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Will Kennedy stick with gays in Masterpiece Cakeshop case?

All eyes on swing justice as oral arguments arrive next week

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Anthony Kennedy, Supreme Court, gay news, Washington Blade
Anthony Kennedy, Supreme Court, gay news, Washington Blade

Eyes will be on Justice Kennedy during the Masterpiece Cakeshop arguments. (Photo public domain)

When the U.S. Supreme Court hears oral arguments in the Masterpiece Cakeshop case on Tuesday, all eyes will be on U.S. Associate Justice Anthony Kennedy to ascertain whether the court will uphold Colorado law in the face of a First Amendment challenge that could enable the denial of services to LGBT people not just in that state, but throughout the country.

After all, Kennedy is the swing vote and will be asked to uphold LGBT rights yet again after a long career advancing them on the bench as the author of several milestone decisions: the 2003 ruling in Lawrence v. Texas, striking down state sodomy laws; the 2013 ruling in Windsor v. United States against the anti-gay Defense of Marriage Act; and the 2015 ruling for marriage equality nationwide in Obergefell v. Hodges.

But there’s an earlier decision on LGBT rights written by Kennedy, the 1996 decision in Romer v. Evans striking down Colorado’s Amendment 2, which may also weigh on Kennedy even though the legal principles at hand are different from the Masterpiece Cakeshop arguments.

In 1996, the U.S. Supreme Court found Amendment 2, which barred the Colorado Legislature or municipalities from enacting pro-gay non-discrimination ordinances, violated the Equal Protection Clause of the U.S. Constitution.

The Romer decision paved the way for Colorado to bar anti-LGBT discrimination in its anti-discrimination law. Now, 21 years after the ruling, anti-LGBT forces in the Masterpiece Cakeshop case are seeking a First Amendment right to refuse to make wedding cakes for same-sex couples despite the statute.

The petitioner in the case, Jack Phillips in Masterpiece Cakeshop, argues that making a wedding cake is inherently an artistic act of expression protected under the First Amendment, therefore he should be able to deny wedding cakes out of religious objections to same-sex couples like Charlie Craig and David Mullins, who sought to buy a cake for their wedding in 2012.

Both the Romer and Masterpiece Cakeshop cases originated in Colorado. While the Romer case asked the court whether the state could deny non-discrimination protections to LGBT people with Amendment 2, the Masterpiece Cakeshop case asks whether the First Amendment takes precedence over LGBT protections in a way that undermines the the Romer decision.

Jean Dubofksy, who successfully argued the Romer case in 1996 and is now a law professor at University of Colorado, Boulder, said a decision in favor of Masterpiece Cakeshop “would really undo the decision in Romer” because that ruling enabled Colorado to add sexual orientation to its public accommodations law.

“If you make an exemption to a person who says, ‘Well, I’m not going to provide rental housing, or I’m not going to provide various kinds of services, whether they’re medical services or grocery stores or whatever to a person because I don’t believe in gay marriage,’ then all of a sudden all of those protections are undone, and so if I were Justice Kennedy, I think I’d be concerned about that,” Dubofksy said.

One friend-of-the-court brief before the Supreme Court filed by the New York-based Kaplan & Company, LLP, on behalf of legal scholars on the separation of church and state cites the Romer decision in a section arguing a ruling for Masterpiece Cakeshop on First Amendment grounds would have no limiting principle.

“In another instructive case from Colorado, this Court rejected an effort to single out gays and lesbians for exclusion,” the brief says. “It would be peculiar for the same court that decided Romer to hold now that Colorado uniquely lacks the power to protect gays and lesbians in public accommodations. Petitioner’s rule must therefore be seen as a general theory that arises from the context of gay rights but would sweep much further.”

Joshua Matz, an attorney for Kaplan & Company, LLP, and former clerk for Kennedy, said Romer becomes relevant in the pending case before the Supreme Court because justices held in 1996 gay people can’t be singled out for discrimination.

“It would be strange if the same court that said in another case from Colorado were now to say that you can’t do that as a matter of your state constitution, but as a matter of the federal constitution, in fact, you can single out gay people and deny them rights either under the Free Exercise Clause or under the Free Speech Clause, but it turns out that that principle doesn’t apply anywhere else,” Matz said. “It would be the total inverse of Romer in a way that would really make no sense.”

LGBT rights advocates have argued a decision in favor of Masterpiece Cakeshop would result in sweeping discrimination not just for same-sex couples seeking wedding cakes, but LGBT people seeking a range of services — and perhaps other individuals who could face discrimination based on race or religion.

The Center for American Progress published an issue brief one week before the Masterpiece Cakeshop arguments titled, “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” which outlines the potential harms if the Supreme Court ruled in favor of Phillips.

“In reality, service refusals act like a one-two punch,” the brief says. “The discrimination itself causes harm that negatively affects both psychological and physical health and well-being, as shown by research and lived experiences of LGBTQ people and their families. Then, compounding that harm, the refusal can make it harder or impossible for LGBTQ people to access services at all, denying them full participation in the public square.”

Citing data from a January 2017 Center for American Progress report, the issue brief says in the event of being turned away from a retailer, a significant minority of LGBT people would have difficulty finding an alternative.

One in five said it would be “very difficult” or “not possible” to find the same type of service at a different retail store selling wedding attire, while in one in 10 said the same about finding the same type of service at a different bakery or florist.

The difficulty is compounded for LGBT people living in non-metropolitan areas. Four in 10 non-metro LGBT people said it would be “very difficult” or “not possible” to find the same type of service at a different retail store selling wedding attire, three in 10 non-metro LGBT people said the same about finding the same type of service at a different bakery and one in five said the same about finding service at a different florist.

The attorney for the American Civil Liberties Union representing the same-sex couple in the Masterpiece Cakeshop case, David Cole, may hit on this potential impact on LGBT people during oral arguments, as could Colorado Solicitor General Frederick Richard Yarger, who’s representing the state.

Meanwhile, Kristen Waggoner, the attorney for the anti-LGBT legal firm Alliance Defending Freedom, will rely on primacy of the First Amendment. U.S. Solicitor General Noel Francisco, who was granted time to speak by the Supreme Court, will also likely make similar arguments.

Determining whether Kennedy will seek to mitigate this kind of discrimination or side with Masterpiece Cakeshop is difficult. In addition to being the author of gay rights decisions, Kennedy has also ruled in favor of expansive views of the First Amendment, such as the 2010 decision in Citizens United that ruled campaign finance laws limiting contributions are unconstitutional because those activities amount to speech.

Moreover, Kennedy’s decision may determine the outcome of the case if the four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — side with the Colorado law and the four conservatives justices — Clarence Thomas, Samuel Alito, John Roberts and Neil Gorsuch — side with Masterpiece Cakeshop.

Dubofksy said she thinks Kennedy may vote to uphold Colorado’s Anti-Discrimination Law because other First Amendment libertarians “of whom Justice Kennedy apparently is particularly drawn to have stated baking a wedding cake amounts to conduct, not speech, as shown in a recent Washington Post article.

“It’s saying that wedding-cake makers are conducting themselves,” Dubofksy said. “That’s conduct, it’s not expression, and so, you draw the line at a wedding photographer who’s doing an expressive activity and a maker of a cake who isn’t required to be at the wedding and is really just making a cake.”

Additionally, Dubofksy predicted Kennedy will seek to uphold the Colorado law because he’ll want to uphold the impact of the Romer decision.

“There’s a good reason to be worried, but I’m not sure the court will take that sweeping of an approach because it would cut back on the sexual orientation discrimination cases in a way that could completely undermine Romer,” Dubofksy said. “I don’t see that happening.”

Walter Olson, a senior fellow at the Cato Institute’s Robert Levy Center for Constitutional Studies, said Kennedy may be in conflict in the case because of the history of rulings for gay rights and the First Amendment.

“He is on the one hand the great architect of the gay rights decision, but at the very same time, he is a very important justice on First Amendment issues, on both free speech and the role of religious liberty and religious conscience have also been very important to Justice Kennedy,” Olson said.

Olson, whose organization has filed a friend-of-the-court brief on behalf of Masterpiece Cakeshop, said Kennedy may lead the court to a “center territory” other than a sweeping ruling one way or the other.

“Neither side wants to inflict a culture war on the country; they’re trying to work out something without culture war,” Olson said. “That’s why it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read because certainly Kennedy personally, and I think the court generally is trying to reach the center ground here.”

Matz said despite his history with Kennedy he doesn’t know which way the justice will rule, but also noted there are other ways the court could decide other than in favor of the Colorado law or a sweeping ruling for Masterpiece Cakeshop.

“If the court is going to rule for the baker, it could just rule for the baker and if its ruling has these extraordinarily disruptive and chaotic implications, it could simply refuse to address them and leave them for the future, which is often how the court does this,” Matz said.

As an example, Matz cited the ruling the Hobby Lobby case — a decision Kennedy joined that closely held for-profit companies need not comply with the contraception mandate under Obamacare under the Religious Freedom Restoration Act.

“Justice Alito’s majority opinion essentially said, ‘Well, under the Religious Freedom Restoration Act, preventing racial discrimination is always super compelling, but we’re not going to tell you in advance whether anything else is,” Matz said. “You can imagine the court doing something like that, which I don’t think would be prudent and would, in fact, unleash enormous uncertainty and confusion, and could harm not just gay people, but many others, but the Supreme Court doesn’t always tell you in advance how far it will allow its principles to go.”

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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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Dupont Circle Fountain, Russian news agency, gay news, Washington Blade
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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