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High stakes in marriage cases awaiting Supreme Court

Legal experts weigh in on what to expect next week

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Supreme Court, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

The U.S. Supreme Court could decide as soon as next week whether it’ll hear cases related to DOMA and Proposition 8. (Washington Blade file photo by Michael Key)

All eyes will be on the U.S. Supreme Court next week when it could announce whether it will take up high-profile LGBT-related cases challenging the Defense of Marriage Act and California’s Proposition 8 — and the results of those decisions could have an immediate impact on the marriage rights of same-sex couples.

On Monday, justices are scheduled to hold their first conference to decide cases they will consider when they reconvene in October following their summer recess. Among the cases docketed for this meeting is federal litigation challenging Prop 8, now known as Hollingsworth v. Perry, and one of the cases challenging Section 3 of DOMA, Windsor v. United States.

Justices can decide to take up a case, decline to hear it or put off the decision on considering the lawsuit for a future conference. It takes a vote of four justices to grant a writ of certiorari (to take up a case) but the decision will be put off if any one justice wants more time to decide.

The decision on the Prop 8 case is of particular note because if the court decides against taking up the case and lets stand an appeals court decision against the same-sex marriage ban, gay couples would once again have the right to marry in the nation’s most populous state immediately following a mandate from the U.S. Ninth Circuit of Appeals.

But if the Supreme Court decides to take up the case, the ban would remain in effect until the justices make their own ruling in the lawsuit. It’s possible the court could make a decision saying lower courts erred in overturning Prop 8. For the same-sex marriage ban to come to an end at that point, another lawsuit coming up from the district courts or repeal of Prop 8 at the ballot would be necessary.

Jennifer Pizer, legal director for the Williams Institute, said while she thinks the court is likely to take up cases related to DOMA, it’s a “much harder guess” whether justices will decide to hear the Prop 8 litigation.

“There might well be four justices that disagree with what the Ninth Circuit held, but I think it would be challenging for them probably — as it is for everybody else who’s watching the court — to wonder where a fifth vote might go,” Pizer said. “So I think it’s even odds that the court will not review in Perry.”

Jon Davidson, legal director for Lambda Legal, said in the event that the Supreme Court decides not to hear the Prop 8 case, gay couples should wait for the mandate from the Ninth Circuit before marrying in California.

“My advice to people is plan a nice wedding as opposed to running that day to go get married because there’s always some risk for couples that get married and 10 years split up, one might say, ‘You didn’t really get legally married because the injunction wasn’t in place yet and Prop 8 was still the law and they shouldn’t have married us,'” Davidson said. “Although I think that argument would lose, people don’t need to take on potentially having to fight about that later. If they just wait until the mandate, there won’t be any question.”

There could be an advantage for the LGBT community if the Supreme Court takes up the lawsuit because it could produce a ruling that would affect not only California, but all states with same-sex marriage bans throughout the country. Still, this level of examination bring a new scope of review to the Prop 8 lawsuit because the Ninth Circuit was limited in the way it restricted its reasoning to California.

Pizer said the Supreme Court could rule with a larger scope when considering the constitutionality of Prop 8, but such an evaluation would be unlikely given the limited nature of the Ninth Circuit ruling.

“I think it’s extremely unlikely that there would be a ruling either calling in question all the marriage restrictions of all the states that have them, or on the flip-side, holding that marriage absolutely as a matter of federal law must be restricted just to different-sex couples,” Pizer said. “The things that could be done on the more extreme ends of something favorable or unfavorable to same-sex couples is not so likely.”

The situation is slightly different for the DOMA lawsuits because the Windsor case is the only one that has been fully briefed and docketed for the Sept. 24 conference. The court may not issue a decision on reviewing DOMA until the full range of lawsuits challenging the anti-gay law have been scheduled for consideration.

More DOMA-related cases haven’t yet been set for consideration even though the high court has been asked to consider them. They’re the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, the only lawsuit in which an appeals court has ruled against DOMA, as well as Golinski v. Office of Personnel Management and Pedersen v. Office of Personnel Management.

Davidson said the Supreme Court could also wait to make a decision on whether to hear the Prop 8 lawsuit until making a decision on whether to hear the DOMA cases.

“Different issues in the cases, but they might say, ‘Well, let’s think about all these at the same time to think about whether we should grant review in both kinds of cases or one, and which order,” Davidson said.

As with the Prop 8 case, if the Supreme Court decided against hearing the DOMA cases, it would have significant immediate impact. The federal government would recognize the same-sex marriages of states within the jurisdiction of the First Circuit and other challenges against DOMA would continue up the pipeline.

But the court is widely expected to decide to take up the constitutionality of DOMA because unlike Prop 8, the issue is related to federal law and the U.S. Justice Department has interceded — first in July and again this month — to ask the court to take up each of the four cases pending before the court related to the law. And a ruling from the Supreme Court would almost certainly have a nationwide scope that would enable federal recognition of same-sex marriages throughout the country as opposed to a ruling that would affect only one state.

There’s another benefit to the LGBT community if the Supreme Court were to take up the cases: the application of higher standard of review for cases related to sexual orientation. The Golinski and Pedersen cases are unique among the other DOMA lawsuits because they are the only ones in which lower courts have ruled against DOMA on the basis that they don’t meet the standards of heightened scrutiny, or the assumption they’re unconstitutional. If the Supreme Court were to consider these cases along with other DOMA cases, it could set precedent for applying heightened scrutiny to other laws in the future.

A Supreme Court ruling in favor of the anti-gay side would be significantly burdensome for supporters of same-sex marriage. That would mean opponents of the law would have to fight through the legislative process to lift the ban — a daunting task especially if Republicans were to retain control of the House.

Justices also have an opportunity in taking up the DOMA cases to assert whether the House Republican-led Bipartisan Legal Advisory Group, which took up defense of DOMA after the Obama administration declined to defend the law, has standing to defend it. Some lower courts have hinted BLAG may lack standing to defend DOMA because it’s a committee within the House that hasn’t been approved by a floor vote in either chamber of Congress.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the role of BLAG and where the committee derives its authority presents an interesting question to the Supreme Court.

“It would be interesting to see whether the justices actually ask those threshold questions about what the status and standing of BLAG actually is,” NeJaime said. “Because both sides want a substantive determination, I think that’s partly why we haven’t seen it become a huge issue, but it is an interesting question.”

It’s unclear what the schedule will be like for the cases if the Supreme Court decides to take them up. Briefings would ensue in the months that follow and oral arguments may take place in the spring for the court to make a ruling before it adjourns in June. For the DOMA lawsuit, the Supreme Court may take up the cases, but decline to take action until more appellate courts have made decisions on the pending litigation.

Pizer said the Supreme Court may seek to hear arguments on the Prop 8 cases at the same time because they’re both related to marriage.

“The DOMA cases are quite distinct from Perry, but at the same time, they concern marriage for same-sex couples, and certainly some of the arguments made in all these cases resemble, so it wouldn’t be that surprising for the justices to decide to consider a number of them at the same time,” Pizer said.

Legal experts also say the votes of each of the justices in granting a writ of certiorari shouldn’t be an indication of how they’ll ultimately rule in each of the cases.

NeJaime said observers “can’t read too much into” the certiorari votes because justices may decide to take up the cases either because they want to uphold or strike down the laws at hand.

“I think there are clearly going to be justices, for instance, on the DOMA cases that want to take it to overturn, and will overturn DOMA, and, I think, there are justices that want to take it and would uphold DOMA, so I think it’s hard to tell, although I think the DOMA cases are the stronger cases for the LGBT side,” NeJaime said.

Other LGBT cases pending before the Supreme Court are scheduled for September conference, but they aren’t as high-profile as the marriage cases. Justices will consider whether to take up the case of Diaz v. Brewer, in which Gov. Jan Brewer (R) has appealed an injunction placed by a district court prohibiting her from enforcing a law taking away domestic partner benefits from Arizona state employees. Another pending case is National Organization for Marriage v. McKee, in which the anti-gay organization is challenging Maine disclosure laws requiring it to reveal donors regarding its involvement in the 2009 marriage ballot initiative in the state.

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U.S. Federal Courts

Federal court blocks Title IX transgender protections

Ruling applies to Idaho, La., Miss., and Mont.

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(Bigstock photo)

BY GREG LAROSE | A federal judge has temporarily halted enforcement of new rules from the Biden administration that would prevent discrimination based on gender identity and sexual orientation.

U.S. District Judge Terry Doughty of Louisiana issued a temporary injunction Thursday that blocks updated Title IX policy from taking effect Aug. 1 in Idaho, Louisiana, Mississippi, and Montana. 

In April, the U.S. Department of Education announced it would expand Title IX to protect LGBTQ students, and the four aforementioned states challenged the policy in federal court.

Doughty said in his order that Title IX, the 52-year-old civil rights law that prohibits sex-based discrimination, only applies to biological women. The judge also called out the Biden administration for overstepping its authority. 

“This case demonstrates the abuse of power by executive federal agencies in the rule-making process,” Doughty wrote. “The separation of powers and system of checks and balances exist in this country for a reason.”

The order from Doughty, a federal court appointee of President Donald Trump, keeps the updated Title IX regulations from taking effect until the court case is resolved or a higher court throws out the order.

Opponents of the Title IX rule changes have said conflating gender identity with sex would undermine protections in federal law and ultimately harm biological women. Gender identity refers to the gender an individual identifies as, which might differ from the sex they were assigned at birth.

Louisiana Attorney General Liz Murrill, who filed the suit in the state’s Western District federal court, had called the new regulations “dangerous and unlawful.” In a statement Thursday evening, she said the rules would have placed an unfair burden on every school, college and university in the country.

“This (is) a victory for women and girls,” Murrill said in the statement. “When Joe Biden forced his illegal and radical gender ideology on America, Louisiana said NO! Along with Idaho, Mississippi, and Montana, states are fighting back in defense of the law, the safety and prosperity of women and girls, and basic American values.”

Title IX is considered a landmark policy that provided for equal access for women in educational settings and has been applied to academic and athletic pursuits. 

Related

Doughty’s order comes a day after a similar development in Texas, where Judge Reed O’Connor, an appointee of President George W. Bush, declared that the Biden administration exceeded its authority, the Texas Tribune reported. 

Texas filed its own lawsuit against the federal government to block enforcement of the new rules, which Gov. Greg Abbott had instructed schools to ignore. Texas is one of several states to approve laws that prohibit transgender student-athletes from participating on sports teams that align with their gender identity.

Attorney generals in 26 states have originated or joined federal lawsuits to stop the new Title IX regulations from taking effect. 

Earlier Thursday, Republicans in Congress moved ahead with their effort to undo the revised Biden Title IX policy. Nearly 70 GOP lawmakers have signed onto legislation to reverse the education department’s final rule through the Congressional Review Act, which Congress can use to overturn certain federal agency actions.

Biden is expected to veto the legislation if it advances to his desk.

“Title IX has paved the way for our girls to access new opportunities in education, scholarships and athletics. Unfortunately, (President) Joe Biden is destroying all that progress,” U.S. Rep. Mary Miller (R-Ill.), author of the legislation, said Thursday.

States Newsroom Reporter Shauneen Miranda in D.C. contributed to this report.

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Greg LaRose

Greg LaRose has covered news for more than 30 years in Louisiana. Before coming to the Louisiana Illuminator, he was the chief investigative reporter for WDSU-TV in New Orleans. He previously led the government and politics team for The Times-Picayune | NOLA.com, and was editor in chief at New Orleans CityBusiness. Greg’s other career stops include Tiger Rag, South Baton Rouge Journal, the Covington News Banner, Louisiana Radio Network and multiple radio stations.

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The preceding article was previously published by the Louisiana Illuminator and is republished with permission.

The Louisiana Illuminator is an independent, nonprofit, nonpartisan news organization with a mission to cast light on how decisions in Baton Rouge are made and how they affect the lives of everyday Louisianians. Our in-depth investigations and news stories, news briefs and commentary help residents make sense of how state policies help or hurt them and their neighbors statewide.

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

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Federal Government

Adm. Levine, Admin. Guzman visit LGBTQ-owned dental and medical practices

Officials talked with the Blade about supporting small businesses

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Second from left, Dr. Robert McKernan, co-founder of Big Gay Smiles, U.S. Small Business Administration Administrator Isabel Guzman, HHS Assistant Secretary for Health Adm. Rachel Levine, Big Gay Smiles Co-Founder Tyler Dougherty, and SBA Washington Metropolitan Area District Director Larry Webb. (Washington Blade photo by Christopher Kane)

The Washington Blade joined Assistant Secretary for Health Adm. Rachel Levine of the U.S. Department of Health and Human Services and Administrator Isabel Guzman of the U.S. Small Business Administration as they toured two LGBTQ-owned small businesses on Tuesday in Washington, D.C. — Big Gay Smiles and Price Medical.

The event provided an “amazing opportunity” to “talk about the different synergies in terms of small businesses and the SBA, and health equity for many communities,” including the LGBTQ community, Levine told the Blade.

Representation matters, she said, adding, “that’s true in dental care and medical care,” where there is a tremendous need to push for improvements in health equity — which represents a major focus for HHS under her and Secretary Xavier Becerra’s leadership, and in the Biden-Harris administration across the board.

“Small businesses identify needs in communities,” Guzman said. With Big Gay Smiles, Dr. Robert McKernan and his husband Tyler Dougherty “have clearly identified a need” for “dentistry that is inclusive and that is respectful of the LGBTQIA community in particular.”

She added, “now that they’re a newly established business, part of the small business boom in the Biden-Harris administration, to see their growth and trajectory, it’s wonderful to know that there are going to be providers out there providing that missing support.”

The practice, founded in 2021, “is so affirming for the LGBTQIA community and we certainly wish them luck with their venture and they seem to have a great start,” Levine said. “They’re really dedicated to ending the HIV epidemic, providing excellent dental care, as well as oral cancer screenings, which are so important, and they’re really providing a real service to the community.”

Big Gay Smiles donates 10 percent of its revenue to national and local HIV/AIDS nonprofits. McKernan and Dougherty stressed that their business is committed to combatting homophobia and anti-LGBTQ attitudes and practices within the dental field more broadly.

“We try to align our practices here within this dental office to align with the strategic initiatives being able to help reduce HIV transmission, reduce stigma, and help to ensure people have the knowledge and [are] empowered to ensure that they’re safe,” Dougherty said.

McKernan added, “With the Academy of General Dentistry, we’ve done a lot of discussions around intersex, around trans affirming care, in order to help educate our fellow dental providers. It’s very important that every dentist here in the [D.C. area] provide trans affirming care and gender affirming care because it’s very important that someone who comes to a medical provider not be deadnamed, not get misnamed, and have an affirming environment.”

Trans and gender expansive communities face barriers to accessing care and are at higher risk for oral cancer, depression, and dental neglect. Levine, who is the country’s highest-ranking transgender government official, shared that she has encountered discrimination in dental offices.

After touring the office, Levine and McKernan discussed the persistence of discrimination against patients living with HIV/AIDS by dental practices, despite the fact that this conduct is illegal.

“I’ve traveled around the country,” the assistant health secretary told the Blade. “We have seen that many FQHCs [federally qualified health centers] or community health centers as well as LGBTQIA community health centers have had dentists, like Whitman-Walker, to provide that care because many people with HIV and in our broader community have faced stigma and have not been able to access very, very important dental care.”

Prior to opening his practice, McKernan practiced dentistry at Whitman-Walker, the D.C. nonprofit community health center that has expertise in treating LGBTQ patients and those living with HIV/AIDS. Big Gay Smiles is a red ribbon sponsor for the organization’s Walk & 5K to End HIV.

After their visit with Big Gay Smiles, Levine and Guzman headed to Price Medical, a practice whose focus areas include internal medicine/primary care, HIV specialty care, immunizations, infectious disease treatment, and aesthetics like Botox.

There, the officials talked with Dr. Timothy Price about his office’s work advancing health equity and serving LGBTQ patients including those living with HIV/AIDS, as well as the ways in which small businesses like his have benefitted from access to electronic health records and telemedicine.

Levine, Dr. Timothy Price of Price Medical, and Guzman 

“People being able to access medical care from the comfort of their home or workplace can be very important,” Price said, with technology providing the means by which they can “ask questions and get an answer and have access to a health care provider.”

Often, LGBTQ patients will have concerns, including sexual health concerns, that need urgent attention, he said. For instance, “we’ve had patients need to access us for post-exposure prophylaxis for HIV,” in some cases when “people are vacationing and they have something that might be related to their health and they can reach us [via telemedicine] so that’s the way it’s really helped us and helped the patients.”

Access to technology for small businesses is an area in which the SBA can play a valuable role, Guzman noted.

“The Biden-Harris administration has focused on a whole-of-government approach to making sure we can support the community, and that includes in entrepreneurship,” she told the Blade.

“There’s a surge in [small] businesses starting and that includes” those founded by members of the LGBTQ community “and so you see that there’s products and services that need to be offered,” and the administration is “committed to making sure that we can fund those great ideas.”

Guzman said she sees opportunities for future collaboration between her agency and HHS to help encourage and facilitate innovation in the healthcare space. “Small businesses are innovators creating the future of health tech,” she said.

Levine agreed, noting “we have been talking about that, about different ways that we can work together, because as we think about the social determinants of health and those other social factors that impact health, well, economic opportunity is absolutely a social determinant of health,” and small businesses are certainly a critical way to broaden economic opportunity.

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National

Mass. startup streamlining name changes for trans, non-binary residents

‘No. 1 legal need that trans folks have is identity documents’

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Kelsey GrunstraTre’Andre Carmel Valentine, MG Xiong, and Luke Lennon.

A guy in America wants to buy a truck. They save money. They have built up good credit. They find a truck in their price range. They go to the dealership to buy it, but when the dealership puts the guy’s name through the system no credit shows up.

The problem? That guy is trans and had recently changed their name. “Due to the name change, I was credit invisible,” Luke Lennon explained. “This can happen often for trans and non-binary folks who change their name.” The kicker? “That piece is not the same for folks that change their name due to marriage.” 

This is structural, not accidental, explains Lennon, who uses he/they/any pronouns. While name changes for marriage are accommodated by financial systems, “if you’re trans, you have to notify each creditor of your name change individually.” It is an equity problem: “For a community that already faces huge barriers to wealth building, this is a major issue.”

Lennon opted out of the truck. Without the financing options made available by good credit, the vehicle was outside of their price range. “I was getting just near predatory rates for loans at that point,” he says.

Truck dreams deferred. But he worried about people whose financial needs couldn’t be deferred, like needing a loan for medical care or housing. “For many, that could be a more high-stakes situation. It could put them in financial peril and result in more serious consequences.” 

Lennon had already thought about leveraging his tech and business background toward helping his community with name changes, but the experience in the car dealership cemented how vital the service was. So, they launched Namesake Collaborative, a program to ease the burden of name changes for the trans community.

Getting his name changed at all was a grueling process in Lennon’s home state of Massachusetts, one of the most trans-friendly states in the country. Paperwork was long, confusing, and expensive — a big difference from the Boston FinTech scene he worked for where digital health startups were automating “complex paper-heavy processes to make them easier for end users.” When he sought out that type of service for name changes, they were only for cis women changing their names because of marriage. 

Lennon’s instinct was in line with what trans advocates identified as one of the biggest needs in the state. MG Xiong, the program director at Massachusetts Transgender Political Coalition, shared that “the number one legal need that trans folks said that they have is their identity documents.” This comes from MTPC’s 2019 Comprehensive Needs Assessment Survey, but its need is mirrored nationally

“Filling out court forms is incredibly inaccessible to folks who are not looking at these types of forms on a regular basis or who do not have the knowledge of bureaucratic processes of court processes or legal language,” said Xiong. This stress does not include the fees, which can sometimes exceed $400 in Massachusetts. There is a patchwork of differing systems, forms, and expectations across jurisdictions, as Paisley Currah writes in his seminal book on the topic “Sex Is as Sex Does,”“the same individual has Fs on some state-issued documents and Ms on others.” 

All this trouble means that only 11% of trans people in the U.S. have all identity documents that correctly reflect their name and gender, per the National Center for Trans Equality. The discrepancy is not just annoying or disheartening — it can be outright dangerous. 

While MTPC’s small team raised money to aid in filing fees and led workshops to help, there was always more of a need than they could meet. So, when Lennon pitched a process that streamlined inaccessible forms, they jumped at the opportunity to collaborate. “It was a strategic decision for me to not try to take the traditional startup path,” he explained.

And their path was far from traditional. Instead of pitching to Venture Capital, the startup and non-profit duo drove around Massachusetts. Xiong explains that they and Luke went to “different community centers, bringing the services [directly] to the spaces that people are already in.”

Lennon had actually met the MTPC team at one of their workshops and appreciated the community building they fostered. He trusted the organization that had helped him with his name change to make sure the technology he was building would reach the trans community effectively.

After a beta period in 2021, Namesake launched as a website in 2022with input from community assessments. Despite being a tech startup, they kept it lower-tech. “We decided to operate on a no-code platform to be able to build something more quickly,” said Lennon. Since then, more than 500 transgender Massachusetts residents have used the program to complete gender and name changes. 

A huge part of the program was built on lessening the load of process: getting different forms in one location and being able to fill them all out online in one standardized process. But it also met the need in terms of access in other ways. “We are getting gratitude for the simplicity of it.” Xiong said. “That it uses common and accessible language. It defines what certain court language or legal language means.”

Namesake is on the cusp of a new iteration, which will make it more user-friendly through an app version. Lennon has partnered with Computost, a worker-owned software consulting co-op that understood Namesakes’ values.  

While always working to make the product more usable, Lennon is careful about keeping it more trans than tech. Lennon explains that the variability in the community is “often at odds with technology’s reductive approach to an ideal user profile or persona.”

The longer they work with Namesake, the more they are convinced, “I don’t think tech should ever be heralded as THE solution to anything, really.” He explains that their method of development is “using community-sharing knowledge in order to augment that technology.” 

Lennon explains that he is more concerned with making a community than a traditional tech product. “A strong community also requires breaking the binary of ‘giver and receiver,’ which runs counter to much of the startup folklore around serving customers.” However, they “have compassion for any trans or queer person trying to solve a real problem for our communities through tech.”

Looking forward, Lennon explains that Namesake is “focused on creating something more fluid and communal, something that will ideally evolve with the community and help folks feel less alone throughout the process.” 

(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)

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