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Supreme Court takes up Prop 8, DOMA cases

Justices to settle two major issues on same-sex marriage

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The U.S. Supreme Court took up litigation challenging DOMA and Prop 8 (Washington Blade file photo by Michael Key)

Ending months of anticipation, the U.S. Supreme Court signaled on Friday it would take up litigation challenging California’s Proposition 8 and one case challenging the Defense of Marriage Act.

Justices decided to take up the case of Hollingsworth v. Perry, which seeks to overturn the state constitutional amendment California voters passed in 2008 that took away marriage rights for same-sex couples.

They also decided to take up Windsor v. United States, litigation challenging the constitutionality of the Defense of Marriage Act. That lawsuit was filed by Edith Windsor, a New York widow who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.

The court made the news in an orders list published Friday following a conference the justices held on the same day. Four justices must vote affirmatively to grant a writ of certiorari in any particular case, but that vote isn’t public information.

Windsor, 83, expressed excitement in a statement that her lawsuit would be the one to challenge DOMA at the Supreme Court. Her lawsuit was filed by the American Civil Liberties Union along with Paul, Weiss, Rifkind, Wharton & Garrison LLP and other groups.

“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens,” Windsor said. “While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

This news that the court will take up the Perry case is disappointing to many who had hoped justices would decline to hear the litigation and allow a U.S. Ninth Circuit Court of Appeals decision striking down the measure to stand.

John Eastman, chair of the anti-gay National Organization for Marriage, said the decision of the Supreme Court to take up the Prop 8 lawsuit suggests justices are poised to reverse decisions from lower courts against the same-sex marriage ban.

“We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8,” Eastman said. “That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”

Still, LGBT advocates expressed excitement that the Supreme Court has decided to take up the Prop 8 case and has the opportunity to rule against California’s same-sex marriage ban once and for all.

Human Rights Campaign President Chad Griffin – who also co-founded the American Foundation for Equal Rights, the organization behind the Prop 8 lawsuit – said the decision marks another “milestone” day for same-sex couples.

“The passage of Proposition 8 caused heartbreak for so many Americans, but today’s announcement gives hope that we will see a landmark Supreme Court ruling for marriage this term,” Griffin said. “As the Court has ruled 14 times in the past, marriage is a fundamental right and I believe they will side with liberty, freedom and equality, moving us toward a more perfect union as they have done in the past.”

The decision means litigation will continue at the Supreme Court and the court will rule on them by the middle of next year. Justices can affirm a Ninth Circuit decision striking down Prop 8 or uphold the anti-gay measure as constitutional. For DOMA, the court could either uphold the federal recognition of same-sex marriage, or strike it down and allow federal benefits to flow to same-sex couples.

No news was made on three other DOMA cases before the Supreme Court: the consolidated case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services; Pedersen v. Office of Personnel Management and Golinski v. United States. If justices declined to hear the cases at the Friday conference, it would be announced in another orders list set for publication on Monday.

Doug NeJaime, who’s gay and a professor at Loyola Law School, said justices may have elected to take up the Windsor case — the only DOMA lawsuit in which a federal appeals court ruled against DOMA by applying heightened scrutiny — to apply that same standard to Prop 8.

“If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men – including state marriage prohibitions like Prop. 8 – would be suspect,” NeJaime said.

But NeJaime added taking up both Windsor and Perry may also mean justices see “a material distinction” between a federal law denying recognition to same-sex marriage and a state law preventing same-sex couples from marrying. That could mean the court will split the difference in its rulings, finding DOMA unconstitutional but upholding Prop 8.

In addition to announcing it would take up the litigation, the Supreme Court also asks parties involved in both cases to brief and argue certain questions.

For the Prop 8 case, the parties must answer whether proponents of the same-sex marriage ban have standing under Article III of the U.S. Constitution to defend the same-sex marriage ban in court. Whether anti-gay groups, such as Protect Marriage, have standing to defend the law in court has been a long-standing issue in the case. California Gov. Jerry Brown and California Attorney General Kamala Harris have refused to defend the law in court, leaving anti-gay groups left as the one’s responsible to defend the law.

For the DOMA cases, the court asks parties to answer two questions. The first is whether the executive branch agreement with the U.S. Second Circuit Court of Appeals that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to hear the case. In February 2011, the Obama administration announced that DOMA is unconstitutional and it would no longer defend the law in court.

The second question related to DOMA is whether the House Republican-led Bipartisan Legal Advisory Group has standing to defend the law. After the Obama administration announced it would no longer defend DOMA, House Republicans under the leadership of Speaker John Boehner (R-Ohio) decided to take up defense of the law in the administration’s stead.

The Supreme Court has continually put off making a decision on whether to take up the Prop 8 and DOMA litigation. The cases were first docketed for the conference on Sept. 24, but made no decision at that time. The cases were then docketed for the Nov. 20 conference, but then rescheduled for Nov. 30. No decision was made at that later date. For the recent conference on Nov. 30, it was speculated justices put off making a decision because they needed to more time to decide which combination of the four DOMA cases it wanted to take up.

The next step in the process is for the petitioner — or the party that made an appeal to the Supreme Court — to file opening briefs. Generally, the deadline to do this is 45 days after the court has decided to take up a case. Opposing parties have 30 days to respond, and the petitioner has another 30 days to respond to that. Others parties during this time may also file friend-of-the-court briefs before the court.

Oral arguments will be scheduled by the clerk’s office and likely be announced next week. They’re expected to take place in late Winter or Spring of next year. The court must render a decision before its term ends in June.

No news was also made in another LGBT-related case before the Supreme Court related to Arizona domestic partner benefits. Gov. Jan Brewer appealed to court an injunction barring her from enforcing a law taking away benefits Arizona state employees with same-sex partners. As with the other DOMA cases, if justices have declined to hear the case at the Friday conference, their decision would be announced in another orders list on Monday.

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The White House

Biden issues Transgender Day of Visibility proclamation

Statement comes against backdrop of anti-transgender laws

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President Joe Biden speaks at the Respect for Marriage Act signing ceremony on Dec. 13, 2022. (Washington Blade photo by Michael Key)

President Joe Biden on Thursday issued a proclamation that recognizes the Transgender Day of Visibility.

“Transgender Day of Visibility celebrates the joy, strength, and absolute courage of some of the bravest people I know — people who have too often had to put their jobs, relationships, and lives on the line just to be their true selves,” reads the proclamation. “Today, we show millions of transgender and nonbinary Americans that we see them, they belong, and they should be treated with dignity and respect. Their courage has given countless others strength, but no one should have to be brave just to be themselves. Every American deserves that freedom.”

Biden said “transgender Americans shape our nation’s soul — proudly serving in the military, curing deadly diseases, holding elected office, running thriving businesses, fighting for justice, raising families and much more.”  

“As kids, they deserve what every child deserves: The chance to learn in safe and supportive schools, to develop meaningful friendships, and to live openly and honestly,” he said. “As adults, they deserve the same rights enjoyed by every American, including equal access to health care, housing, and jobs and the chance to age with grace as senior citizens. But today, too many transgender Americans are still denied those rights and freedoms.”  

Biden notes “a wave of discriminatory state laws is targeting transgender youth, terrifying families and hurting kids who are not hurting anyone.”  

“An epidemic of violence against transgender women and girls, in particular women and girls of color, has taken lives far too soon,” he added. “Last year’s Club Q shooting in Colorado was another painful example of this kind of violence — a stain on the conscience of our nation.”

The full proclamation is below:

 TRANSGENDER DAY OF VISIBILITY, 2023 
– – – – – – – 
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA  
A PROCLAMATION
     Transgender Day of Visibility celebrates the joy, strength, and absolute courage of some of the bravest people I know — people who have too often had to put their jobs, relationships, and lives on the line just to be their true selves. Today, we show millions of transgender and nonbinary Americans that we see them, they belong, and they should be treated with dignity and respect. Their courage has given countless others strength, but no one should have to be brave just to be themselves. Every American deserves that freedom.

     Transgender Americans shape our Nation’s soul — proudly serving in the military, curing deadly diseases, holding elected office, running thriving businesses, fighting for justice, raising families, and much more. As kids, they deserve what every child deserves: The chance to learn in safe and supportive schools, to develop meaningful friendships, and to live openly and honestly. As adults, they deserve the same rights enjoyed by every American, including equal access to health care, housing, and jobs and the chance to age with grace as senior citizens. But today, too many transgender Americans are still denied those rights and freedoms. A wave of discriminatory state laws is targeting transgender youth, terrifying families and hurting kids who are not hurting anyone. An epidemic of violence against transgender women and girls, in particular women and girls of color, has taken lives far too soon. Last year’s Club Q shooting in Colorado was another painful example of this kind of violence — a stain on the conscience of our nation.

     My administration has fought to end these injustices from day one, working to ensure that transgender people and the entire LGBTQI+ community can live openly and safely. On my first day as president, I issued an executive order directing the federal government to root out discrimination against LGBTQI+ people and their families. We have appointed a record number of openly LGBTQI+ leaders, and I was proud to rescind the ban on openly transgender people serving in the military. We are also working to make public spaces and travel more accessible, including with more inclusive gender markers on United States passports. We are improving access to public services and entitlements like Social Security. We are cracking down on discrimination in housing and education. And last December, I signed the Respect for Marriage Act into law, ensuring that every American can marry the person they love and have that marriage accepted, period.

     Meanwhile, we are also working to ease the tremendous strain that discrimination, bullying, and harassment can put on transgender children — more than half of whom seriously considered suicide in the last year. The Department of Education is, for example, helping ensure that transgender students have equal opportunities to learn and thrive at school, and the Department of Justice is pushing back against extreme laws that seek to ban evidence-based gender-affirming health care.

     There is much more to do. I continue to call on the Congress to finally pass the Equality Act and extend long-overdue civil rights protections to all LGBTQI+ Americans to ensure they can live with safety and dignity. Together, we also have to keep challenging the hundreds of hateful state laws that have been introduced across the country, making sure every child knows that they are made in the image of God, that they are loved, and that we are standing up for them.

     America is founded on the idea that all people are created equal and deserve to be treated equally throughout their lives. We have never fully lived up to that, but we have never walked away from it either. Today, as we celebrate transgender people, we also celebrate every American’s fundamental right to be themselves, bringing us closer to realizing America’s full promise.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim March 31, 2023, as Transgender Day of Visibility. I call upon all Americans to join us in lifting up the lives and voices of transgender people throughout our nation and to work toward eliminating violence and discrimination against all transgender, gender nonconforming, and nonbinary people.

     IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of March, in the year of our Lord two thousand twenty-three, and of the independence of the United States of America the two hundred and forty-seventh.
                                 JOSEPH R. BIDEN JR.
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Kentucky

Ky. lawmakers override veto of anti-transgender bill

Democratic Gov. Andy Beshear sharply critical of SB 150

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Students and transgender activists from across Kentucky made their voices heard on March 29, 2023, in opposition to Senate Bill 150 (Photo courtesy of the Fairness Campaign)

Both chambers of the Kentucky Legislature voted Wednesday to override Democratic Gov. Andy Beshear’s veto on Senate Bill 150 that would severely restrict the lives of transgender youth in the state.

The law will:

  • Ban gender-affirming medical care, including treatments that delay puberty, other forms of hormone therapy and surgery, for trans and nonbinary people under 18 years old. 
  • Require revoking the licenses of doctors who provide such services.
  • Tell public schools to block trans students from using bathrooms and locker rooms that match their gender identity.
  • Allow public school teachers to misgender trans students.
  • Prevent public schools from allowing educational presentations that study gender identity or sexual orientation.
Governor Andy Beshear (Photo courtesy of Beshear’s office/Facebook)

Beshear stressed that the bill conflicted with his faith and noted the bill’s repercussions would include an increase in LGBTQ youth suicides: “My faith teaches me that all children are children of God and Senate Bill 150 will endanger the children of Kentucky.” Beshear also called it “too much government interference in personal healthcare issues and rips away the freedom of parents to make medical decisions for their children.”

In an emailed statement to the Washington Blade, Fairness Campaign Executive Director Chris Hartman reflected on the Assembly’s actions:

“While we lost the battle in the legislature, our defeat is temporary. We will not lose in court. And we are winning in so many other ways. Thousands of Kentucky kids came to the Capitol today to make their voices heard against the worst anti-trans bill in the nation. They are our hope for a Kentucky future that is more fair, more just, and more beautifully diverse and accepting than ever before.

I applaud the brave protesters who stood their ground in the Kentucky House gallery today before being removed by Kentucky State Troopers. Their chants and pain were heard by all in the chamber and were a necessary show of the grief and harm Senate Bill 150 will cause. Transgender children and their families in Kentucky are scared, rightfully so. We will do all we can to ensure they can continue to access the life-saving medical care they deserve.”

According to Hartman, “Brave, devastated protesters held each other in solidarity and chanted for 30 minutes in the House gallery before being taken out in zip ties by state troopers.”

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Tennessee

Tennessee queens brace for ‘drag ban’ law

All-ages drag brunch raises $3,500 for school gun violence prevention efforts

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New Beginnings owner Michael Trivette addresses the crowd at an all-ages drag brunch on Sunday, March 26. (Washington Blade photo by Michael Key)

JOHNSON CITY, Tenn. — Tennessee has passed a number of anti-LGBTQ bills this year, including a measure that criminalizes gender-affirming care for transgender youth and a law that could be used to stop all drag shows on public property or in the presence of anyone under the age of 18.

In response to the anti-drag law, the owner and staff at the Tennessee gay bar New Beginnings held an all-ages drag brunch fundraiser on Sunday, raising $3,500 to combat gun violence in schools.

Republican Tennessee Gov. Bill Lee signed Senate Bill 2, the so-called “drag ban,” into law on March 2, setting fines and even jail time for “male or female impersonators who provide entertainment that appeals to a prurient interest” in the presence of minors or on public property. The vague language of the new law, set to take effect on April 1 has advocates, business owners and entertainers concerned about how the law might be enforced.

“We don’t view the language of the bill as banning all public drag,” Tennessee Equality Project Executive Director Chris Sanders told the Washington Blade. “But with that said, it is restrictive and it will embolden those who want to police and harass drag performances outside 18+ clubs. The implementation will be in the hands of law enforcement and district attorneys across the state and that is really where the potential for arbitrary enforcement comes in. In some of the larger cities, I do not believe that law enforcement or the district attorneys will view a drag brunch as a violation. I don’t speak for them, though. But in other parts of the state, the matter could be more complicated. Regardless of how one reads the text of the law, it will embolden groups who go around filming drag performances and take segments out of context.”

New Beginnings is a ‘safe space’

New Beginnings owner Michael Trivette greets patrons at the bar. (Washington Blade photo by Michael Key)

One place where drag thrives in the state is New Beginnings, a sprawling nightclub located in Johnson City. New Beginnings, founded in 1987, is the only full-time LGBTQ venue currently in operation in the Tri-Cities area that includes Johnson City and Kingsport, Tenn., as well as Bristol, Va.

“We try to give the young people who come here something nicer than the circumstances they live in,” Mark, a New Beginnings bartender, told the Blade. “Many of these kids have never been on a plane, have never left the Tri-Cities area. We provide them with a safe space to be who they are and to experience the world: To see something of New Orleans or places outside.”

New Beginnings faces regular protesters and had an inauspicious beginning, according to Michael Trivette, who owns New Beginnings with his husband and extended family. He recounted to the Blade, “When we first opened up here in 1987, I was in the back parking lot painting stripes because they had to be marked for permits and a police officer came through and said, ‘I understand that you are putting a gay bar in here . . . you can just tell whoever that there’s not going to be no gay bar in my district.’ He said, ‘I’ll close it down.’ and this was before we even opened.”

Things have changed over the years as both New Beginnings and the LGBTQ community as a whole have gained wider acceptance, according to Trivette. 

Trivette tells the Blade that New Beginnings often holds a drag brunch around the time of TriPride, an annual event that rotates between Bristol, Kingsport and Johnson City. The TriPride drag brunch is now in jeopardy given concerns around the enforcement of the new law.

“When TriPride had pitched [having Pride in Johnson City in 2023] to the city commissioners and the mayor, they spoke so eloquently of an event to bring all of the people of the Tri-Cities together in a unified moment where they could celebrate the diversity of different people. The mayor wrote this glowing letter,” Trivette recounted. “It’s just so wonderful to think of, this is where we were and now this is where we are.”

“But now, this is where we’re going back to,” Trivette added.

Trivette said there was even talk of moving TriPride from Johnson City to nearby Bristol, Va., across the state line, just to be safe. However, TriPride told the Blade they resolve to continue with plans for a September parade and festival in Tennessee.

“As it stands currently, TriPride intends to continue with the parade and festival in Johnson City,” TriPride Board President Melody Taylor said. “We will continue to have open communication with the city as well as monitoring how the new law is being interpreted and if or when anyone is charged. TriPride has always prided itself on being an all-ages friendly event and our festival entertainment has never been obscene and this year will be no different.”

Tenn. anti-drag law goes into effect on April 1

(Washington Blade photo by Michael K. Lavers)

“Of course we think it’s ridiculous,” Trivette said when asked what he thought of the new drag law. “I just truthfully have to wonder who saw what that made them feel compelled to go back to their offices and write this law about drag queens.”

Trivette continued, “You take a bunch of middle-aged, middle-class people and you talk about the good old days and how much better it used to be and you point your finger at a group of people and you blame them for your problems. And when you have an enemy, you have a focus.”

Kyelee Moffatt, mother, social worker and self-described “jack of all trades” at New Beginnings was blunt about her feelings concerning the anti-drag law: “I think it’s bullshit.”

Moffett elaborated, “I think it’s a lot of white, old men in Nashville making laws about things they know nothing about because they are being told things from people who are ignorant. They aren’t educated as to what drag is: it is a form of art. It is a wonderful form of entertainment. These people making these laws are afraid of them, the drag performers, because they are different.”

“I have fear for this law being interpreted in different ways to affect our trans community, especially,” she continued. “Especially with the recent ban on gender-affirming care for our trans youth in the state, I think that this is another way for politics and law enforcement to persecute our trans community. I’m afraid that law enforcement is going to target the trans community as well.”

“For me, it is reflective of laws in the 50s,” Moffett cautioned. “It’s just a huge red flag that our civil rights are being violated. I think we’re going backwards instead of forwards because, again, because people are afraid of what they don’t know.”

Odessa Mann, a drag artist who headlines alongside a large troupe of performers in the only regular drag show in the Tri-Cities, met with the Blade before hosting Saturday night’s drag show at New Beginnings. Mann, a spirited performer who is equally animated when talking about the importance of drag, explained, “Drag has been such a part of everybody’s culture: Not just queer culture. It’s been a part of theater and entertainment culture for as long as entertainment has been a thing. And so, it just feels that it is very convenient that now they want to bring up an issue with it all of the sudden.”

“Queer celebration and queer joy has always been a riot and has been a political movement in and of itself,” Mann said. “You can marginalize us and push us to the outsides of the community if you would like to but we’re still going to celebrate and we’re still going to find joy in ourselves. And now they have a problem with that again. So it’s even more important to stay louder in our celebration, louder in our joy and make sure that those people know that we’re not going anywhere. You can make as many bills as you want to, but we’re going to still be right here.”

Odessa Mann leads the drag show at New Beginnings. (Washington Blade photo by Michael Key)

“With the current rhetoric being lobbed at the LGBTQ+ community not only in Tennessee but across the country we at TriPride feel our mission of providing a safe environment for our community to rejoice in being their authentic selves is more important than ever,” TriPride Board President Taylor elaborated in an email. “These hateful messages are intended to incite fear and push the LGBTQ community back in the closet, so to speak.  TriPride refuses to simply disappear and will continue showing the love, kindness, and pride that our community has. Our community has been fighting for our right to exist for generations and we will continue that fight as long as necessary.”

Every week of the legislative session, we have published campaigns against the discriminatory bills and we continue to do that,” Sanders of Tennessee Equality Project told the Blade. “We have helped numerous people meet with their legislators and helped people prepare testimony against the bills. We have to continue doing that because we still face an anti-trans student pronoun bill, a new anti-trans amendment to a bill about camps, and much more. In my 20 years of working on anti-LGBTQ legislation in Tennessee, this is the worst year yet. But the community has stepped up and keeps coming back to fight the bills.”

The all-ages drag brunch at New Beginnings completely filled the cavernous club with supporters on Sunday. Children danced alongside drag queens at the G-rated show. Singers serenaded the patrons with live music and a “wilderness fairy” read a story to the youth. It was a bittersweet gathering, as it was perhaps the last of its kind to be had for a while.

Mann thanked the audience.

“I really appreciate you seeing us for what we are. We’re entertainers, we’re here to bring joy, we’re here to bring light. That’s all it is,” Mann said. “And I’d like to bring a little light to the stage right now. All the spotlight has been on us and I’d like to put the spotlight on these little baby drag queens we got. I’ve seen some younguns’ and they’ve been dancing with us, honey. I know they want the spotlight.”

Mann then led a group of parents and children in a dance to the popular kids’ song, “Baby Shark.”

“We want to talk to you for a minute about what’s going on in our country, specifically our state,” Sister Lolo of the Little City Sisters told the crowd.

Sister Lolo, a member of newly formed local chapter of the Sisters of Perpetual Indulgence drag order, continued, “This is the last time under the new law that we as drag entertainers are allowed to interact with some of you. And they say that this law is designed to protect you, but we know that’s not the truth.”

“Now, we’re going to follow the law, because as good citizens we have to,” said Sister Lolo. “But we know the truth and you know the truth. We’re going to work together to change these laws. We’re going to stand for the truth. We are not going to be afraid. Because when we are afraid, they win. And when we stand up for ourselves, we stand up for the truth, we will prevail.”

At the conclusion of the brunch, Trivette announced that more than $3,000 was raised to combat gun violence in schools. He beamed, “there was a bar in New York that was being hassled by the police department there: They didn’t want to have a gay bar in their district. So they started harassing them. And at some point, a drag queen . . . and leave it to a drag queen . . . picked up a brick and threw it at the police officers. That was the beginning, that was Stonewall in New York and that’s what started gay Pride. And now today ladies and gentlemen . . . and children, we just threw a rock.”

Sister Lolo of the Little City Sisters speaks to the audience at New Beginnings all-ages drag brunch on Sunday. (Washington Blade photo by Michael Key)

CLICK HERE to see more photos from the all-ages drag brunch at New Beginnings.

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