Connect with us

National

Boehner panel directs counsel to defend DOMA

Panel votes 3-2 to defend anti-gay statute

Published

on

U.S. House Speaker John Boehner (Blade photo by Michael Key).

A U.S. House panel on Wednesday voted along party lines to direct general counsel to defend the Defense of Marriage Act in court following President Obama’s announcement that his administration would no longer defend the statute against litigation.

In a statement, House Speaker John Boehner (R-Ohio) said the Bipartisan Legal Advisory Group, which he convened last week after the president’s announcement, had come to the conclusion to direct the House General Counsel to defend DOMA after the Wednesday meeting.

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said. “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”

The five-member Bipartisan Legal Advisory Group consists of the speaker, the majority leader, the majority whip, the minority leader, and minority whip.

Michael Steel, a Boehner spokesperson, said the panel voted 3-2 to direct the House General Counsel to take up defend of DOMA, but had no information on any discussion that took place beforehand.

Boehner as well as House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) voted in favor of directing counsel to defend the statute, while House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) voted against such action.

Passed by Congress in 1996 and signed into law by then-President Clinton, DOMA prohibits the federal government from recognizing same-sex marriages and providing married gay couples with the federal benefits of marriage.

Last month, U.S. Attorney General Eric Holder announced that the Obama administration would no longer defend DOMA in court and sent a letter to Congress informing lawmakers of the Justice Department’s decision. The move left the decision of whether to continue defense of DOMA in court to Congress.

Litigation filed against the statute in the Second Circuit — where there’s no precedent for laws related to sexual orientation — allowed the administration to conclude that DOMA is unconstitutional and to call on the court to examine the law with heightened scrutiny.

House Minority Leader Nancy Pelosi (Blade photo by Michael Key)

In a statement, Pelosi denounced the panel’s decision to take up defense of DOMA in court and called the statute “discriminatory” as well as “unfair and indefensible.”

“Since its proposal and passage, this legislation has raised constitutional questions and has been viewed as a violation of the equal protection clause,” Pelosi said. “The House should not be in the business of defending an unconstitutional statute that is neither rational nor serves any governmental interest. DOMA actually discriminates against American families.”

Pelosi said the defense of DOMA would sap the U.S. government of “hundreds of thousands of taxpayer dollars, if not more” at a time when fiscal resources are limited.

“Pursuing this legal challenge distracts from our core challenges: creating jobs, strengthening the middle class, and responsibly reducing the deficit,” she said. “And that is why I voted against this action today.”

Joe Solmonese, president of the Human Rights Campaign, also criticized the panel for voting to take action to defend DOMA.

“Apparently, the Republicans’ jobs plan is a full employment project for right-wing lawyers bent on defending discrimination,” Solmonese said. “With today’s vote, Speaker Boehner has made clear that an anti-equality agenda trumps helping American families in tough economic times, including loving and committed couples who are legally married in their states.”

But Casey Pick, programs director for Log Cabin Republicans, said Boehner’s decision to defend DOMA after consulting with the panel is “entirely appropriate.”

“While Log Cabin Republicans firmly believe that DOMA is an unconstitutional intrusion on states’ rights and a violation of individual liberty, we agree with the speaker that the constitutionality of this law should be determined by the courts and not by the president unilaterally,” she said.

Pick said “nobody should be surprised that Congress has decided to exercise its legal right, and some would say duty” to defend DOMA given how controversial same-sex marriage is at this time.

“We are confident that this law will ultimately be overturned despite any defense presented by House Counsel, and will continue to work with our allies in Congress to advocate for legislative repeal,” she said. “With that decided, it is critical that Congress not waste anymore time on the president’s efforts to distract Republicans with divisive social issues, and instead return to working on the issues that matter most: jobs and the economy.”

A Democratic aide, who spoke on condition of anonymity, said Democrats on the panel pushed back on the decision to intervene on behalf of DOMA before the vote took place.

The aide said Boehner’s statement is misleading becaues it implies the panel held a bipartisan vote in favor of defending DOMA when in fact Pelosi and Hoyer “forcefully argued against the House intervening in these cases.”

According to the aide, Pelosi and Hoyer pressed General Counsel Kerry Kirchner on how much intervening to defend the statute in court would cost the U.S. government.

“General Counsel Kerry Kirchner would only say it would ‘not be inexpensive,'” the aide said. “Mr. Kirchner noted that there are currently at least 10 cases and he does not have the in-house resources to deal with that many cases as he has a staff of five with one lawyer currently on maternity leave.”

The aide said Kirchner told the panel he believed the House intervention in the DOMA case would take a minimum of 18 months because litigation could continue for years before the U.S. Supreme Court hears one of these cases.

“Mr. Kirchner also laid out that the Reagan Administration chose to no longer defend 5 laws in the 1980s,” the aide said. “Clearly, the Republicans were fine with a Republican President choosing not to defend statutes passed by the Congress.”

According to the aide, Pelosi repeatedly pushed back on assertions that the administration was deciding the constitutionality of DOMA by declining to defend the law in court.

“She noted that judicial review was continuing and that a number of groups were filing pro-DOMA briefs in the cases so there was no need for the House to intervene,” the aide said. “And that the administration was still enforcing the law.”

In response, a Republican aide, who also spoke on condition of anonymity, called the Democratic aide’s account of the discussion that took place “silly.”

The GOP aide took issue with the Democratic aide’s assertion that Republicans were fine when President Reagan declined to defend laws in court against litigation.

“Republicans didn’t have the majority in the House during the Reagan administration,” the GOP aide said. “That comparison doesn’t even make sense.”

Additionally, the Republican aide also said decisions haven’t yet been made on the cost and duration of any potential DOMA cases.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

Federal Government

4th Circuit rules gender identity is a protected characteristic

Ruling a response to N.C., W.Va. legal challenges

Published

on

Lewis F. Powell Jr. Courthouse in Richmond, Va. (Photo courtesy of the U.S. Courts/GSA)

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:

4th Circuit rules against legal argument that trans treatment bans do not discriminate against trans people because ‘they apply to everyone.’

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:

The 4th Circuit majority rebuts the state’s proxy discrimination argument.

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.” 

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

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.

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

The preceding article was first published at Erin In The Morning and is republished with permission.

Continue Reading

National

GLSEN hosts Respect Awards with Billy Porter, Peppermint

Annual event aims to ‘inspire a lot of people to get active’

Published

on

Billy Porter is among guests at Monday’s Respect Awards in New York.

GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter. 

Respect Awards director Michael Chavez said that the event will be moving. 

“It will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,” he said. 

At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community. 

“Sophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.” Chavez said. 

Chavez calls the students that attend the Respect Awards the “biggest celebrities” of the evening. 

“It is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what it’s like to be in school today as a queer person,” he said.

GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.

“GLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,” said actor Wilson Cruz.

Cruz is the chair of GLSEN’s National Board, which works to fundraise and strategize for the organization.

“I think we are fundamental to the education of LGBTQ students in school,” he said. “We advocate for more comprehensive support at the local, national, and federal levels so our students are supported.”

Chavez is one of the students that was impacted by this work. He led his school’s GSA organization and worked with GLSEN throughout his youth. 

Cruz said Chavez is doing what he hopes today’s GLSEN students do in the future, which is pay the work forward. 

“There’s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,” he said. 

Continue Reading

Florida

Homeless transgender woman murdered in Miami Beach

Andrea Doria Dos Passos attacked while she slept

Published

on

Andrea Dos Passos (Photo courtesy of Equality Florida)

Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.

According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.

She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.

At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.

“The male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),” according to the arrest report.

Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.

Victor Van Gilst, Dos Passos’s stepfather confirmed she was trans and experiencing homelessness. 

“She had no chance to defend herself whatsoever. I don’t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,” said Van Gilst. 

“She has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,” he added.

Gregory Fitzgerald Gibert booking photo via CBS Miami.

The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged. 

“The suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,” Miami Beach Mayor Steve Meiner said in a statement. 

Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that “whenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.”

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular