National
DOMA ruled unconstitutional in Calif. employee case
Federal court also strikes down portion of U.S. tax code
Another federal court has ruled against Section 3 of the Defense of Marriage Act in a California case challenging the constitutionality of the law as well as a portion of the federal tax code.
On Thursday, the U.S. District Court for the Northern District of California declared the laws unconstitutional because they preclude plaintiffs from allowing their partners — whether in a union of marriage or a domestic partnership — from participating in a long-term care insurance program maintained by the California Public Employees’ Retirement System, or CalPERS. The decision was signed by U.S. District Judge Claudia Wilken.
“The Court finds that § 3 of the DOMA violates the equal protection rights of Plaintiff same-sex spouses, and subparagraph (C) of § 7702B(f) violates the equal protection rights of Plaintiff registered domestic partners,” Wilken writes. “Therefore, both provisions are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan.”
The class-action lawsuit, known as Dragovich v. Department of the Treasury, was filed against both federal and state defendants because they precluded California public employees from taking part in CALPERS. The San Francisco-based Legal Aid Society–Employment Law Center filed the case along with Zelle Hofmann Voelbel & Mason LLP.
The decision by Wilken, who was appointed in 1993 by former President Clinton, enjoins both federal and state officials from blocking these workers from participating in these programs. However, a stay could be granted if an appeal is filed.
DOMA, a 1996 law that bars federal recognition of same-sex marriage, applies to CalPERS because the law regulates state-sponsored long-term care plans.
But Title 26 U.S.C. § 7702B(f), also enacted in 1996 as part of the Health Insurance Portability and Accountability Act, or HIPAA, was also struck down because it has language excluding same-sex partners from the program. That portion of the law aims to provide favorable federal tax treatment to participants in state-maintained long-term care insurance plans for state employees like CalPERS.
Michael Dragovich, the lead plaintiff in the case and a nurse specializing in liver transplants at the University of California, San Francisco, praised the decision for allowing him and his partner to participate fully in CalPERS, which he joined as a state employee in 1997.
“I’ve been in a committed relationship with my partner for more than 30 years,” Dragovich said. “I am so pleased that our relationship will now be treated equally to the committed relationships of my heterosexual co-workers.”
Elizabeth Kristen, senior staff attorney for the Legal Aid Society–Employment Law Center and director of its gender equity program, said the decision upholds fairness under the law.
“Lesbian and gay couples are entitled to fair and equal treatment from the federal government,” Kristen said. “Judge Wilken’s ruling ensures that both same-sex spouses and registered domestic partners will be treated fairly with respect to the CalPERS long term care insurance program.”
In the determination that DOMA is unconstitutional, Wilkens brings up examples of statements made by members of Congress in 1996 suggesting an anti-gay animus, including an attempt to overturn to defund D.C.’s domestic partnership law in the early 1990s.
“Congress discussed registered domestic partnership laws prior to and during 1996, when the statutes challenged here were passed,” Wilken writes. “These discussions occurred after the District of Columbia passed, in April 1992, the Health Care Benefits Expansion Act, which established a domestic partnership registry in that jurisdiction. Congress reacted to the new law by barring any local or federal funding to implement, enforce or administer the registry.”
Douglas Nejaime, who’s gay and a law professor at Loyola University, said the decision is noteworthy because it strikes down both DOMA and separately finds excluding California registered domestic partners under the long-term care insurance regulations violates constitutional equal protection principles.
“The other interesting thing here is that the case implicates the relationship between state programs and federal regulation in a way that will continue to arise and produce issues not simply regarding marriage recognition for same-sex couples but recognition of non-marital same-sex relationships that are treated as ‘spousal’ relationships under state law,” NeJaime said.
According to the decision, plaintiffs had sought summary judgment in the case to obtain immediate relief. State defendants and lawyers for attorneys working for the Bipartisan Legal Advisory Group under U.S. House Speaker John Boehner (R-Ohio) had opposed this motion. Nonetheless, the court denied these requests and granted summary judgment in favor of plaintiffs.
Wilken’s decision marks the fourth time a federal court has ruled against DOMA. The first time was in 2009 when U.S. District Judge Joseph Tauro in Masschusetts ruled against DOMA in two separate cases: Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. Those case are now pending before the U.S. First Circuit Court of Appeals.
The third time took place in February. 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. The case is before the U.S. Ninth Circuit Court of Appeals and oral arguments are scheduled for September.
But NeJaime said this case is unlike the Golinski case because of the standard of review that Wilken exercised. In the Golinksi case, White conducted both a heightened scrutiny and rational basis analysis review. In the Dragovich case, Wilken finds that he’s constrained under Ninth Circuit precedent and thus applies only rational basis review, but still determines DOMA fails under this more deferential standard.
The decision also marks the first time that a court has made a decision on DOMA following President Obama’s announcement that he support same-sex marriage, although no reference to Obama’s words appears in the ruling.
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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