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Supreme Court set to hear oral arguments on marriage

Attorneys in Prop 8, DOMA cases prepare for next week’s showdown

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Supreme Court, Ted Olson, National Equality March, Edith Windsor, DOMA, Prop 8, Proposition 8, gay marriage, same sex marriage, marriage equality, gay news, Washington Blade

All eyes will be on the Supreme Court next week when it hears arguments in the Prop 8 and DOMA cases. (Washington Blade photos by Michael Key)

At a time of intense national debate, the U.S. Supreme Court for the first time ever will hear oral arguments next week on whether marriage rights for gay couples are protected under the U.S. Constitution.

Attorneys on both sides will make their arguments in two separate cases, on two separate days and regarding two separate anti-gay measures, but the state of marriage equality across the country could be altered depending on the rulings in either of the cases.

On Tuesday, the court will hear arguments on Proposition 8, a ballot measure approved by California voters in 2008 that stripped away existing marriage rights in the state for same-sex couples. The next day, the court will listen to arguments on the federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

Chris Stoll, a senior staff attorney at the National Center for Lesbian Rights, said the oral arguments provide an opportunity for observers to glean what justices are thinking based on their line of questioning.

“It’s true that appellate courts, I would say, mostly base their decisions on the written submissions on the briefs,” Stoll said. “The main purpose of oral argument is to let the justices have questions that they have answered by the lawyers, and so, what the lawyers come in to say isn’t really the focus; it’s really what the justices want to have answered.”

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said oral arguments are a “filtering process” that provide justices the opportunity to explore possible outcomes of their rulings and persuade each other.

“That’s part of why they’re so active,” Bonauto said. “They’re trying to influence each other’s votes and perspectives on it, and, effectively, argue the case themselves. If you ever read a Supreme Court transcript, it’s usually very difficult to read because there are so many interruptions.”

In the Prop 8 case, known as Hollingsworth v. Perry, Ted Olson, a former solicitor general under President George W. Bush, will argue against the constitutionality of the measure on behalf of the American Foundation for Equal Rights. Based on the legal brief he filed, Olson will likely argue against the merits of Prop 8 on the basis that it violates due process and equal protection of gay plaintiff couples under the U.S. Constitution.

The ban on same-sex marriage will be defended by anti-gay groups, such as ProtectMarriage.com, because California state officials have declined to defend the marriage ban. The lawyer arguing on behalf of the anti-gay measure will likely be private attorney Charles Cooper, who defended Prop 8 during the district court trial in 2010.

Depending on the scope, a ruling in the Prop 8 case in favor of the plaintiffs could be a jackpot for same-sex couples. Justices could affirm the limited ruling from the U.S. Ninth Circuit Court of Appeals, which affected only California; determine that the nine states, including California, that offer domestic partnerships must offer same-sex marriage; or issue a sweeping ruling that brings marriage equality to all 50 states.

In the DOMA case, known as Windsor v. United States, Roberta Kaplan, a New York-based attorney, is set to argue against the constitutionality of the anti-gay law in a coordinated effort with the American Civil Liberties Union. Kaplan’s client is Edith Windsor, an 83-year-old lesbian who was forced to pay $363,000 in estate taxes upon the death in 2009 of her spouse, Thea Spyer, because of DOMA.

James Esseks, director of the ACLU’s LGBT Project, said preparations have been underway for oral arguments, including moot courts where individuals impersonate justices to ask possible questions that the real ones may pose.

“People do that for Supreme Court arguments, people do that for appeals court arguments, people do that for trial court arguments — we’ve done that all along,” Esseks said. “It’s just the normal thing that people do.”

On the other side of the DOMA case will be Paul Clement, another former U.S. solicitor general from the Bush administration. He was hired at a rate of $520 an hour by the House Republican-led Bipartisan Legal Advisory Group to defend DOMA in court.

The stakes in the DOMA case are high as well. A ruling striking down DOMA would have multiple impacts on married gay couples. Among other things, they’d have access to medical leave if their spouses need attention because they’re gravely ill or injured and Social Security survivor benefits would become available.

A ruling that strikes down DOMA would also remove a barrier for gay service members seeking spousal benefits in the wake of “Don’t Ask, Don’t Tell” repeal. According to a report published last month from the Center for American Progress and OutServe-SLDN, the average gay military family pays $5,615 out-of-pocket each year for health care insurance because they aren’t eligible for military coverage known as TRICARE.

Both oral arguments will share a common participant: U.S. Solicitor General Donald Verrilli. Since the Obama administration stopped defending DOMA in court, it has participated in litigation against DOMA and will have speaking time in arguments before the Supreme Court. Similarly, in the wake of filing a friend-of-the-court brief against Prop 8, the Justice Department will also have speaking time to argue against it thanks to a request.

In either or both cases, the Supreme Court could determine as part of its ruling that laws related to sexual orientation should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional. That’s the view the Justice Department has articulated in legal briefs against DOMA and Prop 8.

Such a decision would also have a sweeping impact because it would create a precedent that guides other courts when evaluating the constitutionality of anti-gay laws, such as bans on same-sex marriage.

But the merits issue — the question of whether Prop 8 and DOMA are constitutional — will only form part of the discussion in the cases as other issues such as standing and jurisdiction must be addressed. These issues may ultimately form the basis of the court’s rulings.

In the Prop 8 case, the question is whether proponents of the measure have standing to defend the measure in court. It’s possible — as Olson and his team have argued — the court would rule they lack standing because they aren’t harmed by Prop 8. Such a ruling would leave unanswered questions about the constitutionality of same-sex marriage in California, but likely restore same-sex marriage in that state.

The questions about standing and jurisdiction in the DOMA case are more complex. The court asked attorneys when taking up the case whether BLAG has standing to participate and whether the Obama administration’s agreement with lower courts that DOMA is unconstitutional deprives the Supreme Court of jurisdiction. It’s unclear what the fate of DOMA would be if the court decides to rule on those grounds.

GLAD’s Bonauto said she thinks the stronger argument is the court has jurisdiction to consider DOMA and will decide on the merits — but noted “they asked the question for a reason” and questions emerge if the court decides to rule on DOMA on the basis of standing.

“Most people think the Second Circuit decision goes away, then the question is what happens to the district court ruling,” Bonauto said. “Does Edie get her money back, or is there an argument that the district court ruling goes away because the U.S. switched positions in the district court. I’d like to think, at a minimum, Edie would get her money back.”

Vicki Jackson, a Harvard law professor hired by the court, will argue BLAG doesn’t have standing in the lawsuit and the court doesn’t have jurisdiction to hear the case. Deputy Solicitor General Sri Srinavasan is set to address the standing issue on behalf of the Justice Department. BLAG also has been allocated time to assert it has standing in the case, but Windsor’s attorneys weren’t granted time to talk about jurisdiction or standing.

NCLR’s Stoll said any decision from justices that would extend rights to gay couples — whether on the merits or through issues of standing — would be a “milestone” for the LGBT community.

“We have already been seeing tremendous changes in society and the level of acceptance for gay and lesbian people and for legal recognition of them through marriage,” Stoll said. “I think that if the Supreme Court ruled in whatever way in favor of the plaintiffs in these cases, that it would be a real milestone and landmark moment for our movement.”

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Federal Government

Texas Children’s Hospital reaches $10 million settlement with DOJ over gender-affirming care

Clinic specializing in detransition care will be established

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Justice Department in D.C. (Washington Blade photo by Joe Reberkenny)

The Justice Department announced May 15 that it has reached a settlement with Texas Children’s Hospital, one of the nation’s top pediatric hospitals.

Under the agreement, the hospital will pay more than $10 million in damages and civil penalties related to its provision of gender-affirming care and will establish a clinic specializing in detransition care.

The DOJ partnered with Texas Attorney General Ken Paxton’s office to resolve allegations that the hospital submitted false billings to public and private insurers to secure coverage for pediatric gender-affirming procedures. The department alleges the conduct violated the Federal Food, Drug, and Cosmetic Act, the False Claims Act, and federal fraud and conspiracy laws.

The settlement was reached out of court, meaning neither party formally admitted wrongdoing. Both the DOJ and Texas Children’s Hospital denied liability.

“The Justice Department will use every weapon at its disposal to end the destructive and discredited practice of so-called ‘gender-affirming care’ for children,” Acting Attorney General Todd Blanche said in a DOJ press release. “Today’s resolution protects vulnerable children, holds providers accountable, and ensures those harmed receive the care they need.”

The DOJ’s hardline stance on gender-affirming care sharply contrasts with the positions of major medical organizations, transgender healthcare advocates, and human rights groups, which broadly support gender-affirming care as an evidence-based treatment for gender dysphoria.

Adrian Shanker, former Deputy Assistant Secretary for Health Policy and Senior Advisor on LGBTQI+ Health Equity at the U.S. Department of Health and Human Services under during the Biden-Harris administration, told the Washington Blade the settlement could have sweeping consequences for trans youth and healthcare providers nationwide.

“The Trump administration’s framing of gender-affirming care is wildly inaccurate, scientifically implausible, and frankly, just mean-spirited,” Shanker told the Blade. “What’s really clear is that the science hasn’t changed, the evidence hasn’t changed — it’s only the politics that have changed. Unfortunately, the people that lose out the most with a settlement like this one are the patients that are denied access to care where they live.”

According to Shanker, the agreement also requires Texas Children’s Hospital to revoke privileges for physicians involved in providing gender-affirming care, potentially limiting their ability to practice elsewhere.

“This is a weaponized Department of Justice doing absurd investigations against providers that are providing care within the established standard of care,” he said. “They’ve come up with an absurd remedy in their settlement to require a so-called ‘detransition clinic’ to open at Texas Children’s. It’s harmful to science, it’s harmful to trans people, and it’s harmful to the medical profession.”

Shanker argued the case reflects a broader politicization of trans healthcare.

“Every American should be concerned about the weaponized Department of Justice and their obsession with trans people and their access to care,” he said. “These hospitals that provide gender-affirming care, the providers of gender-affirming care, have done nothing wrong. They followed the standards of care that are well established and followed the mountain of evidence.”

Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, echoed those concerns.

“For Texas Children’s to capitulate to this pressure campaign of both Paxton and the Trump administration and end this care, and go after physicians who had been lawfully and faithfully taking care of their patients, it’s hard to see that as anything other than bending the knee in the face of political pressure,” Loewy told the Blade. “That’s not putting your mission above politics. Your mission is to provide health care for kids that need it.”

Loewy said the settlement reflects years of efforts by Paxton and the Trump-Vance administration to target gender-affirming care providers. Paxton has pursued investigations into providers across Texas since 2022 and supported a 2023 law banning gender-transition-related medical care for minors. Meanwhile, the Trump-Vance administration moved quickly in its second term to restrict trans healthcare access, including through Executive Order 14187, titled “Protecting Children from Chemical and Surgical Mutilation.”

“This is a perfect storm of Ken Paxton’s own mission to stigmatize and target trans young people and their healthcare in Texas with the Trump administration’s targeting of trans people and gender-affirming medical care,” Loewy said. “It is the two of them together. Without that, you wouldn’t have had this settlement.”

Loewy also emphasized that the settlement is part of a broader legal strategy targeting providers nationwide.

“You can’t view this one in isolation from all of the other administrative subpoenas that have been sent to hospitals or other kinds of medical providers that have provided gender-affirming medical care to trans adolescents,” she said. “It is all part and parcel of the same direct line from the executive orders that were issued in the first days of this Trump administration.”

“Every court that has considered those subpoenas has found them illegitimate and issued for an improper purpose, or at least narrowed them really dramatically,” she added. “Courts agree these hospitals didn’t do anything wrong. It’s the DOJ that has the problem here.”

Shanker also criticized the settlement’s requirement that the hospital establish a detransition clinic, arguing the move contradicts existing medical evidence.

“The irony shouldn’t be lost on anyone that the Trump administration is claiming that gender-affirming care lacks a scientific basis, and then is requiring the opening of a so-called detransition clinic, which certainly lacks a scientific basis,” Shanker said. “There’s less than a 1% regret rate when it comes to gender-affirming care. That’s lower than knee surgery, lower than bariatric surgery, lower than childbirth, lower than breast reconstruction, and lower than tattoos.”

Loewy was similarly blunt in her criticism.

“This is the most craven, political, ridiculous elevation of ideology over evidence,” she said. “They are creating a program built on an outcome that almost never happens. It is unprecedented and politically mandated rather than healthcare mandated.”

She said the settlement’s broader effect will be to intimidate providers and further marginalize trans people.

“The real effect here is to further stigmatize trans people and intimidate healthcare providers,” she said. “This is about sending a message nationwide that the DOJ is coming after the doctors. These are committed, faithful, law-abiding physicians and healthcare providers who just want to provide the healthcare their patients actually need.”

Both Loewy and Shanker warned that restricting access to gender-affirming care could deepen health disparities for trans people.

“We know that when transgender Americans lack the care that they need, we end up with higher rates of depression, higher rates of anxiety, higher rates of self-harm and suicidal ideation,” Shanker said. “We know that gender-affirming care is a medically appropriate, scientifically grounded form of care that resolves these challenges and leads us toward health equity. It’s unfortunate that the Trump administration has politicized not only transgender medicine, but the very basis of public health.”

Shanker said the restrictions are already prompting some trans people to relocate in search of care.

“We’re already seeing medical refugees leave states that have restricted access to care to move to states where it’s still available,” he said. “Frankly, we’ve already seen some trans people go to other countries to receive care or maintain access to care.”

Loewy said the DOJ’s recent subpoenas targeting hospitals, including those issued to NYU Langone Health in New York, suggest the administration is escalating its legal strategy.

“We’ve seen the DOJ escalate this by convening a grand jury and issuing grand jury subpoenas to hospitals,” she said. “That is going to be the next front in this fight.”

In addition to , there has been as large increase in anti-trans legislation in the past few years — with 126 federal pieces of legislation introduced this year and 26 state level policies passed across the country.

Still, Loewy pointed to recent court victories as evidence that challenges to these policies can succeed.

“Just yesterday, a state court in Kansas struck down that state’s ban on gender-affirming medical care in one of the most meticulous recognitions of the medical consensus and the harm of denying care to trans young people,” she said. “When courts actually look at the science and the impacts on trans people, they still can rule the right way.”

Asked whether there is any optimism to be found amid the ongoing legal battles, Loewy said she continues to draw hope from advocates, families, and community organizers fighting back.

“The solidarity of the community is really what brings hope,” she said. “There are incredible lawyers, advocates, families, and organizations fighting every day to protect these kids and their privacy and safety. It is that community strength and collaborative effort that continues to give me hope.”

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Commentary

‘Live Your Pride’ is much more than a slogan

Waves Ahead forced to cancel May 17 event in Puerto Rico

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(Courtesy image)

On May 5, I spoke by phone with Wilfred Labiosa, executive director of Waves Ahead, a Puerto Rico-based LGBTQ community organization that for years has provided mental health services, support programs, and safe spaces for vulnerable communities across the island. During our conversation, Labiosa confirmed every concern described in the organization’s public statement announcing the cancellation of “Live Your Pride,” an event scheduled for Sunday in the northwestern municipality of Isabela. But beyond the financial struggles and organizational challenges, what stayed with me most was the emotional weight behind his words. There was pain in his voice while describing what it means to watch spaces like these slowly disappear.

This was not simply the cancellation of a community event.

“Live Your Pride” had been envisioned as a celebration and affirming gathering for LGBTQ older adults and their allies in Puerto Rico. In a society where many LGBTQ elders spent decades hiding parts of themselves in order to survive, spaces like this carry enormous emotional and social significance. They become places where people can finally exist openly, without fear, apology, or shame.

That is why this cancellation matters far beyond Isabela.

What is happening in Puerto Rico cannot be separated from the broader political climate unfolding across the U.S. and its territories, where programs connected to diversity, inclusion, education, mental health, and LGBTQ visibility increasingly find themselves under political attack. These changes do not always arrive through dramatic announcements. More often, they happen quietly. Funding disappears. Community organizations weaken. Safe spaces become harder to sustain. Eventually, the absence itself begins to feel normal.

That normalization is dangerous.

For years, organizations like Waves Ahead have stepped into gaps left behind by institutions and governments, particularly in communities where LGBTQ people continue facing discrimination, social isolation, economic instability, and mental health struggles. Their work has never been limited to organizing events. It has involved accompanying people through loneliness, trauma, rejection, depression, aging, and survival itself.

“Live Your Pride” represented much more than entertainment. It represented visibility for LGBTQ older adults, many of whom survived decades of family rejection, religious exclusion, workplace discrimination, violence, and silence. These are individuals who came of age during years when living openly could cost someone employment, housing, relationships, or personal safety. Many learned to survive by making themselves invisible.

When spaces like this disappear, something deeply human is lost.

A gathering is canceled, yes, but so is an opportunity for healing, connection, recognition, and dignity. For many LGBTQ older adults, especially in smaller municipalities across Puerto Rico, these events are not secondary luxuries. They are reminders that their lives still matter in a society that too often treats aging and queer existence as disposable.

There are still political and religious sectors that portray the rainbow as some kind of ideological threat. But the rainbow does not erase anyone. It illuminates people and stories that society has often tried to ignore. It reflects the lives of young people forced out of their homes, transgender individuals targeted by violence, older adults aging in silence, and families that spent years defending their right to exist openly.

Perhaps that is precisely why the rainbow unsettles some people so deeply.

Its colors expose abandonment, hypocrisy, inequality, and fear. They force societies to confront realities that are easier to ignore than to address honestly. They reveal how fragile human dignity becomes when political agendas decide that certain communities are no longer worthy of protection, funding, or visibility.

The greatest concern here is not solely the cancellation of one event in one Puerto Rican town. The deeper concern is the message quietly taking shape behind decisions like these — the idea that some communities can wait, that some lives deserve fewer resources, and that safe spaces for vulnerable people are expendable during moments of political tension.

History has shown repeatedly how social regression begins. Rarely with one dramatic act. More often through exhaustion, silence, budget cuts, and the slow dismantling of organizations doing essential community work.

Even so, Waves Ahead made one thing clear in its statement. Although “Live Your Pride” has been canceled, the organization will continue providing mental health and community support services through its centers across Puerto Rico. That commitment matters because people do not survive on slogans alone. They survive because somewhere there are still open doors, trained professionals, supportive communities, and people willing to remain present when the world becomes colder and more hostile.

Puerto Rico should pay close attention to what this moment represents. No healthy society is built by weakening the organizations that care for vulnerable people. No government should feel comfortable watching community groups struggle to survive while attempting to provide services and compassion that public institutions themselves often fail to offer.

The rainbow has never been the problem.

The real problem is the discomfort created when its colors force society to confront the wounds, inequalities, and human realities that too many people would rather keep hidden.

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Federal Government

Bureau of Prisons declines to reconsider transgender inmate policy

Democratic lawmakers raised concerns this week, lawsuit filed

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(Photo by Andrushko Galyna/Bigstock)

Following a letter sent Monday by several Democratic senators raising concerns about the Federal Bureau of Prisons’ updated transgender inmate policy, the BOP responded to a request for comment from the Washington Blade, saying it does not plan to reverse the changes implemented earlier this year.

The policy was revised in 2025 to comply with President Donald Trump’s Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

In a statement to the Blade, BOP spokesperson Donald Murphy said the updated policy is rooted in medical guidance and data-driven decision making.

“The BOP implemented the February 2025 policy to ensure that inmates with gender dysphoria are properly diagnosed and treated consistent with best medical practices,” he said. “Unlike the prior administration’s one-size-fits-all approach, the BOP’s new policy ensures individualized assessments and treatments. And while the previous administration’s policies on treating inmates with gender dysphoria was driven by radical ideology, the BOP’s current policy is based on medical studies, medical expert opinions, state correctional policies, caselaw, and penological concerns. Absent court order, there are no plans to reconsider or revisit the policy.”

U.S. Sens. Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), and Mazie Hirono (D-Hawaii) signed the letter, arguing that the policy change fails to adequately prioritize the safety of trans inmates — protections they say are guaranteed under the Constitution.

This inquiry comes days after a federal lawsuit was filed against the Justice Department specifically on the concern that trans inmates are not receiving adequate care.

Earlier this month, the National Center for LGBTQ Rights, a legal organization focused on LGBTQ rights since 1977, filed a lawsuit in District Court of the District of Columbia against the Trump-Vance administration in collaboration with GLAD Law, Lowenstein Sandler LLP, and Wardenski P.C.

The suit, filed on May 6, alleges the administration is “ignoring federal protections” designed to prevent sexual abuse of incarcerated trans people.

“Transgender people in prison are sexually abused or assaulted at nearly 10x the rate of the general prison population,” the press release announcing the lawsuit states, adding that federal legislation was enacted to address those risks.

The plaintiff in the lawsuit, Paulina Poe, is a trans woman currently incarcerated in a men’s facility. According to the complaint, she has been “propositioned, groped, sexually harassed, and assaulted” by male inmates and subjected to strip searches by male officers — circumstances the Prison Rape Elimination Act regulations were intended to prevent.

The lawsuit also argues that the policy changes violate constitutional protections and deny trans inmates medically necessary care.

“The Eighth Amendment requires prisons and jails to provide ‘adequate medical care’ to incarcerated people which includes adequate treatment for people diagnosed with gender dysphoria,” says the Transgender Law Center. “‘Adequate medical care’ should be delivered according to accepted medical standards, such as WPATH’s Standards of Care. Some courts have said that in some circumstances ‘adequate medical care’ for gender dysphoria includes providing gender-appropriate clothing and grooming supplies, and the ability to present yourself consistent with your gender identity.”

GLAD Law Staff Attorney Sarah Austin also issued a statement when the lawsuit was announced, saying those responsible for the policy changes — and the rollback of protections under the Prison Rape Elimination Act — will be “held accountable for this egregious and lawless action.”

“The federal government’s unlawful attempt to roll back binding Prison Rape Elimination Act regulations is an especially dangerous step in its ongoing campaign to strip transgender people of legal protections,” Austin said. “The targeting of transgender incarcerated people is a deliberate choice to put vulnerable people in harm’s way simply because of who they are.”

The Justice Department has not responded to the Blade’s request for comment.

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