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Justice Dept. to states: Treat transgender youth ‘fairly and with dignity’

Guidance comes on Transgender Day of Visibility

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The Justice Department has issued guidance to states warning them to treat transgender youth with respect.

The U.S. Justice Department, in recognition of the Transgender Day of Visibility, has issued guidance warning states federal law requires them to treat transgender youth with dignity, which means “ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care.”

The guidance, issued Thursday and signed by Kristen Clarke, assistant attorney general for civil rights, was delivered amid the advancement of a slew of measures in state legislature targeting transgender youth, including new laws inhibiting their access to transition-related care, prohibiting transgender girls from playing in women’s sports and barring instruction to youth on LGBTQ issues.

“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal legal guarantees,” Clarke writes. “State laws and policies that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment.”

Clarke also points out anti-transgender measures are unlawful federal laws prohibiting sex discrimination, such as Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, warning states violating these laws could lead adverse legal action.

“Courts have held that many nondiscrimination statutes contain an implied cause of action for retaliation based on the general prohibition against intentional discrimination, and agencies have made this clear in regulations,” Clarke said. “Thus, any retaliatory conduct may give rise to an independent legal claim under the protections described above.”

Among the states have recently enacted measures against transgender youth are Arizona, where Gov. Doug Ducey signed into law two bills against transition-related care and access to sports, and Oklahoma, where Gov. Kevin Stitt signed a sports measure.

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State Department

State Department spokesperson criticizes new Russia propaganda law

Statute ‘pushes LGBTQI+ persons further to the margins of Russian society’

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State Department spokesperson Ned Price, center, speaks at the LGBTQ Victory Fund's International LGBTQ Leaders Conference in D.C. on Dec. 3, 2022. Price, who is openly gay, has criticized an anti-LGBTQ propaganda law that Russian President Vladimir Putin signed this week. (Washington Blade photo by Michael K. Lavers)

State Department spokesperson Ned Price on Tuesday sharply criticized the anti-LGBTQ propaganda law that Russian President Vladimir Putin signed the day before.

Price, who is openly gay, noted to reporters during a press briefing the law “further criminalizes the sharing of information about LGBTQI+ persons.”

“The law is another serious blow to freedom of expression in Russia, and a continuation of the Kremlin’s broader, long-running crackdown against marginalized persons, dissenting voices, civil society and independent media that it has intensified, as it has failed to achieve its objectives in its unconscionable war against Ukraine,” said Price. 

“The law pushes LGBTQI+ persons further to the margins of Russian society, fueling and amplifying the prejudice, discrimination, violence and stigma they face. The legislation is a clear attempt by the Kremlin to distract from its own failures by scapegoating vulnerable communities and creating phantom enemies,” he added. “We stand in solidarity with LGBTQI+ persons in Russia and around the world who seek to exercise the rights enshrined in the Universal Declaration of Human Rights, which recognizes that all human beings are free and equal in dignity and rights.”

The law that Putin signed on Monday expands the existing “Protecting Children from Information Advocating a Denial of Traditional Family Values” statute that took effect in Russia in 2013. 

The new law will ban so-called LGBTQ propaganda and materials that discuss gender reassignment surgery and LGBTQ and intersex issues to minors, which it categorizes as the promotion of pedophilia. Russian media reports indicate the new law will apply to films, books, commercials, media outlets and computer games.

Anyone who violates the law could face a fine of up to 10 million rubles ($165,152.80.) Authorities could also force businesses and organizations to temporarily close, and foreigners who violate the law could face arrest, incarceration for up to 15 days, a fine of up to 5,000 rubles and deportation.

Putin signed the law against the backdrop of Russia’s continued war against Ukraine.

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National

Club Q suspect indicted on 305 charges

22-year-old charged with first-degree murder, bias-motivated crime

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(Photo courtesy of Club Q Facebook page)

El Paso County (Colo.) District Attorney Michael Allen announced in the first in-person hearing on Tuesday that the 22-year-old suspect in the mass shooting at the LGBTQ nightclub Club Q, which killed five and wounded dozens of others, will face 305 charges including first-degree murder, attempted first-degree murder and bias-motivated crime.

The Colorado Springs Gazette newspaper reported Anderson Aldrich appeared in a Colorado Springs courtroom wearing a green jumpsuit and handcuffs. Aldrich’s facial bruising had significantly healed since a video hearing two weeks ago. 

The total list of charges according to the Gazette is as follows: 

• 10 counts of first-degree murder.

• 86 counts of attempted first-degree murder.

• 86 counts of first-degree assault.

• Four counts of second-degree assault.

• 48 counts of bias-motivated crime. 

• 71 counts of violent crime causing death and using a weapon.

Allen said the prosecution may request to amend the charges in the future.

“We are not going to tolerate actions against community members based on their sexual identity,” Allen said at a news conference after the hearing. “Members of that community have been harassed and intimated and abused for too long. And that’s not going to occur in the 4th Judicial District.”

During the hearing Judge Michael McHenry, following the filing of formal charges, granted a request from Allen for the suspect’s arrest affidavit to be unsealed. The court papers should be available to the public by the end of the day Wednesday, the judge noted according to the Gazette.

Allen said that while he couldn’t talk about what is in the affidavit, he told reporters that it might contain “much less information than you might expect.”

Suspect in Club Q shooting appears in court:

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U.S. Supreme Court

Supreme Court hears oral arguments in 303 Creative case

Dangerous implications for LGBTQ consumers

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s anti-discrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s non-discrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign.

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

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