National
Windsor to Supreme Court: Strike down DOMA
Lesbian widow’s brief says anti-gay law should be subject to heightened scrutiny


Attorneys for Edith Windsor filed their against DOMA before the Supreme Court on Tuesday (Washington Blade file photo by Michael Key)
Attorneys for New York lesbian widow Edith Windsor are arguing that the Supreme Court should strike down the Defense of Marriage Act on the basis that it violates her right to equal protection under the U.S. Constitution.
In a 63-page brief filed on Tuesday, Windsor’s lawyers make their case against DOMA — saying it furthers no federal interest in procreation or dual sovereignty with the states — and argue the law should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.
“DOMA’s discriminatory treatment of married gay couples violates Ms. Windsor’s right to the equal protections of the laws as guaranteed by the Fifth Amendment,” the brief states.
Signers of the brief include private attorney Robbie Kaplan and attorneys from the American Civil Liberties Union, who filed the lawsuit on behalf on Windsor.
The case pending before the Supreme Court is known as Windsor v. United States and challenges Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. Windsor is suing the U.S. government because in 2009 under the law she had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer. Married straight couples are exempt from the estate tax under current law.
A substantial portion of the brief is devoted to countering the arguments of the House Republican-led Bipartisan Legal Advisory Group, which filed a brief in favor of DOMA in late January. Under the direction of House Speaker John Boehner (R-Ohio), BLAG has taken up defense of DOMA following the Obama administration’s announcement in February 2011 that it would no longer defend the law.
Windsor’s attorneys, for example, say BLAG’s argument that DOMA serves a federal interest by preserving marriage as one man, one woman to encourage responsible procreation “speaks volumes” about the lack of validity of the law.
“This one difference cannot explain the federal government’s decision to impose a sweeping disability on married gay couples that excludes them from countless federal programs and protections, and that only harms their children,” the brief states. “Because this distinction is based on the one feature that distinguishes married gay couples from married straight couples, what BLAG is really arguing is that it is acceptable to discriminate against married gay couples simply because they are gay.”
The brief from Windsor’s attorneys comes on the heels of a similar brief filed against DOMA before the Supreme Court by the Justice Department, which has assisted in litigation against the law. Both briefs argue that the court should apply heightened scrutiny to its review of DOMA.
Windsor’s attorneys makes the argument that DOMA should be subjected to heightened scrutiny because, like other suspect classes, gay people have suffered a long history of discrimination, sexual orientation is a central part of a person’s identity, and gay people lack power in the political process.
The brief also states that gay people should be considered a suspect class because sexual orientation has no bearing on their ability to contribute to society.
“Despite pervasive discrimination, lesbians and gay men have served with great distinction in virtually every facet of American society, as artists, athletes, academics, soldiers, scientists, lawyers, judges, psychologists like Dr. Spyer, and computer programmers like Ms. Windsor,” the brief states.
The U.S. Second Circuit Court of Appeals applied heightened scrutiny to DOMA in its ruling against the law. It remains to be seen whether the Supreme Court will do the same, but if it did, that could have widespread implications on laws affecting gay people.
However, there’s a key difference between the arguments in the briefs with regard to how DOMA hold against an application of a lower standard of rational basis review. Windsor’s attorneys say the court should strike down DOMA even it applied this lower standard and didn’t apply heightened scrutiny. The Justice Department does not challenge the law on the basis of rational basis review, but admits DOMA would fail under a more searching form of that review.
The next step in the case is for other interested parties to file their friend-of-the-court briefs on behalf of Windsor. Those briefs are due Friday.
The House Republican-led Bipartisan Legal Advisory Group has 30 days to respond to the brief filed by Windsor’s attorneys. Oral arguments in the case are scheduled for March 27 and justices are expected to render a decision before their term ends in June.
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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