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Election results bolster state marriage fights

Rhode Island, other states expected to debate issue in 2013

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Barack Obama, Election 2012, gay news, Washington Blade
Barack Obama, Election 2012, gay news, Washington Blade

Polls show President Obama’s same-sex marriage support did not hurt him among voters. (Washington Blade photo by Michael Key)

Same-sex marriage advocates contend the Nov. 6 election results have given them additional momentum to fight for nuptials for gays and lesbians in their respective states.

Ray Sullivan, campaign manager of Marriage Equality Rhode Island, the group fighting for marriage rights for same-sex couples there, noted to the Washington Blade in a post-Election Day interview the General Assembly will have ā€œmore pro-equality legislators seated than ever in historyā€ in 2013.

Gay House Speaker Gordon Fox, who sparked controversy in 2011 when he endorsed a civil unions bill because of a lack of support in his chamber for a marriage measure, has pledged to call a vote on a proposal that would allow nuptials for gays and lesbians in the state before the end of January. The Rhode Island chapter of the American Civil Liberties Union noted in May only 52 couples had obtained civil union licenses since the stateā€™s civil union took effect in July 2011.

Gov. Lincoln Chafee signed an executive order earlier this year mandating state agencies to recognize same-sex marriages legally performed in neighboring Massachusetts, Connecticut and other states. He has also publicly backed marriage rights for same-sex couples, even though he reluctantly signed the controversial 2011 civil unions bill into law.

ā€œThere is this sense that finally in Rhode Island itā€™s not a matter of if, but when,ā€ said Sullivan, who noted MERI and other advocates could focus on building additional support for the same-sex marriage bill in the state Senate if it passes in the House. ā€œThe results from last Tuesday both here and throughout the country represent quite frankly ground-shifting momentum for the pro-equality effort. Our focus and our jobs will be to capitalize on that momentum, reaffirm the support we already have, work with this record [majority and] finally make 2013 the year that we get this done.ā€

Voters in Maine, Maryland and Washington on Election Day approved referenda that either extended nuptials to gays and lesbians or upheld their stateā€™s same-sex marriage laws. Minnesotans also rejected a proposed state constitutional amendment that would have defined marriage as between a man and a woman.

Minnesota Gov. Mark Dayton, who supports nuptials for gays and lesbians, is among those who spoke out against Amendment 1.

Delaware Gov. Jack Markell, who signed his stateā€™s civil unions bill into law in May 2011, raised eyebrows in August when he suggested to the Huffington Post state lawmakers could debate a same-sex marriage bill as early as next year.

Garden State Equality Chair Steven Goldstein expressed confidence in a post-Election Day statement New Jerseyā€™s Democratic-controlled state legislature will override Gov. Chris Christieā€™s veto of the same-sex marriage bill lawmakers approved earlier this year. The state does not have a referendum or initiative process, but Goldstein stressed his group remains opposed to the idea of allowing voters to consider marriage rights for gays and lesbians at the ballot.

ā€œThe majority should never vote on the civil rights of a minority, period,ā€ he said.

Same-sex marriage advocates in other states are poised to implement a different strategy.

Basic Rights Oregon has launched an online campaign designed to bolster support for a 2014 ballot measure that would overturn the stateā€™s constitutional amendment that defines marriage as between a man and a woman. Oregon would become the first state in the country to overturn such a ban if voters support the referendum.

ā€œAs more and more Americans are having conversations with gay and lesbian friends and family about why marriage matters, theyā€™re coming to realize that this is not a political issue: This is about love, commitment and family,ā€ reads the appeal. ā€œWe know that we are on the right path. Our outreach, just like that of the states who [have won] the freedom to marry is winning hearts and minds.ā€

Rick Sutton, executive director of Equality Indiana Action, which opposes a proposed state constitutional amendment that would ban marriage for same-sex couples that is expected to go before voters in 2014, told the Blade his group has already looked to the campaign that defeated Minnesotaā€™s Amendment 1 for guidance.

ā€œItā€™s pretty clear to me to win an amendment like that ā€” thereā€™s was very similar to what ours will likely be ā€” you have to have a pretty broad coalition of businesses, faith community, labor, retired folks, the whole gamut,ā€ said Sutton. He noted WellPoint, the Simon Property Group and other Indiana-based corporations have already spoken out against the proposed amendment. ā€œIt will be difficult to attract and retain top quality scientists and engineers, particularly younger ones, who just donā€™t think this is something government should be getting involved with. Theyā€™re concerned about their future workforce.ā€

An ABC News/Washington Post poll released on Nov. 14 indicates 51 percent of Americans support marriage rights for same-sex couples. A Gallup poll conducted shortly after President Obama publicly endorsed marriage rights for same-sex couples noted 60 percent of respondents said his position on the issue would not influence whether they would support or oppose his re-election bid.

ā€œWhat happened I think with this election is that itā€™s taken away the argument from our opponents that when legislators are forced to vote to affirm the right of same-sex couples to marriage equality, the popular sentiment is on the opposite side,ā€ Equality Illinois CEO Bernard Cherkasov told the Blade.

Lambda Legal and the ACLU of Illinois on May 30 filed lawsuits against the Cook County Clerkā€™s office on behalf of 25 same-sex couples. Attorney General Lisa Madigan and Cook County Stateā€™s Attorney Anita Alvarez have both said they support the litigation, while Cook County Clerk David Orr and Chicago Mayor Rahm Emanuel are among those who support marriage rights for same-sex couples.

More than 4,800 same-sex couples have taken advantage of the stateā€™s civil unions law since it took effect in July 2011, but Cherkasov said the election results confirm ā€œthereā€™s popular support for marriage equality.ā€

ā€œLawmakers should follow suit and actually grant marriage equality to gay and lesbian couples in loving, committed relationships,ā€ he said. ā€œWe intend to carry that message to our lawmakers in Illinois.ā€

Sutton agreed as he discussed Obamaā€™s evolution on the successful same-sex marriage referenda in Maine, Maryland and Washington on Election Day.

ā€œNational momentum is there,ā€ he said. ā€œThe time has come for the other side to realize where they are. They wonā€™t give up quietly. Their argument never changes. Itā€™s always the same, and weā€™re ready for that. Weā€™re absolutely ready.ā€

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U.S. Supreme Court

Trans rights supporters, opponents rally outside Supreme Court as justices consider Tenn. law

Oral arguments in U.S. v. Skrmetti case took place Wednesday

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(Washington Blade photo by Michael Key)

At least 1,000 people rallied outside the U.S. Supreme Court on Wednesday as the justices considered whether a Tennessee law banning gender-affirming medical care for transgender youth is unconstitutional.

Dueling rallies began early in the morning, with protesters supporting trans rights and protesters supporting Tennesseeā€™s ban on gender-affirming care each stationed with podiums on opposite sides.

Trans rights protesters, who significantly outnumbered the other group, held signs reading ā€œKeep hate out of healthcare,ā€ and ā€œRespect family medical decisions.ā€ On the other side, protesters carried signs with messages like ā€œSex change is fantasy,ā€ and ā€œStop transing gay kids.ā€

Ari, a trans person who grew up in Nashville and now lives in D.C., spoke to the Washington Blade about the negative effects of the Tennessee law on the well-being of trans youth. 

ā€œI grew up with kids who died because of a lack of trans healthcare, and I am scared of that getting worse,” they said. “All that this bill brings is more dead kids.ā€

The Tennessee law that is being challenged in U.S. v Skrmetti took effect in 2023 and bans medical providers from prescribing medical treatments such as puberty blockers and hormone therapies to trans youth. 

A number of Democratic lawmakers, including U.S. Rep. Mark Takano (D-Calif.), co-chair of the Congressional Equality Caucus, and U.S. Sens. Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.) addressed the crowd in support of trans rights. 

In his speech, Merkley said Americans deserved freedom in accessing gender affirming care and criticized the law as political intervention in private medical decisions. 

ā€œAmericans should have the freedom to make medical decisions in the privacy of their doctor’s office without politicians trying to dictate to them,ā€ he said. 

Robert Garofalo, a chief doctor in the division of Adolescent and Young Adult Medicine at a Chicago childrenā€™s hospital, emphasized the importance of trans youth having access to gender affirming care. 

ā€œWe [providers] are seeing patients and families every day, present with crippling fears, added stress and anxiety as they desperately try to locate care where it remains legal to do so,ā€ Garofalo, who is also a professor of pediatrics at Northwestern University, told the crowd. ā€œTransgender children and adolescents deserve health care that is grounded in compassion, science and principles of public health and human rights. They must not be denied life saving medical care ā€” their lives depend on it.ā€

Major U.S. medical associations, including the American Medical Association and the American Academy of Pediatrics, support gender affirming care. 

Research has found gender affirming care improves the mental health and overall well-being of gender diverse children and adolescents. Those who are denied access to gender affirming care are at increased risk for significant mental health challenges.  

An unlikely coalition came out to support Tennesseeā€™s ban on gender affirming care. Far-right figures, such as U.S. Rep. Marjorie Taylor Greene (R-Ga.) and Matt Walsh ā€” both of whom have a history of making homophobic statements ā€” were joined by groups such as the LGBT Courage Coalition and Gays Against Groomers.Ā 

TheĀ groups questioned the quality of the research finding gender-affirming care to have a positive effect on the well-being of trans and gender nonconforming youth and argued that minors cannot consent to medical treatment. Ben Appel, a co-founder of the LGBT Courage Coalition, which he notes was ā€œco-founded by gay, lesbian, bisexual, and trans adults who oppose pediatric gender medicine, which we know to be non-evidence-based and harmful to young gay people,ā€Ā said gender nonconformity is often part of the lesbian, gay, and bisexual experience and should not be ā€œmedicalized.ā€Ā 

ā€œI care about the adult gay detransitioners who have been harmed ā€¦ by these homophobic practice,ā€ he said ā€œThey should have just been told they’re gay.ā€Ā 

Claire, a Maryland resident who attended the rally in favor of the Tennessee law and claims to have detransitioned, described being prescribed testosterone and having a mastectomy at 14, medical treatments she says she was unable to consent to at that age. She doesnā€™t oppose gender affirming care for adults but is opposed to ā€œmedical experimentation on children.ā€

ā€œI think that adults should be allowed to do whatever they want with their bodies. I think that it is if someone is happy with the decision that they made that’s great,ā€ she said. ā€œI was not able to make that decision. I was a child.ā€ 

(Washington Blade photo by Michael Key)

But trans activists fear that a ruling in favor of Tennessee could pave the way for states to restrict access to gender-affirming care for adults.

ā€œThere’s also broader implications for civil rights and trans rights, more broadly, for adults in the future. There are some states that have tried to ban some healthcare for adults ā€” they haven’t yet ā€” but I think that’s something we might also see if the Supreme Court rules that way,ā€ Ethan Rice, a senior attorney at Lambda Legal, one of the legal organizations representing the plaintiffs in U.S. v Skrmetti, said.

In the case, three Tennessee families and a physician are challenging the Tennessee law on the grounds that it violates the Equal Protection Clause in the 14th Amendment by drawing lines based on sex and discriminating against trans people. The statute bans medications for trans children while allowing the same medications to be used when treating minors suffering from other conditions, such as early-onset puberty. 

A 2020 Supreme Court decision determined sex-based discrimination includes discrimination based on gender identity or sexual orientation. The key question in U.S. v. Skrmetti is whether this interpretation applies under the Equal Protection Clause.

ā€œWe really hope that the Supreme Court recognizes their own precedent on sex discrimination cases and comes out the right way, saying this is sex discrimination by the state of Tennessee and thus is unconstitutional,ā€ Rice said. 

Twenty-six states currently have laws or policies restricting minorsā€™ access to gender-affirming care. If the court rules against Tennessee, similar bans in other states would also be unconstitutional, granting trans youth greater access to gender affirming care nationwide. 

Edith Guffey, the board chair at PFLAG, expressed doubt the court will strike down the law, citing its sharp ideological turn to the right in recent years. But she said she remains hopeful. 

ā€œI hope that the court will ā€¦ step outside agendas and look at the needs of people and who has the right to say what’s good for their children,ā€ she said.

Chase Strangio, an ACLU attorney representing the families, on Wednesday became the first openly trans lawyer to argue before the Supreme Court. He addressed the trans rights protesters after the hearing. 

ā€œWhatever happens, we are the defiance,ā€ Strangio said. ā€œWe are collectively a refutation of everything they say about us. And our fight for justice did not begin today, it will not end in June ā€” whatever the court decides.ā€

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Supreme Court hears oral arguments in pivotal gender affirming care case

U.S. v. Skrmetti could have far-reaching impacts

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Activists gather outside of the U.S. Supreme Court on Wednesday during oral arguments for U.S. v. Skrmetti. (Washington Blade photo by Michael Key)

The U.S. Supreme Court heard oral arguments in U.S. v. Skrmetti on Wednesday, the case brought by the Biden-Harris administration’s Department of Justice to challenge Tennessee’s ban on gender affirming care for minors.

At issue is whether the law, which proscribes medical, surgical, and pharmacological interventions for purposes of gender transition, abridges the right to due process and equal protection under the 14th Amendment to the U.S. Constitution, as well as Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination.

The petitioners ā€” U.S. Solicitor General Elizabeth Prelogar, who represents the federal government, and Chase Strangio, co-director of the ACLU’s LGBT & HIV Project ā€” argue the Supreme Court should apply heightened scrutiny to laws whose application is based on transgender status rather than the rational basis test that was used by the U.S. Court of Appeals for the 6th Circuit, which is more deferential to decisions by legislators.

Legal experts agree the conservative justices are unlikely to be persuaded even though, as Tennessee Solicitor General J. Matthew Rice made clear on Wednesday, under the state’s statute “If a boy wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition. If a girl wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition.”

Oral arguments delved into a range of related topics, beginning with conservative Justice Samuel Alito’s questions about debates within the global scientific and medical communities about the necessity of these interventions for youth experiencing gender dysphoria and the risks and benefits associated with each treatment.

“Isn’t the purpose of intermediate scrutiny to make sure that we guard against ā€” I’m not intending to insult ā€” but we all have instinctual reactions, whether it’s parents or doctors or legislatures, to things that are wrong or right,” said liberal Justice Sonia Sotomayor.

“For decades, women couldn’t hold licenses as butchers or as lawyers because legislatures thought that we weren’t strong enough to pursue those occupations,” she said. “And some, some people rightly believe that gender dysphoria may cause may be changed by some children, in some children, but the evidence is very clear that there are some children who actually need this treatment. Isn’t there?”

After Prelogar answered in the affirmative, Sotomayor continued, “Some children suffer incredibly with gender dysphoria, don’t they? Some attempt suicide. Drug addiction is very high among some of these children because of their distress. One of the petitioners in this case described going almost mute because of their inability to speak in a voice that they could live with.”

Conservative Justice Brett Kavanaugh focused his initial questions on whether the democratic process should adjudicate questions of science and policy, asserting that both sides have presented compelling arguments for their respective positions.

There are solutions that would allow policymakers to mitigate concerns with gender affirming medical interventions for minor youth without abridging the Equal Protection clause and Section 1557 of the ACA, Prelogar said.

For instance, “West Virginia was thinking about a total ban, like this one, on care for minors,” she said, “but then the Senate Majority Leader in West Virginia, who’s a doctor, looked at the underlying studies that demonstrate sharply reduced associations with suicidal ideation and suicide attempts, and the West Virginia Legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care.”

She continued, “West Virginia requires that two different doctors diagnose the gender dysphoria and find that it’s severe and that the treatment is medically necessary to guard against the risk of self harm. The West Virginia law also requires mental health screening to try to rule out confounding diagnoses. It requires the parents to agree and the primary care physician to agree. And I think a law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest.”

Later, in an exchange with Rice, Sotoyamor said, “I thought that that’s why we had intermediate scrutiny when there are differences based on sex, to ensure that states were not acting on the basis of prejudice.”

She then asked whether a hypothetical law mirroring Tennessee’s that covered adults as well as minor youth would pass the rational basis test. Rice responded, “that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”

“Well, Your Honor, of course, our position is there is no sex based classification. But to finish the answer, that to the extent that along with dealing with adults, would pass rational basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”

“When you’re one percent of the population or less,” said Sotomayor, “it’s very hard to see how the democratic process is going to protect you. Blacks were a much larger percentage of the population and it didn’t protect them. It didn’t protect women for whole centuries.”

(Washington Blade photo by Michael Key)
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LGBTQ asylum seekers, migrants brace for second Trump administration

Incoming president has promised ā€˜mass deportationsā€™

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A portion of the fence that marks the Mexico-U.S. border in Tijuana, Mexico, on Feb. 25, 2020. LGBTQ asylum seekers and migrants, and the groups that advocate on their behalf, are bracing for the second Trump administration. (Washington Blade photo by Michael K. Lavers)

Advocacy groups in the wake of President-elect Donald Trumpā€™s election fear his administrationā€™s proposed immigration policies will place LGBTQ migrants and asylum seekers at increased risk.

ā€œWhat we are expecting again is that the new administration will continue weaponizing the immigration system to keep igniting resentment,ā€ Abdiel EchevarrĆ­a-CabĆ”n, an immigration lawyer who is based in Texasā€™s Rio Grande Valley, told the Washington Blade.

Trump during the campaign pledged a ā€œmass deportationā€ of undocumented immigrants.

The president-elect in 2019 implemented the Migrant Protection Protocols program ā€” known as the ā€œRemain in Mexicoā€ policy ā€” that forced asylum seekers to pursue their cases in Mexico.

Advocates sharply criticized MPP, in part, because it made LGBTQ asylum seekers who were forced to live in Tijuana, Ciudad JuƔrez, Matamoros, and other Mexican border cities even more vulnerable to violence and persecution based on their gender identity and sexual orientation.

The State Department currently advises American citizens not to travel to Tamaulipas state in which Matamoros is located because of ā€œcrime and kidnapping.ā€ The State Department also urges American citizens to ā€œreconsider travelā€ to Baja California and Chihuahua states in which Tijuana and Ciudad JuĆ”rez are located respectively because of ā€œcrime and kidnapping.ā€

The Biden-Harris administration ended MPP in 2021.

The Centers for Disease Control and Prevention in March 2020 implemented Title 42, which closed the Southern border to most asylum seekers and migrants because of the COVID-19 pandemic. The policy ended in May 2023.

Robert Contreras, president of Bienestar Human Services, a Los Angeles-based organization that works with Latino and LGBTQ communities, in a statement to the Blade noted Project 2025, which ā€œoutlines the incoming administrationā€™s agenda, proposes extensive rollbacks of rights and protections for LGBTQ+ individuals.ā€

ā€œThis includes dismantling anti-discrimination protections, restricting access to gender-affirming healthcare, and increasing immigration enforcement,ā€ said Contreras.

Trans woman in Tijuana nervously awaits response to asylum application

A Biden-Harris administration policy that took place in May 2023 says ā€œnoncitizens who cross the Southwest land border or adjacent coastal borders without authorization after traveling through another country, and without having (1) availed themselves of an existing lawful process, (2) presented at a port of entry at a pre-scheduled time using the CBP (U.S. Customs and Border Protection) One app, or (3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions.ā€ The exceptions under the regulation include:

  • They were provided authorization to travel to the United States pursuant to a DHS-approved parole process; 
  • They used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or 
  • They applied for and were denied asylum in a third country en route to the United States.  

Biden in June issued an executive order that prohibits migrants from asking for asylum in the U.S. if they ā€œunlawfullyā€ cross the Southern border.

The Organization for Refuge, Asylum and Migration works with LGBTQ migrants and asylum seekers in Tijuana, Mexicali and other Mexican border cities.

ORAM Executive Director Steve Roth is among those who criticized Bidenā€™s executive order. Roth told the Blade the incoming administrationā€™s proposed policies would ā€œleave vulnerable transgender people, gay men, lesbians, and others fleeing life-threatening violence and persecution with little to no opportunity to seek asylum in the U.S. stripped of safe pathways.ā€

ā€œMany will find themselves stranded in dangerous regions like the Mexico-U.S. border and transit countries around the world where their safety and well-being will be further jeopardized by violence, exploitation, and a lack of support,ā€ he said. 

Jennicet GutiĆ©rrez, co-executive director of Familia: TQLM, an organization that advocates on behalf of transgender and gender non-conforming immigrants, noted to the Blade a trans woman who has asked for asylum in the U.S. ā€œhas been patiently waiting in Tijuanaā€ for more than six months ā€œfor her CBP One application response.ā€

ā€œNow she feels uncertain if she will ever get the chance to cross to the United States,ā€ said GutiĆ©rrez.

She added Trumpā€™s election ā€œis going to be devastating for LGBTQ+ asylum seekers.ā€

ā€œTransgender migrants are concerned about the future of their cases,ā€ said GutiĆ©rrez. ā€œThe upcoming administration is not going to prioritize or protect our communities. Instead, they will prioritize mass deportations and incarceration.ā€

Jennicet GutiƩrrez (Photo courtesy of Familia: TQLM)

TransLatin@ Coalition President Bamby Salcedo echoed GutiƩrrez.

ā€œTrans people who are immigrants are getting the double whammy with the new administration,ā€ Salcedo told the Blade. ā€œAs it is, trans people have been political targets throughout this election. Now, with the specific target against immigrants, trans immigrants will be greatly impacted.ā€

‘Weā€™re ready to keep fighting’

Trans Queer Pueblo is a Phoenix-based organization that provides health care and other services to undocumented LGBTQ immigrants and migrants of color. The group, among other things, also advocates on behalf of those who are in U.S. Immigration and Customs Enforcement detention centers.

ā€œWe refuse to wait for politicians to change systems that were designed to hurt us,ā€ Trans Queer Pueblo told the Blade in a statement. ā€œThe elections saw both political parties using our trans and migrant identities as political pawns.ā€

Trans Queer Pueblo acknowledged concerns over the incoming administrationā€™s immigration policies. It added, however, Arizonaā€™s Proposition 314 is ā€œour biggest battle.ā€

Arizona voters last month approved Proposition 314, which is also known as the Secure the Border Act.

Trans Queer Pueblo notes it ā€œmakes it a crime for undocumented people to exist anywhere, with arrests possible anywhere, including schools and hospitals.ā€ The group pointed out Proposition 314 also applies to asylum seekers.

ā€œWe are building a future where LGBTQ+ migrants of color can live free, healthy, and secure, deciding our own destiny without fear,ā€ Trans Queer Pueblo told the Blade. ā€œThis new administration will not change our mission ā€” weā€™re ready to keep fighting.ā€

Contreras stressed Bienestar ā€œremains committed to advocate for the rights and safety of all migrants and asylum seekers.ā€ GutiĆ©rrez added it is ā€œcrucial for LGBTQ+ migrants to know that they are not alone.ā€

ā€œWe will continue to organize and mobilize,ā€ she said. ā€œWe must resist unjust treatments and laws.ā€

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