Donald Trump has renewed his commitment to appoint justices to the U.S. Supreme Court who would reverse marriage equality — but legal observers are skeptical he’ll be able to make good on his pledge if he’s elected president.
On Monday, Trump during a news conference at a D.C. construction site, announced he’d make public soon a list of 10 conservatives from which as president he’d select his nominees for the Supreme Court. The list, Trump said, was being made in consultation with The Heritage Foundation, a conservative think-tank known for its opposition to LGBT rights.
“We’re going to have a conservative, very good group of judges,” Trump said. “I’m going to submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list. I won’t go beyond that list.”
Responding to criticism from rival Sen. Ted Cruz (R-Texas) that a Trump administration would be open to appointing liberals to the Supreme Court, Trump said, “People say maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge.”
Making the case it would be a “disaster” for Republicans to run a third-party candidate against him in the general election, Trump said that would enable the election of a Democratic president who’d have numerous opportunities to make liberal appointments to the Supreme Court.
“You’re going to have probably four and could even be five Supreme Court justices approved that will never allow this country to be the same,” Trump said. “It’ll take a hundred years, but that won’t work. So they better be careful, and they certainly should be careful with third party stuff.”
Trump’s pledge to appoint justices to the Supreme Court from a list of conservatives builds on previous comments in which he said he opposes same-sex marriage and would seek to appoint justices who’d reverse the Supreme Court’s historic 2015 Obergefell v. Hodges decision.
Calling the ruling “shocking” and “massive” in an interview last month with the Christian Broadcasting Network, Trump said social conservatives should trust him to oppose same-sex marriage. In a January interview on Fox News just before the Iowa caucuses, Trump said he’d “strongly consider” appointing justices who’d reverse the Supreme Court’s historic decision in favor of same-sex marriage.
Despite the renewed commitment from Trump, legal experts say Trump is unlikely to change the makeup of the court for some time, and even if he did, it’s hard to imagine a sufficient conflict emerging that would prompt the Supreme Court to reverse the decision.
James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said the “chances are virtually nil” of Trump overturning the Supreme Court ruling in favor of marriage equality.
First Trump has to win the election, Esseks said, then he has to have the opportunity to replace justices on the high court who had ruled in favor of Obergefell. Such an opening, Esseks said, would likely only happen as time goes on after the country has become more acclimated to marriage equality, which polls have shown 60 percent of the population already supports.
“There’s no reason to think this is going to happen anytime soon,” Esseks said. “The more time goes on, the more the country gets used to the current reality, which is same-sex couples are marrying in every corner of the country. This is just part of the landscape now. I think it’s very unlikely both that there’s going to be justices that want to overturn it and the country’s going to be a place where people are going to want to have this discussion again in any serious way.”
Evan Wolfson, former president of the now-closed Freedom to Marry, was among those skeptical that Trump could reverse the Supreme Court decision on same-sex marriage.
“While there are scenarios one could spin out in which our freedom to marry is overturned, I think it highly unlikely, especially given that more than 1 million gay people have gotten legally married and, even before winning in the Supreme Court, we had won in the court of public opinion,” Wolfson said. “A near super-majority of Americans support the freedom to marry.”
If Trump meets the first condition of changing the makeup of the court, there then would need to be a conflict on the issue of same-sex marriage that would compel the court to revisit the issue. One possibility is a state could decide to defy Obergefell and pass a law barring or inhibiting marriage rights for gay couples.
Such a measure already failed just two months ago in Tennessee. The Natural Marriage Defense Act, which would have sought to block the Supreme Court ruling in favor of same-sex marriage, died in a House committee after a 4-1 vote against the measure.
Another way the conflict could present itself to the Supreme Court is a Kim Davis-like situation in which a clerk refuses to give marriage licenses to same-sex couples, prompting either a lawsuit from same-sex couples or from the clerk if that official is removed from his or her post.
In either scenario of a new state law or a defiant clerk, the subsequent lawsuit would almost certainly result in the trial court and the appellate court upholding same-sex marriage in accordance with the precedent of Obergefell. At that time, the Supreme Court would have the opportunity to weigh in after a writ of certiorari is filed before justices.
But Esseks said even with a changed court in those situations, justices may deny the petition to rehear the issue because the Supreme Court has already ruled.
“You got to look around: We haven’t seen a backlash of the basic idea that same-sex couples get to get married,” Esseks said. “It is now part of reality in this country, and we see some nibbling around the edges, but no frontal assault because this is right and people don’t see a way around the Supreme Court, and I don’t think that even with a President Trump that that is going to change.”
John Eastman, board chair of the anti-gay National Organization for Marriage, stood out from the pro-LGBT legal observers by saying he’s not so sure Trump would be unable to reverse the decision.
“If he replaces Ruth Bader Ginsburg and Anthony Kennedy with people who are more Scalia and Alito and Thomas, then I think the chances are good,” Eastman said. “It was certainly a contentious decision, one where the dissent uniformly challenged not only the reasoning of the decision and the wrongness of the outcome, but the very legitimacy of the decision.”
Eastman drew attention to the dissent written by the late U.S. Associate Justice Antonin Scalia, which Eastman said encouraged states not to comply with the decision.
“In those terms, I think we have a decision much like Dred Scott and Lincoln’s response in first inaugural,” Eastman said. “It settles the matter for that particular group of plaintiffs but if it were to take it as settling the matter for the entire country, we’ll have ceased to be self-governing to that extent.”
In the event the Supreme Court did elect to reconsider the issue, another layer of defense for marriage equality is stare decisis, a legal term meaning the Supreme Court generally allows an issue already resolved by the courts to remain resolved.
One example of a Supreme Court decision exemplifying this idea is the 1992 ruling of Casey v. Planned Parenthood, the result of a lawsuit challenging several provisions of Pennsylvania state law restricting access to abortion. When the Supreme Court decided to take up the case, observers wondered 19 years after Roe v. Wade if newly appointed U.S. Associate Justices Anthony Kennedy, Sandra Day O’Connor and David Souter would elect to roll back abortion rights.
As it turned out, those three justices upheld the right to an abortion (although they altered the standard for analyzing restrictions on that right) under the principle of stare decisis.
“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail,” the justices wrote. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.”
Adam Romero, senior counsel and Arnold D. Kassoy Scholar of Law for the Williams Institute at the University of California, Los Angeles, cited the Casey decision in saying stare decisis would likely be the guiding principle for a Supreme Court revisiting the issue of same-sex marriage.
“Stare decisis would strongly counsel any future justice of the Supreme Court to not overrule Obergefell v. Hodges, even if that justice has personal reluctance to the correctness of its holding,” Romero said. “However, the rule of stare decisis is not absolute. If a majority of the court were inclined to overrule Obergefell, it could certainly do so in the appropriate case, or could limit Obergefell’s reach in the area of parenting for example.”
Wolfson said instead of fretting about Trump overturning the ruling in favor of same-sex marriage, LGBT advocates should focus on the new goal of securing LGBT non-discrimination protections in federal law.
“Rather than worrying about remote worst-case scenarios, better to focus on avoiding the greater danger: That we get complacent, miss chances to capitalize and expand on the marriage conversation as an engine of transformation, and fail to do the legal and political organizing to harness the power of our marriage win to the work of winning non-discrimination protections while increasing cultural acceptance and inclusion for LGBT people throughout the U.S. and around the world,” Wolfson said.
Top 10 Blade news stories by web traffic
COVID breakthroughs, Equality Act, and anti-trans attacks
Each year our staff gathers in late December to review the highest trafficked stories of the year and there’s more than a little bit of competitive spirit as we review the results. Here are the top 10 stories by web traffic at HYPERLINK “http://washingtonblade.com”washingtonblade.com for 2021.
#10: Mark Glaze, gun reform advocate, dies at 51
The sad, tragic story of Glaze’s death captivated readers in November.
#9: COVID breakthrough infections strike summer tourists visiting Provincetown
This one went viral in July after a COVID outbreak was blamed on gay tourists.
#8: Thank you, Kordell Stewart, for thoughtful response to ‘the rumor’
This opinion piece thanked the former NFL quarterback for writing a personal essay addressing gay rumors.
#7: Elliot Page tweets; trans bb’s first swim trunks #transjoy #transisbeautiful
The actor created excitement by posting his first photo in swim trunks back in May.
#6: Romney declares opposition to LGBTQ Equality Act
Mitt Romney disappointed activists with his announcement; the Equality Act passed the House but never saw a vote in the Senate.
#5: White House warns state legislatures that passing anti-trans bills is illegal
The year 2021 saw a disturbing trend of GOP-led legislatures attacking trans people.
#4: Lincoln Project’s avowed ignorance of Weaver texts undercut by leaked communications
The Lincoln Project’s leaders, amid a scandal of co-founder John Weaver soliciting sexual favors from young men, have asserted they were unaware of his indiscretions until the Blade obtained electronic communications that called that claim into question.
#3: FOX 5’s McCoy suspended over offensive Tweet
Blake McCoy tweeted that obese people shouldn’t get priority for the COVID vaccine.
#2: Transgender USAF veteran trapped in Taliban takeover of Kabul
Among the Americans trapped in the suburban areas of Kabul under Taliban control was a transgender government contractor for the U.S. State Department and former U.S. Air Force Sergeant. She was later safely evacuated.
#1: Amid coup chaos, Trump quietly erases LGBTQ protections in adoption, health services
And our most popular story of 2021 was about the Trump administration nixing regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.
CDC still falling short on LGBTQ data collection for COVID patients: expert
Despite requests since the start of the COVID pandemic for the U.S. government to enhance data collection for patients who are LGBTQ, the Centers for Disease Control & Prevention is still falling short on issuing nationwide guidance to states on the issue, a leading expert health on the issue told the Blade.
With a renewed focus on COVID infections reaching new heights just before the start of the holidays amid the emergence of Omicron, the absence of any LGBTQ data collection — now across both the Trump and Biden administrations — remains a sore point for health experts who say that information could be used for public outreach.
Sean Cahill, director of Health Policy Research at the Boston-based Fenway Institute, said Wednesday major federal entities and hospitals have been collecting data on whether patients identify as LGBTQ for years — such as the National Health & Nutrition Examination Survey, which has been collecting sexual orientation data since the 1990s — but the CDC hasn’t duplicated that effort for COVID even though the pandemic has been underway for two years.
“It’s not like this is a new idea,” Cahill said. “But for some reason, the pandemic hit, and all of a sudden, we realize how little systematic data we were collecting in our health system. And it’s a real problem because we’re two years into the pandemic almost, and we still don’t know how it’s affecting this vulnerable population that experiences health disparities in other areas.”
The Blade was among the first outlets to report on the lack of efforts by the states to collect data on whether a COVID patient identifies as LGBTQ, reporting in April 2020 on the absence of data even in places with influential LGBTQ communities. The CDC hasn’t responded to the Blade’s requests for nearly two years on why it doesn’t instruct states to collect this data, nor did it respond this week to a request for comment on this article.
Cahill, who has published articles in the American Journal of Public Health on the importance of LGBTQ data collection and reporting in COVID-19 testing, care, and vaccination — said he’s been making the case to the CDC to issue guidance to states on whether COVID patients identify as LGBTQ since June 2020.
Among those efforts, he said, were to include two comments he delivered to the Biden COVID-19 Health Equity Task Force in spring 2021, a letter a coalition of groups sent to the Association of State & Territorial Health Officers asking for states to collect and report SOGI in COVID in December 2020 as well as letters to HHS leadership and congressional leadership in spring and summer 2020 asking for them to take steps to encourage or require SOGI data collection in COVID.
Asked what CDC officials had to say in response when he brought this issue to their attention, Cahill said, “They listen, but they don’t really tell me anything.”
“We’ve been making that case, and to date, as of December 22, 2021, they have not issued guidance, they have not changed the case report form. I hope that they’re in the process of doing that, and maybe we’ll be pleasantly surprised in January, and they’ll come up with something…I really hope that’s true, but right now they’re not doing anything to promote SOGI data collection and reporting in surveillance data.”
Cahill, in an email to the Blade after the initial publication of this article, clarified CDC has indicated guidance on LGBTQ data collection for COVID patients may come in the near future.
“HHS leaders told us this fall that CDC is working on an initiative to expand SOGI data collection,” Cahill said. “We are hopeful that we will see guidance early in 2022. Key people at CDC, including Director Walensky, understand the importance of SOGI data collection given their long history of working on HIV prevention.”
In other issues related to LGBTQ data collection, there has been a history of states resisting federal mandates. The Trump administration, for example, rescinded guidance calling on states to collect information on whether foster youth identified as LGBTQ after complaints from states on the Obama-era process, much to the consternation of LGBTQ advocates who said the data was helpful.
The White House COVID-19 Health Equity Task Force has at least recognized the potential for enhancing LGBTQ data collection efforts. Last month, it published an implementation plan, calling for “an equity-centered approach to data collection, including sufficient funding to collect data for groups that are often left out of data collection (e.g….LGBTQIA+ people).”
The plan also calls for “fund[ing] activities to improve data collection…including tracking COVID-19 related outcomes for people of color and other underserved populations,” and specifically calls for the collection of LGBTQ data.
The importance of collecting LGBTQ data, Cahill said, is based on its potential use in public outreach, including efforts to recognize disparities in health population and to create messaging for outreach, including for populations that may be reluctant to take the vaccine.
“If we see a disparity, we can say: Why is that?” Cahill said. “We could do focus groups of the population — try to understand and then what kind of messages would reassure you and make you feel comfortable getting a vaccine, and we could push those messages out through public education campaigns led by state local health departments led by the federal government.”
The LGBTQ data, Cahill said, could be broken down further to determine if racial and ethnic disparities exist within the LGBTQ population, or whether LGBTQ people are likely to suffer from the disease in certain regions, such as the South.
“We have data showing that lesbian or bisexual women, and transgender people are less likely to be in preventive regular routine care for their health,” Cahill said. “And so if that’s true, there’s a good chance that they’re less likely to know where to get a vaccine, to have a medical professional they trust to talk to about it today.”
Among the leaders who are supportive, Cahill said, is Rachel Levine, assistant secretary for health and the first openly transgender person confirmed by the U.S. Senate for a presidential appointment. Cahill said he raised the issue with her along with other officials at the Department of Health & Human Services three times in the last year.
In her previous role as Pennsylvania secretary of health, Levine led the way and made her state the first in the nation to set up an LGBTQ data collection system for COVID patients.
“So she definitely gets it, and I know she’s supportive of it, but we really need the CDC to act,” Cahill said.
Although the federal government has remained intransigent in taking action, Cahill said the situation has improved among states and counted five states — California, Pennsylvania, Rhode Island, Nevada and Oregon — in addition to D.C. as among those that have elected to collect data on sexual orientation and gender identity of COVID patients.
However, Cahill said even those data collection efforts are falling short because those jurisdictions have merely been public about collecting the data, but haven’t reported back anything yet.
“Only California has reported data publicly, and the data that they’re reporting is really just the completeness of the data,” Cahill said. “They’re not reporting the data itself…And they’re also just asking people who tests positive. So, if somebody says positive COVID in California, a contact tracer follows up with that individual and asks them a battery of questions, and among the questions that are asked are SOGI questions.”
As a result of these efforts, Cahill said, California has data on the LGBTQ status of COVID patients, but the data is overwhelmingly more complete for the gender identity of these patients rather than their sexual orientation. As of May 2021, California reported that they had sexual orientation data for 9.5 percent of individuals who had died from COVID and 16 percent of people who tested positive, but for gender identity, the data were 99.5 percent.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
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