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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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U.S. Supreme Court

US Supreme Court rules Idaho to enforce gender care ban

House Bill 71 signed in 2023

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U.S. Supreme Court (Washington Blade photo by Michael Key)

BY MIA MALDONADO | The U.S. Supreme Court has allowed Idaho to enforce House Bill 71, a law banning Idaho youth from receiving gender-affirming care medications and surgeries.

In an opinion issued Monday, the U.S. Supreme Court granted the state of Idaho’s request to stay the preliminary injunction, which blocked the law from taking effect. This means the preliminary injunction now only applies to the plaintiffs involved in Poe v. Labrador — a lawsuit brought on by the families of two transgender teens in Idaho who seek gender-affirming care. 

Monday’s Supreme Court decision enforces the gender-affirming care ban for all other trans youth in Idaho as the lawsuit remains ongoing in the Ninth Circuit Court of Appeals.

Idaho Attorney General Raúl Labrador
Idaho Attorney General Raúl Labrador gives a speech at the Idaho GOP election night watch party at the Grove Hotel in Boise, Idaho, on Nov. 8, 2022. (Otto Kitsinger for Idaho Capital Sun)

The American Civil Liberties Union and the ACLU of Idaho, both of whom represent the plaintiffs, said in a press release Monday that the ruling “does not touch upon the constitutionality” of HB 71. The groups called Monday’s ruling an “awful result” for trans Idaho youth and their families.

“Today’s ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption,” the organizations said in the press release. “Nonetheless, today’s result only leaves us all the more determined to defeat this law in the courts entirely, making Idaho a safer state to raise every family.”

Idaho Attorney General Raúl Labrador in a press release said the state has a duty to protect and support all children, and that he is proud of the state’s legal stance. 

“Those suffering from gender dysphoria deserve love, support and medical care rooted in biological reality,” Labrador said. “Denying the basic truth that boys and girls are biologically different hurts our kids. No one has the right to harm children, and I’m grateful that we, as the state, have the power — and duty — to protect them.”

Recap of Idaho’s HB 71, and what led to SCOTUS opinion

Monday’s Supreme Court decision traces back to when HB 71 was signed into law in April 2023.

The law makes it a felony punishable for up to 10 years for doctors to provide surgeries, puberty-blockers and hormones to trans people under the age of 18. However, gender-affirming surgeries are not and were not performed among Idaho adults or youth before the bill was signed into law, the Idaho Capital Sun previously reported

One month after it was signed into law, the families of two trans teens sued the state in a lawsuit alleging the bill violates the 14th Amendment’s guarantee of equal protection under the law.

In late December, just days before the law was set to take effect in the new year, U.S. District Judge B. Lynn Winmill blocked the law from taking effect under a preliminary injunction. In his decision, he said he found the families likely to succeed in their challenge.

The state of Idaho responded by appealing the district court’s preliminary injunction decision to the Ninth Circuit, to which the Ninth Circuit denied. The state of Idaho argued the court should at least enforce the ban for everyone except for the plaintiffs. 

After the Ninth Circuit’s denial, the Idaho Attorney General’s Office in February sent an emergency motion to the U.S. Supreme Court, the Idaho Press reported. Monday’s U.S. Supreme Court decision agrees with the state’s request to enforce its ban on trans health care for minors, except for the two plaintiffs.

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Mia Maldonado

Mia Maldonado joined the Idaho Capital Sun after working as a breaking news reporter at the Idaho Statesman covering stories related to crime, education, growth and politics. She previously interned at the Idaho Capital Sun through the Voces Internship of Idaho, an equity-driven program for young Latinos to work in Idaho news. Born and raised in Coeur d’Alene, Mia moved to the Treasure Valley for college where she graduated from the College of Idaho with a bachelor’s degree in Spanish and international political economy.

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The preceding piece was previously published by the Idaho Capital Sun and is republished with permission.

The Idaho Capital Sun is the Gem State’s newest nonprofit news organization delivering accountability journalism on state politics, health care, tax policy, the environment and more.

We’re part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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Kansas

Kansas governor vetoes ban on health care for transgender youth

Republican lawmakers have vowed to override veto

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Democratic Gov. Laura Kelly vetoed two abortion bills and a measure criminalizing transgender health care for minors. House and Senate Republican leaders responded with promises to seek veto overrides when the full Legislature returned to Topeka on April 26. (Photo by Sherman Smith/Kansas Reflector)

BY TIM CARPENTER | Gov. Laura Kelly flexed a veto pen to reject bills Friday prohibiting gender identity health care for transgender youth, introducing a vague crime of coercing someone to have an abortion and implementing a broader survey of women seeking abortion that was certain to trigger veto override attempts in the Republican-led House and Senate.

The decisions by the Democratic governor to use her authority to reject these health and abortion rights bills didn’t come as a surprise given her previous opposition to lawmakers intervening in personal decisions that she believed ought to remain the domain of families and physicians.

Kelly said Senate Bill 233, which would ban gender-affirming care for trans minors in Kansas, was an unwarranted attack on a small number of Kansans under 18. She said the bill was based on a politically distorted belief the Legislature knew better than parents how to raise their children.

She said it was neither a conservative nor Kansas value to block medical professionals from performing surgery or prescribing puberty blockers for their patients. She said stripping doctors of their licenses for serving health interests of patients was wrong. Under the bill, offending physicians could be face lawsuits and their professional liability insurance couldn’t be relied on to defend themselves in court.

“To be clear, this legislation tramples parental rights,” Kelly said. “The last place that I would want to be as a politician is between a parent and a child who needed medical care of any kind. And, yet, that is exactly what this legislation does.”

Senate President Ty Masterson (R-Andover) and House Speaker Dan Hawkins (R-Wichita) responded to the governor by denouncing the vetoes and pledging to seek overrides when legislators returned to the Capitol on April 26. The trans bill was passed 27-13 in the Senate and 82-39 in the House, suggesting both chambers were in striking distance of a two-thirds majority necessary to thwart the governor.

“The governor has made it clear yet again that the radical left controls her veto pen,” Masterson said. “This devotion to extremism will not stand, and we look forward to overriding her vetoes when we return in two weeks.”

Cathryn Oakley, senior director of the Human Rights Campaign, said the ban on crucial, medically necessary health care for trans youth was discriminatory, designed to spread dangerous misinformation and timed to rile up anti-LGBTQ activists.

“Every credible medical organization — representing over 1.3 million doctors in the United States — calls for age-appropriate, gender-affirming care for transgender and nonbinary people,” Oakley said. “This is why majorities of Americans oppose criminalizing or banning gender-affirming care.”

Abortion coercion

Kelly also vetoed House Bill 2436 that would create the felony crime of engaging in physical, financial or documentary coercion to compel a girl or woman to end a pregnancy despite an expressed desire to carry the fetus to term. It was approved 27-11 in the Senate and 82-37 in the House, again potentially on the cusp of achieving a veto override.

The legislation would establish sentences of one year in jail and $5,000 fine for those guilty of abortion coercion. The fine could be elevated to $10,000 if the adult applying the pressure was the fetuses’ father and the pregnant female was under 18. If the coercion was accompanied by crimes of stalking, domestic battery, kidnapping or about 20 other offenses the prison sentence could be elevated to 25 years behind bars.

Kelly said no one should be forced to undergo a medical procedure against their will. She said threatening violence against another individual was already a crime in Kansas.

“Additionally, I am concerned with the vague language in this bill and its potential to intrude upon private, often difficult, conversations between a person and their family, friends and health care providers,” the governor said. “This overly broad language risks criminalizing Kansans who are being confided in by their loved ones or simply sharing their expertise as a health care provider.”

Hawkins, the House Republican leader, said coercion was wrong regardless of the circumstances and Kelly’s veto of the bill was a step too far to the left.

“It’s a sad day for Kansas when the governor’s uncompromising support for abortion won’t even allow her to advocate for trafficking and abuse victims who are coerced into the procedure,” Hawkins said.

Emily Wales, president and CEO of Planned Parenthood Great Plains Votes, said HB 2436 sought to equate abortion with crime, perpetuate false narratives and erode a fundamental constitutional right to bodily autonomy. The bill did nothing to protect Kansas from reproductive coercion, including forced pregnancy or tampering with birth control.

“Planned Parenthood Great Plains Votes trusts patients and stands firmly against any legislation that seeks to undermine reproductive rights or limit access to essential health care services,” Wales said.

Danielle Underwood, spokeswoman for Kansas for Life, said “Coercion Kelly” demonstrated with this veto a lack of compassion for women pushed into an abortion.

The abortion survey

The House and Senate approved a bill requiring more than a dozen questions be added to surveys of women attempting to terminate a pregnancy in Kansas. Colorful debate in the House included consideration of public health benefits of requiring interviews of men about reasons they sought a vasectomy birth control procedure or why individuals turned to health professionals for treatment of erectile dysfunction.

House Bill 2749 adopted 81-39 in the House and 27-13 in the Senate would require the Kansas Department of Health and Environment to produce twice-a-year reports on responses to the expanded abortion survey. The state of Kansas cannot require women to answer questions on the survey.

Kelly said in her veto message the bill was “invasive and unnecessary” and legislators should have taken into account rejection in August 2022 of a proposed amendment to the Kansas Constitution that would have set the stage for legislation further limiting or ending access to abortion.

“There is no valid medical reason to force a woman to disclose to the Legislature if they have been a victim of abuse, rape or incest prior to obtaining an abortion,” Kelly said. “There is also no valid reason to force a woman to disclose to the Legislature why she is seeking an abortion. I refuse to sign legislation that goes against the will of the majority of Kansans who spoke loudly on Aug. 2, 2022. Kansans don’t want politicians involved in their private medical decisions.”

Wales, of Planned Parenthood Great Plains Votes, said the bill would have compelled health care providers to “interrogate patients seeking abortion care” and to engage in violations of patient privacy while inflicting undue emotional distress.

Hawkins, the Republican House speaker, said the record numbers of Kansas abortions — the increase has been driven by bans or restrictions imposed in other states — was sufficient to warrant scrutiny of KDHE reporting on abortion. He also said the governor had no business suppressing reporting on abortion and criticized her for tapping into “irrational fears of offending the for-profit pro-abortion lobby.”

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Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.

The preceding story was previously published by the Kansas Reflector and is republished with permission.

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The Kansas Reflector is a nonprofit news operation providing in-depth reporting, diverse opinions and daily coverage of state government and politics. This public service is free to readers and other news outlets. We are part of States Newsroom: the nation’s largest state-focused nonprofit news organization, with reporting from every capital.

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Colorado

Five transgender, nonbinary ICE detainees allege mistreatment at Colo. detention center

Advocacy groups filed complaint with federal officials on April 9

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(Photo courtesy of GEO Group)

Five transgender and nonbinary people who are in U.S. Immigration and Customs Enforcement custody at a privately-run detention center in Colorado say they continue to suffer mistreatment.

The Rocky Mountain Immigrant Advocacy Network, the National Immigration Project and the American Immigration Council on April 9 filed a complaint with the Department of Homeland Security’s Offices for Civil Rights and Civil Liberties, Immigration Detention Ombudsman and Inspector General and ICE’s Office of Professional Responsibility on behalf of the detainees at the Aurora Contract Detention Facility near Denver.

Charlotte, one of the five complainants, says she spends up to 23 hours a day in her room. 

She says in the complaint that a psychiatrist has prescribed her medications for anxiety and depression, but “is in the dark about her actual diagnoses because they were not explained to her.” Myriah and Elsa allege they do not have regular access to hormones and other related health care.

Omar, who identifies as trans and nonbinary, in the complaint alleges they would “start hormone replacement therapy if they could be assured that they would not be placed in solitary confinement.” Other detainees in the complaint allege staff have also threatened to place them in isolation.

“They have been told repeatedly that, if they started therapy, they would be placed in ‘protective custody’ (solitary confinement) because the Aurora facility has no nonbinary or men’s transgender housing unit,” reads the complaint. “This is so, despite other trans men having been detained in Aurora in the past, so Omar is very likely receiving misinformation that is preventing them from accessing the treatment they require.”

Omar further alleges staffers told them upon their arrival that “they had to have a ‘boy part’ (meaning a penis) to be assigned to” the housing unit in which other trans people live. Other complainants say staff have also subjected them to degrading comments and other mistreatment because of their gender identity. 

“Victoria, Charlotte and Myriah are all apprehensive about a specific female guard who is assigned to the housing unit for transgender women at Aurora,” reads the complaint. “Victoria has experienced this guard peering at her through the glass on the door of her form. Charlotte, Myriah and the other women in her dorm experienced the same guard making fun of them after they complained that she had confiscated all of their personal hygiene products, like their toothbrushes and toothpaste, and replaced them with menstrual pads and tampons, which she knows they do not need.”

“She said something to them like, ‘If you were real women, you would need these things,'” reads the complaint. “The same guard told them that they had to ask her for their personal hygiene products when they wanted to use them, stripping them of their most basic agency.”

Victoria, who has been in ICE custody for more than two years, also says she does not have regular access to hormones. Victoria further claims poor food, lack of access to exercise and stress and anxiety because of her prolonged detention has caused has made her health deteriorate.

The GEO Group, a Florida-based company, operates the Aurora Contract Detention Facility.

Advocates for years have complained about the conditions for trans and nonbinary people in ICE custody and have demanded the agency release all of them.

Roxsana Hernández, a trans Honduran woman with HIV, on May 25, 2018, died in ICE custody in New Mexico. Her family in 2020 sued the federal government and the five private companies who were responsible for her care.

Johana “Joa” Medina Leon, a trans Salvadoran woman, on June 1, 2019, passed away at a Texas hospital four days after her release from ICE custody. Kelly González Aguilar, a trans Honduran woman, had been in ICE custody for more than two years until her release from the Aurora Contract Detention Center on July 14, 2020.

ICE spokesperson Steve Kotecki on Friday told the Blade there were 10 “self-identified transgender detainees” at the Aurora Contract Detention Center on April 11. The facility’s “transgendered units” can accommodate up to 87 trans detainees. 

A 2015 memorandum then-ICE Executive Associate Director of Enforcement and Removal Operations Thomas Homan signed requires personnel to allow trans detainees to identify themselves based on their gender identity on data forms. The directive, among other things, also contains guidelines for a “respectful, safe and secure environment” for trans detainees and requires detention facilities to provide them with access to hormone therapy and other trans-specific health care.

“U.S. Immigration and Customs Enforcement (ICE) is committed to ensuring that all those in its custody reside in safe, secure and humane environments,” said Kotecki. “ICE regularly reviews each case involving self-identified transgender noncitizens and determines on a case-by-case basis whether detention is warranted.”

The complaint, however, states this memo does not go far enough to protect trans and nonbinary detainees.

“ICE’s 2015 guidance has some significant flaws,” it reads. “It fails to provide meaningful remedies for policy violations. It does not acknowledge the challenges that nonbinary people face when imprisoned by ICE and the lack of such guidance explains why the needs of nonbinary people are largely misunderstood and unmet.”

“Further, the language used to describe people who are TNB is not inclusive and does not reflect terminology adopted by the community it is meant to describe,” adds the complaint. “Although this list is not exhaustive, it addresses some of the primary concerns voiced by the complaints.”

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