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New lawsuit seeks to overturn pro-trans rule in Obamacare

Litigation contends regulations violate rights of states, religious orgs

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transgender, Supreme Court, gay news, Washington Blade
transgender, Supreme Court, gay news, Washington Blade

A lawsuit seeks to undo the pro-trans rule in Obamacare. (Washington Blade file photo by Michael Key)

A new lawsuit filed by religious-affiliated health care providers and five states seeks to overturn a regulation under Obamacare prohibiting discrimination against transgender people in transition-related care, including gender reassignment surgery.

The 79-page complaint, filed Tuesday in federal court in Texas, alleges the regulation improperly redefines the definition of “sex” under federal law, forces healthcare professionals to disregard their medical judgment and religious beliefs and undermines state authority to regulate health care.

“Ultimately, this case boils down to a very simple question of statutory interpretation: Can HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States?” the complaint says. “The answer is ‘no,’ and the new regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.”

Defying legal precedent establishing that transgender discrimination amounts to gender discrimination under current law, the lawsuit seeks an injunction barring enforcement of the regulation on the basis it is invalid under the Administrative Procedure Act, the Religious Freedom Restoration Act and the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

In May, the Department of Health & Human Services made final a rule interpreting Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of gender in health care, to apply to transgender and gender-nonconforming people, including for the purposes of transition-related care. Under the rule, a health care provider must provide transition-related care, including gender reassignment surgery, to a transgender person if that provider offers a similar service, such as hysterectomies.

The lawsuit takes issue with the lack of a religious exemption in the regulation, pointing out Title IX of the Education Amendments of 1972 — on which the rule is based — affords such a carve out.

“Although HHS was asked to include a religious exemption in the regulation due to the obvious implications for religious healthcare providers, HHS declined to do so, stating instead that religious objectors could assert claims under existing statutory protections for religious freedom,” the lawsuit says. “HHS also failed to provide any mechanism by which a religious entity could determine if it was entitled to any existing religious protections under the law.”

Leading the litigation on behalf of the states — Texas, Wisconsin, Nebraska, Kentucky and Kansas — is Texas Attorney General Ken Paxton, who has filed several lawsuits against the Obama administration for regulations advancing LGBT rights.

“This is the thirteenth lawsuit I have been forced to bring against the Obama administration’s continued threats on constitutional rights of Texans,” Paxton said in a statement. “The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex. I am disappointed in the Obama administration’s lack of consideration for medical professionals who believe that engaging in such procedures or treatment violates their Hippocratic Oath, their conscience, or their personal religious beliefs, which are protected by the Constitution and federal law.”

Representing the religious-affiliated providers is the Becket Fund for Religious Liberty, the same legal group representing Hobby Lobby and Little Sisters of the Poor in their challenges to the Affordable Care Act.

Lori Windham, senior counsel of the Becket Fund for Religious Liberty, said the lawsuit is necessary to ensure medical care remains between doctors and their patients without the federal government being involved.

“No doctor should be forced to perform a procedure that he or she believes will harm a child,” Windham said. “Decisions on a child’s medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats.”

The medical providers identified as plaintiffs in the case are the Franciscan Alliance, an Indiana-based Catholic non-profit system; the Speciality Physicians of Illinois, a Catholic non-profit offering services in the Chicago suburbs; and the Christian Medical & Dental Associations, another non-profit in Illinois.

Identified as a defendant in the lawsuit is Secretary of Health & Human Services Sylvia Burwell. In response to the Washington Blade’s request to comment on the lawsuit, HHS deferred to the U.S. Justice Department, which declined to comment.

The case has been assigned to U.S. District Judge Reed O’Connor, the same judge who on the day before the lawsuit was filed issued an order blocking the enforcement of guidance from the Obama administration prohibiting schools from discriminating against transgender students and barring them from using the restroom consistent with their gender identity.

Mara Keisling, executive director of the National Center for Transgender Equality, called the lawsuit “a thinly veiled attack on transgender people.”

“The ACA rule does not mandate what kind of care doctors can and cannot give,” Keisling said. “It bans discrimination. It’s there to make sure that transgender people can get the treatment we need without facing harassment – or worse. Over a dozen federal courts have confirmed that the term ‘sex’ in federal non-discrimination laws, including the ACA, applies to gender identity.”

Keisling said the regulation not only ensures transition-related care for transgender people, but prohibits medical providers from discriminating against transgender people seeking care for other health issues “from colds to cancer.”

“This regulation does not undermine medical judgment,” Keisling added. “It simply requires that medical decisions be made based on medicine, not prejudice.”

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D.C. mayor to lift all restrictions on bars, nightclubs on June 11

‘We will definitely be celebrating Pride’ next month

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Mayor Muriel Bowser announced Monday that she will fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21. (Washington Blade file photo by Michael Key)

D.C. Mayor Muriel Bowser announced at a news conference on Monday that a continuing trend of significantly lower numbers of coronavirus cases and deaths in the city has enabled her to fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21.

The mayor said bars and nightclubs will be allowed to increase indoor capacity from the current 25 percent to 50 percent on May 21, with all capacity restrictions for bars and nightclubs to be removed on June 11.

The mayor’s announcement came after representatives of the city’s nightlife businesses, including the city’s gay bars and restaurants, expressed concern that D.C. had yet to lift its capacity restrictions beyond 25 percent while surrounding jurisdictions in Maryland and Virginia had already lifted most restrictions.

“On May 21, restrictions on public and commercial activity, including capacity limits, types of activities, and time restrictions, will be lifted,” the mayor’s directive says.

It says restrictions for bars and nightclubs would continue at a 50 percent capacity from May 21 through June 11. The directive says restrictions for large sports and entertainment venues would also continue from May 21 to June 11, which includes a requirement such events apply for a waiver of the restrictions on a case-by-case basis.

“On June 11, capacity limits and restrictions will be lifted on those venues that cannot fully reopen on May 21,” the directive says.

In response to a question at the news conference, Bowser said the June 11 date would essentially end all restrictions on nightclubs and bars, including the current requirement that they close at midnight rather than the pre-epidemic closing times of 2 a.m. on weekdays and 3 a.m. on weekends.

In a development that could have a major impact on plans for D.C.’s LGBTQ Pride events, the mayor’s revised health directive announced on Monday includes the lifting of all capacity restrictions on large outdoor and indoor sports and entertainment events beginning on June 11.

That change would remove restrictions that have, up until now, prevented D.C.’s Capital Pride Alliance from holding its annual Pride Parade and Festival in June during Pride Month.

Capital Pride Executive Director Ryan Bos told the Washington Blade shortly after the mayor’s announcement that Capital Pride is assessing its options for expanding its current plans for in-person events in June.

“We will definitely be celebrating Pride in June,” Bos said. “We just received this information as well. So, we will be getting further information,” he said. “We have not been informed that they will be issuing any permits yet, so at this time we are moving forward with our original plans for doing things.”

Bos was referring to a city requirement for obtaining permits for street closings and use of other public spaces for events such as a parade or street festival. He said existing plans, among other things, call for an informal parade of cars and other vehicles on June 12 that will drive throughout the city to view homes and businesses that will be decorated with Pride displays such as signs, photos, and other symbols of Pride.

Those familiar with the city’s past Pride events don’t think there will be enough time for Capital Pride to organize the traditional large parade and street festival in time for June. But Capital Pride officials have talked about holding a possible parade and festival in October, and the lifting of the capacity restrictions announced by Bowser on Monday would likely make that possible.

In addition to lifting all capacity restrictions on May 21 for restaurants, the mayor’s May 21 timeframe for lifting restrictions includes these additional venues and events:

  • Weddings and special events
  • Business meetings and seated conventions
  • Places of worship
  • Non-essential retail
  • Personal services
  • Private at-home gatherings
  • Libraries, museums, galleries
  • Recreation Centers
  • Gyms and fitness centers
  • Pools
  • Office space
  • Schools
  • Childcare

“We’re very pleased that over the last several days, we have seen our case spread, our community spread numbers, venture out of the red into the yellow and fast approaching the green,” Bowser said in referring to a health department chart that shows the changes in coronavirus cases in the city.

“You might remember that our daily case rate peaked in January at 45.9. And today you can see it’s down to 6.6,” she said at her news conference on Monday.

“Throughout this process I have said how proud I am of D.C. residents and businesses who have responded, who have followed health guidance and have worked together to help protect our community throughout the pandemic. And we see it in these numbers today,” she said.

“Containing the virus will continue to require all of us to be focused on maintaining a robust health system,” the mayor said, adding that while over 200,000 D.C. residents have been fully vaccinated since December 2020, “many more thousands” still need to be vaccinated. “Vaccines are free and available on demand at walk-up sites across the District,” she said.

The mayor also noted that the city will continue to require residents and visitors to use a mask in accordance with existing and updated guidance set by the U.S. Centers for Disease Control and Prevention.

Mark Lee, coordinator of the D.C. Nightlife Council, an association that represents restaurants, bars, nightclubs and other entertainment venues, said the mayor’s directive on May 10 leaves some details to be addressed but will open the way to bring nightlife businesses back to life.

“What we do know is that on Friday, May 21, businesses begin returning to normal operations and, three weeks later, on June 11, all restrictions for all businesses in the District will end,” Lee said. “It’s a day we’ve long awaited and one that will save much of our community enterprise from financial ruin.”

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Family code bill to be introduced in Cuban Parliament in July

CENESEX made announcement during May 4 press conference

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Mariela Castro at a CENESEX press conference

 

Tremenda Nota is the Washington Blade’s media partner in Cuba. A Spanish version of this story was published on May 6.

HAVANA — The National Center for Sexual Education on May 4 during a press conference in which it unveiled the program for the 14th annual International Day Against Homophobia, Transphobia and Biphobia events in Cuba announced a bill to amend the family code will be introduced in Parliament in July.

CENESEX Director Mariela Castro Espín said during a meeting with official and foreign media outlets at the International Press Center that this year’s events are part of the process of amending the family code.

She added that this legal change will reflect several rights guaranteed in the constitution, which is why it is necessary to sensitize and educate the Cuban population to avoid prejudice and discrimination.

“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference.

The official referred to the results of the National Survey on Gender Equality in Cuba, conducted in 2016 and published in 2019. According to this official study, 77 percent of the Cuban population between 15 and 74-years-old said that gays, lesbians, bisexuals and transgender people should have the same rights as any other citizen.

CENESEX’s director, however, did not use this information in the 2018 parliamentary debates sparked by Article 68 of the bill to amend the constitution. The idea that it was not the appropriate time to implement same-gender marriage in Cuba eventually won out.

Mariela Castro told Tremenda Nota a few days before the referendum in which Cuban voters approved the current constitution that she was aware of the survey, but she did not explain why she did not use the data it revealed as an argument (in favor of marriage equality.)

“It was a wasted tool that now we can only use in the next referendum,” then-MP Luis Ángel Adán Roble told Tremenda Nota during a February 2019 interview, as did Mariela Castro.

The moment that Adán Roble mentioned has arrived.

It became known during the May 4 press conference that the family code will be introduced in the scheduled parliamentary session in July. The Council of State on March 22 appointed a commission that will be in charge of preparing the bill, but the list of its members was not made public until April 30. None of them are openly LGBTI+.

Activists over the last few weeks have demanded that Parliament reveal the identities of those who make up the commission and the deadline they have to prevent the Family Code. The May 4 press conference resolved the last outstanding point.

The Cuban IDAHOBiT program

Mariela Castro and CENESEX Deputy Director Manuel Vázquez Seijido explained that numerous activities with the goal of making visible and fighting against all types of discrimination based on sexual orientation and gender identity will virtually take place from May 4 through May 30.

The IDAHOBiT events in Cuba have a program that includes academic dialogue, social activism and artistic presentations from virtual spaces.

Forum debates are among the activities. The Juventud Rebelde newspaper will host the first one with the theme “Deconstructing myths around same-sex families and partners” and Cubadebate will hold the second called “Constitution and Sexual Rights in Cuba: Progress and Main challenges.”

They also announced at the press conference the books “Paquito el de Cuba: A Decade of Online Activism” and “Non-Heteronormative Sexualities and Gender Identities. Tensions and Challenges for Human Rights” will be presented.

There will be virtual panels titled “Diverse Families: Histories of Non-Hegemonic Lives,” “National Program for the Advancement of Women: Opportunities to Confront Homophobia and Transphobia,” “Keys for Inclusive Communication” and “Sexual Rights and Religious Fundamentalisms.”

Castro Espín explained that CENESEX will use its social media accounts to promote the program, contribute to the sexual education of Cubans and the recognition of rights for all people, regardless of gender or sexual orientation.

A show against homophobia and transphobia that will officially end the events will be broadcast on social media and on television.

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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