed to all married couples under state law.”
A Boehner didn’t immediately respond to a request to comment on the ruling or whether BLAG would appeal the decision to the Ninth Circuit within the 60 day deadline.
Tom Warnke, a Lambda spokesperson, said his organization expects BLAG to appeal the case. As for timing for when Golinski would be able to receive benefits, he said his organization hopes “to know more about the question regarding access to benefits soon.”
The ruling is the first court decision made on DOMA since the Obama administration announced it would no longer defend the law in court. A White House spokesperson didn’t respond to a request to comment on the ruling. A Justice Department spokesperson declined to comment.
But White, who was appointed to the bench in 2002 by former President George W. Bush, isn’t the first judge to rule against DOMA. In July 2010, Judge Joseph Tauro of the U.S. District Court of Massachusetts ruled in the cases of Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services that DOMA is unconstitutional. Those cases are currently on appeal before the U.S. First Circuit Court of Appeals.
In a statement, Golinksi thanked the court for ruling in her favor and against the Defense of Marriage Act.
“I am profoundly grateful for the thought and consideration that Judge White gave to my case,” Golinski said. “His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues. This decision is a huge step toward equality.”
Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the decision is “very comprehensive” because it examines of the governmental interests of DOMA under both a heightened scrutiny and a lower rational basis standard of review.
“This is a smart course for the district court to take in looking down the road to potential Ninth Circuit review, especially in light of the rational-basis holding that the Ninth Circuit panel issued in [the Prop 8 case],” NeJaime said. “The heightened scrutiny portion of the decision, though, clearly evidences the impact of the Obama administration’s position on DOMA, in which Attorney General Holder set out the arguments for heightened scrutiny for sexual-orientation-based classifications.”
Pennsylvania
Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.
State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate
Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.
In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”
“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.
Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.”
In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.
He has been an active surrogate in the Biden-Harris 2024 reelection campaign.
The White House
White House debuts action plan targeting pollutants in drinking water
Same-sex couples face higher risk from environmental hazards
Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.
The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.
In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”
“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”
Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.
“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”
The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.
An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.
During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.
New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.
The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”
“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.
With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.
Maine
Maine governor signs transgender, abortion sanctuary bill into law
Bomb threats made against lawmakers before measure’s passage
BY ERIN REED | On Tuesday, Maine Gov. Janet Mills signed LD 227, a sanctuary bill that protects transgender and abortion providers and patients from out-of-state prosecution, into law.
With this action, Maine becomes the 16th state to explicitly protect trans and abortion care in state law from prosecution. This follows several bomb threats targeting state legislators after social media attacks from far-right anti-trans influencers such as Riley Gaines and Chaya Raichik of Libs of TikTok.
An earlier version of the bill failed in committee after similar attacks in January. Undeterred, Democrats reconvened and added additional protections to the bill before it was passed into law.
The law is extensive. It asserts that gender-affirming care and reproductive health care are “legal rights” in Maine. It states that criminal and civil actions against providers and patients are not enforceable if the provision or access to that care occurred within Maine’s borders, asserting jurisdiction over those matters.
It bars cooperation with out-of-state subpoenas and arrest warrants for gender-affirming care and abortion that happen within the state. It even protects doctors who provide gender-affirming care and abortion from certain adverse actions by medical boards, malpractice insurance, and other regulating entities, shielding those providers from attempts to economically harm them through out-of-state legislation designed to dissuade them from providing care.
You can see the findings section of the bill here:
The bill also explicitly enshrines the World Professional Association of Transgender Health’s Standards of Care, which have been the target of right-wing disinformation campaigns, into state law for the coverage of trans healthcare:
The bill is said to be necessary due to attempts to prosecute doctors and seek information from patients across state lines. In recent months, attorneys general in other states have attempted to obtain health care data on trans patients who traveled to obtain care. According to the U.S. Senate Finance Committee, attorneys general in Tennessee, Indiana, Missouri, and Texas attempted to obtain detailed medical records “to terrorize transgender teens in their states … opening the door to criminalizing women’s private reproductive health care choices.”
The most blatant of these attempts was from the attorney general of Texas, who, according to the Senate Finance Committee, “sent demands to at least two non-Texas entities.” One of these entities was Seattle Children’s Hospital, which received a letter threatening administrators with arrest unless they sent data on Texas patients traveling to Seattle to obtain gender-affirming care.
Seattle Children’s Hospital settled that case out of court this week, agreeing to withdraw its Texas business registration in return for Texas dropping its investigation. This likely will have no impact on Seattle Children’s Hospital, which has stated it did not treat any youth via telemedicine or in person in Texas; the hospital will be able to continue treating Texas youth who travel outside of Texas to obtain their care. That settlement was likely compelling due to a nearly identical law in Washington that barred out-of-state investigations on trans care obtained solely in the state of Washington.
The bill has faced a rocky road to passage. A similar bill was debated in January, but after coming under intense attack from anti-trans activists who misleadingly called it a “transgender trafficking bill,” the bill was voluntarily withdrawn by its sponsor.
When LD 227 was introduced, it faced even more attacks from Gaines and Libs of TikTok. These attacks were followed by bomb threats that forced the evacuation of the legislature, promising “death to pedophiles” and stating that a bomb would detonate within a few hours in the capitol building.
Despite these threats, legislators strengthened both the abortion and gender-affirming care provisions and pressed forward, passing the bill into law. Provisions found in the new bill include protecting people who “aid and assist” gender-affirming care and abortion, protections against court orders from other states for care obtained in Maine, and even protections against adverse actions by health insurance and malpractice insurance providers, which have been recent targets of out-of-state legislation aimed at financially discouraging doctors from providing gender-affirming care and abortion care even in states where it is legal.
See a few of the extensive health insurance and malpractice provisions here:
Speaking about the bill, Gia Drew, executive director of Equality Maine, said in a statement, “We are thrilled to see LD 227, the shield bill, be signed into law by Gov. Mills. Thanks to our pro equality and pro reproductive choice elected officials who refused to back down in the face of disinformation. This bill couldn’t come into effect at a better time, as more than 40 percent of states across the country have either banned or attempted to block access to reproductive care, which includes abortions, as well as transgender healthcare for minors. Thanks to our coalition partners who worked tirelessly to phone bank, lobby, and get this bill over the finish line to protect community health.”
Destie Hohman Sprague of the Maine Women’s Lobby celebrated the passage of the bill despite threats of violence, saying in a statement, “A gender-just Maine ensures that all Mainers have access to quality health care that supports their mental and physical wellbeing and bodily autonomy, including comprehensive reproductive and gender-affirming care. We celebrate the passage of LD 227, which helps us meet that goal. Still, the patterns of violence and disinformation ahead of the vote reflected the growing connections between misogyny, extremism, and anti-democratic threats and actions. We must continue to advocate for policies that protect bodily autonomy, and push back against extremist rhetoric that threatens our states’ rights and our citizens’ freedoms.”
The decision to pass the legislation comes as the Biden administration released updated HIPAA protections that protect “reproductive health care” from out-of-state prosecutions and investigations.
Although the definition of “reproductive health care” is broad in the new HIPAA regulations, it is uncertain whether they will include gender-affirming care. For at least 16 states, though, gender-affirming care is now explicitly protected by state law and shielded from out-of-state legislation, providing trans people and those seeking abortions with protections as the fight increasingly crosses state lines.
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
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