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Prop 8 attorneys confident court will strike down marriage ban

Olson hopes U.S. gov’t will take part in lawsuit

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Ted Olson, gay news, Washington Blade
Ted Olson speaks at the Cato Institute

Ted Olson said U.S. government intervention in the Prop 8 case would have “great effect’ on its outcome (Washington Blade file photo by Michael Key)

The organizers behind the lawsuit challenging California’s Proposition 8 are excited and optimistic about the prospects for a Supreme Court ruling against the anti-gay measure as one attorney on the team said he hopes the Obama administration will assist in the effort.

Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

Olson said if the Obama administration were to file a brief before the Supreme Court in the Prop 8 case, it would do so at about the same time it would file a brief in the DOMA case. The Justice Department has already filed briefs against DOMA in lower courts.

The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”

That might change now that the Supreme Court has taken up the case. Like other interested parties, the Justice Department will have an opportunity to file a friend-of-the-court brief in the upcoming days as the court accepts other briefs in the lawsuit.

The organization behind the lawsuit, the American Foundation for Equal Rights, held the conference call in the wake of the Supreme Court’s decision to take up the Prop 8 case as well as one of the cases against the Defense of Marriage Act known as Windsor v. United States.

Olson was confident about a positive outcome for same-sex couples, saying the denial of their marriage rights will receive significant attention simply by being before the Supreme Court.

“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”

David Boies, co-counsel in the lawsuit, said the decision of the Supreme Court to take up the case means only a short time remains before a final resolution is reached in the Prop 8 case.

“We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago,” Boies said. “I think we are encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality. This is a momentous case; I think the attention that it has already received by the Supreme Court indicates their recognition of the importance of this issue.”

Human Rights Campaign President Chad Griffin, who co-founded AFER, also expressed excitement about the prospects of a victory at the Supreme Court on the conference call.

“Today is nothing short of a milestone moment, quite frankly, for equality,” Griffin said. “We are gratified that the court has taken this challenge to Prop 8. We should also mention the challenge to the ridiculously named Defense of Marriage Act. Millions of loving couples — married and unmarried — have been waiting for their day in court, and now they’re finally going to have it.”

Also taking part in the conference call were the two plaintiff couples in the case: Kris Perry and Sandy Stier, who tried to obtain a marriage license in Alameda County, as well as Jeff Zarrillo and Paul Katami, who tried to obtain a marriage license in Los Angeles.

Had the Supreme Court decided not to take up Prop 8, a U.S. Ninth Circuit Court of Appeals ruling against the measure would have been allowed to stand and same-sex marriage would have returned to California.

But plaintiffs in the case didn’t express disappointment. Asked whether she’s unhappy the Supreme Court took up the case, Perry replied, “You may find this a little surprising: the answer is ‘no’.”

“We’ve always been very patient and understanding of this process,” Perry said. “We always wanted the biggest, boldest outcome possible, and that can only happen if the Supreme Court listens to the case.”

Stier echoed those remarks, saying she feels “zero disappointment,” but instead hope that areas affected by discrimination other than in California will obtain relief as a result of the case.

Also during the conference call, Olson and Boies answered questions about the the Supreme Court’s request for additional briefings on whether opponents of Prop 8 have standing to defend the law in court. California state officials aren’t defending the law in court, and anti-gay groups have taken up defense of the anti-gay measure instead.

Olson said that question may present an opportunity for the Supreme Court to strike down Prop 8 on the grounds that anti-gay groups can’t defend the law in court as opposed to deciding the case on the merits. Such a ruling would abrogate a ruling against Prop 8 from the Ninth Circuit that allowed anti-gay groups and let stand a district court ruling against the measure.

“If the court were to decide this on standing as far as the Perry case is concerned, that would reinstate the 134-page opinion from District Judge Vaughn Walker, which decided all of the issues comprehensively in favor of the constitutional rights of marriage equality,” Olson said.

Asked by Buzzfeed’s Chris Geidner whether attorneys would actively argue that proponents of Prop 8 don’t have standing in court, Boies said that would indeed be the case.

“We will be making the standing argument,” Boies said. “We think the standing argument is strongly supported by existing Supreme Court precedent.”

The Prop 8 attorneys had previously filed a brief with the Supreme Court asking justices not to hear the case, but Olson said during the conference call his team has maintained at the same time that the lawsuit would be “the perfect vehicle” for deciding the right to marriage equality throughout the country.

“Gay and lesbians and all citizens have the right to have this issue … before the court with a fully developed record, with evidence on history, the importance of marriage, the damage done by discrimination and the fact that all Americans will benefit by the fact that people will be treated equally throughout this country to marry the person that they love,” Olson said.

In response to a question from The Huffington Post’s Sam Stein on whether opponents of Prop 8 would be better off if a ruling against DOMA came first, Olson denied sequencing would be a problem, saying, “We have never agreed with those concerns.”

“In short, the record is so complete that we have always felt that if the issue of marriage equality was going to be before the Supreme Court, the Proposition 8 Perry case should be a part of it because it has vastly more developed evidentiary record and specific thoughtful findings by a district judge who listened to all the evidence, and there was no evidence of any persuasive effect on the other side,” Olson said.

The opportunity for the court to hear the Prop 8 lawsuit means the Supreme Court may make a national ruling on same-sex marriage that affects not just California, but every state in the country with a ban on same-sex marriage.

Asked by The Advocate’s Julie Bolcer about scenarios in which a Supreme Court ruling might have an impact outside California, Boies said may justices may issue a ruling with larger reach depending on the way they examine the case.

Boies said if the Supreme Court addresses in its ruling the “fundamental merit” issue of whether discrimination against gays and lesbians is unconstitutional under the U.S. Constitution, that ruling would mean “there would be a fundamental right to marry in every state in the country because obviously the federal Constitution applies to every state in the country.”

Still, Boies said the ruling would be limited to California if justices decide the case on same narrow ground as the Ninth Circuit or simply determine that proponents of Prop 8 don’t have standing to defend the law in court. Even so, Boies said such rulings would establish precedent that would have an impact on other marriage cases throughout the country.

NOTE: An additional quote from Olson was added to this piece following its initial publication that better reflected his confidence the Supreme Court would strike down Prop 8 on its merits.

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NCAA adopts new policy amid fervor over transgender athletes

Sport-by-sport approach requires certain levels of testosterone

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NCAA, gay news, Washington Blade
The NCAA has adopted new policy amid a fervor over transgender athletes.

The National Collegiate Athletic Association has announced it has adopted new procedures on competition of transgender athletes, creating a “sport-by-sport” approach that also requires documentation of testosterone levels across the board amid a fervor of recently transitioned swimmers breaking records in women’s athletics.

The NCAA said in a statement its board of governors voted on Wednesday in support of the “sport-by-sport” approach, which the organization says “preserves opportunity for transgender student-athletes while balancing fairness, inclusion and safety for all who compete.”

Although the policy defers to the national governing bodies for individual sports, it also requires transgender athletes to document sport-specific testosterone levels beginning four weeks before their sport’s championship selections. The new policy, which consistent with rules for the U.S. Olympics, is effective 2022, although implementation is set to begin with the 2023-24 academic year, the organization says.

John DeGioia, chair of the NCAA board and Georgetown president, said in a statement the organization is “steadfast in our support of transgender student-athletes and the fostering of fairness across college sports.”

“It is important that NCAA member schools, conferences and college athletes compete in an inclusive, fair, safe and respectful environment and can move forward with a clear understanding of the new policy,” DeGioia said.

More specifically, starting with the 2022-23 academic year, transgender athletes will need to document sport-specific testosterone levels beginning four weeks before their sport’s championship selections, the organizational. These athletes, according to the NCAA, are also required to document testosterone levels four weeks before championship selections.

In terms of jurisdiction, the national governing bodies for individual sports are charged determines policies, which would be under ongoing review and recommendation by the NCAA, the organizational says. If there is no policy for a sport, that sport’s international federation policy or previously established International Olympics Committee policy criteria would be followed.

The NCAA adopts the policy amid controversy over University of Pennsylvania swimmer Lia Thomas smashing records in women’s swimming. Thomas, which once competed as a man, smashed two national records and in the 1,650-yard freestyle placed 38 seconds ahead of closest competition. The new NCAA policy appears effectively to sideline Thomas, who has recently transitioned and unable to show consistent levels of testosterone.

Prior to the NCAA announcement, a coalition of 16 LGBTQ groups, including the Human Rights Campaign and Athlete Ally, this week sent to a letter to the collegiate organization, urging the organizations strengthen non-discrimination protections as opposed to weakening them. The new policy, however, appears to head in other direction, which the LGBTQ groups rejected in the letter.

“While decentralizing the NCAA and giving power to conferences and schools has its benefits, we are concerned that leaving the enforcement of non-discrimination protections to schools will create a patchwork of protections rather than a comprehensive policy that would protect all athletes, no matter where they play,” the letter says. “This would be similar to the patchwork of non-discrimination policies in states, where marginalized groups in some states or cities are protected while others are left behind by localities that opt not to enact inclusive policies.”

JoDee Winterhof, vice president of policy and political affairs for the Human Rights Campaign, said in a statement after the NCAA announcement the new policy was effectively passing the buck.

“If the NCAA is committed to ensuring an environment of competition that is safe, healthy, and free from discrimination, they cannot dodge the question of how to ensure transgender athletes can participate safely,” Winterhof said. “That is precisely why we and a number of organizations across a wide spectrum of advocates are urging them to readopt and strengthen non-discrimination language in their constitution to ensure the Association is committed to enforcing the level playing field and inclusive policies they say their values require. Any policy language is only as effective as it is enforceable, and with states passing anti-transgender sports bans, any inclusive policy is under immediate threat. We are still reviewing the NCAA’s new policy on transgender inclusion and how it will impact each and every transgender athlete.”

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Transgender rights group’s Los Angeles office receives bomb threat

[email protected] Coalition evacuated

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(Public domain photo)

A bomb threat was phoned in Wednesday afternoon to the Wilshire Boulevard Koreatown offices of the [email protected] Coalition, Bamby Salcedo, the president and CEO of the non-profit organization told the Los Angeles Blade.

According to Salcedo, an unidentified male caller told the staff person who answered at approximately 3 p.m., while delivering the threat said; “You’re all going to die.” The staff immediately evacuated everyone from their offices and then contacted the Los Angeles Police Department for assistance.

Officers, specialists and detectives from the Rampart Division of the LAPD responded and swept the building. A spokesperson for the LAPD confirmed that the incident is under active investigation but would make no further comment.

On a Facebook post immediately after the incident the non-profit wrote; “To ensure the safety of our clients and staff members, we ask that you please NOT come to our office.”

In a follow-up post, Salcedo notified the organization and its clientele that the LAPD had given the all-clear and that their offices would resume normal operations Thursday at 9:00 a.m. PT.

“Thank you for your messages and concern for our staff and community,” Salcedo said.

“No amount of threats can stop us from our commitment to the TGI community,” she added.

The [email protected] Coalition was founded in 2009 by a group of transgender and gender non-conforming and intersex (TGI) immigrant women in Los Angeles as a grassroots response to address the specific needs of TGI Latino immigrants who live in the U.S.

Since then, the agency has become a nationally recognized organization with representation in 10 different states across the U.S. and provides direct services to TGI individuals in Los Angeles.

In 2015, the [email protected] Coalition identified the urgent need to provide direct services to empower TGI people in response to structural, institutional, and interpersonal violence, and the Center for Violence Prevention and Transgender Wellness was born.

Since then, the organization has secured funding from the state and local government sources as well as several private foundations and organizations to provide direct services to all TGI individuals in Los Angeles County.

The [email protected] Coalition’s primary focus is to change the landscape of access to services for TGI people and provide access to comprehensive resource and services that will improve the quality of life of TGI people.

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Jim Obergefell announces bid for seat in Ohio state legislature

Marriage plaintiff moves on to new endeavor

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First Amendment Defense Act, gay news, Washington Blade
Jim Obergefell has announced he'd seek a seat in the Ohio state legislature.

Jim Obergefell, the lead plaintiff in the litigation that ensured same-sex couples have the right to marry nationwide, announced on Tuesday he’d pursue a new endeavor and run for a seat in the state legislature in his home state of Ohio.

“You deserve a representative who does the right thing, no matter what. You deserve a representative who fights to make things better for everyone,” Obergefell said. “I’ve been part of a national civil rights case that made life better for millions of Americans. Simply put, I fight for what’s right and just.”

Obergefell, who claims residency in Sandusky, Ohio, is seeking a seat to represent 89th Ohio District, which comprises Erie and Ottawa Counties. A key portion of his announcement was devoted to vowing to protect the Great Lakes adjacent to Ohio.

“We need to invest in our Great Lake, protect our Great Lake, and make the nation envious that Ohio has smartly invested in one of the greatest freshwater assets in the world,” Obergefell said.

Obergefell was the named plaintiff in the consolidated litigation of plaintiffs seeking marriage rights that led the U.S. Supreme Court to rule in 2015 for same-sex marriage nationwide. Obergefell was widower to John Arthur, who died of amyotrophic lateral sclerosis, and was seeking the right to be recognized as his spouse on his death certificate. The ruling in the consolidated cases ensured same-sex couples would enjoy the full benefits and responsibilities of marriage.

“We should all be able to participate fully in society and the economy, living in strong communities with great public schools, access to quality healthcare, and with well-paying jobs that allow us to stay in the community we love, with the family we care about,” Obergefell said in a statement on his candidacy.

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