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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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Venezuelan man with AIDS dies in ICE custody

Pablo Sánchez Gotopo passed away at Miss. hospital on Oct. 1

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Pablo Sanchez Gotopo, who was living with HIV/AIDS, died in U.S. Immigration and Customs Enforcement custody in Mississippi on Oct. 1, 2021. (Courtesy photo)

A Venezuelan man with AIDS died in U.S. Immigration and Customs Enforcement custody on Oct. 1.

An ICE press release notes Pablo Sánchez Gotopo, 40, died at Merit Health River Oaks in Flowood, Miss., which is a suburb of Jackson, the state capital. The press release notes the “preliminary cause of death was from complications with acute respiratory failure, Acquired Immune Deficiency Syndrome (AIDS), pneumonia, acute kidney failure, anemia and COVID-19.”

ICE said U.S. Border Patrol took Sánchez into custody near Del Rio, Texas, on May 17. He arrived at the Adams County Detention Center in Natchez, Miss., four days later.

“Upon arrival to an ICE facility, all detainees are medically screened and administered a COVID-19 test by ICE Health Service Corps (IHSC) personnel,” said ICE in its press release. “Sánchez’s test results came back negative.”

The press release notes Sánchez on July 28 received another COVID-19 test after he “began showing symptoms of COVID-19.” ICE said he tested negative, but Adams County Detention Center personnel transferred him to a Natchez hospital “for additional advanced medical care.”

ICE Enforcement and Removal Operations staff in its New Orleans Field Office, according to the press release, “coordinated with hospital staff to arrange family visitation” after Sánchez’s “health condition deteriorated.” Sánchez was transferred to Merit Health River Oaks on Sept. 25.

“ICE is firmly committed to the health and welfare of all those in its custody and is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases,” says the press release.

Venezuela’s political and economic crises have prompted more than 10,000 people with HIV to leave the country, according to the New York-based Aid for AIDS International.

Activists and health care service providers in Venezuela with whom the Washington Blade has spoken in recent years have said people with HIV/AIDS in the country have died because of a lack of antiretroviral drugs. Andrés Cardona, director of Fundación Ancla, a group in the Colombian city of Medellín that works with migrants and other vulnerable groups, told the Blade last month that many Venezuelans with HIV would have died if they hadn’t come to Colombia.

The Blade has not been able to verify a Venezuelan activist’s claim that Sánchez was gay. It is also not known why Sánchez decided to leave Venezuela and travel to the U.S.

ICE detainee with HIV described Miss. detention center as ‘not safe’

Activists and members of Congress continue to demand ICE release people with HIV/AIDS in their custody amid reports they don’t have adequate access to medications and other necessary medical treatment.

Two trans women with HIV—Victoria Arellano from Mexico and Roxsana Hernández from Honduras—died in ICE custody in 2007 and 2018 respectively. Johana “Joa” Medina Leon, a trans woman with HIV who fled El Salvador, died in 2019, three days after ICE released her from a privately-run detention center.

The Blade in July 2020 interviewed a person with HIV who was in ICE custody at the Adams County Detention Center. The detainee said there was no social distancing at the privately-run facility and personnel were not doing enough to prevent COVID-19 from spreading.

“It’s not safe,” they told the Blade.

The entrance to the Adams County Detention Center in Natchez, Miss. (Washington Blade photo by Michael K. Lavers)

Elisabeth Grant-Gibson, a Natchez resident who supports ICE detainees and their families, on Wednesday told the Blade that she was able to visit the Adams County Detention Center and other ICE facilities in the Miss Lou Region of Mississippi and Louisiana from November 2019 until the suspension of in-person visitation in March 2020 because of the pandemic.

“Medical neglect and refusal of medical care has always been an issue in the detention center at Adams County,” said Grant-Gibson. “After the facilities were closed to public visitation, those problems increased.”

Grant-Gibson told the Blade she “worked with a number of families and received phone calls from a number of detainees, and I was told again and again that detainees were being refused the opportunity to visit the infirmary.”

“When they did visit the infirmary, they were given virtually no treatment for the issues they were presenting with,” said Grant-Gibson.

ICE in its press release that announced Sánchez’s death said fatalities among its detainees, “statistically, are exceedingly rare and occur at a fraction of the national average for the U.S. detained population.” ICE also noted it spends more than $315 million a year “on the spectrum of healthcare services provided to detainees.”

“ICE’s Health Service Corps (IHSC) ensures the provision of necessary medical care services as required by ICE Performance-Based National Detention Standards and based on the medical needs of the detainee,” notes the ICE press release. “Comprehensive medical care is provided from the moment detainees arrive and throughout the entirety of their stay. All ICE detainees receive medical, dental, and mental health intake screening within 12 hours of arriving at each detention facility, a full health assessment within 14 days of entering ICE custody or arrival at a facility, and access to daily sick call and 24-hour emergency care.”

An ICE spokesperson on Wednesday pointed the Blade to its Performance-Based Detention Standards from 2011, which includes policies for the treatment of detainees with HIV/AIDS.

A detainee “may request HIV testing at any time during detention” and ICE detention centers “shall develop a written plan to ensure the highest degree of confidentiality regarding HIV status and medical condition.” The policy also states that “staff training must emphasize the need for confidentiality, and procedures must be in place to limit access to health records to only authorized individuals and only when necessary.”

“The accurate diagnosis and medical management of HIV infection among detainees shall be promoted,” reads the policy. “An HIV diagnosis may be made only by a licensed health care provider, based on a medical history, current clinical evaluation of signs and symptoms and laboratory studies.”

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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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