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Supreme Court won’t review Texas decision against same-sex benefits

Litigation remains ongoing in state court

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Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

The U.S. Supreme Court won’t take up a Texas decision against same-sex benefits.
(Washington Blade file photo by Michael Key)

The U.S. Supreme Court has declined to take up review of a Texas Supreme Court decision casting doubt on whether the 2015 ruling for marriage equality nationwide requires municipalities to offer same-sex spousal benefits to employees.

The Supreme Court announced it has denied certiorari, or refused to take up the petition seeking review of the decision, in an order list Monday reflecting decisions justices made during a conference last week Friday. It takes a vote of four justices to take up a case, but the vote on petitions isn’t made public.

The petition was filed in September by Wallace Jefferson, an attorney at the Austin-based law firm Alexander Dubose Jefferson & Townsend LLP.

Jefferson told the Washington Blade after the announcement the rejection of the petition was based on ongoing review in the state judiciary.

“I believe the Supreme Court deferred review because the Texas Supreme Court remanded the case for further consideration,” Jefferson said. “We anticipate that the Texas courts will fully embrace Obergefell’s holding, just as the United States Court of Appeals for the Fifth Circuit has done.”

Jonathan Mitchell, a Stanford, Calif., based attorney who represents opponents of same-sex benefits, deferred comment to Jonathan Saenz of the anti-LGBT group Texas Values, who hailed the decision in a statement.

“This is an incredible early Christmas present from the U. S. Supreme Court for taxpayers,” Saenz said. “We’re grateful that the U.S. Supreme Court has allowed our lawsuit to go forward. Mayor Annise Parker defied the law by providing spousal benefits to same-sex couples at a time when same-sex marriage was illegal in Texas, and we intend hold the city accountable for Parker’s lawless actions and her unauthorized expenditures of taxpayer money.”

To the consternation of gay rights advocates, the Texas Supreme Court in June determined the 2015 Obergefell decision “is not the end” of the same-sex marriage issue and state workers have no established right to obtain benefits, such as health insurance, for their same-sex spouses in the same way as other employees.

“The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and — unlike the Fifth Circuit in De Leon — it did not hold that the Texas DOMAs are unconstitutional,” Justice Jeffrey Boyd wrote in the decision.

The case was filed by Jack Pidgeon and Larry Hicks after former Houston Mayor Annise Parker, a lesbian, instructed her city to provide spousal benefits to city employees in same-sex marriages. Parker cited the Supreme Court’s 2013 ruling against the anti-gay Defense of Marriage Act as the basis for her decision. Pidgeon and Hicks contended state law, which at the time barred same-sex marriage, prevented Parker from taking that action.

Legal observers found the Texas Supreme Court’s conclusion to be totally off-track with the Obergefell decision.

After all, the Supreme Court made clear in Obergefell the ruling compels states to afford the “constellation of benefits” of marriage to same-sex couples. The Texas decision also came the same week the U.S. Supreme Court affirmed Obergefell by overturning an Arkansas Supreme Court decision upholding a state law against placing both lesbian parents’ names on the birth certificates of their children.

Many observers pointed to the makeup of the Texas Supreme Court — justices who are elected, not appointed — as they reason they came to the decision. Texas Gov. Greg Abbott and other Republican lawmakers urged the court to take the case after justices initially refused and allowed a lower court decision in favor of benefits to stand.

(Side note: One of the justices in the Texas decision was Associate Justice Don Willett, whom President Trump has nominated to a seat on the U.S. Fifth Circuit Court of Appeals. Trump also named Willett to his short list of potential U.S. Supreme Court nominees.

In part because of his decision in the Houston benefits case, LGBT advocates have come out against Willett’s confirmation to the Fifth Circuit. Last month, the LGBT legal group Lambda Legal organized 26 other national, state, and local LGBT groups to express opposition to Willett before the Senate Judiciary Committee.)

The Texas Supreme Court decision fell short of outright denying spousal benefits for married same-sex couples and instead remanded the case to a trial court for reconsideration. The lawsuit remains pending before trial court.

Jefferson said there’s “no telling” when the trial court will reach its determination and the case “will proceed according to the trial court’s scheduling.”

Mark Phariss, one of the plaintiffs in the lawsuit that brought marriage equality to Texas, had filed a friend-of-the-court brief calling on the U.S. Supreme Court to review the Texas decision and expressed disappointment justices wouldn’t take up the case.

“I am very disappointed that the Supreme Court did not grant cert today,” Phariss said. “It means we must continue to fight in the courts in the State of Texas for full marriage equality. Today ‘Equal Justice Under Law’, as promised by the inscription to the front of the Supreme Court building, was not rendered. Ultimately, we will prevail, because history, justice, equality, and fairness are on our side.”

The denial of the petition by the Supreme Court isn’t the first time the federal judiciary has declined to review the Texas benefits decision.

In August, Lambda Legal and the law firm Morgan, Lewis & Bockius LLP filed a lawsuit in a federal court to affirm the Obergefell decision ensures health coverage and other benefits to the same-sex spouses of city employees. Months later in November, U.S. District Judge Vanessa Gilmore dismissed the case on the basis that plaintiffs’ claims weren’t ripe for review.

However, Gilmore recognized a constitutional requirement to provide spousal benefits on equal terms based on the Obergefell decision.

“In light of this precedent, which the Texas trial court is required to follow, it seems constitutionally impermissible for the city to deny benefits to the same-sex spouses of its employees,” Gilmore wrote.

The U.S. Supreme Court announced it won’t take up the benefits case on the day before it’s set to hear oral arguments in the Masterpiece Cakeshop case in which a Colorado baker is asserting a First Amendment right to deny wedding cakes to same-sex couples.

Sarah Kate Ellis, CEO of GLAAD, said in a statement the denial of certiorari in the Texas is disconcerting, especially on the day before justices are set to consider a major gay rights case.

“With all eyes on tomorrow’s oral arguments in the Masterpiece Cakeshop religious exemptions case, the Supreme Court has just let an alarming ruling by the Texas Supreme Court stand which plainly undercuts the rights of married same-sex couples,” Ellis said. “Today’s abnegation by the nation’s highest court opens the door for an onslaught of challenges to the rights of LGBTQ people at every step.”

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National

Anti-trans visa ruling echoes Nazi regime destroying trans documents

Trump administration escalates attacks on queer community

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The Trump administration has moved from identifying trans people as as threat to the family to claiming that trans people are a threat to the spiritual health of the nation. (Washington Blade photo by Michael Key)

The Lemkin Institute for Genocide Prevention and Human Security earlier this month released its third Red Flag Alert for the United States about the Trump administration’s anti-trans legislation. As the Lemkin Institute shared in the press release, “the Administration has moved from identifying transgender people as as threat to the family and to the nation’s military prowess to claiming that transgender people constitute a cosmic threat to the spiritual health of the nation and the great direct threat to the US national security in the world.”

The news came the same day that the State Department issued a new rule, “Enhancing Vetting and Combatting Fraud in the Immigrant Visa Program.” Under this new guidance, all visa applicants are required to disclose their “biological sex at birth” during all stages of the process, “even if that differs from the sex listed on the applicant’s foreign passport or identifying documentation.” 

This rule also orders that applicants to the green card lottery program share their passport information, so in knowingly collecting passport information that the agency knows will not match a person’s biological sex at birth, it’s creating grounds to deny trans peoples’ biases on the basis of “fraud,” Aleksandra Vaca of Transitics explains.

As is written in the new ruling, “the Department is replacing ‘gender’ with ‘sex’ in accordance with E.O. 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which provides that the term ‘sex’ shall refer to an individual’s sex at birth. Only male and female sex options are available for entrants completing the Diversity Visa entry form.” 

Along with outright denying the existence of nonbinary, genderqueer and gender expansive people, this policy creates a precedence for trans people to be stripped of their visas and deported because under 8 U.S.C. § 1182(a)(6)(C)(i), any foreigner found to have obtained or possess a visa “by fraud or willfully misrepresenting a material fact” will have their visa revoked and face deportation. 

By requesting information on “biological sex at birth,” the State Department is forcing a mismatch between documents and enabling officials to accuse trans, nonbinary, and gender expansive immigrants of fraud. Thus, trans and nonbinary immigrants can have their visas revoked and can be deported, and information gathered from immigrants during the visa request process can be added to federal databases and used by immigration authorities, including ICE agents. 

With the Supreme Court’s decision this past year allowing ICE officers to use racial profiling, Vaca argues that “now, The Trump administration has given ICE the reason it needs. Under this rule, ICE agents now have the enforcement rationale to assert that trans people–especially those belonging to racial minority groups–are more likely than cis people to have ‘misrepresented’ themselves during the visa process, and therefore, are more likely to enter the country ‘unlawfully.’”

This would enable ICE agents to target trans individuals specifically for being trans. If the goal of this were unclear, a day later the Trump administration released its statement for Women’s History Month 2026, writing that “we are keeping men out of women’s sports, enforcing Title IX as it was originally written and ensuring colleges preserve–and, where possible, expand–scholarships and roster opportunities for female athletes. We are restoring public safety and upholding the rule of law in every city so women, children, and families can feel safe and secure.”

And this is not the first time that ICE has targeted and harmed trans and nonbinary immigrants. Last June, Vera reported that ICE is not including trans people in detection in their public reports, and back in 2020, AFSC reported that trans people held in ICE detention faced “dreadful, ugly” conditions. 

While it seems like a new development in Trump’s anti-trans escalation, it echoes a deeply upsetting history of denying and destroying transgender people’s documents following members of the Nazi party seizing power in 1933. 

In the early 20th century, Weimar, Germany was an epicenter for gender affirming care with Maganus Hirschfeld’s Institute for Sexual Science. One of the first book burnings of the rising Nazi regime destroyed the Institute’s extensive clinical records and library on trans health and history by Nazi students and stormtroopers. In doing so, the Nazis effectively destroyed the world’s first trans health clinic and one of the richest and most comprehensive collective of information about trans healthcare. 

Similarly, the Nazi government invalidated or refused to recognize what was called “transvestite passes,” or passing certificates that allowed trans people to avoid arrest under Paragraph 175 which prohibited cross-dressing. During the Weimar Republic — the regime that preceded the Third Reich — recognized and affirmed the identities of trans people (in limited ways) with specific documentation that helped prevent them from arrest. Invalidating and disregarding these passes allowed police and Nazi officials to target trans people and harass, extort and arrest them, and the record of passes themselves helped officials target trans people. 

The changes to visa guidelines — alongside Kansas’s move to revoke trans drivers’ licenses last month — is reflective of this escalation of violence against trans people during the Nazi’s rise to power, which scholars like Dr. Laurie Marhoefer is just beginning to uncover. And along with the revocation of identification documents this past week, a recent Fourth Circuit Court ruled that states can deny Medicaid coverage for gender-affirming surgery.

The Fourth Circuit Court decision affirmed the Supreme Court’s decision in Skrmetti, which ruled that bans on gender affirming healthcare for young people are constitutional. This ruling extends this ban to include adult healthcare bans, allowing West Virginia’s exclusion of Medicaid coverage for adult gender affirming healthcare to take full effect. Even more upsetting was what the ruling itself said, calling gender affirming healthcare “dangerous.” 

As was written in the Fourth Circuit Opinion, “it’s not irrational for a legislature to encourage citizens ‘to appreciate their sex’ and not ‘become disdainful of their sex’ by refusing to fund experimental procedures that may have the opposite effect.” 

In reality, what this ruling and the opinion reflect, is the next step in government regulation and oversight over marginalized peoples’ bodies. From the overturn of Roe v. Wade, which removed federal protection of access to abortion, this next step represents the denial of people’s access to vital, lifesaving care–and to be clear, gender affirming care is not just for trans, nonbinary, and intersex people. It’s a dangerous escalation and one that echoes previous violence against trans people under fascist regimes; the Lemkin Institute is right to raise concern.

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Pennsylvania

Pa. House passes bill to codify marriage equality in state law

Governor supports gay state Rep. Malcolm Kenyatta’s measure

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Pennsylvania Capitol Building (Washington Blade file photo by Michael Key)

The Pennsylvania House of Representatives on Wednesday passed a bill that would codify marriage equality in state law.

House Bill 1800 passed by a 127-72 vote margin. Twenty-six Republicans voted for the measure.

The Republican-controlled Pennsylvania Senate will now consider the bill that state Rep. Malcolm Kenyatta (D-Philadelphia), who is the first openly gay person of color elected to the state’s General Assembly, introduced. Democratic Gov. Josh Shapiro supports the measure.

“Here in Pennsylvania, we believe in your freedom to marry who you love,” said Shapiro on Wednesday. “Today, the House has stepped up to protect that right.”

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Florida

DeSantis signs emergency bill that restores Fla. ADAP funding

Temporary funds to last through June 30

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Republican Florida Gov. Ron DeSantis (Screen capture/NBC News)

After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.

Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.

The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.

Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.

“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.

The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.

DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.

AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.

Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.

The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.

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