National
Effort to repeal marriage equality fails in N.H.
A tense, sometimes surreal debate
New Hampshire State House (Washington Blade file photo by Michael Key)
UPDATE: According to sources at national Log Cabin Republicans, the vote split by party in New Hampshire was 119 Republicans voting not to repeal, while 92 Democrats voted against repeal, leaving 13 Democrats not willing to go on the record in favor of preserving same-sex marriage.
An effort to overturn marriage equality in New Hampshire appears to be dead for the year after a Republican-controlled state House of Representatives failed to pass a repeal measure, despite desperate last-minute attempts to make the bill more palatable to moderates by author Rep. David Bates.
In a 211-116 vote, the legislature gave same-sex marriage advocates something to cheer about when, after hours of procedural efforts to keep the bill alive, enough GOP lawmakers voted against the bill to rescind the right to marry from New Hampshire residents.
Several Republicans crossed the aisle to defeat the measure, including Reps. Mike Ball and Jennifer Coffey, who spoke out against the bill last week along with other advocates and Democratic lawmakers at a news conference organized by the marriage equality group Standing Up For New Hampshire Families.
During a long and contentious debate on the bill in which the same amendment was brought back for reconsideration twice, strong statements were made on all sides of the issue.
“God is my judge, this legislative body is not my judge,” Rep. Cameron DeJong proclaimed. “Allow me to have this discussion between my God and me about my decisions.”
Rep. Ball compared the bill to segregation in the South, “Let’s put this dog down, like it deserves to be.”
In a surreal moment during the debate, an amendment to the bill was introduced to also bar marriage between left-handed people. That amendment failed to be considered.
House bill 437, which would have prevented New Hampshire from recognizing any new same-sex marriages and revived the 2007 civil unions law in its place, was introduced last year by GOP Rep. Bates, along with 11 Republican co-sponsors. After the bill lost traction in the House last week, Bates introduced an amendment that would put a nonbinding question on the issue before voters in November, prior to the law’s official repeal date in March 2013, as well as have left intact the 2,000 existing same-sex marriages already recognized by the state, much like California’s post-Proposition 8 law that created, what advocates call 15,000 “limited edition” legally recognized same-sex marriages in that state.
The floor amendment, meant to give the law a better chance of surviving a veto, failed to be adopted after a vote of 162-188, leaving the bill less likely to become law in the long run.
After a failed first vote on returning to civil unions, the legislature voted to divide the combined civil unions-referendum amendment into separate issues, an effort that also failed on a vote of 128 to 222.
During that debate, Rep. David Welch — who at one time opposed same-sex marriage, but is now a vocal opponent of the measure to repeal it on constitutional grounds — called on his colleagues to vote against the amendment containing the call for referendum and for reinstating civil unions. “The legislature has given rights to certain members of our community, and we should not vote to take them away.”
The veteran lawmaker repeatedly called into question the constitutionality of HB 437 throughout the debate.
Also opposing the amendment was Republican Rep. Shawn Jasper, who urged the legislature to drop the bill and send a clean binding referendum to the people, rather than the planned non-binding ballot measure.
He was followed by pro-gay Republican Rep. Jennifer Coffey, who called for an end to the push against committed same-sex couples, saying if a voter opposes same-sex marriage, they’re not obligated to enter into such a marriage.
“This body has set in motion a ping-pong ball with people’s lives,” Coffey told her colleagues.
Countering the call for a ballot initiative, Rep. Steve Murphy (R- Bedford) declared, “The rights of the people are not subject to popular vote.”
Earlier, the initial vote on the civil unions amendment — prior to the multiple votes to reconsider — failed on a vote of 82 to 266.
During the debate of the first civil unions amendment on the floor, Rep. Dan McGuire said he has three lesbians in his life, including his “mother and sister,” but supports the amendment that will end marriage because he supports the “dictionary definition” of marriage, and says that this is an issue of “extreme political correctness.”
Also speaking in favor of the civil unions amendment was Rep. Marilinda Garcia, who argued that allowing couples who have no biological ability to create children would weaken marriage for those that do have that ability.
The bill could still be revived in the overwhelmingly Republican-controlled Senate, where its fate would be in the hands of the handful of moderate Republicans.
New Hampshire Gov. John Lynch repeatedly vowed to veto House bill 437.
Recent polls show that respondents oppose ending same-sex marriage by up to 62 percent, however, no state electorate in the country has yet approved full marriage rights for same-sex couples via the ballot.
Five other states, and the District of Columbia, have extended marriage rights to same-sex couples, including Massachusetts, Connecticut, Iowa, Vermont, and New York. Maryland’s Governor Martin O’Malley signed into law a gender neutral marriage bill that will take effect on January 1, pending the result of a likely November ballot measure. Likewise, Washington Gov. Christine Gregoire signed into law a bill extending marriage rights to same-sex couples going into effect also pending a voter initiative. In addition, the New Jersey legislature passed a same-sex marriage law in February, but will need to override Gov. Chris Christie’s veto by the end of the legislative session in 2014.
New Hampshire became the fifth state in the nation to expand marriage rights to include same-sex couples, the third to do so without being compelled to by a court, and the second to pass through the legislature with a governor’s signature — current Gov. John Lynch — following Maine’s Gov. John Baldacci earlier that year. The marriage law went into effect in early 2010, and thousands of same-sex couples have taken advantage of the rights.
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.”
****************************************************************************
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.
Blade Summer Kickoff Party returns to Rehoboth
Andy Cohen coming to D.C.
Want to dance for a good cause?
Calendar: May 3-9
Brittney Griner considered suicide in Russian prison
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
Pride season has begun
PHOTOS: Capital Pride Pageant
