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In first, Senate confirms out fed’l appeals judge

Hughes confirmed unanimously to U.S. Court of Appeals for the Federal Circuit

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Todd Hughes, gay news, Washington Blade
Todd Hughes, gay news, Washington Blade

Todd Hughes is the first openly gay man confirmed to a federal appeals court (Screen shot via judiciary.senate.gov).

The U.S. Senate made history on Tuesday with little fanfare when it unanimously confirmed for the first-time ever an openly gay person to a federal appellate court.

By a vote of 98-0, the Senate confirmed Todd Hughes as a circuit judge for the U.S. Court of Appeals for the Federal Circuit, making him the highest-ranking openly gay judge.

In the half-hour of debate prior to his confirmation, senators focused on the budget and imminent government shutdown, although the significance of the Hughes confirmation did come up on the Senate floor.

Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the confirmation of Hughes is “an important milestone.”

“If confirmed, Mr. Hughes would be the first openly gay judge to serve on a federal appellate court in our nation’s history,” Leahy said. “I’m proud the Senate has finally taken an historic step to break down another barrier and increase diversity in our federal bench.”

Conservatives like Charles Grassley (R-Iowa), Marco Rubio (R-Fla.), James Inhofe (R-Okla.), Mike Lee (R-Utah) and Lindsey Graham (R-S.C.) joined Democrats like Debbie Stabenow (D-Mich.), Jeff Merkley (D-Ore.) and Barbara Mikulski (D-Md.) in voting for the nominee.

The U.S. Court of Appeals for the Federal Circuit is located in D.C. and has jurisdiction over issues such as federal claims, veterans claims and patent issues.

Under President Obama, the Senate has confirmed seven openly gay judicial nominees, but never before — either under Obama or under a previous administration — has the Senate confirmed an openly gay person to an appellate-level court.

During his confirmation hearing on June 19, Hughes identified “fidelity to the law” as a quality a federal judge should have.

“The first and foremost quality a federal judge should have is fidelity to the law,” Hughes said. “He should be fair to all the litigants. He should be thoroughly prepared, understand the facts of the case, the law and come to a reasoned and equitable decision.”

Hughes has most recently served since 2007 as deputy director for the Commercial Litigation Branch of the Civil Division at the Justice Department. Prior to that, he worked for the Commercial Litigation Branch as a trial attorney.

Obama nominated Hughes for the seat on the appeals court in February and the Senate Judiciary Committee reported out his nomination to the Senate floor in July.

Hughes’ practice has been related to federal personnel law, veterans’ benefits, international trade, government contracts and jurisdictional issues regarding the U.S. Court of Federal Claims.

Advocates welcomed the news of Hughes’ confirmation and called it a milestone for the LGBT community.

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said Hughes’ confirmation is significant both in terms of the barrier it breaks and the judge’s record.

“Judge Hughes is an eminently qualified nominee who also happens to shatter a barrier as the first openly gay federal appellate court judge,” Cole-Schwartz said. “It’s a testament to how far we have come as a country that his sexual orientation is irrelevant to his ability to serve on our nation’s courts.”

D’Arcy Kemnitz, executive director of the LGBT Bar Association, said the confirmation is “an important milestone for the LGBT legal profession.”

“It also shows that Congress, and the country, want the best person for the job, regardless of sexual orientation,” Kemnitz said. “Our federal judiciary is a better one when it reflects the diversity of the nation it serves. We commend President Obama for his nomination of Hughes, and the Senate for confirming that nomination.”

The American Bar Association’s Standing Committee on the Federal Judiciary gave Hughes a rating of “unanimously well qualified” during his confirmation process.

Obama made an attempt before to seat an openly gay person to a federal appeals court, but it didn’t succeed. In 2010, Obama nominated Edward Dumont to the U.S. Court of Appeals for the Federal Circuit, but that nomination was rescinded after no action was taken on the appointment for 18 months and DuMont requested his name be withdrawn.

Now that the Senate has confirmed Hughes, a total of 50 judicial nominees nominated by Obama remain pending before the Senate awaiting action. Thirteen are pending on the Senate floor and 37 are pending in committee.

Among the 37 is William Thomas, whom Obama first nominated for a seat on the U.S. District Court for the Southern District of Florida nearly a year ago in November. If confirmed, Thomas would be the first openly gay black person to sit on the federal bench.

Sen. Marco Rubio (R-Fla.), who had previously supported the Thomas confirmation, has been holding up the proceedings for the nominee by refusing to return a “blue slip” to the Senate Judiciary Committee.

The Washington Blade has previously reported that Rubio was holding up the confirmation process for Thomas by refusing to turn in the “blue slip” for the nominee.

Brooke Sammon, a Rubio spokesperson, told the Blade and other media outlets this week Thomas’s record as a judge on state court “raises serious concerns about his fitness” for a lifetime federal appointment.

“Those concerns include questions about his judicial temperament and his willingness to impose appropriate criminal sentences, particularly in the two high-profile cases of Michele Traverso and Joel Lebron earlier this year,” Sammon said. “After reviewing Thomas’s record, Senator Rubio cannot support moving forward with the nomination at this time.”

With respect to the Traverso case, Nushin Sayfie, administrative judge for the criminal division of the Eleventh Judicial Circuit in Florida, wrote a letter to Rubio over the summer saying the sentence Thomas gave was within his guideline range, as the Washington Blade previously reported.

The White House didn’t respond to a request to comment on whether Obama would rescind his nomination of Thomas over Rubio’s objections.

Other openly gay nominees pending before the Senate are James “Wally” Brewster, Jr., who was nominated as U.S. ambassador to the Dominican Republic, and Chai Feldblum, who was nominated for a second term for a seat on the U.S. Equal Employment Opportunity Commission.

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U.S. Supreme Court

Supreme Court upholds conversion therapy ban in Washington State

Kavanaugh, Alito, Thomas wanted to consider challenge to ban

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

The U.S. Supreme Court on Monday allowed Washington State to continue enforcing its ban on conversion therapy for minors, another blow to the dangerous and discredited practice of endeavoring to change a patient’s sexual orientation or gender identity.

With a 6-3 vote declining to hear a challenge brought by the anti-LGBTQ Alliance Defending Freedom, the Supreme Court allowed the U.S. Court of Appeals for the Ninth Circuit’s decision protecting the law to remain in effect.

Conservative Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas voted to take up the case, with Thomas writing a five-page dissent in which he argued “licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”

“In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy,” Alito wrote in a brief dissent. “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”

The law in Washington allows providers to discuss conversion therapy with patients younger than 18 or recommend that it be administered by a religious counselor, but prohibits licensed therapists from performing it.

Major scientific and medical groups as well as LGBTQ and other civil rights organizations support conversion therapy bans for minors, which have passed in 22 states and D.C. according to the Movement Advancement Project.

Judge Ronald M. Gould, writing for the three-judge panel of the 9th Circuit, argued in his decision on the case challenging Washington’s ban that, “States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel.”  

Gould noted that Brian Tingley, a family counselor and advocate for conversion therapy who challenged the law, was still able to communicate about conversion therapy, express his personal views on the subject to his patients, practice conversion therapy on adults, and refer minors to counselors not licensed by the state.

“For decades,” wrote Washington state Attorney General Robert W. Ferguson in a brief, “this court has held that states can regulate conduct by licensed professionals, even if the regulations incidentally impact speech.” 

“Conversion therapy,” he added, “puts minors at risk of serious, long-lasting harms, including increased risks of suicide and depression.”

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District of Columbia

One trans woman shot, another had legs run over by car in Northeast

November incidents occurred near D.C.-P.G. County border

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D.C. police say they are investigating a Nov. 1 incident in which a transgender woman was knocked down on a street by a man who backed his car into her and then drove over both of her legs after he was shot in the arm in an unrelated dispute with another person outside an apartment building at 5920 Foote St., N.E.

The woman, Latisa Moorman, said she spent a month at Washington Hospital Center recovering from her injuries before being transferred to a rehabilitation center for continued treatment of her injured legs.

Police are also investigating a second incident in which another transgender woman was shot in her “pelvic region” by an unidentified male suspect causing a nonfatal injury on Nov. 29 inside the same apartment building. The shooting followed an “argument about a sexual act that was performed and payment of money,” according to a D.C. police report.

The victim of the second incident couldn’t immediately be reached to determine if she would like her name to be disclosed.

Moorman, the victim in the first incident, told the Washington Blade a police detective informed her that the man who hit her with his car and drove away has been arrested. She said the detective gave her the name of the arrested man. But the man’s name could not be found in court records and police have not responded to a Blade request to confirm the arrest.

A police report says police were investigating what they listed as separate cases of the shooting that injured the man who drove over Moorman’s legs as well as the incident in which the man who was shot hit Moorman with his car and drove away.

“Both cases remain under investigation and detectives are actively following up on leads, collecting evidence, and interviewing potential witnesses,” D.C. police spokesperson Paris Lewbel told the Blade in an email. “Due to the ongoing nature of the investigation, we cannot discuss specific investigative steps that have been taken by detectives,” Lewbel said.

The case of the Nov. 29 shooting of the trans woman inside 5920 Foote St., N.E. and the incident in which Moorman was hit by the car outside that same building took place in a location that trans and LGBTQ activists say is known as an area where female trans sex workers as well as trans women who are not engaged in sex work congregate along Eastern Avenue and nearby side streets.

The Foote Street apartment building where the two incidents took place is located at the intersection of Foote Street, 60th Street, and Eastern Avenue.

Less than a mile away one block off the Prince George’s County side of Eastern Avenue transgender woman Ashanti Carmon, 27, was shot to death on March 30, 2019. That case remains unsolved, with no arrest made. About 100 people led by transgender activist Earline Budd held a candlelight vigil one month later in honor of Carmon at the site of where the shooting took place.

Gay D.C. Advisory Neighborhood Commissioner Anthony Lorenzo Green, whose district is located near the Eastern Avenue area where trans women hang out, expressed concern that D.C. officials are not adequately addressing the issues related to why trans women are engaging in sex work in that area.

“The angle we come from is the city needs to provide services for Black trans women along this corridor as opposed to constantly trying to arrest them and hoping that will keep them away from Eastern Avenue or away from where they work out of desperation, out of necessity,” Green told the Blade.

“But that has never worked. And we tell them that over and over,” Green said. “These ladies have not been given an opportunity to advance in this city. They’ve been forced to the edges of this city,” he said, adding that the D.C. government “should be bringing social services to that corridor.”

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World

Out in the World: LGBTQ news from Europe and Asia

Human Rights Watch in new report criticizes Jordanian government

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(Los Angeles Blade graphic)

Jordan

King Abdullah (Photo courtesy of the Jordanian Embassy in the U.S.)

The government of Jordanian King Abdullah have systematically targeted lesbian, gay, bisexual and transgender rights activists and coordinated an unlawful crackdown on free expression and assembly around gender and sexuality, Human Rights Watch said in a report released earlier this month.

In its Dec. 4 report, HRW documented cases in which Jordan’s General Intelligence Department (GID) and the Preventive Security department of the Public Security Directorate interrogated LGBTQ activists about their work, and intimidated them with threats of violence, arrest and prosecution, forcing several activists to shut down their organizations, discontinue their activities and in some cases, flee the country. 

Government officials also smeared LGBTQ rights activists online based on their sexual orientation, and social media users posted photos of LGBTQ rights activists with messages inciting violence against them.

“Jordanian authorities have launched a coordinated attack against LGBT rights activists, aimed at eradicating any discussion around gender and sexuality from the public and private spheres,” said Rasha Younes, senior LGBT rights researcher at Human Rights Watch. “Security forces’ intimidation tactics and unlawful interference in LGBT organizing have driven activism further underground and forced civil society leaders into an impossible reality: severe self-censorship or fleeing Jordan.”

Three activists said the Amman governor interrogated them after they preemptively cancelled the screening of a film depicting gay men. Two LGBTQ organization directors said that because of official intimidation, they were forced to close their offices, discontinue their operations in Jordan and flee the country.

One activist said Preventive Security officers made him sign a pledge that he would report all his venue’s activities to the governor. Another activist reported being targeted online while social media users called for him to be burned alive.

One of the few LGBTQ rights activists who has remained in Jordan described her current reality: “Merely existing in Amman has become terrifying. We cannot continue our work as activists, and we are forced to be hyperaware of our surroundings as individuals.”

More recently, in October 2023, an LGBTQ rights activist said he was summoned for investigation by the intelligence agency. During the interrogation, the activist said intelligence officers searched his phone, intimidated him and threatened him with a travel ban, while asking personal questions about his sexual orientation and sexual relations with other men. After three hours of questioning, the activist said the officers told him he could leave.

“They [Jordanian authorities] invest in intimidation to destroy our minds and isolate us,” the activist said. “Their tactic is to target us mentally, leaving no evidence of our torment behind.”

Jordan’s constitution protects the rights to nondiscrimination (article 6), the right to personal freedom (article 7), and the right to freedom of expression and opinion (article 15).

The International Covenant on Civil and Political Rights, to which Jordan is a state party, provides that everyone shall have the right to freedom of expression, assembly and association. The ICCPR, in its articles 2 and 26, guarantees fundamental human rights and equal protection of the law without discrimination. 

The U.N. Human Rights Committee, which interprets the covenant, has made clear that discrimination based on sexual orientation and gender identity is prohibited in upholding any of the rights protected by the treaty, including freedom of expression, assembly and association.

France

Openly gay French Sen. Hussein Bourgi speaks at a ceremony in Clermont-l’Hérault in the Hérault district he represents. (Photo courtesy of Hussein Bourgi’s Facebook page)

Legislation that was introduced last month by the openly gay Socialist Senator Hussein Bourgi to acknowledge the French state’s responsibility in the criminalization and persecution of gay men between 1945 and 1982 was adopted.

However, the section of bill that called for compensation of the victims of French homophobic laws, in effect during that period by offering them a lump sum of €10,000 ($10,752.75) was not approved.

Speaking with various French media outlets, Bourgi, who authored the bill, said: “It is high time to bring justice to the living victims of legislation which served as the basis for a politics of repression with brutal and punishing social, professional and familial consequences.”

Agence France-Presse reported

Bourgi’s text focuses on a 40-year period following the introduction of legislation that specifically targeted homosexuals under the Nazi-allied Vichy regime. The 1942 law, which was not repealed after the liberation of France, introduced a discriminatory distinction in the age of consent for heterosexual and homosexual sex, setting the former at 13 (raised to 15 at the Liberation) and the latter at 21.

Some 10,000 people — almost exclusively men, most of them working-class — were convicted under the law until its repeal in 1982, according to research by sociologists Régis Schlagdenhauffen and Jérémie Gauthier. More than 90 percent were sentenced to jail. An estimated 50,000 more were convicted under a separate “public indecency” law that was amended in 1960 to introduce an aggravating factor for homosexuals and double the penalty. 

“People tend to think France was protective of gay people compared to, say, Germany or the UK. But when you look at the figures you get a very different picture,” said Schlagdenhaufen, who teaches at the EHESS institute in Paris. 

“France was not this cradle of human rights we like to think of,” he added. “The revolution tried to decriminalise homosexuality, but subsequent regimes found other stratagems to repress gay people. This repression was enshrined in law in 1942 and even more so in 1960.” 

The legislation won the backing of Justice Minister Éric Dupond-Moretti in President Emmanuel Macron’s government. However, Dupond-Moretti agreed with the removal of the compensation provision by the right-wing and center senatorial majority. Dupond-Moretti justified this choice noting concerns over “legal difficulties,” telling French magazine Le Monde that “putting into practice” of this compensation measure “appears extremely complex” due to the difficulty of providing proof of an old conviction and its execution.

The Dupond-Moretti added “It was not the law which was responsible for this harm” but “French society, homophobic in all its components at the time” adding, “This is not the fault of the Republic. The law of memory is enough.”

The bill must now be taken up by the lower house, the National Assembly, to be passed and then adopted.

Scotland

The Scottish Parliament in Edinburgh (Photo courtesy of the Scottish government)

The Court of Session in Edinburgh has ruled that Prime Minister Rishi Sunak’s U.K. government acted within the law by invoking Section 35, which blocked the measure passed by the Scottish Parliament, that would have make it easier for transgender people to change their legally-recognized sex on documents.

The actions by Scottish Secretary Alister Jack, with Sunak’s backing kept the act from receiving the signature of King Charles III and becoming law. 

The Gender Recognition Reform bill was introduced by the Scottish government in the country’s Parliament in the spring of 2022 was passed in a final 86-39 vote days before last Christmas. The sweeping reform bill modifies the Gender Recognition Act, signed into law in 2004, by allowing trans Scots to gain legal recognition without the need for a medical diagnosis.

The measure further stipulates that age limit for legal recognition is lowered to 16.

In a statement released in January of this year, Jack said:

“After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation. 

Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters. 

I have not taken this decision lightly. The bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this is the necessary and correct course of action.”

The Scottish government sued Westminster in the Court of Session, Scotland’s highest civil court, arguing that Jack did not have “reasonable grounds” to block the bill. The BBC reported that in her ruling for the UK governments, Judge Lady Haldane dismissed the Scottish government’s appeal and said the block on the legislation was lawful.

Haldance noted that Jack followed correct legal procedures when he made his decision to invoke section 35 and that the Scottish government had failed to show that he had made legal errors.

The judge wrote: “I cannot conclude that he (Mr. Jack) failed in his duty to take such steps as were reasonable in all the circumstances to acquaint himself with material sufficient to permit him to reach the decision that he did.”

Haldane also said that “Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle. Rather it is itself part of the constitutional framework.”

Stonewall UK, the nation’s largest LGBTQ advocacy group, expressed its disappointment with Haldane’s ruling in a statement released this past week: 

“We’re disappointed that the Court of Session in Scotland has found in favour of the UK government’s unprecedented decision to use Section 35 to block the Gender Recognition Reform Bill from Royal Assent. This bill was one of the most debated in the Scottish Parliament’s history and was passed by a resounding majority of MSPs drawn from all major Scottish parties.

This unfortunately means more uncertainty for trans people in Scotland, who will now be waiting once again, to see whether they will be able to have their gender legally recognised through a process that is in line with leading nations like Ireland, Canada and New Zealand.

Whatever happens next in discussions with the UK and Scottish governments on this matter, Stonewall will continue to press all administrations to make progress on LGBTQ+ rights in line with leading international practice.”

UNITED KINGDOM

Labor MP Chris Bryant speaking in the House of Commons. (Screenshot of the British government’s YouTube channel)

Anti-LGBTQ rhetoric used by British Equalities Minister Kemi Badenoch during her speech on the floor of the House of Commons on Dec. 6, prompted Labor MP Chris Bryant, an openly gay lawmaker, to rise in opposition and declare her speech left him feeling unsafe. 

The debate was triggered by Badenoch claiming that the UK does not recognize self-ID from overseas countries for trans people, PinkNewsUK reported. In his retort to her statements, Bryant explained: “I feel, as a gay man, less safe than I did three years or five years ago.”

PinkNewsUK also noted that Bryant said: “Why? Sometimes because of the rhetoric that is used, including by herself [Badenoch] in the public debate.” He added that some MPs had cheered for Badenoch’s statements on the trans community, and for statements against gender-affirming care for trans people, which could lead to LGBTQ people feeling even less safe in the UK. 

“Many of us feel less safe today, and when people over there cheer as they just did, it chills me to the bone, it genuinely does,” Bryant said. 

She hit back with force, challenging him to identify which words precisely were so problematic. She later criticized the attempts of trans activists to use emotional blackmail to try to shut down debate.

The UK government has updated the list of countries from which gender-certificates will be accepted.

Replying to Bryant, Badenoch said: “He says that my rhetoric chills him to the bone. I would be really keen to hear exactly what it is I have said in this statement or previously that is so chilling.” She added that the current Tory government had done work on “our HIV action plan” and “around trans healthcare,” as well as “establishing five new community-based clinics for adults in the country.”

“There is a lot that we are doing, so it is wrong to characterize us as not caring about LGBT people,” she said. 

Bryant’s colleague, Ben Bradshaw, also failed to get the better of Badenoch. He complained the UK had recently fallen in a set of international rankings on LGBTQ rights. She calmly pointed out that those rankings reward states that adopt the Stonewall-supported policy of self-ID and punish those who do not. To cheers from the Tory benches, she declared “Stonewall does not decide the law in this country,” referring to Stonewall UK, the nation’s largest LGBTQ+ advocacy group.

Additional reporting from Human Rights Watch, Agence France-Presse, Le Monde, The BBC and PinkNewsUK.

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