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Newsom: Supreme Court defeat would trigger new ballot measure

Calif.’s lieutenant guv speaks out on Prop 8, Barney Frank and more

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Calif. Lt. Gov. Gavin Newsom by Michael Key Washington Blade
Calif. Lt. Gov. Gavin Newsom by Michael Key Washington Blade

On the same day the Supreme Court hard oral arguments in a case challenging his state’s gay marriage ban, California Lt. Gov. Gavin Newsom spoke at length about Prop 8, Barney Frank and more in an interview. (Washington Blade photo by Michael Key)

California Lt. Gov. and former San Francisco Mayor Gavin Newsom says a decision by the U.S. Supreme Court to uphold Proposition 8’s ban on same-sex marriage would prompt the California Legislature to place a pro-marriage equality referendum on the ballot in 2014.

In an exclusive interview with the Washington Blade on Tuesday, after attending the Supreme Court’s oral arguments on the Prop 8 case, Newsom said he is confident the court will strike down Prop 8. He said he’s hopeful but less confident that the high court will issue a broader decision legalizing same-sex marriage in all 50 states.

But Newsom predicted that a “worst case scenario” ruling upholding Prop 8 would trigger an immediate backlash in the LGBT community in California and among the state’s pro-marriage equality lawmakers. This would lead to placing a Prop 8 repeal measure on the ballot, most likely in the 2014 election cycle, he said.

“I don’t know if I want to use the word shock because that’s a little hyperbolic,” he said in describing the reaction to a decision leaving Prop 8 in place. “But that backlash would immediately precipitate a ballot measure that most likely in this case…the legislature would put that on the ballot,” he said.

“It would require two-thirds of the legislature. There is two-thirds of the legislature now that supports marriage equality,” he said.

“So you wouldn’t even have to get the signatures,” Newsom added. “And I think that would immediately happen. And we would put on a campaign to end all campaigns. And we would win quite handily in 2014.”

Newsom told the Blade he has no regrets over his highly controversial decision in 2004 to use his authority as San Francisco mayor to direct the city to begin issuing marriage licenses to same-sex couples before any court or state governmental body gave the go-ahead for such marriages.

In February 2004 Newsom himself performed the first of the city-authorized same-sex nuptials in a City Hall ceremony that drew national and international press coverage. The couple joined in marriage in that ceremony was longtime lesbian activists Phyllis Lion and Del Martin, who were in their 80s.

“[T]hat one couple, Phyllis Lyon and Del Martin, became 4,036 additional couples from 46 states,” Newsom said, noting that other same-sex couples came to San Francisco from eight countries to get married.

“And it wasn’t just the couples,” he said. “What was so profound about that in February 2004 were the mothers and fathers and the brothers and sisters and the grandparents and grandkids that all assembled there – tens of thousands of people celebrating life, celebrating love, celebrating marriage.”

Less than a year later, however, gay marriage opponents succeeded in obtaining a court ruling barring Newsom and San Francisco authorities from performing same-sex marriages. The ruling also declared all of the same-sex marriages performed by the city as invalid.

Critics of Newsom’s decision to authorize the marriages, including then-U.S. Rep. Barney Frank (D-Mass.), who’s gay, blamed Newsom for playing into the hands of anti-gay groups seeking to ban same-sex marriage through state constitutional amendments.

Close to a dozen such amendments passed through ballot measures that year, and some political pundits said the ballot measures helped Republican George W. Bush win the 2004 presidential election by drawing conservative voters to the polls in larger than usual numbers.

Newsom and LGBT activists who supported his decision to authorize the San Francisco marriages say the action boosted efforts to challenge California’s ban on same-sex marriage in the state courts. In early 2008, the California Supreme Court ruled that same-sex couples have a right to marry under the state’s constitution, opening the way for same-sex couples to marry throughout the state.

But voters overturned the court’s decision in November 2008 when they approved Proposition 8. Subsequent court challenges to Prop 8 resulted in it coming before the U.S. Supreme Court in Tuesday’s oral arguments.

Newsom said he was troubled by the criticism he received, especially criticism form Frank, who he says he deeply respects as an LGBT rights advocate.

“So I respectfully disagree with him,” Newsom told the Blade. “And I think there’s thousands and thousands of people who came to San Francisco who would respectfully disagree with him.”

According to Newsom, his and his city’s decision to permit same-sex marriages led to marriage equality advances in subsequent years.

“I think it required shaking things up a little bit because I think just waiting around for the courts…we could take 30 years, 40 years,” he said. “And I think in many ways what we did certainly inspired the California Supreme Court.”

 

Following is a transcript of Lt. Governor Gavin Newsom’s interview with the Washington Blade:

Washington Blade: What were your thoughts on how the arguments went on Tuesday as you observed them in the Supreme Court chambers?

Gavin Newsom:  It’s a humbling experience any time you listen to oral arguments at the Supreme Court because in most every instance history is being made. And to see this arc over the last nine, 10 years and to see the progress that’s been made, public opinion shifting and knowing what’s at stake for California and Californians but also for the country in its prospects on marriage equality, it was a pretty wonderful experience.

 

Blade: Did you have a sense of which direction the justices may go?

Newsom: We all come in with our preconceived biases. I’ve long felt that the narrow decision was most likely, although I confess that I got caught up in the spirit of the times in the last two months, hoping perhaps the issue and the arguments persuade a broader, national conversation.

That clearly didn’t happen in the courtroom at least. It certainly happened in the briefs, but not in the courtroom in terms of the oral arguments. So I left with that as a caveat of disappointment but realizing an hour or so later, reflecting on it, that it went as well as I could ever have hoped a few months ago.

And I feel stronger now that the likelihood of Prop 8 being struck down has grounded itself in the oral arguments either on standing, which everyone seemed to be coveting. It was interesting, the focus on that, or on the limited, narrow question of the Ninth Circuit.

 

Blade: Are you sensing the court may rule on the narrow issue of allowing same-sex marriages in California but not in other states?

Newsom: Yeah, I think it’s more likely than not. I want to be surprised and I desperately want to be wrong because I think this is a fundamental civil right. It’s a constitutional right. And it should be afforded every American, not just Californians. And so I really do hope I’m wrong. But based on the passing reference, ironically, from [Justice Antonin] Scalia – the notion of 50 states being impacted by this decision – I walked away feeling that’s less likely. Again, I hope I’m wrong.

 

Blade: Are you basing that also on what some of the more liberal and progressive justices were saying?

Newsom: Yeah. Even [Justice Sonia] Sotomayor’s own comments – I was sort of struck by that. I hope people were playing devil’s advocate, and that’s often the case with this court. So perhaps that was a reflection of that point of view or at least that kind of Socratic engagement with the attorneys.

But you know, this idea that you can let states decide the rights of a minority is preposterous to me. I mean, it just flies in the face of our history. If you submit the rights of a minority to the whims of the majority you’ll get what we’ve historically gotten. And that’s oppression of the minority rights. And I just don’t accept it.

 

Blade: You have been involved with this from the outset or at least since 2004. Could you say a little about what you were thinking when you shook up a lot of people by having San Francisco perform same-sex marriages at that time before any court declared they were legal? Weren’t you the first to perform one of those marriages for a lesbian couple at City Hall?

Newsom: I guess I was, certainly from an elective office. So there’s no doubt about that. You know, it’s interesting. We wanted to put a human face on it, period. And you know what? Frankly, that was the one thing – if there was anything that sat with me [on Tuesday] it was how little we talked about the human element here at the [U.S. Supreme] court. And I understand that. My father is a judge. This is a courtroom. There are legal briefs. But with the exception of [Justice Anthony] Kennedy, who brought up children into the courtroom, which I thought was significant and telling. I thought it was an important take away in terms of where Kennedy may be.

You know, what we did in 2004 was I didn’t want to listen to President Bush out there on the campaign trail supporting a constitutional amendment banning same-sex marriage…

But that one couple, Phyllis Lyon and Del Martin, became 4,036 additional couples from 46 states. It was truly nationalized. It was not a local issue in San Francisco – 46 states and eight countries – and it wasn’t just the couples. What was so profound about that in February 2004 were the mothers and fathers and the brothers and sisters and grandparents and grandkids that all assembled there — tens of thousands of people celebrating life, celebrating love, celebrating marriage.

And it deepened my connection to not only the issue but to the community and my passion for equal rights. And I was struck by how many of my fellow Democrats ran, didn’t walk, from the issue in 2004, 5, 6, 7, 8. And only until recently have we seen a cascade of leadership which is fabulous, from [New York Governor Andrew] Cuomo and [Maryland Governor Martin] O’Malley to the president himself and others elected who are showing courage now. And I’m humbled by that now. But I’m frustrated a bit that it took even this long because we were having a lot of private conversations, and they weren’t disclosing publicly. There’s nothing worse than politicians saying one thing privately and doing another thing publicly.

 

Blade: Are you saying they were saying they supported marriage equality privately but not publicly?

Newsom: Yeah – in most cases. And they were just worried about their political career. I get that. But you know what? I like the politicians that are worried about the people they claim to represent more than they do their own political future. That’s sort of my argument on this assault weapons discussion right now. It kind of gets me a little angry – that people are worried more about their own elections than the faces of those kids in Newtown.

 

Blade: Then Congressman Barney Frank was among those that said your decision to perform same-sex marriages as mayor of San Francisco led to the passage of the state ballot measures banning same-sex marriage and raised the threat of a constitutional amendment to ban gay marriage passing in Congress.

Newsom: You know, I’m not going to – he’s gone out of his way to say that over and over again. And I’ll continue to go out of my way to celebrate his leadership in terms of LGBT rights. I don’t even belong in the same room as he in terms of what he’s done for the community. So I respectfully disagree with him. And I think a lot of people do. And I think there’s thousands and thousands of couples who came to San Francisco who would respectfully disagree with him.

And I think it required shaking things up a little bit because I think just waiting around for the courts – one off here, one off here – we could take 30 years, 40 years. And I think in many ways what we did certainly inspired the California Supreme Court [to declare same-sex marriages legal]. So I would hope that Congressman Frank sees that. But he’s long expressed his condemnation of what I did and continues to do so for whatever reason.

 

Blade: On the other hand, Evan Wolfson, head of the same-sex marriage advocacy group Freedom to Marry, has said pushing for marriage equality, even if it leads to setbacks, changes the hearts and minds of the public and leads to advances in the long run.

Newsom: Yeah – and I’ve talked to – and this sounds preposterous – but I’ve had the privilege of talking to people overseas that said this had an impact on their decision-making in Europe and their leadership there when they saw the human face and they saw those images. So I’m with Evan. I’ve long admired Evan. And you’re not kidding. He was out there in the early ‘90s. So he’s one of my heroes and one of the heroes of the movement. But there are many. I just left Rob Reiner. He was a huge supporter of what we did in 2004 and, of course, sponsored so much of the good work that Ted Olsen just did and is doing and Boies and Chad Griffin. It’s just incredible. Our own city attorney, Dennis Herrera, he put together a great team — Theresa Stuart. There’s so many champions and heroes in the fight. And I respect Barney Frank, but he wasn’t in the courtroom today and a lot of folks were, and they deserved to be and I respect their advocacy.

 

Blade: Now that you’re in a statewide office as lieutenant governor, do you have a sense of what kind of repercussions there might be in California and the nation as a whole if the Supreme Court rules either for or against marriage equality?  What about the people of the eastern part of California, who seem to be so different politically than the people of San Francisco or L.A.?

Newsom: You’re not kidding. I’ll be out there tomorrow. I’ll be in the Modesto Central Valley area at 1 o’clock tomorrow. The old frame of California used to be north and south. And you just hit it on the head. It’s increasingly now coastal-inland-east-west.  The politics is radically different in the central part of the state.

I think most pundits, and they may, in hindsight, dismiss this assertion. But I’ll tell you that I can point to almost every pundit in California that said I could never get elected statewide in California because of my support of same-sex marriage. And we proved them wrong. Though candidly, I didn’t know they would be wrong. I thought it was questionable as well.

In some parts of our state they’re particularly conservative. So there will be repercussions, absolutely. But you now see – and I never read the polls in 2004 because if I did I never would have done what I did because it was partly unpopular even in San Francisco.

The polls today are two to one in favor of marriage equality in California – two to one in the recent polls. So I think the repercussions will be negligible at best.

Across the country, you know this. You write about this. You guys have been at this forever. This is not even Republican-Democrat any more. It’s generational and it’s overwhelming. You cannot deny the generational component. So these guys are holding on – the opponents – they’re just holding on. I don’t want to say this is the last gasp because I think some states will hold on for a much longer time unless the courts intervene.

But this is a tsunami, a generational tsunami that 80 percent of 30-year-olds or younger [support marriage equality]. This court – I hope they – they’re human beings. I wouldn’t want to be on the wrong side of history on this. If I’m a relatively young judge like [Chief Justice John] Roberts, why do you want to be on the wrong side of history when it comes to a civil right?

 

Blade: Will you be going to the DOMA case tomorrow?

Newsom: I wish I could. I’ve got to head back to my events in the Central Valley. But I feel confident. The good news about DOMA is it kind of hits these guys on both sides of the ideological aisle. From a federal perspective, this is federalism and states’ rights on the right. And then on the left we can make similar arguments that we made today. I feel a little more confident on DOMA, though I feel equally confident in both cases. Although, again, I think it’s going to be a narrow decision on Prop 8 and then a repeal of DOMA outright.

 

Blade: If Proposition 8 were to somehow go back to the voters are you optimistic that it wouldn’t pass and marriage equality would prevail?

Newsom: To be candid with you, the backlash would exist there. I think there would be an intense response if the [Supreme Court] overturned the Ninth Circuit [U.S. Court of Appeals in California that ruled against Prop 8]. I don’t know if I want to use the word shock because that’s a little hyperbolic. But that backlash would immediately precipitate a ballot [measure] that most likely in this case – and this is one of the interesting facts of California right now – I think the legislature would put that on the ballot. It would require two-thirds of the legislature. There is two-thirds of the legislature now that supports marriage equality. So you wouldn’t even have to get signatures. And I think that would immediately happen.

And we would put on a campaign to end all campaigns. And we would win quite handily in 2014. So eventually even in the worst case scenario we would win at the ballot box, I believe. But the impact of that, I think, would be intensely felt across the country.

And I think, frankly, if I were opposed to marriage equality I’d be more worried about that because I think the backlash would inspire, with intensity, aggressive movements to overturn not just Prop 8 in California but all across the country in those 31 constitutional restricted states, etc.

 

Blade: Marriage equality advocate Robin Tyler of L.A. told us this week that she feels Prop 8 helped the LGBT cause and marriage equality because it energized and activated the LGBT community like never before and helped bring on the recent successes in passing same-sex marriage laws in several states. Do you agree with that assessment?

Newsom: I agree with that generally. I’ll never forget. I was so intimately involved in that. My image was used against our campaign or against our efforts. And whether we like it or not, it was a painful thing. The backdrop was we were celebrating Obama’s win at the same time we were lamenting Prop 8’s victory.

And people were stunned in many ways. We saw it coming in the last two weeks of the campaign when the polls started to shift. So some of us on the inside weren’t as surprised. But I think the general consensus was one of shock. And it really did galvanize people to say, you know what? If California can legally grant same-sex marriage and in California see them take it away, my gosh, we’ve got to wake up every state and get organized with great intensity. So I think she’s right.

I think you saw a lot of great work done across the country that built up the momentum in New York and Maryland and got us where we were in Maine and Washington State and, of course, all the other legislative victories on civil unions. But you’re right, it was painful. And guys like Congressman Frank could say, ‘Look, I told you so’ after the blowback with all those state constitutional amendments. But that’s the nature of the right struggle, good days and bad days.

And now we’re leaning into history in a very positive way and I hope and like to think it’s much faster than it would have been if we just sat back passively and waited our time and got permission. Some people argue we all need permission. David Boies also needed permission to do what they did. And I’m glad they didn’t wait. I’m glad they did what they did. And I’m glad we did what we did. So good people can disagree and history will judge.

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California

LGBTQ community calls out Radio Korea over host’s homophobic comments

Station acknowledged controversy, but skirted accountability

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On Nov. 21st, Radio Korea CEO Michael Kim made an official video statement addressing the Nov. 3rd program. (Screen capture via Radio Korea/YouTube)

On Monday, Nov. 3, Radio Korea aired its regular morning talk show program, where one of its hosts, Julie An, discussed her lack of support for the LGBTQ community, citing her religious beliefs. She also went on to comment that gay people spread HIV and AIDS, and that conversation therapy — which has been linked to PTSD, suicidality, and depression — is a viable practice. Clips of this have since been taken down.

Radio Korea offers Korean language programming to engage local Korean American and Korean immigrant community members. Its reach is broad, as Los Angeles is home to the largest Korean population in the U.S, with over 300,000 residents. As An’s words echoed through the station’s airwaves, queer Korean community members took to social media to voice their concern, hurt, and anger.  

In a now-deleted Instagram post, attorney, activist, and former congressional candidate David Yung Ho Kim demanded accountability from the station. Writer and entertainer Nathan Ramos-Park made videos calling out Radio Korea and An, stating that her comments “embolden” people with misinformation, which has the ability to perpetuate “violence against queer people.”

Community health professional Gavin Kwon also worries about how comments like An’s increase stigma within the Korean immigrant community, which could lead to increased discrimination against queer people and their willingness to seek health care.  

Kwon, who works at a local clinic in Koreatown, told the Los Angeles Blade that comments like An’s prescribe being gay or queer as a “moral failure,” and that this commonly-held belief within the Korean immigrant community, particularly in older generations, strengthens the reticence and avoidance clients hold onto when asked about their gender or sexual orientation. 

“When you stigmatize a group, people don’t avoid the disease — they avoid care,” Kwon explained. “They avoid getting tested, avoid disclosing their status, and avoid talking openly with providers. Stigma pushes people into silence, and silence is the worst possible environment for managing any infectious disease.”

For weeks, Radio Korea did not offer a direct response to the public criticism. Its Instagram feed continued to be updated with shorts, featuring clips of its various hosts — including An. 

On Friday, Radio Korea CEO Michael Kim released an official statement on the station’s YouTube page. In this video, Michael Kim stated that An’s comments “included factual inaccuracies” and that the station “does not endorse or share the personal opinions expressed by individual hosts.” Michael Kim also stated that Radio Korea “welcomes members of the LGBT community to share their perspectives” in order to deepen understanding through dialogue. 

Afterwards, Michael Kim continued that though he acknowledges the “pain” felt by queer community members, he concluded: “I don’t think Radio Korea needs to apologize for what was said any more than Netflix should apologize for what Dave Chappelle says, or any more than Instagram or TikTok should apologize for what people say on their platforms.” 

Michael then offered a justification that An’s statements were “not part of a news report,” and that he was “disappointed” that David Yung Ho Kim, specifically, had been vocal about An’s comments. Michael Kim stated that he was the first person to interview David Yung Ho Kim in 2020 during his congressional campaign, and that he had provided the candidate a platform and opportunity to educate listeners about politics. 

“After all these years, the support Radio Korea has given him,” said Kim, “the support I personally gave him, even the support from other Radio Korea members who donated or even volunteered for him — he dishonestly tried to portray Radio Korea as being an anti-gay organization.”

Michael Kim went on to criticize David Yung Ho Kim’s purported “hurry to condemn others,” and also questioned if David has disowned his father, who he states is a pastor. “What kind of person is David Kim, and is this the kind of person we want in Congress?” Michael Kim asked viewers, noting that Koreatown is “only about three miles from Hollywood, and some people just like to perform.” 

At the end of the video, Michael Kim stated that his duty is to guard the legacy of the station. “My responsibility is to protect what was built before me and ensure that Radio Korea continues serving this community long after today’s momentary controversies disappear,” he said. 

For community members and advocates, this response was unsatisfactory. “The overall tone of the statement felt more defensive than accountable,” Kwon wrote to the Blade. “Instead of a sincere apology to the LGBTQ+ community that was harmed, the message shifts into personal grievances, political dynamics, and side explanations that don’t belong in an official response.”

Michael Kim’s portrayal of the criticism and calls to action by community members as a “momentary controversy” paints a clearer picture of the station’s stance — that the hurt felt and expressed by its queer community members is something that will simply pass until it is forgotten. An continues to be platformed at Radio Korea, and was posted on the station’s social media channels as recently as yesterday. The station has not outlined any other action since Michael Kim’s statement. 

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U.S. Military/Pentagon

Pentagon moves to break with Boy Scouts over LGBTQ and gender inclusion

Leaked memo shows Hegseth rejecting Scouting America’s shift toward broader inclusion

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Scouts for Equality march in the 2015 Capital Pride Parade. (Washington Blade file photo by Michael Key)

The Pentagon is preparing to sever its longstanding partnership with the Boy Scouts of America, now known as Scouting America.

In a draft memo to Congress obtained by NPR, Defense Secretary Pete Hegseth criticizes the organization for being “genderless” and for promoting diversity, equity, and inclusion.

“The organization once endorsed by President Theodore Roosevelt no longer supports the future of American boys,” Hegseth wrote, according to Defense Department sources.

Girls have been eligible to join Cub Scouts (grades K–5) since 2018, and since 2019 they have been able to join Scouts BSA troops and earn the organization’s highest rank of Eagle Scout.

A statement on the Scouting America website says the shift toward including girls stemmed from “an expanding demand to join the Boy Scouts” and a commitment to inclusivity. “Throughout the late 20th and early 21st centuries, it has undergone significant changes to become more inclusive of the adult staff and volunteers that drive its programming as well as of scouts and their families,” the organization says.

Part of that broader push included lifting its ban on openly gay members in 2014 and on openly gay adult leaders in 2015.

Once the Pentagon finalizes the break, the U.S. military will no longer provide medical and logistical support to the National Jamboree, the massive annual gathering of scouts in West Virginia that typically draws about 20,000 participants. The memo also states that the military will no longer allow scout troops to meet on U.S. or overseas installations, where many bases host active scout programs.

Hegseth’s memo outlines several justifications for the decision, arguing that Scouting America has strayed from its original mission to “cultivate masculine values” by fostering “gender confusion.” It also cites global conflicts and tightening defense budgets, claiming that deploying troops, doctors and vehicles to a 10-day youth event would “harm national security” by diverting resources from border operations and homeland defense.

“Scouting America has undergone a significant transformation,” the memo states. “It is no longer a meritocracy which holds its members accountable to meet high standards.”

The Pentagon declined NPR’s request for comment. A “War Department official” told the outlet that the memo was a “leaked document that we cannot authenticate and that may be pre-decisional.”

The leaked memo comes roughly one month after nearly every major journalism organization walked out of the Pentagon in protest of new rules requiring reporters to publish only “official” documents released by the department — effectively banning the use of leaked or unpublished materials.

President Donald Trump, who serves as the honorary head of Scouting America by virtue of his office, praised the Jamboree audience during his 2017 visit to West Virginia. “The United States has no better citizens than its Boy Scouts. No better,” he said, noting that 10 members of his Cabinet were former Scouts.

Hegseth was never a scout. He has said he grew up in a church-based youth group focused on memorizing Bible verses. As a Fox News host last year, he criticized the Scouts for changing their name and admitting girls.

“The Boy Scouts has been cratering itself for quite some time,” Hegseth said. “This is an institution the left didn’t control. They didn’t want to improve it. They wanted to destroy it or dilute it into something that stood for nothing.”

NBC News first reported in April that the Pentagon was considering ending the partnership, citing sources familiar with the discussions. In a statement to NBC at the time, Pentagon spokesman Sean Parnell said, “Secretary Hegseth and his Public Affairs team thoroughly review partnerships and engagements to ensure they align with the President’s agenda and advance our mission.”

The Scouting America organization has has long played a role in military recruiting. According to numbers provided by Scouting America, many as 20 percent of cadets and midshipmen at the various service academies are Eagle Scouts. Enlistees who have earned the Eagle rank also receive advanced entry-level rank and higher pay — a practice that would end under the proposed changes.

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The White House

Trans workers take White House to court over bathroom policy

Federal lawsuit filed Thursday

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Protesters outside of House Speaker Mike Johnson's (R-La.) office in the Cannon House Office Building last year protesting a similar bathroom ban. (Washington Blade photo by Christopher Kane)

Democracy Forward and the American Civil Liberties Union, two organizations focused on protecting Americans’ constitutional rights, filed a class-action lawsuit Thursday in federal court challenging the Trump-Vance administration’s bathroom ban policies.

The lawsuit, filed on behalf of LeAnne Withrow, a civilian employee of the Illinois National Guard, challenges the administration’s policy prohibiting transgender and intersex federal employees from using restrooms aligned with their gender. The policy claims that allowing trans people in bathrooms would “deprive [women assigned female at birth] of their dignity, safety, and well-being.”

The lawsuit responds to the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” signed by President Donald Trump on his first day in office. It alleges that the order and its implementation violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In 2020, the U.S. Supreme Court ruled 6-3 that Title VII protects trans workers from discrimination based on sex.

Since its issuance, the executive order has faced widespread backlash from constitutional rights and LGBTQ advocacy groups for discriminating against trans and intersex people.

The lawsuit asserts that Withrow, along with numerous other trans and intersex federal employees, is forced to choose between performing her duties and being allowed to use the restroom safely.

“There is no credible evidence that allowing transgender people access to restrooms aligning with their gender identity jeopardizes the safety or privacy of non-transgender users,” the lawsuit states, directly challenging claims of safety risks.

Withrow detailed the daily impact of the policy in her statement included in the lawsuit.

“I want to help soldiers, families, veterans — and then I want to go home at the end of the day. At some point in between, I will probably need to use the bathroom,” she said.

The filing notes that Withrow takes extreme measures to avoid using the restroom, which the Cleveland Clinic reports most people need to use anywhere from 1–15 times per day depending on hydration.

“Ms. Withrow almost never eats breakfast, rarely eats lunch, and drinks less than the equivalent of one 17 oz. bottle of water at work on most days.”

In addition to withholding food and water, the policy subjects her to ongoing stress and fear:

“Ms. Withrow would feel unsafe, humiliated, and degraded using a men’s restroom … Individuals seeing her enter the men’s restroom might try to prevent her from doing so or physically harm her,” the lawsuit states. “The actions of defendants have caused Ms. Withrow to suffer physical and emotional distress and have limited her ability to effectively perform her job.”

“No one should have to choose between their career in service and their own dignity,” Withrow added. “I bring respect and honor to the work I do to support military families, and I hope the court will restore dignity to transgender people like me who serve this country every day.”

Withrow is a lead Military and Family Readiness Specialist and civilian employee of the Illinois National Guard. Previously, she served as a staff sergeant and has received multiple commendations, including the Illinois National Guard Abraham Lincoln Medal of Freedom.

The lawsuit cites the American Medical Association, the largest national association of physicians, which has stated that policies excluding trans individuals from facilities consistent with their gender identity have harmful effects on health, safety, and well-being.

“Policies excluding transgender individuals from facilities consistent with their gender identity have detrimental effects on the health, safety and well-being of those individuals,” the lawsuit states on page 32.

Advocates have condemned the policy since its signing in January and continue to push back against the administration. Leaders from ACLU-D.C., ACLU of Illinois, and Democracy Forward all provided comments on the lawsuit and the ongoing fight for trans rights.

“We cannot let the Trump administration target transgender people in the federal government or in public life,” said ACLU-D.C. Senior Staff Attorney Michael Perloff. “An executive order micromanaging which bathroom civil servants use is discrimination, plain and simple, and must be stopped.”

“It is absurd that in her home state of Illinois, LeAnne can use any other restroom consistent with her gender — other than the ones controlled by the federal government,” said Michelle Garcia, deputy legal director at the ACLU of Illinois. “The Trump administration’s reckless policies are discriminatory and must be reversed.”

“This policy is hateful bigotry aimed at denying hardworking federal employees their basic dignity simply because they are transgender,” said Kaitlyn Golden, senior counsel at Democracy Forward. “It is only because of brave individuals like LeAnne that we can push back against this injustice. Democracy Forward is honored to work with our partners in this case and is eager to defeat this insidious effort to discriminate against transgender federal workers.”

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