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Legal advocates turn attention to Supreme Court abortion cases

No major LGBTQ rights cases before court this term

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With the new term for the U.S. Supreme Court underway, justices for the first time in years won’t have to consider a major case specifically impacting LGBTQ rights, which legal advocates say will lead to them to focus their attention on high-profile cases that challenge a woman’s right to access abortion.

At the top of the watch list for court, which now has 6-3 conservative majority as a result of appointments under former President Trump, is Dobbs v. Jackson Women’s Health Organization, which will determine the constitutionality of the Mississippi law banning abortion after 15 weeks and is widely considered a direct challenge to long-standing precedent established by Roe v. Wade guaranteeing a right to abortion. The Texas law banning any abortion after six weeks, which the Supreme Court allowed to take effect as litigation against it proceeds, is still pending in lower courts, but will likely reach the high court soon.

For many LGBTQ legal advocates, the abortion cases are important because they say the outcome could directly impact legal precedent underpinning major Supreme Court decisions in favor, including the 2003 decision of Lawrence v. Texas, which struck down state bans on sodomy, and the 2015 decision of Obergefell v. Hodges in favor of same-sex marriage nationwide.

Camilla Taylor, director of constitutional litigation for Lambda Legal, said the outcome abortion cases is crucial not only because LGBTQ people need access to abortion.

“Just as importantly, there are a lot of ways in which the landmark precedents that we obtained that vindicate the rights of LGBT people rely upon a foundation of substantive due process precedent that includes Roe v. Wade, and other cases dealing with reproductive health,” Taylor said. “So, if Roe versus Wade crumbles, then the foundation on which our own cases also crumbles.”

As such, a coalition of LGBTQ legal groups—including the National Center for Lesbian Rights, the National Center for Transgender Equality and Equality California—was among those who filed a friend-of-the-court brief in September arguing the Mississippi law is unconstitutional.

Key among the arguments is the denial of abortion access is a form of sex discrimination, just as the Supreme Court determined last year in Bostock v. Clayton County that anti-LGBTQ discrimination is a form of sex discrimination, this illegal under the Civil Rights Act of 1964.

“By the same logic, laws that restrict abortion also facially discriminate based on sex,” the brief says, “Like being LGBTQ, pregnancy is a sex-based characteristic; it is ‘inextricably bound up with’ an individual’s sex. Accordingly, laws that force a pregnant woman to bear a child necessarily discriminate based on sex, as would a law that barred a reproductive medical procedure available only to men.”

It’s true that both Roe v. Wade and the Supreme Court’s decision for LGBTQ were based on principals of due process and equal protection under the 5th and 14th Amendments of the U.S. Constitution. But not all legal experts agree LGBTQ rights are on the line depending on the outcome of abortion litigation.

Dale Carpenter, a conservative law professor at the SMU (Southern Methodist University) Dedman School of Law who’s written in favor of LGBTQ rights, said the Supreme Court is “probably going to write a narrower opinion, if it even overrules Roe,” but won’t issue a radical decision “that reaches out and destroys all unenumerated rights.”

“Obergefell relies on the fundamental right to marry,” Carpenter said. “There’s no chance the Supreme Court is going to say there is no right to a fundamental right to marry. The doctrine upon which Obergefell rests is on much more solid footing than abortion rights. The basic doctrine underlying Obergefell has never seriously been challenged; abortion rights have been for 50 years.”

Other key differences between the right to abortion and same-sex marriage, Carpenter said, are an arguable state interest in protecting fetal life and reliance interests in the case of marriage rights given thousands of same-sex couples have wed in the wake of the Obergefell decision.

But what about Lawrence v. Texas, which were both that LGBTQ rights decision and Roe v. Wade decided at least in part on finding an unenumerated right to privacy in the constitution? Carpenter said a Supreme Court decision undoing a right to privacy would mean undoing nearly 60-year precedent that began with the 1965 decision in Griswold v. Connecticut, which overturned a state ban on contraceptives.

“There’s not even a single brief in the case, that I know of, on the anti-abortion side that’s supporting that,” Carpenter said.

Carpenter concluded with a wry jab: “By the way, the LGBT rights advocates who are now saying that these LGBT rights decisions are in danger will be the same people say after Roe is a overruled that those decisions are not affected.”

Indeed, the Supreme Court under its current 6-3 conservative makeup had an opportunity to take up an Indiana birth certificate case, Box v. Henderson, that was a direct challenge to the Obergefell marriage decision, but declined to take up the case. No state is any where close to recriminalizing sexual relations for same-sex couples, which in 2021 would widely be seen as a human rights violation.

But legal advocates for the LGBTQ community aren’t limiting the relationship between abortion and LGBTQ rights to legal principles. Additionally, the identify solidarity with another minority group under siege, in this case women seeking access to abortion, and need among certain members of the LGBTQ community—lesbian and bisexual women, transgender men and non-binary people—to have the access to abortion.

Shannon Minter, legal director for the National Center for Lesbian Rights, echoed the sense LGBTQ legal advocates are focused on abortion cases, but cited “overlap between the reproductive rights, and justice movement and the LGBTQ movements.”

“What we see is the primary impact of this case on our community is a very direct one,” Minter said. “It’s extremely direct. The ability to obtain abortions is of great importance to women in our community, and also to transgender men and non-binary people as well.”

Minter cited data finding upwards of 80 percent of bisexual women will experience pregnancy over their lives and said LGBTQ women “are significantly more likely to have unintended pregnancies as a result of sexual violence, which is very distressing, but that is a reality for our community.”

Lesbian young adults and adolescents are at particular risk for unwanted pregnancy, Minter added, because there’s still “so much stigma and discrimination that they tried to sort of hide their sexual orientation, and prove that they’re straight when they’re not, so they actually have high rates of unprotected sex.”

Religious schools funding, gun control, Obamacare on docket

The abortion cases aren’t the only litigation on the radar for LGBTQ legal advocates. Also on the list are cases that will determine whether Maine religious schools have access to public funds, the legality of New York State gun regulations and disparate impact claims under Obamacare.

Taylor said the case of CVS Pharmacy v. Doe before the Supreme Court, which was brought by people living with HIV/AIDS, will determine whether disparate impact claims are cognizable in the context of disabilities under the Affordable Care Act.

“That’s really important for people living with HIV and other people with disabilities,” Taylor said. “It could do a lot of harm.”

The oral arguments in the Dobbs case are set to take place before the Supreme Court on Dec. 1.

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National

Activists demand ICE release transgender, HIV-positive detainees

Protest took place outside agency’s D.C. headquarters on Wednesday

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Jessycka Ckatallea Letona, an indigenous transgender woman from Guatemala who spent nearly two years in U.S. Immigration and Customs Enforcement custody, participated in a protest in front of ICE's headquarters in Southwest D.C. on Oct. 27, 2021. (Washington Blade photo by Michael K. Lavers)

Jessycka Ckatallea Letona is an indigenous transgender woman from Guatemala who fled persecution in her homeland because of her gender identity.

She asked for asylum in the U.S. in 2016 when she entered the country in Eagle Pass, Texas.

Ckatallea on Wednesday told the Washington Blade that U.S. Immigration and Customs Enforcement officials placed her in a pod with 70 men at a privately-run detention center in Florence, Ariz. She also said personnel at another ICE detention center in Santa Ana, Calif., ridiculed her because of her gender identity and forced her to strip naked before she attended hearings in her asylum case.

Ckatallea spent a year and eight months in ICE custody before her release. She won her asylum case and now lives in the San Francisco Bay Area.

“It was a very traumatic experience,” said Ckatallea as she spoke with the Blade in front of ICE’s headquarters in Southwest D.C. “I came to a country thinking that it would take care of me, that it would protect me because of my gender identity.”

Ckatallea is one of the more than a dozen immigrant rights activists who participated in a protest in front of ICE’s headquarters that Familia: Trans Queer Liberation Movement, Immigration Equality and the End Trans Detention campaign organized. Ckatallea, Immigration Equality Executive Director Aaron Morris and other protest participants demanded ICE immediately release trans people and people with HIV/AIDS from their custody.

The groups placed on the sidewalk in front of the building a Day of the Dead “ofrenda” to honor three trans women—Victoria Orellano, Roxsana Hernández and Johana “Joa” Medina León—who died in ICE custody or immediately after their release. The “ofrenda” also paid tribute to Pablo Sánchez Gotopo, a Venezuelan man with AIDS who died in ICE custody on Oct. 1.

Immigrant rights activists on Oct. 27, 2021, placed a Day of the Dead “ofrenda” outside U.S. Immigration and Customs Enforcement headquarters in Southwest D.C. that honored three transgender women and a man with AIDS who died while in ICE custody or immediately upon their release. (Washington Blade photo by Michael K. Lavers)

Ckatallea, Morris and the other protesters approached the building’s entrance and presented security personnel with a petition that calls upon President Biden and Homeland Security Secretary Alejandro Mayorkas to “immediately release all transgender people, people living with HIV, and people with medical conditions from ICE custody.”

ICE has repeatedly defended its treatment of trans people and people with HIV/AIDS who are in their custody.

The Blade in July 2020 interviewed a person with HIV who was in ICE custody at the Adams County Detention Center, the same privately-run facility in which Gotopo was held until his hospitalization. The person with whom the Blade spoke described conditions inside the detention center as “not safe” because personnel were not doing enough to protect them and other detainees from COVID-19.

Congressman Mike Quigley (D-Ill.) is among the dozens of lawmakers who have called for the release of all trans people and people with HIV/AIDS from ICE custody. The Illinois Democrat on Tuesday reiterated this call during a virtual briefing that Familia: Trans Queer Liberation Movement, Immigration Equality and the End Trans Detention Campaign organized.

“ICE’s clear inability to do better leads me to seek to end of ICE’s detention of all trans migrants,” said Quigley. “During both the Trump and Biden administration I led dozens of my colleagues to demand that ICE release transgender detainees and end its practice of holding trans migrants in custody. We had hoped that things would change with the new administration, so far I’m disappointed.”

Congresswoman Pramila Jayapal (D-Wash.) also participated in the briefing alongside Immigration Equality Legal Director Bridget Crawford and Sharita Gruberg of the Center for American Progress and others.

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Texas

Texas GOP Governor Greg Abbott signs anti-Trans youth sports bill

“Despite the powerful testimony of trans kids & adults- the emails to the Governor to veto this harmful piece of legislation it is now law”

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Texas Republican Governor Greg Abbott (Blade file screenshot)

AUSTIN – Texas Republican Gov. Greg Abbott signed into law Monday H.B. 25, an anti-Transgender youth sports bill banning Trans K-12 student-athletes from playing on sports teams consistent with their gender identity. 

H.B. 25 is the 9th statewide bill signed into law this year banning transgender youth from participating in school sports and the 10th in the country. This bill also comes during a year when Texas lawmakers have proposed nearly 70 anti-LGBTQ bills, including more than 40 bills that specifically target transgender and nonbinary youth — far more than any other state.

“We are devastated at the passage of this bill. Despite the powerful testimony of trans kids and adults, families and advocates, and the many emails and calls our community placed to the Governor’s office to veto this harmful piece of legislation it is now law,” Ricardo Martinez, CEO of Equality Texas, said.

“Most immediately, our focus is our community and integrating concepts of healing justice to provide advocates who have already been harmed by this bill with spaces to refill their cup and unpack the acute trauma caused by these legislative sessions. Our organizations will also begin to shift focus to electing pro-equality lawmakers who understand our issues and prioritize representing the vast majority of Texans who firmly believe that discrimination against trans and LGB+ people is wrong,” he added.

Earlier this month, the Texas state government was criticized for removing web pages with resources for LGBTQ youth, including information about The Trevor Project’s crisis services. The Trevor Project the world’s largest suicide prevention and crisis intervention organization for LGBTQ+ young people.

“Transgender and nonbinary youth are already at higher risk for poor mental health and suicide because of bullying, discrimination, and rejection. This misguided legislation will only make matters worse,” Amit Paley, CEO and Executive Director of The Trevor Project said in a statement released Monday afternoon.

To every trans Texan who may be feeling hurt and attacked by this legislation and months of ugly political debate — please know that you are valid, and you are deserving of equal opportunity, dignity and respect. The Trevor Project is here for you 24/7 if you ever need support, and we will continue fighting alongside a broad coalition of advocates to challenge this law,” Paley said.

********************

Additional resources:

Research consistently demonstrates that transgender and nonbinary youth face unique mental health challenges and an elevated risk for bullying and suicide risk compared to their peers.  

  • The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health found that more than half (52%) of transgender and nonbinary youth seriously considered suicide in the past year, and 1 in 5 attempted suicide. 94% of LGBTQ youth reported that recent politics negatively impacted their mental health. 
  • A newly published research brief on “Bullying and Suicide Risk among LGBTQ Youth,” found that 61% of transgender and nonbinary (TGNB) students reported being bullied either in-person or electronically in the past year, compared to 45% of cisgender LGBQ students. TGNB students who were bullied in the past year reported more than twice the rate of attempting suicide in the past year compared to those who were not. And TGNB students who said their school was LGBTQ-affirming reported significantly lower rates of being bullied (55%) compared to those in schools that weren’t LGBTQ-affirming (65%).
  • A 2020 peer-reviewed study found that transgender and nonbinary youth who report experiencing discrimination based on their gender identity had more than double the odds of attempting suicide in the past year compared to those who did not experience discrimination based on their gender identity.
  • Trevor’s research has also found that a majority of LGBTQ young people (68%) had never participated in sports for a school or community league or club — with many citing fear of bullying and discrimination as a key factor for not participating.

If you or someone you know needs help or support, The Trevor Project’s trained crisis counselors are available 24/7 at 1-866-488-7386, via chat at TheTrevorProject.org/Help, or by texting START to 678678.

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National

Ohio high school cancels play with Gay character after Pastor complains

The School’s fall production of “She Kills Monsters” was scheduled to open in less than one month until the play was canceled

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Hillsboro High School (Screenshot via Cincinnati ABC affiliate WCPO-TV)

HILLSBORO, Oh. — A Southwest Ohio high school’s play was abruptly canceled after Jeff Lyle, a local pastor from Good News Gathering, complained of a gay character. 

Hillsboro High School’s fall production of “She Kills Monsters” was scheduled to open in less than one month, until students learned the play would be canceled last week, reports Cincinnati’s ABC affiliate WCPO

The story follows a high school senior as she learns about her late sister’s life. It is implied throughout the play that her sister is gay, according to the news station.

The play’s cancellation comes a week after Lyle, a long-time voice of the anti-LGBTQ+ religious-right in Ohio, and a group of parents confronted the production’s directors at a meeting, according to Cincinnati CBS affiliate Local 12. Lyle denies pressuring school officials, but tells WCPO he supports the decision.

“From a Biblical worldview this play is inappropriate for a number of reasons, e.g. sexual innuendo, implied sexual activity between unmarried persons, repeated use of foul language including taking the Lord’s name in vain,” Lyle said. 

Some families say they believe Lyle did influence the school’s decision. 

“I think that’s wrong,” Jon Polstra, a father of one of the actors, told WCPO. “All they would have had to do if they objected to something in the play was not go to the play.”

In a statement to Local 12, Hillsboro City Schools Superintendent Tim Davis said the play was canceled because it “was not appropriate for our K-12 audience.”

The Lexington Herald Leader reports that the school planned to perform a version intended for audiences as young as 11 years old. 

Students were “devastated” and “blindsided” by the news, according to WCPO. 

“It felt like we had just been told, ‘Screw off and your lives don’t matter,'” Christopher Cronan, a Hillsboro High student, said. “I am openly bisexual in that school and I have faced a lot of homophobia there, but I never expected them to cancel a play for a fictional character.”

Cronan’s father, Ryan, also voiced his frustration. 

“They want to say the town is just not ready, but how are you not ready? It’s 2021,” Ryan Cronan said.

Students have started a GoFundMe in hopes of putting on the production at a community theater in 2022.

“If we do raise enough money, I am going to be genuinely happy for a very long time, because that means people do care,” Cronan told WCPO.

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