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Plaintiffs optimistic after DOMA arguments

Confidence that appeals court will find anti-gay law unconstitutional

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GLAD's Mary Bonauto (center) poses for a photo with Gill plaintiffs (Blade photo by Chris Johnson)

BOSTON — There was optimism in the air outside the John Joseph Moakley Courthouse after advocates seeking to overturn the Defense of Marriage Act emerged from the first-ever appellate hearing on the constitutionality of the law.

Nancy Gill, the lead plaintiff in one of the cases before the First Circuit Court of Appeals, said she “absolutely” thinks she’s on the cusp of  seeing the end of the anti-gay statute prohibiting federal recognition of her marriage.

“It’s definitely going to happen,” Gill told the Washington Blade. “We can’t fathom how anybody can make an argument against a relationship that’s 31 years old. We’ve been married for eight, have two children. We add to society, and we just want to make sure that we have the same rights and protections that our other married friends have.”

Gill, a postal worker who married her spouse, Marcelle Letourneau, in 2004 after same-sex marriage became legal in Massachusetts, is suing the federal government on the basis that DOMA unfairly precludes them from obtaining health insurance and pensions afforded to other federal workers.

The Washington Blade interviewed several individuals outside the courtroom following the court hearing on Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.

Speaking to reporters, Mary Bonauto, GLAD’s civil rights project director, reiterated some of the arguments she made against DOMA during the oral arguments when she contended that DOMA violates the equal protection rights of her plaintiffs. Bonauto was lead counsel in the Goodridge case that led to the 2003 legalization of same-sex marriage in Massachusetts.

“Nobody’s trying to throw stones here but Congress wasn’t at its best for this,” Bonauto said. “They are supposed to act neutrally when it comes to the rights of people, but Congress couldn’t have been clearer that it disapproved of gay people and did not want them to have the same protections everyone else has. We all come before our government as equals, and it needs a reason other than ‘I don’t like you’ to treat people differently, especially on such a massive scale.”

Coakley expressed confidence the court would strike down DOMA after her deputy Maura Healey presented the argument that DOMA was unconstitutional on the basis that it violates state’s rights under the Tenth Amendment.

“I can’t speak for the judges, and I’m sure they will look at all the arguments fairly, but when you look at the thinness of the legal argument on the other side and really the emotional and real fact-based arguments made by the plaintiffs, I’m confident that Judge Tauro will be upheld,” Coakley said.

U.S. District Judge Joseph Tauro, a Nixon appointee, ruled against DOMA in 2010 in the two cases that are now before the appellate court on the basis that the anti-gay law fails the rational standard basis of review. The cases were brought to the First Circuit upon appeal.

Paul Clement, the former U.S. solicitor general whom House Speaker John Boehner hired to defend DOMA, wasn’t seen outside along with plaintiff couples and attorneys. Fresh from arguing against the health care law before the Supreme Court, Clement appeared to argue on behalf of DOMA and was set to argue in favor of the controversial Arizona immigration law later this month.

Clement bore the brunt of disparaging comments from LGBT advocates after the hearing for arguments he made in court. Among them, his claims that opposite-sex marriages are beneficial because they’re the only union that can produce children. He also said DOMA allows the federal government to stay out of the way while states decide the issue of same-sex marriage.

Dean Hara, another plaintiff in the GLAD case, said he thought Clement talked about DOMA in “abstract terms” that didn’t show the anti-gay law has a real effect on same-sex couples seeking federal benefits.

“It was the same arguments that they have used before,” Hara said. “If something has always been that way, it shouldn’t change, and I don’t think that’s a valid argument in anything. much less marriage.”

Hara, the widower of the late Rep. Gerry Studds, is suing the federal government to obtain the Social Security survivor benefits he would have been able to receive had he been in an opposite-sex marriage.

“I never thought that I would be a plaintiff challenging the Defense of Marriage Act — much less did I ever think that I’d be at the Court of Appeals where we are now,” Herra said. “We’ve come a long ways.”

Lavi Soloway, co-founder of Stop the Deportations and an immigration attorney at Masliah & Soloway, was also dismissive of the arguments that Clement brought before the three-judge panel hearing the case.

“I was surprised by the weakness of the arguments put forward by BLAG,” Soloway said. “I felt that they did not acquit themselves very well of the obligation that was placed upon them by the House Republicans to defend the statute. Their defense was very weak.”

Soloway isn’t a party to any of the DOMA cases that were brought before the First Circuit, but has advocated against the anti-gay law on the basis that it threatens to tear apart married bi-national same-sex couples living in the United States — some of whom are his clients.

One development during the hearing that pleased Soloway was the Justice Department’s Stuart Delery announcement that he wouldn’t defend DOMA on a rational basis standard of review if judges should examine it on that basis. The Justice Department had previously said it wouldn’t defend the anti-gay law because it doesn’t pass muster under heightened scrutiny.

“In the First Circuit, there’s an open question as to whether heightened scrutiny would be applied in this case,” Soloway said. “Mr. Delery for the Department of Justice informed the court that the government’s position is that the Defense of Marriage Act fails under rational basis.”

What the court will ultimately decide remains to be seen. Paul Smith, who delivered the arguments before the Supreme Court for Lawrence v. Texas, was present during the oral arguments for the appeals court and said he’s “not really able to predict” the outcome of the cases. He’s a pro-bono counsel for the GLAD case.

“The court was listening closely to everyone,” Smith said. “They were somewhat surprisingly not asking very many questions except of Mr. Clement. You’re not always sure how to read that, but we come away very hopeful.”

Soloway said he thinks “there’s a strong chance” judges will uphold Tauro’s ruling from 2010, although he expects an appeal.

“I don’t know that the rationale will be the same,” Soloway said. “I think that the attorneys for the congressional Republicans will seek an en banc hearing, and will, of course, ultimately appeal to the Supreme Court.”

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Family of transgender woman who died in ICE custody sues federal government

Roxsana Hernández passed away in N.M. in 2018

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A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

 

The family of a transgender woman with HIV who died in U.S. Immigration and Customs Enforcement custody in 2018 has sued the federal government.

The Transgender Law Center and two immigration lawyers — Daniel Yohalem and R. Andrew Free — in 2020 filed a lawsuit in U.S. District for the District of New Mexico against five private companies who were responsible for Roxsana Hernández’s care.

The lawsuit named Management and Training Corporation, LaSalle Corrections, Global Precision Systems, TransCor America and CoreCivic as defendants. The Transgender Law Center, Yohalem and Grant and Eisenhofer Law on Wednesday petitioned the court to add the federal government to the lawsuit.

“This amended complaint adds the United States, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and the United States Department of Homeland Security (DHS) to the list of entities who had a direct role in Roxsana’s death,” said the Transgender Law Center in a press release.

Hernández, who was from Honduras, entered CBP custody on May 9, 2018, when she asked for asylum at the San Ysidro Port of Entry in San Diego. She arrived at the Cibola County Correctional Center, a facility in Milan N.M., that CoreCivic operates, a week later.

Hernández was admitted to Cibola General Hospital in Grants, N.M., shortly after she arrived at the privately-run detention center. Hernández died at Lovelace Medical Center in Albuquerque, N.M., on May 25, 2018.

The lawsuit, among other things, alleges Management and Training Corporation personnel “denied Roxsana and her fellow detainees food, water and restroom access throughout their transfer” from California to a facility in San Luis, Ariz., that LaSalle Corporations operates. The lawsuit also states Hernández did not receive necessary medical care from LaSalle Corporations, Global Precision Systems and TransCor personnel as they transported her to the Cibola County Correctional Center.

CoreCivic officers, according to the lawsuit, delayed Hernández’s medical care once she was hospitalized.

An autopsy the New Mexico Office of the Medical Investigator performed concluded Hernández died from Castleman disease associated with AIDS.

A second autopsy that former Georgia Chief Medical Examiner Kris Sperry performed at the Transgender Law Center’s request concluded the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The second autopsy also found “evidence of physical abuse” that included bruising on Hernández’s rib cage and contusions on her body.

“Defendants’ discriminatory, negligent, and reckless acts and omissions: (a) caused Roxsana to suffer severe emotional and physical distress; (b) created an unreasonable risk that Roxsana’s condition would deteriorate, especially in light of her known HIV-positive status; (c) caused Roxsana’s condition to deteriorate; (d) diminished the opportunity for Roxsana’s condition to improve; (e) caused her to lose her chance to survive and participate in the federal immigration process; and (f) ultimately, caused her death,” reads the motion the Transgender Law Center filed on Wednesday.

“My sister came to the U.S. in search of safety and protection from the horrific violence she experienced as a trans woman in Honduras, and what she found instead was abuse, discrimination and neglect,” said Hernández’s sister, Jenny Hernández Rodríquez, in the Transgender Law Center press release. “The tragic fact that she is no longer with us is a direct result of that discrimination and neglect.”

A spokesperson for the Department of Homeland Security — which oversees ICE and CBP — with whom the Washington Blade spoke on Thursday declined to comment.

The Cibola County Correctional Center in Milan, N.M. (Photo courtesy of U.S. Immigration and Customs Enforcement)

Hernández’s death sparked widespread outrage among immigration advocates. Her case also intensified calls for ICE to release all trans women in their custody.

The Transgender Law Center, the Rapid Defense Network and the Ballard Spahr law firm in April 2020 filed a class action lawsuit that demanded the release of all trans people in ICE custody.

More than 40 Democratic members of the U.S. House of Representatives in January 2020 called for ICE to release all trans people in their custody. Illinois Congressman Mike Quigley on Thursday during a House Appropriations Committee hearing asked Acting ICE Director Tae Johnson about the treatment of trans people in his agency’s custody.

“We have made some efforts on sort of improving our training and identifying specific facilities which would focus on housing these individuals in a less restrictive environment but there’s always more work we can do,” said Johnson. “We’re looking at all aspects of our vulnerable population to include transgender, and this is going to continue to be a priority for us as we move forward in assessing our detention framework.”

A unit for trans women in ICE custody opened at the Cibola County Correctional Center in 2017. It closed in 2020.

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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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