National
DOJ asks Supreme Court to prioritize Windsor’s DOMA challenge
Brief says Second Circuit ‘most appropriate vehicle’ for justices
The Justice Department is asking DOJ to prioritize Edith Windsor‘s challenge against DOMA (Washington Blade file photo by Michael Key)
The Obama administration is asking the U.S. Supreme Court to make the case of an 83-year-old New York lesbian who had to pay $363,000 in estate taxes its highest priority among the pending lawsuits challenging the Defense of Marriage Act.
In an 11-page supplemental brief filed on Friday, U.S. Solicitor General Donald Verrilli writes that the case of Windsor v. United States — which recently led the U.S. Second Circuit Court of Appeals to conclude DOMA is unconstitutional — should take precedence among other pending lawsuits challenging the anti-gay law.
Previously, the Justice Department has said the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services — which was filed respectively by Gay & Lesbian Advocates & Defenders and Massachusetts Attorney General Martha Coakley — should be the priority because the case once was the only one in which an appeals court ruled against DOMA.
However, that changed after the ruling by the Second Circuit, which became the first appeals court to apply heightened scrutiny — or a greater assumption the law is unconstitutional — in its ruling against DOMA. The application of heightened scrutiny is suggested in the Justice Department as the reason why the Windsor case should take precedence, although it’s not explicitly stated.
“Although Department of Health and Human Services v. Massachusetts… is also a case in which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA,” the brief states. “In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny … whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”
The plaintiff in the case, which was filed by groups including the American Civil Liberties Union, is Edith Windsor, who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer. The two had lived as a couple for 44 years and married in Canada in 2007.
In a statement, Windsor said she’s “pleased” the Justice Department underscoring the importance of her lawsuit against DOMA.
“I am so pleased that the U.S. Solicitor General has recommended that the Supreme Court grant certiorari in my case,” Windsor said. “It has been a long journey up to this point, and I remain hopeful that I will be alive to see the day soon when justice is done for me and for all other married gay and lesbian couples.”
The Justice Department brief explains that the administration previously had concerns about the Windsor case, but each of these concerns was addressed in the Second Circuit ruling. Chief among them was that no appellate court had weighed on the lawsuit, which was obviously addressed when the Second Circuit made its decision.
Additionally, Paul Clement, a private attorney who’s defending the lawsuit on behalf of House Republicans, contended the lawsuit should be brought to certification before the New York’s highest court, the New York Court of Appeals, to allow before the case could move forward because New York had yet to legalize same-sex marriage in 2009. The Justice Department points the Second Circuit dismissed this argument in its decision.
“[A]fter finding New York law sufficiently clear to resolve the issue directly rather than requiring certification to the New York Court of Appeals, the court of appeals unanimously held — consistent with the ‘useful and unanimous’ rulings of New York’s intermediate appellate courts — that New York law recognized plaintiff ’s foreign marriage at the relevant time,” the brief states.
Finally, based on previous case law, the Justice Department disputes a notion that the previous brief asking the Supreme Court to take up the lawsuit should be abrogated in the wake of the Second Circuit.
“Although the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it,” the brief states. “If granted, the writ of certiorari would still be directed tothe court of appeals, and this Court could still exercise jurisdiction…”
If the Supreme Court grants review in the Windsor case, the Justice Department says justices should hold the petitions in the Massachusetts case “pending final resolution on the merits.” But if the court determines neither case is appropriate for review, the Justice Department says other cases — Golinski v. Office of Personnel Management or Pedersen v. Office of Personnel Management — should be considered for review. Federal district courts have ruled against DOMA in those lawsuits and they’re also pending before the Supreme Court, but an appeals court has yet to weigh in on either lawsuits.
Carisa Cunningham, a GLAD spokesperson, was dismissive of the Justice Department’s call to make the Windsor case a higher priority among the challenges against DOMA as opposed to the initial lawsuit her organization filed against the statute.
“DOJ has pretty consistently pointed the court away from Gill for reasons only they can tell you, so this is not surprising to us,” Cunningham said.
Coakley’s office declined to comment on the brief.
[H/T] Prop 8 Trial Tracker
Federal Government
RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth
‘Discredited junk science’ — GLAAD
A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.
The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.
“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”
While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.
The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”
Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.
“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”
GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”
Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.
“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.
“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.
“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”
“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”
“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.”
Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.
“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”
The White House
Trump nominates Mike Waltz to become next UN ambassador
Former Fla. congressman had been national security advisor
President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.
Waltz, a former Florida congressman, had been the national security advisor.
Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.
“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”
Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”
“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.
Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.
U.S. Federal Courts
Second federal lawsuit filed against White House passport policy
Two of seven plaintiffs live in Md.
Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.
The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”
Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.
“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.
Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.
The lawsuit notes he legally changed his name and gender in New York.
Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”
Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.
“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”
“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”
Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.
Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.
Lambda Legal represented Zzyym.
The State Department policy took effect on April 11, 2022.
Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.
A federal judge in Boston earlier this month issued a preliminary injunction against the executive order. The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.
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