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Idaho sued over law barring trans athletes from playing in sports

Gov. Little signed anti-trans measure into law during COVID-19 crisis.

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Lindsay Hecox is a trans athlete suing Idaho to participate in the track team. (Photo courtesy of the United States District Court for the District of Idaho)

Transgender legal advocates filed Wednesday in federal court a lawsuit challenging Idaho’s newly enacted law barring transgender athletes from participating in women’s sports.

Among the plaintiffs in the litigation is Lindsay Hecox, a 19-year-old woman attending Boise State University who seeks to participate in the intercollegiate track and cross-country teams at the school.

“I just want to run with other girls on the team,” Hecox said in a statement. “I run for myself, but part of what I enjoy about the sport is building the relationships with a team. I’m a girl, and the right team for me is the girls’ team.”

HB 500, quietly signed into law last month by Idaho Gov. Brad Little amid the coronavirus epidemic, is the first and only state law in the country that bars transgender athletes from participating in school sports. Similar anti-trans measures, however, have been percolating in state legislatures throughout the country.

The transgender legal advocates who filed the 60-page complaint before the U.S. District Court in Idaho are the American Civil Liberties Union, the ACLU of Idaho, Legal Voice and Cooley LLP.

ACLU of Idaho Legal Director Ritchie Eppink said in a statement Idaho residents “have been fighting this hateful, unconstitutional legislation since it was introduced.”

“Businesses, major employers, schools, doctors, and counselors have all warned that this law is terrible for Idaho,” Eppink said.

Hecox, in a Zoom call with reporters on Wednesday, told the Washington Blade she was amid her studies at the time HB 509 was moving through the legislative process, but still actively opposed and testified against it before the Idaho State Senate.

“As it got to the governor’s desk, I was pretty sure that it was going to pass,” Hecox said. “I am an optimist by nature, but it was not likely to be vetoed because of the political leanings of this state, and when I eventually did hear the news, I was more or less just sad, but not defeated.”

Dubbed the “Fairness in Women’s Sports Act,” HB 500 requires college and public school sports teams to be designed as male, female and co-ed — and any female athletic team “shall not be open to students of the male sex.”

In the event of a dispute, a student may be required to produce a physician’s statement to affirm her biological sex based on reproductive anatomy, normal endogenously produced levels of testosterone and an analysis of the student’s genetic makeup. That would effectively ban transgender athletes from participating in sports.

Another plaintiff in the lawsuit, anonymously referred to as Jane Doe, is a non-trans female athlete at Boise High School who seeks to try out for soccer in August 2020, but fears she could be forced to provide documentation about her sex under HB 500 and believes that would violate “her privacy and security, both emotionally and physically, if she continues to play sports.”

Catherine West, a staff attorney at Legal Voice, said in a statement HB 500 harms not just transgender athletes, but women seeking to participate in sports. 

“Embedding this discrimination into Idaho law is unnecessary and harmful to all,” West said. “Female athletes deserve to play, not endure invasive testing or internal and external exams.” 

According to the lawsuit, existing rules in Idaho prior to HB 500 already required transgender girls to “complete one year of hormone treatment related to the gender transition before competing on a girls team.” Further, there were no reported issues with the administration of that rule or its effect on athletics in Idaho, the complaint says. 

“We’re suing because HB 500 illegally targets women and girls who are transgender and intersex and subjects all female athletes to the possibility of invasive genital and genetic screenings,” Gabriel Arkles, senior staff attorney with the ACLU’s LGBT & HIV Project said in a statement. “In Idaho and around the country, transgender people of all ages have been participating in sports consistent with their gender identity for years. Inclusive teams support all athletes and encourage participation — this should be the standard for all school sports.” 

The lawsuit challenges the law on the basis that it violates the rights to equal protection and due process under the Fourteenth Amendment of the U.S. Constitution; the prohibition on unconstitutional search and seizure under the Fourth Amendment; Title IX of the Education Amendments of 1972, which bars discrimination in schools on the basis of sex; and the “lack of fair notice” principle of the Fourteenth Amendment.

Before Little signed HB 500, Idaho Attorney General Lawrence Wasden had warned the legislation was “constitutionally problematic” and would likely violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. A Wasden spokesperson, citing a policy of no comment on pending litigation, declined to comment on the lawsuit.

But HB 500 was one of two anti-trans bills Little signed into law last month. The other was HB 509, which bars transgender people in Idaho from changing the gender marker on their birth certificates consistent with their gender identity.

Little signed that measure into law in defiance of a court order in 2018 requiring Idaho to allow transgender individuals to change the gender marker on the birth certificates.

The LGBTQ legal group Lambda Legal obtained the previous court order and threatened additional legal action if HB 509 passed. A Lambda spokesperson told the Blade action against HB 509 “could happen pretty soon.”

[UPDATE 4/16/2020: Lambda Legal on Thursday filed a motion with the U.S. District Court of the Idaho to confirm that the 2018 order bars enforcement of HB 509.

“Permanent means permanent,” Lambda Legal Counsel Peter Renn said in a statement. “It is shocking that state lawmakers would be so brazenly lawless as to defy a federal court ruling. The rule of law collapses if we refuse to abide by the outcome of who wins and who loses in our system of justice. HB 509, which reinstates a ban that the court already declared unconstitutional, is a naked flouting of the rule of law.”]

The litigation against HB 500 is filed as the U.S. Supreme Court is expected to soon rule whether anti-LGBTQ discrimination in employment is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964.

Although that decision is directly related to employment, it could have an impact on all federal laws barring discrimination on the basis of sex, including Title IX, which forms a component of the complaint against HB 500.

In the Zoom call with reporters, the ACLU’s Arkles said the Title VII ruling “could have implications” for how the courts interpret Title IX, but “not necessarily” because the two federal laws are structured differently and that argument forms just one component of the lawsuit against HB 500.

“There are several other claims in this case that would not necessarily be impacted by a decision in [the Supreme Court case],” Arkles said. “In addition to the Title IX claim, we’re also bringing claims under the U.S. Constitution, based on the equal protection clause, the protection against unreasonable search and seizure and invasion of privacy.”

The litigation is needed now before the Supreme Court has ruled and issued clarity on federal law, Arkles said, because plaintiffs need immediate relief.

“We brought it now because, the need is urgent,” Arkles said. “So assuming that fall sports go ahead as planned, this law is going to have an impact on Linsday in a few short months, so really it wasn’t any time for us to wait.”

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National

Rachel Levine on becoming four-star admiral: ‘It comes from my desire to serve’

Trans official sworn-in to U.S. Public Health Service

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For Rachel Levine, the appointment to her new role as a four-star admiral complementing her existing duties as assistant secretary for health is another way for the first openly transgender Senate-confirmed presidential appointee to serve.

“I think that this just really comes from my desire to serve in all capacities,” Levine said in an interview Tuesday with the Washington Blade. “To serve the first day in my field of academic medicine and pediatrics, but then in Pennsylvania and now in the federal government, and it furthers my ability to do that.”

Levine, 63, also recognized the importance of the appointment as a transgender person within the U.S. Public Health Service, for which she was ceremonially sworn in on Tuesday

“I think for the LGBTQ+ community, it is a further sign of progress and our president’s commitment to equity, to inclusion and diversity,” Levine said. “So I think that it is a very important milestone, and I’m pleased to serve.”

As part of her duties, Levine will lead an estimated 6,000 public health service officers serving vulnerable populations, including deployments inside and outside the country for communities beleaguered with the coronavirus, according to the Department of Health & Human Services. The role involves working closely with U.S. Surgeon General Vivek Murphy, whom Levine called her “friend and colleague.”

The U.S. Public Health Service, Levine said, has deployed “many, many times,” including its greatest number ever of deployments to vulnerable populations during the coronavirus pandemic. Among the places the service has deployed, Levine said, was in her home state of Pennsylvania, where she recently served as secretary of health.

Not only is Levine the first openly transgender person to serve in the uniformed health service as a four-star general, but she’s also the first woman to serve in that capacity.

“We have 6,000 dedicated committed public servants really all focused on our nation’s health, and they serve in details to the CDC and the FDA and the NIH, but also clinically with the Indian Health Service, and the federal prison system,” Levine said. “They’re also detailed and deployed throughout the country, and they deployed like never before for COVID-19 as well as the border, as well as dealing with floods and hurricanes and tornadoes.”

Although the Public Health Service is primarily focused on addressing public health disasters within the United States, Levine said it has a record of deployments overseas, including years ago when it was deployed to Africa under the threat of Ebola.

Secretary of Health & Human Services Xavier Becerra had high praise for Levine in a statement upon news of taking on a leadership position in the service.

“This is a proud moment for us at HHS,” Becerra said. “Adm. Levine — a highly accomplished pediatrician who helps drive our agency’s agenda to boost health access and equity and to strengthen behavioral health — is a cherished and critical partner in our work to build a healthier America.”

Levine, however, was careful to draw a distinction between her appointment within the Public Health Service and being a service member within the U.S. armed forces.

“It is not a military branch, it’s not the armed forces: It’s a uniformed force, so it’s different,” Levine said. “For example, the Army, the Navy, our military, there are two other uniformed branches, and that is ours, the United States Public Health Service Commissioned Corps and NOAA.”

The new role, Levine said, would complement her duties as assistant secretary for health. Although not only secretaries of health have been commissioned to take the uniform, Levine said she wanted to undertake that as part of her role in the Biden administration.

The two appointments were not simultaneous, Levine said, because of a general process she undertook, which was completed just this week.

It hasn’t been an easy road for Levine. During her Senate confirmation process, when she was hounded by anti-transgender attacks in conservative media and rude, invasive questioning by Sen. Rand Paul (R-Ky.) on her gender identity.

Levine, however, said she hasn’t encountered any hostility regarding her new role (as of now) and shrugged off any potential attacks in the future and said the move is about her career “to serve and to help people.”

“I’ve continued that for our nation as the assistant secretary for health and this is just a further demonstration of my commitment to service,” Levine said. “I don’t know what others will say, but that’s the genesis of my wanting to serve in the United States Public Health Service Commissioned Corps, and to place on the uniform.”

Levine’s new appointment comes shortly after a group of Democratic senators led by Sen. Chris Murphy (D-Conn.) sent her a letter dated Sept. 30 calling on her and Miriam Delphin-Rittmon, assistant secretary for mental health and substance use, to issue new guidance for hospital or residential care on mental health needs of transgender people.

Asked about the letter, Levine said mental health issues are under the authority of Delphin-Rittmon and the two “will work together and we will respond.”

Specifically, the senators in the letter call on the Behavioral Health Coordinating Council, or BHCC, and experts in the field of adolescent trans care to offer guidance on best practices for inpatient mental health care among these youth.

Asked what the response will look like, Levine said, “We’re going to work on that.”

“We will be looking at what they’re asking for and the requirements, and we’ll talk with them and the stakeholders and we’ll look to issue appropriate guidance,” Levine said.

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Colin Powell, leaving mixed legacy on ‘Don’t Ask, Don’t Tell,’ dies at 84

Key figure once opposed gays in military, then backed review

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gay news, Washington Blade, Colin Powell, gay marriage
Colin Powell leaves behind a mixed legacy on 'Don't Ask, Don't Tell."

Colin Powell, the first ever Black secretary of state who served in top diplomatic and military roles in U.S. administrations, died Monday of coronavirus at age 84, leaving behind a mixed record on “Don’t Ask, Don’t Tell.”

The world continues to grapple with the pandemic and the public grows increasingly frustrated with its persistence as many remain unvaccinated despite the wide availability of vaccines. Powell was fully vaccinated, according to a statement released upon his death. Powell reportedly suffered from multiple myeloma, a condition that hampers an individual’s ability to combat blood infections.

Rising to the top of the military as chair of the Joint Chiefs of Staff, Powell supported in 1993 Congress moving forward with “Don’t Ask, Don’t Tell,” a law that barred openly gay people from serving in the U.S. military.

During a key moment congressional testimony, Powell and other top military officials were asked whether or not allowing gay people in the military would be compatible with military readiness. Each official, including Powell,” responded “incompatible.” Congress would enact “Don’t Ask, Don’t Tell” that year.

Things changed when President Obama took office 15 years later and advocates for repeal of “Don’t Ask, Don’t Tell” were eager to claim Powell’s voice among their ranks. After all, Powell was highly respected as a bipartisan voice after having served as secretary of state in the administration of George W. Bush and endorsing Obama in the 2008 election.

After the Obama administration in 2010 announced it would conduct a review of the idea of allowing gay people to serve openly in the military, Powell came out in support of that process. Advocates of repeal called that a declaration of reversal, although the statement fell short of a full support for gay people serving openly in the military.

“In the almost 17 years since the ‘Don’t Ask, Don’t Tell’ legislation was passed, attitudes and circumstances have changed,” General Powell said in a statement issued by his office, adding, “I fully support the new approach presented to the Senate Armed Services Committee this week by Secretary of Defense Gates and Admiral Mullen.”

Congress acted to repeal “Don’t Ask, Don’t Tell” and the policy was lifted in 2011. At the time, Powell was widely considered a supporter of ending “Don’t Ask, Don’t Tell” and publicly counted among supporters of repeal, although the Blade couldn’t immediately find any statements from him to that effect.

In 2012, Powell had similar vaguely supportive words on same-sex marriage, saying he had “no problem with it” when asked about the issue.

“As I’ve thought about gay marriage, I know a lot of friends who are individually gay but are in partnerships with loved ones, and they are as stable a family as my family is, and they raise children,” Powell said. “And so I don’t see any reason not to say that they should be able to get married.”

The Blade also couldn’t immediately find any statement from Powell on transgender people serving in the military. After the Obama administration in 2016 lifted decades-old regulations against transgender service, former President Trump issued a ban by tweet the following year. President Biden reversed that ban and allowed transgender people to serve and enlist in the military in his first year in office.

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Texas

Texas House approves anti-trans youth sports bill

HB 25 now heads to state Senate

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GenderCool Project leader and Trans activist Landon Richie (Photo courtesy of Landon Richie)

Texas House Republicans were able to push through the anti-trans youth sports measure Thursday evening after hours of emotional and at times rancorous debate, passing the bill in a 76-54 vote along party lines.

Under the provisions of Texas House Bill 25, all trans student athletes in grades K-12 will be prohibited from competing on sports teams aligned with their gender identity. The bill will now head to the Senate, where it is expected to pass.

The Texas Tribune reported that the University Interscholastic League, which governs school sports in Texas, already requires that an athlete’s gender be determined by the sex listed on their birth certificate. Republican Rep. Valoree Swanson, R-Spring, the author of HB 25 has said the bill would simply “codify” existing UIL rules.

However, UIL recognizes any legally modified birth certificates. That policy could accommodate someone who may have had their birth certificate changed to match their gender identity, which can sometimes be an arduous process.

HB 25 would not allow recognition of these legally modified birth certificates unless changes were made because of a clerical error. It’s not clear though how it will be determined if a birth certificate has been legally modified or not. According to the UIL, the process for checking student birth certificates is left up to schools and districts, not the UIL the Tribune reported.

“To say that tonight’s passage of HB 25 is devastating is an understatement. For the past 10 grueling, exhausting, and deeply traumatic months, trans youth have been forced to debate their very existence—only to be met by the deaf ears and averted eyes of our state’s leaders,” Landon Richie, a GenderCool Project leader, University of Houston student and Transactivist told the Washington Blade after the vote.

“Make no mistake: This bill will not only have detrimental impacts on trans youth, who already suffer immense levels of harassment and bullying in schools, but also on cisgender youth who don’t conform to Texas’s idea of ‘male’ or ‘female.’ To trans kids everywhere: you belong, you are loved, you are valued, you are deserving of dignity, respect, care and the ability to live freely as your true and authentic selves, no matter where you are. We will never stop fighting for trans lives and a future where trans kids are unequivocally and unwaveringly celebrated for who they are,” Richie said.

“The cruelty of this bill is breathtaking, and the legislators who are pushing it forward are doing irreparable harm to our state. Texas is a place where people value freedom and respect for diversity. This bill is a betrayal of those cherished values, and future generations will look back on this moment in disbelief that elected officials supported such an absurd and hateful measure,” Shannon Minter, legal director for the National Center for Lesbian Rights told the Blade. “The families of these kids deserve better, and the burden is now on the rest of us to do everything in our power to stop this dangerous bill now,” he added.

During the debate on the measure, state Rep. James Talarico, (D-Round Rock), a former middle school teacher, began his remarks by apologizing to the trans kids and families who have gone to the Capitol time and time again this year. He tells the chamber he speaks now as a legislator, and educator, and a Christian.

He quoted Republican Rep. Valoree Swanson, R-Spring, the author of HB 25 who said “if one girl wins a game, it’s worth it.” He says he has a different moral yardstick. “If one trans kid dies for a trophy, this bill is grotesque.”

He ended speaking to his “fellow believers” in the chamber. “The worst part in these hearings have been in hearing the Bible used against trans kids to support these bills. Even tonight, ‘God’s law’ was used to present an amendment.” He then quoted the first two lines of the Bible, where God is referred to with two different Hebrew words, one masculine/one feminine. “God is non-binary.” He then prevented an interruption in the chamber and continued telling trans kids that he loves them.

Fellow Democratic state Rep. Jessica González, (D-Dallas County), vice-chair of the Texas House LGBTQ Caucus asked the chamber how many trans Texas kids they are willing to hurt. She reminded her fellow representatives that cisgender women and girls will also be hurt by the bill. She shared a personal story about being outed in high school by a friend, having her locker, home, and car vandalized and losing all of her friends. “Kids are cruel.”

González told lawmakers that her brother encouraged her to try out for soccer, and she was bullied with comments like “shouldn’t she be trying out for the boys’ team.” She went from feeling a bit accepted to being an outsider again. She then reflected on carrying those feelings into adulthood and said that this bill will have long-term affects on trans kids. She asked legislators to listen to the stories of the trans kids who have bravely testified, saying kids will contemplate suicide or complete suicide.

Representative Diego Bernal, (D-San Antonio), told the chamber that some representatives can’t wrap their heads around knowing that there is no problem but there is *real* harm to trans kids, and for whatever reason, that’s not enough it seems to stop moving these bills.

He said that he has heard “if they already have mental health issues and suicide ideation, this can’t make it worse” and “if the debate is harming them, let’s just vote.” The he breaks down the Texas statute’s definition of bullying, telling lawmakers, “The bullying statute doesn’t have an intent requirement. It doesn’t matter if you don’t mean to cause them harm. We are bullying these students. Know that by law … our own definitions and our own words, we are. And we don’t have to.”

“Texas lawmakers voted today to deliberately discriminate against transgender children. Excluding transgender students from participating in sports with their peers violates the Constitution and puts already vulnerable youth at serious risk of mental and emotional harm,” Adri Perez, policy and advocacy strategist at the ACLU of Texas said in a statement to the Blade.

“There is no evidence that transgender kids pose any threat. It is indefensible that legislators would force transgender youth and their families to travel to Austin to defend their own humanity, then blatantly ignore hours of testimony about the real damage this bill causes. Trans kids and their families deserve our love and support—they’ve been fighting this legislation for months. Texans will hold lawmakers accountable for their cruelty,” she added.

The statewide LGBTQ+ advocacy group Equality Texas in a tweet after the vote said; ” We will not stop fighting to protect transgender children.” Then added “We’ll continue to educate lawmakers—replacing misinformation with real stories—and demand the statewide and federal nondiscrimination protections we need to prevent further harms.”

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