National
Holder defends decision to drop DOMA defense
House Republicans criticize att’y gen’l for abandoning anti-gay law
U.S. Attorney General Eric Holder (Blade photo by Michael Key)
U.S. Attorney General Eric Holder endured a barrage of hostile questions from House Republicans Tuesday over the Obama administration’s decision to drop defense of the Defense of Marriage Act in court.
During an oversight hearing before the House Judiciary Committee, Holder defended President Obama’s determination that DOMA is unconstitutional in response to inquiries from GOP lawmakers amid other questions about the Justice Department’s role in preventing illegal immigration, prosecuting terrorist suspects and stopping child pornography.
Tough questioning for Holder particularly came from Rep. Jim Sensenbrenner (R-Wisc.), who recalled Holder’s Feb. 23 letter to Congress stating that the Justice Department would no longer defend DOMA in court and asked the attorney general simply, “Why’d you do it?”
Holder replied that litigation challenging DOMA in the Second Circuit — where there’s no legal precedent for laws related to sexual orientation — afforded the opportunity for the Justice Department to examine DOMA with heightened scrutiny and to determine the anti-gay law was unconstitutional.
“Applying the heightened scrutiny test, we did not think that the statute would pass constitutional muster, and as a result, I thought that we could not make reasonable arguments in defense of the statute — something that is done extremely rarely, but happens occasionally,” Holder said. “I recommended to the president that we not defend the statute and he agreed with that recommendation.”
But Holder’s answer apparently didn’t satisfy Sensenbrenner, who railed against the Justice Department for what he said was abandoning its duty by dropping defense of DOMA.
“Sexual preference has never been a protected class in any of our civil rights laws,” Sensenbrenner said.
In response, Holder noted that federal law anticipates that the executive branch may determine that some laws shouldn’t be defended in court and affords Congress the opportunity to take up defense of such statutes if the administration declines to defend them.
“The reasons for the determination were, as I said, this different standard and the fact that much has changed since the passage of the bill 15 years or so ago,” Holder said. “The Supreme Court has ruled that criminalizing homosexual contact is unconstitutional. Congress has repealed the ‘Don’t Ask, Don’t Tell’ policy.”
But Sensenbrenner observed that Congress has never taken action to repeal DOMA since the anti-gay law was enacted in 1996. Additionally, the Wisconsin lawmaker said the Lawrence v. Texas decision that Holder referenced was related only to the criminalization of homosexual acts and that “Don’t Ask, Don’t Tell” was a personnel issue in the Defense Department.
“DOMA does not deal with either of these two items,” Sensenbrenner said. “DOMA was an attempt to define for federal purposes that marriage is between one man and one woman, and 45 states in this country have also reached that conclusion — either through a constitutional amendment ratified by the people as was the case in Wisconsin or through statutory enactments by the legislature.”
Sensenbrenner’s remarks on DOMA are misleading in part because Section 3 of the statute has no impact on states where same-sex marriage isn’t available. The anti-gay law prohibits federal recognition of same-sex marriage only in jurisdictions where it’s available.
Rep. Jim Sensenbrenner (Blade photo by Michael Key)
Sensenbrenner added he would back defunding the Justice Department for the cost to the House of defending DOMA in court — a move proposed by House Speaker John Boehner (R-Ohio) last month after he hired former U.S. Solicitor General Paul Clement to take up defense of the statute.
“I certainly would support an effort to have the cost of Congress’ defending this provision … come out of the Justice Department’s appropriations, so that the message is sent down the street that an attorney general or president can’t willy-nilly decide that a law that they have voted against — if they’d been in Congress at the time — is unconstitutional,” Sensenbrenner said.
Holder replied that lower courts have also come to the conclusion that DOMA is unconstitutional and the notion that the Justice Department should lose funds over the decision to drop defense of the anti-gay law is “inappropriate.”
“The lawyers in the Department of Justice who would have worked on that case, believe me, have more than a full-time job, and they will have to use the time that might have been used in the DOMA defense — they will use it other areas,” he said.
The attorney general added Congress has the ability to approve funding for the expense of hiring Clement without reducing funds for the Justice Department.
Rep. Jerrold Nadler (D-N.Y.), the sponsor of DOMA repeal legislation, came to Holder’s defense during the hearing and said the Obama administration had no option but to determine the anti-gay law was unconstitutional following the 2003 Supreme Court decision striking down state sodomy laws in Lawrence v. Texas.
“I don’t believe that the administration had any choice in the matter at all by looking at the legal precedence,” Nadler said. “There had been no determination by any court, as far as I know, certainly by any circuit, of the proper standard of review after Lawrence. And if you look at the normal criteria for determining the standard of review that the Supreme Court has enjoined upon us as to what a suspect classification is … it meets all the tests, and you really had no choice but to go that route.”
Nadler added he hopes Congress doesn’t try to “start trying to intimidate” the Justice Department by threatening to restrict funds as a result of the department’s decision over DOMA.
Other Republicans on the committee also took jabs at Holder during their questioning for dropping defense of DOMA.
Rep. Trey Gowdy (R-S.C.), a freshman Republican who won as a Tea Party challenger in the 2010 election, asked if laws related to sexual orientation merited heightened scrutiny, why shouldn’t heightened scrutiny apply to laws on allowing cousins to marry, underaged marriage or polygamy.
“Since Lawrence, two courts of appeals have upheld a rational basis test for sexual orientation,” Gowdy said. “Why would you single out the one court of appeals that has applied a higher level of scrutiny, ignoring the two that apply to rational basis tests? That just strikes me as a political calculation and not a constitutional calculation.”
In response, Holder denied the decision the Justice Department made over DOMA had a “political component” and said the Supreme Court would ultimately have to address the issue of the anti-gay law’s constitutionality.
Michael Mitchell, executive director of the National Stonewall Democrats, told the Washington Blade after the hearing that he took offense to the suggestion that same-sex marriage is akin to the other unions Gowdy mentioned.
“Most people know there is a clear difference between those things and two loving, consenting adults who are willing to share their lives, and most importantly, take care of each other,” Mitchell said. “Apparently, love and commitment and ’til death do you part’ are not Republican values.”
House Judiciary Committee Chair Lamar Smith (Blade photo by Michael Key)
House Judiciary Committee Chair Lamar Smith (R-Texas), who last year sponsored a resolution condemning the federal court ruling finding California’s Proposition 8 was unconstitutional, expressed displeasure over Obama administration’s decision to drop defense of DOMA during his opening statement.
“I am concerned that in some cases, this administration may have placed political and ideological considerations above enforcing the law,” Smith said. “It seems the president’s personal, political views regarding [DOMA] may have trumped the obligations of the Department of Justice.”
Additionally, Rep. Dan Lungren (R-Calif.) chided Obama for dropping defense of DOMA after making no mention about doubts over its constitutionality during his 2008 presidential campaign.
“It would have been helpful if the president of the United States, as a constitutional law professor, during the time he was running for president, indicated that he had some constitutional questions about DOMA as he was going around the country saying he believes that marriage is between one man and one woman,” Lungren said.
As a chair of the House Committee on Administration, Lungren signed off on the House contract hiring Clement for a initial total sum cap of $500,000 and a blended rate of $520 an hour.
In response, Mitchell disputed the notion that Obama wasn’t fully disclosing his views in the 2008 presidential campaign and said Obama’s personal position on marriage has no bearing on the constitutionality of DOMA.
“By Rep. Lungren’s logic, the Republicans should have articulated in the midterm elections that they were going to focus solely on divisive social issues and the foisting of tax cuts on the wealthy instead of creating jobs,” Mitchell said.
Holder’s defense of the administration’s decision to drop legal defense of DOMA during the congressional hearing comes on the heels of comments he made to reporters last week backing Clement against criticism from LGBT people for taking up defense of the anti-gay statute.
“Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation — representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder reportedly said. “That criticism, I think, was very misplaced.”
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.
Rev. Kipp Nelson of St. Johns’s on the Lake Methodist Church in Miami shared a statement praising the new developments:
“It is a glorious day in the United Methodist Church. As a worldwide denomination, we have now publicly proclaimed the boundless love of God and finally slung open the doors of our church so that all people, no matter their identities or orientations, may pursue the calling of their hearts.
“Truly, all are loved and belong here among us. I am honored to serve as a pastor in the United Methodist Church for such a time as this, for our future is bright and filled with hope. Praise be, praise be.”
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.
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HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
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