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Obama tells court to overturn marriage ban

DOJ urges justices to strike down California’s Prop 8

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Citizens Metal, Barack Obama, gay news, Washington Blade
Citizens Metal, Barack Obama, gay news, Washington Blade

President Obama on Thursday filed a legal brief against Prop 8. (Washington Blade photo by Michael Key)

The U.S. Justice Department on Thursday filed its brief against California’s Proposition 8 before the Supreme Court, arguing the ban on same-sex marriage violates equal protection under the U.S. Constitution and the measure should be subject to heightened scrutiny.

In the 33-page brief, U.S. Solicitor General Donald Verrilli makes a case against Prop 8 that focuses on the harm the ban on same-sex marriage causes to gay couples in California.

“Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage,” the brief states. “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”

The brief takes a somewhat narrow approach in its arguments by focusing on the marriage ban in California — in fact, it concludes the Ninth Circuit ruling against Prop 8, which affected only California, should be upheld — but has language that suggests the court should take a look at bans in other states.

While the question before the Supreme Court relates to Prop 8, the ruling — depending on its scope — could impact other anti-gay marriage bans in other states.

The Justice Department takes particular issue with the fact that California offers gay couples rights and benefits through its domestic partnership law, but excludes them from the institution of marriage.

“The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” the brief states.

Additionally, the Justice Department devotes considerable attention to disputing the arguments presented in the brief from the proponents of Prop 8, which was filed in January. Among the disputed arguments is that Prop 8 is necessary to ensure responsible procreation.

“To the extent the Voter Guide offered a distinct rationale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting,” the brief states. “The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.”

Before this brief, the Obama administration hadn’t yet articulated whether any state ban on same-sex marriage — Prop 8 or otherwise — was unconstitutional. Even though President Obama has previously expressed his personal support for same-sex marriage, the brief represents another step forward in his position on the issue.

In a statement, U.S. Attorney General Eric Holder emphasized the importance of the Obama administration’s participating in the Prop 8 lawsuit as well as litigation challenging the Defense of Marriage Act.

“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” Holder said. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

Legal experts recognized the similarity of the arguments in the brief to the arguments against DOMA presented in the filing from the Justice Department.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the brief “is careful to stick to the arguments” that the executive branch has already articulated in the DOMA litigation by limiting the argument to equal protection and heightened scrutiny.

“And in showing that responsible procreation and dual-gender childrearing do not constitute important governmental interests substantially related to Prop 8, the government addresses some of the same rationales it confronts in Windsor,” NeJaime said. “In many ways, then, this brief carefully stresses the commonalities between the DOMA litigation and Perry.”

LGBT advocates, who had been calling on President Obama to participate in the Prop 8 lawsuit, hailed the move as yet another example of his leadership on LGBT rights.

Richard Socarides, a gay New York advocate who was calling for the brief, said the argument presented should prompt the court to issue a ruling in favor of marriage equality.

“It is a bold and very strong defense of full equality.” Socarides said. “If the reasoning is accepted by the Supreme Court, all anti-gay marriage amendments will fall, and quickly.”

High praise for Obama also came from the American Foundation for Equal Rights, which had filed the case on behalf of the plaintiff couples.

“It is an unprecedented call to action by our government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law,” said AFER Executive Director Adam Umhoefer. “AFER looks forward to having Solicitor General Verrilli and the Federal Government by our side as we make the case for marriage equality for all before the Supreme Court.”

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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.

In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.

The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”

In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.

The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.

He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”

Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”

Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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