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Why did Supreme Court refuse to hear marriage?

Unanimity of circuit decisions, perceived lack of votes to overturn rulings among reasons cited

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Supreme Court of the United States, John Roberts, Ruth Bader Ginsburg, Antonin Scalia, gay news, Washington Blade

From left, Chief Justice of the Supreme Court John Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Antonin Scalia (Photos public domain)

The Supreme Court’s decision to deny certiorari on five marriage cases surprised many legal observers amid expectations that the justices would want to weigh in on the hot button national issue.

But maybe it shouldn’t have. In recent public comments, justices have dropped hints that a decision was made and they weren’t eager to take up the issue at this time because of unanimity thus far in favor of marriage equality at the circuit level.

Just last week, U.S. Associate Justice Antonin Scalia made headlines after a speech at the University of Colorado, teasing the crowd when asked when we’ll find out if the high court will take up marriage by saying, “I know when, but I’m not going to tell you. Soon! Soon!”

How could he declare with such certainty that he knew the answer for the timing? Because he knew at the Sept. 29 conference that a vote to grant certiorari had failed in each of the five marriage cases and orders announcing the petitions were denied were forthcoming from the court.

It takes an affirmative vote of four justices to grant certiorari (or decide to take up a case), but a petition is denied if that four-vote threshold isn’t met. The results of those votes aren’t public, nor was any explanation given, but that hasn’t stopped speculation about what motivated justices to turn down an opportunity to decide what many consider to be the case of the century.

A commonly cited reason for the Supreme Court’s decision to refrain from taking up the marriage issue is the unanimity of decisions striking down bans on same-sex marriage from the Fourth, Seventh and Tenth circuit courts of appeals.

Jon Davidson, legal director for Lambda Legal, during a conference call with reporters, pointed to wide consensus among the courts that bans on same-sex marriage are unconstitutional.

“It’s total speculation, but my speculation would be they decided that there was unanimity among the federal courts of appeal, and virtual unanimity among all the federal courts and almost all the state courts,” Davidson said. “Since the Windsor decision, it is clear that same-sex couples have a constitutional right to marry. There was therefore no need for them to step in at the moment.”

That would be consistent with well-publicized remarks that U.S. Associate Justice Ruth Bader Ginsburg made weeks ago at a Minnesota Law School in which she reportedly said there’s “no need for us to rush” to take up marriage unless the U.S. Sixth Circuit Court of Appeals issues a decision upholding bans on same-sex marriage, which would cause a split among the circuit courts.

Many presumed she meant the petitions would be on hold before the Supreme Court as more courts ruled on marriage, but as it turns out the court was about to determine same-sex couples would soon be able to wed in each of the states where federal appeals courts struck down marriage bans: Utah, Virginia, Oklahoma, Indiana and Wisconsin.

Doug NeJaime, a law professor at the University of California, Irvine, predicted that denial of certiorari from the Supreme Court would continue as long as circuit courts keep striking down bans on same-sex marriage.

“The court can allow this to keep moving forward without its intervention,” NeJaime said. “So long as decisions are going in the same direction, the court can wait to intervene until more states are in the marriage equality column.”

In the event that a future circuit court upholds bans on same-sex marriage — say the Sixth Circuit, or the more conservative U.S. Fifth Circuit Court of Appeals — it would be incumbent on the more liberal justices to find four votes to grant certiorari to reverse the decision, which should be easier than the other way around.

An additional factor explaining the denial of certiorari is the judicial philosophy of U.S. Chief Justice John Roberts, who has a perceived reluctance to engage in controversial issues. It’s widely assumed the court decided to hear the case challenging California’s Proposition 8 because the four most conservative justices — U.S. Associate Justices Samuel Alito, U.S. Associate Justice Clarence Thomas, Roberts and Scalia — decided to grant certiorari in the case.

Roberts wrote the majority opinion on Prop 8, which ducks the merits of the case and instead ruled defendants didn’t have standing in the lawsuit. If he only took up the case for that reason and otherwise believes the Supreme Court should stay out of lower court decisions against same-sex marriage, it could have broke up the necessary four votes needed to take up a marriage case in the first place.

A variation on this explanation is the four conservative justices on the court didn’t think they had the five votes to overturn a ruling in favor of same-sex marriage if the court considered a case. The swing vote on the court — U.S. Associate Justice Anthony Kennedy, who authored the decision against the Defense of Marriage Act — was presumably seen as a sure bet in favor of marriage equality.

Lambda’s Davidson elaborated on this possibility in the conference call with reporters.

“The four more conservative justices couldn’t count to five,” Davidson said. “They were not assured of a fifth vote, and so they didn’t want to grant review yet because that might allow there to be a decision that marriage equality is required across the country as soon as that case is decided.”

But one question that remains is why the Supreme Court decided to issue stays on same-sex marriages earlier in the year in Utah and more recently in Virginia if justices were going to refuse to hear the cases anyway. The presence of those stays was the biggest reason that legal experts assumed the Supreme Court intended to hear a marriage case.

Theodore Olson, co-counsel of the case that sought marriage in Virginia, was reluctant to speculate on why justices declined to hear the litigation, but told reporters the stays may have been enacted so the court could have more leeway to make a decision at a later time.

“I suspect that the Supreme Court granted a stay in the case, in all these cases initially so that it could consider whether or not it was going to hear the case and avoid the situation where if it had taken the case, it wanted to have the freedom to decide this one way or the other without the problem of people getting married, and then being exposed to the possibility that those marriages would somehow be upset by an adverse decision,” Olson said.

There are mixed views on what would happen to the states that now have marriage equality as a result of the denial certiorari in the event the court takes up a marriage case at later time, but determines bans on same-sex marriage are constitutional.

Some say same-sex marriages in those states would be allowed to continue; others say defendants in the case would have the option to move to halt the weddings, although couples that already wed would be allowed to stay married. Whatever the case, it’s hard to see how such a ruling would come down unless the makeup of the court changes in the immediate future.

Regardless of the explanation for why the Supreme Court denied certiorari, it made Oct. 6, 2014 a milestone moment in gay rights history and expanded marriage equality to five more states. The tally now stands at 24, and one can now drive from Richmond to Bangor without entering a state that bans gay marriage.

The decision also makes it likely that bans in other states in the Fourth and Tenth circuits — North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming — will soon fall. Once they go down, it would bring the number to 30.

Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said justices knew the impact of what they doing when they denied certiorari whatever their reason for doing so.

“While the court did not provide its reasoning for denying review in these cases, I have no doubt that the justices were acutely aware of the effect — that denying review would clear the way for same-sex marriage to come to a number of states where it had been prohibited,” Romero said. “Perhaps also notable is that no justice issued a written dissent from the denial of cert or the lifting of the stays.”

And the number of same-sex marriage states will likely increase more now that courts are under additional guidance on handling the marriage issue. Additional circuit court decisions are expected soon from the U.S. Ninth Circuit Court of Appeals on bans in Idaho and Nevada and from the Sixth Circuit on bans in Michigan, Ohio, Kentucky and Tennessee.

Meanwhile, LGBT advocates continue to urge the Supreme Court to find an appropriate vehicle to deliver a nationwide ruling in favor of marriage rights.

James Esseks, director of the American Civil Liberties Union’s LGBT Project, told reporters the denial of certiorari is a “watershed moment” and it’s on par now with a ruling from the Supreme Court at a nationwide level in many respects.

“It means that we get equality on the ground for same-sex couples more quickly in a whole bunch of places and also sends a signal to all the other judges in all the other states that are out there of where the Supreme Court may well be on this issue,” Esseks said. “And I think that’s going to get us to marriage in all 50 states very quickly.”

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Mixed reviews from transgender Republicans on Caitlyn Jenner’s run

Remarks on kids in sport a sore point among LGBTQ advocacy groups

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Caitlyn Jenner was quickly repudiated by LGBTQ advocates after she entered California’s recall election as a gubernatorial candidate — and her fellow transgender Republicans are mixed over whether or not to back her up.

Transgender Republicans are few in number, but some are in high-profile positions and have been working with their party to change its approach and drop its attacks on transgender people, whether it be in the military, public bathrooms, or school sports.

Jordan Evans, a Charlton, Mass.-based transgender Republican who unsuccessfully last year ran to become a Massachusetts Republican State Committee Woman, told the Washington Blade she had high hopes for Jenner as a fellow transgender candidate, but they were quickly dashed after her campaign launched.

“My feelings changed quickly after Caitlyn made it clear that she was less interested in using this opportunity to present the Republican Party and conservative movements with an accessible and high-profile introduction to the trans community and simply wanted to be a trans woman who espoused the same destructive approaches that we just so happen to be seeing all over the country,” Evans said.

Evans said the high hopes she had were based on the transgender advocacy she said Jenner was doing behind the scenes and the potential for two prominent LGBTQ Republicans to run for governor in California. After all, Jenner may soon be joined in the race by Richard Grenell, who was U.S. ambassador to Germany and acting director of national intelligence before becoming the face of LGBTQ outreach for Trump’s failed re-election.

But Jenner’s approach to the gubernatorial recall in California, Evans said, is “putting trans youth at risk for a campaign that isn’t even transformative for Republicans during this volatile time.”

“Even her current messaging is superficial and does nothing to help dispel claims that she’s unqualified,” Evans said. “The only positive thing that I’ve seen come from this is conservative mainstream media using her correct pronouns, but that is not worth the damage that she’s inflicting.”

Much of the disappointment over Jenner’s campaign is the result of her essentially throwing transgender kids under the bus as part of her campaign at a time when state legislatures are advancing legislation against them, including the bills that would essentially bar transgender girls from participating in school sports.

Jenner, declining to push back on these measures and assert transgender kids have a place in sports, instead essentially endorsed the bills shortly after she announced her candidacy.

“If you’re born as a biological boy, you shouldn’t be allowed to compete in girls’ sports,” Jenner told TMZ, which asked her about the hot-button issue during a Sunday morning coffee run.

Jenner dug deeper into MAGA-world at the expense of solidarity with the transgender community. Last week, Jenner retweeted Jenna Ellis, who has a notoriously anti-LGBTQ background and was criticized just last year for refusing to use the personal pronouns of Rachel Levine, who’s now assistant secretary of health and the first openly transgender presidential appointee to win Senate confirmation.

Jennifer Williams, a New Jersey-based transgender Republican who unsuccessfully ran for a seat in the New Jersey General Assembly last year, said via email Jenner “did much good for several years by educating millions of people around the world about transgender folks,” but won’t countenance the candidate’s remarks on transgender kids in sports.

“In regard to her current run for California governor, her recent comments regarding transgender youth playing sports are confusing,” Williams said. “Just last year, she said that she supported transgender female athletes. Caitlyn should consult with tennis great Billie Jean King, soccer star Megan Rapinoe or WNBA legend Candace Parker on the subject of transgender athletes in women’s sports, as they are very well versed on the matter.”

At a time when state legislatures are pushing through legislation targeting transgender youth, restricting their access to sports and transition-related care, Jenner’s refusal to repudiate those measures has become a focal point for opposition to her candidacy from LGBTQ advocacy groups, who say she’s “out of touch” (although none were supporting her even before she made those comments).

The LGBTQ Victory Fund, which supports LGBTQ political candidates and public officials, has signaled it wants nothing to do with Jenner.

Sean Meloy, vice president of political programs for LGBTQ Victory Fund, said Jenner hasn’t applied for an endorsement from the Victory Fund “and she shouldn’t bother to.”

“Her opposition to full trans inclusion – particularly for trans kids in sports – makes her ineligible for the endorsement,” Meloy said. “There are many great trans candidates running this cycle who are champions for equality.”

To be sure, Jenner used her celebrity status as a former reality TV star and Olympic champion on behalf of transgender lobbyists, urging donations to groups like the National Center for Transgender Equality and going to Capitol Hill to lobby Republicans on transgender issues. Jenner has also given money for transgender kids to attend college, giving transgender advocate Blossom Brown a check for $20,000 on “The Ellen Show” in 2015.

Blaire White, a transgender conservative and YouTube personality, drew on these examples of Jenner helping transgender youth in a video earlier this month and said the two once had dinner together, but wasn’t yet ready to make a endorsement.

“I will say that until she lays out all of her policy positions and until she’s more on record in long form really talking about what she wants to do for the state of California, I can’t say for sure I would vote for her and would not vote for her,” White concluded in the video. “What I can say is: I’m interested. And also, being under Gavin Newson’s governorship, I would literally vote for a triple-amputee frog over Gavin Newsom, so she already has that going for her.”

Jenner’s campaign couldn’t be reached for comment for this article on the repudiation of her campaign from LGBTQ advocacy groups.

Gina Roberts, who’s the first transgender Republican elected to public office in California and a member of the San Diego GOP Central Committee, said she’s neutral for the time being as an elected Republican Party leader, but nonetheless had good things to say about Jenner’s candidacy.

“I think it’s awesome,” Roberts said. “It’s kind of indicative of how cool the Republican Party in California is because nobody really cares or it makes any difference. I mean, I was the first elected GOP transgender person in California and I think we’re ready for No. 2.”

Asked whether Jenner’s comments about allowing transgender kids in sports was troubling, Roberts said that wasn’t the case because she has her own reservations.

“I have pretty much the same opinion because … there’s so many nuances in that,” Roberts said. “If somebody transitions after they’ve gone through puberty, there is a big difference, especially in high school. If they transition beforehand, it’s not a big deal.”

A gun enthusiast and supporter of gun owner’s rights, Roberts said she competes in women’s events in shooting sports, but there’s a difference because she doesn’t “really have any advantages all those young, small ladies can pull a lot faster than I do and shoot faster than I do.”

Roberts concluded she’ll personally make a decision about whom she’ll support in the California recall election after Grenell announces whether or not he’ll enter the race, but can’t say anything until the San Diego GOP Central Committee issues an endorsement.

“He’s a good friend of mine, too,” Roberts said. “I know both of them. I think they’d both be certainly better than Gavin Newsom, I have to stay neutral until the county party decides who they’re going to endorse. I will support somebody or another in the endorsement process, but I can’t publicly announce it.”

Although LGBTQ groups want nothing to do with her campaign, Jenner’s approach has garnered the attention of prominent conservatives, who are taking her seriously as a candidate. One of Jenner’s first interviews was on Fox News’ Sean Hannity, a Trump ally with considerable sway among his viewers. Hannity was able to find common ground with Jenner, including agreement on seeing California wildfires as a problem with forest management as opposed to climate change.

Kayleigh McEnany, who served as White House press secretary in Trump’s final year in the White House and defended in the media his efforts to challenge his 2020 election loss in court, signaled her openness to Jenner’s candidacy after the Hannity interview.

“I really enjoyed watching @Caitlyn_Jenner’s interview with @seanhannity,” McEnany tweeted. “I found Caitlyn to be well-informed, sincere, and laser-focused on undoing the socialist, radical, a-scientific policies of Biden & the left. Very good.”

In theory, that support combined with Jenner’s visibility might be enough to propel Jenner to victory. In the recall election, California will answer two questions, whether California Gov. Gavin Newsom should be recalled, and if so, which candidate should replace him. The contender with the plurality of votes would win the election, even if that’s less than a majority vote, and become the next governor. There isn’t a run-off if no candidate fails to obtain a majority.

With Jenner’s name recognition as a celebrity, that achievement could be in her reach. After all, Arnold Schwarzenegger won the 2004 recall election in California as a Republican based on his celebrity status, and ended up becoming a popular governor.

But the modest inroads Jenner has made with the acceptance of conservatives and potential to win isn’t enough for other transgender Republicans.

Evans, for example, said Jenner’s candidacy is not only a disappointment, but threatening the potential candidacies of transgender hopefuls in the future.

“It’s difficult to be in electoral politics, and that’s even more true when you’re a member of a marginalized community,” Evans said. “Caitlyn’s behavior is making it even more challenging for the trans community to be visible in a field where we desperately need to be seen. She’s casting a tall shadow on our ability to have a voice and is giving credibility to lawmakers and local leaders simply unwilling to view us with decency and respect.”

Williams said Jenner should avoid talking about transgender issues over the course of her gubernatorial run “and instead focus on the hard, critical policy issues facing California.”

“It is a state in crisis and she has to run a very serious campaign and not rely on her celebrity or LGBTQ status to win over voters’ hearts and minds — just like all other LGBTQ candidates around the country need to do when they run for public office,” Williams said.

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100th anniversary celebration of Dupont Circle fountain set for May 17

GWU student creates tribute video

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The iconic Dupont Circle fountain turns 100 this month. (Washington Blade file photo by Michael Key)

LGBTQ residents and longtime visitors to D.C.’s Dupont Circle neighborhood are expected to be among the participants in the 100th anniversary celebration of the installation of the Dupont Circle fountain scheduled to be held at the circle on Monday, May 17.

Aaron DeNu, president of Dupont Festival, a nonprofit arts and cultural programming group that’s organizing the celebration, says it will take place from noon to at least sunset inside Dupont Circle.

The celebration will take place one week after the May 10 release of a YouTube video, “How Dupont Circle Evolved as a Hub for LGBTQ+ Life in the District,” produced by George Washington University student Dante Schulz. Schulz is the video editor for the G.W. student newspaper The Hatchet.

Among those appearing in the documentary video are veteran LGBTQ rights activists Deacon Maccubbin and his husband Jim Bennett, who owned and operated the Dupont Circle LGBTQ bookstore Lambda Rising beginning in the 1970s, which is credited with contributing to Dupont Circle’s reputation as the epicenter of D.C.’s LGBTQ community for many years.

Also appearing in the video is longtime D.C. gay activist and Dupont Circle area resident Craig Howell, a former president of the Gay and Lesbian Activists Alliance.

“At this point in time due to COVID restrictions we’re not going to be doing any particular formal gathering of folks,” DeNu told the Washington Blade in describing the May 17 celebration. “But we’ll have a soundtrack that’s playing throughout the day from that original ceremony – the same songs they used in the original dedication a hundred years ago,” he said.

DeNu said the event will also feature “historic imagery” related to Dupont Circle and the people who have gathered there over the years.

“So, we’re really just inviting people to come and have lunch, stop by the park after work, and just stop and reflect on 100 years of Dupont Circle fountain, take a look at the imagery and see some old friends and hopefully stop by and see the Dupont businesses that are around the area,” DeNu said.

The LGBTQ video produced by Dante Schultz can be accessed here.

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Trans woman sues D.C. Jail for placing her in men’s unit

Lawsuit charges city with exposing inmates to ‘risk of sexual violence’

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Sunday Hinton (Photo courtesy of the American Civil Liberties Union of D.C.)

The American Civil Liberties Union of D.C. and the D.C. Public Defender Service filed a class action lawsuit on May 11 on behalf of a transgender woman being held in the D.C. Jail on grounds that the city violated its own Human Rights Act and the woman’s constitutional rights by placing her in the men’s housing facility at the jail.

The lawsuit charges that D.C. Department of Corrections officials violated local and federal law by placing D.C. resident Sunday Hinton in the men’s unit at the D.C. Jail against her wishes without following a longstanding DOC policy of bringing the decision of where she should be placed before the DOC’s Transgender Housing Committee.

The committee, which includes members of the public, including transgender members, makes recommendations on whether a transgender inmate should be placed in either the men’s or the women’s housing unit based on their gender identity along with other considerations, including whether a trans inmate’s safety could be at risk. Under the policy, DOC officials must give strong consideration to the recommendations of the committee.

The lawsuit, which was filed in U.S. District Court for the District of Columbia, says the committee has not met or acted on any trans-related jail housing matter since January 2020.

It says Hinton was taken to the D.C. Jail on April 26 after a judge ordered her held following an arrest for an alleged unarmed burglary in which she attempted to take $20.

It notes that the Department of Corrections has a “default” policy of placing transgender inmates in either the male or female housing unit at the D.C. Jail and other city detention holding facilities based on the inmate’s “anatomy.” If a female transgender inmate is anatomically male, the inmate – barring other mitigating circumstances – is placed in the male housing facility under the default policy. Similarly, a male transgender inmate who is anatomically female is placed by default in the women’s housing unit under the DOC policy.

“DOC’s policy of focusing on anatomy rather than gender identity is both discriminatory and dangerous,” the ACLU says in a statement released on the day it filed the lawsuit on Hinton’s behalf. “It forces trans individuals, particularly trans women, to choose between a heightened risk of sexual violence and a near-certain mental health crisis,” ACLU attorney Megan Yan said in the statement.

Yan was referring to yet another DOC policy that sometimes gives a transgender inmate placed in a housing unit contrary to their gender identity the option of being placed in “protective custody,” which the lawsuit calls another name for solitary confinement. The ACLU and the Public Defender Service have said solitary confinement in prisons is known to result in serious psychological harm to inmates placed in such confinement.

“Because DOC’s unconstitutional policy exposes every transgender individual in its custody to discrimination, degradation, and risk of sexual violence, Ms. Hinton seeks, on behalf of a class of similarly situated individuals, a court order that strikes down DOC’s unlawful focus on anatomy as the touchstone for its housing decisions regarding transgender individuals,” the lawsuit states.

It further calls on the DOC to use “gender identity, not anatomy, as the default basis for housing assignments” for transgender inmates and to provide all trans individuals a prompt hearing by the DOC Transgender Housing Committee.

It calls for the DOC to be required to implement the recommendations of the Housing Committee “so that each person is housed as safely as possible and without discrimination.”

In addition to the lawsuit, Hinton’s attorneys filed an application for a temporary restraining order to immediately require the DOC to transfer Hinton to the D.C. Jail’s women’s housing facility. The attorneys also filed a motion for a preliminary injunction to stop the DOC from using a transgender person’s anatomy as the default or sole criteria in making housing assignments at the jail.

In response to a request from the Washington Blade, DOC spokesperson Dr. Keena Blackmon sent the Blade a DOC statement responding to the lawsuit.

“The Department of Corrections is dedicated to the safety and security of all residents in its care and custody,” the statement says. “DOC is committed to following its policies and procedures relating to housing transgender residents,” it says. “Ms. Hinton recently arrived in DOC custody and, per the agency’s COVID-19 protocols, was placed into single-occupancy quarantine for 14 days.”

The statement adds, “Once that quarantine ends, Ms. Hinton will go before the Transgender Housing Committee to determine her housing based on safety needs, housing availability, and gender identity. D.C. DOC is sensitive to Ms. Hinton’s concerns and will continue to ensure that its residents’ needs are met.”

DOC spokesperson Blackmon didn’t immediately respond to a follow-up question from the Blade asking why the Transgender Housing Committee has not met for over a year, which the ACLU has said resulted in all transgender female inmates being placed in the male housing facility.

Blackmon also couldn’t immediately be reached for a second follow-up question asking for DOC’s response to the lawsuit’s claim that DOC officials told Hinton’s lawyers that she was being placed in the men’s housing facility because she was anatomically male.

The lawsuit says the DOC default policy of placing Hinton in the jail’s male housing unit violates the D.C. Human Rights Act, which bans discrimination based on gender identity. The act has been interpreted to mean private businesses or the city government cannot prevent a transgender person from using facilities such as bathrooms or locker rooms that are in accordance with their gender identity.

D.C. Superior Court records show that Hinton has been arrested a total of 24 times in D.C. between 2006 and 2018. All except three of those arrests are listed as misdemeanor offenses, with just three listed as alleged felony offenses. One of the arrests is listed as a traffic offense.

In nearly all of the prior arrests, the court records identify Hinton by her birth first name, with her last name of Hinton used in all of the arrest records.

The burglary offense for which Hinton was charged on April 26 of this year and for which she is currently being held the D.C. Jail would  normally not result in a defendant being held in jail while awaiting trial. The fact that Hinton is being held rather than released pending trial suggests her prior arrest record may have prompted a judge to order her incarceration.

ACLU attorney Yan, who is among the attorneys representing Hinton in the lawsuit, said Hinton’s prior arrest record should not be a factor in the lawsuit.

“We don’t think any of the underlying things are relevant to her claim in this lawsuit, which is based on her identity and the fact that her constitutional and statutory rights to be free from discrimination are being violated,” Yan said. “At the end of the day, Sunday is a transgender woman and she’s a woman and she deserves to be held according to her gender identity as she desires.”

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