National
Democrats find 2010 a tougher sell than 2008
LGBT bloggers wage ‘Don’t Ask, Don’t Give’ campaign
Democratic National Committee Executive Director Jennifer O’Malley Dillon acknowledged that for LGBT voters, the ‘pace of change isn’t always fast enough.’ (Washington Blade photo by Michael Key)
Asking gay Americans to reignite their enthusiasm for the Democratic Party at the same time critics are assailing the party for its handling of federal LGBT legislation is no small challenge.
But that’s exactly what Democratic National Committee Executive Director Jennifer O’Malley Dillon did last week while speaking at the National Stonewall Democrats biennial convention in D.C.
With three months remaining before the midterm elections, Dillon acknowledged that “an enthusiasm gap” exists between how Democratic voters feel this year compared to 2008. And she said that gap must close.
“We are going to hold the House and the Senate,” she said. “I’m very confident about that. But to do that, it’s just going to be incredibly hard. History is against us in this election.”
Also against Dillon’s efforts to rally LGBT voters are increasingly intense criticisms that President Obama and congressional leaders aren’t doing enough to enact promised changes, such as repealing “Don’t Ask, Don’t Tell” and passing the Employment Non-Discrimination Act.
Dillon recognized that the “pace of change isn’t always fast enough” for LGBT people, but said the DNC is creating new and more substantive ways to engage potential donors and volunteers.
“We want to make sure that the programs we’re building on moving forward aren’t just programs that we’re sitting in D.C. saying, ‘Oh, I think it would be great if we had ruffly stickers with rainbows on them,’ but that we are really building out a substantive program,” she said.
Dillon also said the DNC is developing communications — including material for the DNC website as part of the Your Voice Matters effort — to demonstrate in a clearer way the Obama administration’s broader accomplishments.
But discontent among many LGBT voters persists. And a continuing effort LGBT bloggers launched last year, called “Don’t Ask, Don’t Give,” urges LGBT people to withhold donations from the Democratic Party until more pro-LGBT bills are passed.
Leading the DNC boycott is John Aravosis, editor of Americablog.com, who’s asking readers to sign a pledge saying they will only contribute money to the Democratic Party after President Obama signs ENDA into law, and signs repeals of “Don’t Ask, Don’t Tell” and the Defense of Marriage Act.
Aravosis said at the start of this year that he didn’t feel inclined to whip the effort because signs had emerged that Congress would pass “Don’t Ask, Don’t Tell” repeal and ENDA. The situation changed, though, as the year progressed.
“ENDA is now nowhere to be seen and no one thinks it’s passing both houses by the election — even though we were promised,” he said. “On ‘Don’t Ask, Don’t Tell,’ the legislation being discussed isn’t full repeal. It isn’t the repeal at all, even though it’s being sold that way. It’s not even clear if the legislation is going to pass anyway at this point.”
Aravosis dismissed the notion that outreach from the Democratic National Committee could be any substitute for the advancement of these issues.
“It’s a very 1990s strategy from the DNC,” he said. “They think showing face to the gay community — simply showing up at our events is going to buy our voters and buy our money because we should be so honored that they would deign to visit us.”
Aravosis estimated about 10,000 readers of Americablog.com have pledged to withhold donations to the Democratic Party as part of the “Don’t Ask, Don’t Give” initiative.
“‘Don’t Ask, Don’t Give’ was, I think, part of a larger effort of the gay Netroots and, I would say, the community in general showing their ire at the Democrats,” Aravosis said. “I think it did change things for a while, but I think now the Democrats have backed off yet again.”
Dillon told the Blade that she hopes the DNC’s engagement with LGBT people will convince those who haven’t been satisfied to maintain their support.
“Of course, we’d like to see everyone feel like they can contribute to the party and feel good about that,” she said. “We obviously hope that people see us as a party that’s growing and building our commitment and our connection to the LGBT community, and that this is a place where people feel like their money will be well spent.”
‘We’re going to have disappointments’
Despite some disappointment, many LGBT Democrats who attended the Stonewall convention said they remain committed to the Democratic Party.
Rick Stafford, a veteran gay activist from Minnesota and chair of the Democratic Party’s LGBT caucus, said the Democratic Party is worth supporting because of the dramatic strides it’s taken in support of LGBT rights during the last decades.
“I can remember not more than 25 years ago, the Democratic Party and their leadership officials basically said to the LGBT community, ‘Go away,’” Stafford said. “We were held up as the poster child for the special interests. And in 25 years, if you told me back then that the issue that we would be fighting on disappointment was marriage equality, I would have told you [that] you were nuts.”
Stafford said LGBT critics of the Democratic Party should take care with the tone of their discussion because disagreement and discontent among Democrats led to the Republican takeover of Congress in 1994.
“We’re going to have disappointments, and not all Democratic elected officials are going to be supportive,” Stafford said. “But I think the leadership of Obama, Pelosi and even Harry Reid will be light years [ahead of] seeing Sarah Palin, Mitch McConnell or John Boehner setting the agenda for our country.”
Jerame Davis, who’s gay and co-owner of the Indiana-based LGBT website Bilerico Project, also expressed discontent about the amount of progress the party has made recently on LGBT issues.
“The one thing that has concerned me has been President Obama said he was going to be a ‘fierce advocate’ for our issues, and I’ve had trouble seeing where the advocacy was coming along, let alone the fierceness,” Davis said.
Still, Davis said the alternative to Democrats running the legislative branch of the federal government would be “far, far worse.”
“The idea of turning either of those [chambers] over to the Republicans scares me far worse than trying to continue to push our friends to be more supportive and to advocate harder for our issues,” Davis said.
Also urging continued support for Democrats was Rep. Jared Polis (D-Colo.), a gay lawmaker who spoke at the convention. He told the Blade that people who were in doubt over supporting the Democratic Party should look closely at Democratic candidates and their Republican opponents.
“The Democratic Party is the only party that stands for equality,” he said. “I think it’s important that voters weigh where both candidates are on issues like marriage equality, ENDA — and 99 times out of 100, you’ll come out in favor of the Democrat.”
Polis has been active in raising funds not only for his own his re-election, but for other Democratic candidates. He’s set up two joint fundraising committees — the Jared Polis Majority Fund and the Jared Polis Victory Fund — that have raised substantial funds for Democrats seeking election.
The Jared Polis Majority Fund has raised $26,000 over the course of this Congress, while the Jared Polis Victory Fund has raised $150,000, according to Federal Election Commission reports.
Notable donations from the Jared Polis Majority Fund in the second quarter of this year included $1,500 to David Cicilline, the gay mayor of Providence, R.I. who’s running for Congress, and $1,500 to Rep. Scott Murphy (D-N.Y.), who last year replaced Sen. Kirsten Gillibrand (D-N.Y.) upon her appointment to the U.S. Senate. The Jared Polis Victory Fund in the second quarter donated $4,000 to Sen. Michael Bennet (D-Colo.), who’s seeking to retain his U.S. Senate seat.
“We’ve been very active in helping to build a pro-equality majority in the House and I’ve focused a lot of national fundraising in helping to achieve that,” Polis said.
The notion that LGBT voters should directly support candidates they see as supportive versus supporting the Democratic Party infrastructure is a common view among many advocates.
Aravosis said the best donation tactic that LGBT people can use as the November election approaches is to support candidates “who are proven to be pro-gay and proven to have come through for us.”
“That means support Democrats who actually have fought for us, or, [get behind] those Republicans who have fought for us, although I’m not convinced there’s too many,” he said.
Davis said this approach is the best way to ensure that a majority in Congress supportive of LGBT rights is in place.
“So, the way I see it is this: find a good friend that you think is going to advocate for our issues well, and that’s where you should put your money,” Davis said.
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Federal Government
Republican state AGs challenge Biden administration’s revised Title IX policies
New rules protect LGBTQ students from discrimination
Four Republicans state attorneys general have sued the Biden-Harris administration over the U.S. Department of Education’s new Title IX policies that were finalized April 19 and carry anti-discrimination protections for LGBTQ students in public schools.
The lawsuit filed on Tuesday, which is led by the attorneys general of Kentucky and Tennessee, follows a pair of legal challenges from nine Republican states on Monday — all contesting the administration’s interpretation that sex-based discrimination under the statute also covers that which is based on the victim’s sexual orientation or gender identity.
The administration also rolled back Trump-era rules governing how schools must respond to allegations of sexual harassment and sexual assault, which were widely perceived as biased in favor of the interests of those who are accused.
“The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement. “In the decades since its adoption, Title IX has been universally understood to protect the privacy and safety of women in private spaces like locker rooms and bathrooms.”
“Florida is suing the Biden administration over its unlawful Title IX changes,” Florida Gov. Ron DeSantis wrote on social media. “Biden is abusing his constitutional authority to push an ideological agenda that harms women and girls and conflicts with the truth.”
After announcing the finalization of the department’s new rules, Education Secretary Miguel Cardona told reporters, “These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights.”
The new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, a question that is addressed in a separate rule proposed by the agency in April.
LGBTQ and civil rights advocacy groups praised the changes. Lambda Legal issued a statement arguing the new rule “protects LGBTQ+ students from discrimination and other abuse,” adding that it “appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
United Methodist Church removes 40-year ban on gay clergy
Republican state AGs challenge Biden administration’s revised Title IX policies
University students have a right to protest
Former CAMP Rehoboth official sentenced to nine months in prison
Christian Siriano to serve as grand marshal of Annapolis Pride Parade
Md. governor signs Freedom to Read Act
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
PHOTOS: Capital Pride Pageant
