National
HISTORIC: Oral arguments heard in DOMA challenge
First time appeals court has considered case to overturn anti-gay law
BOSTON — Oral arguments in a landmark legal proceeding challenging the Defense of Marriage Act unfolded Wednesday, marking the first time an appeals court has heard a challenge to the anti-gay federal law.
Lawyers squared off over the constitutionality of DOMA, amid discussion about whether the law fails a rational basis standard of scrutiny or interferes with a state’s rights under the Tenth Amendment.
Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.
Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples.
Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”
Delery’s position is significant because U.S. District Judge Joseph Tauro in 2010 ruled in favor of plaintiffs on the basis that DOMA didn’t pass the rational basis standard review, or a rational means to a legitimate governmental end. Judges on the First Circuit will have to decide whether to affirm or overrule this decision.
Two cases challenging the constitutionality of DOMA are before the First Circuit: Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.
The three-judge panel hearing the cases is made up of Chief Judge Sandra Lynch as well as Torruella and Judge Michael Boudin. Lynch was appointed by a Democrat, former President Bill Clinton, while Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.
Despite the administration’s position on rational basis review stated during the hearing, Delery said heightened scrutiny, or examining the law on the assumption that it’s discriminatory toward a group of people, is the appropriate way to handle DOMA because Congress passed DOMA in 1996 out of animus toward gay people.
Delery maintained that the name “DOMA” itself indicates that the anti-gay law was intended to discriminate against LGBT families.
“It was a defense against something, and that something was same-sex couples,” Delery said.
But the administration wasn’t willing to accept all arguments against DOMA. Delery said the administration doesn’t share the view that DOMA is unconstitutional on the basis that it interferes with a state’s Tenth Amendment right to regulate marriage, saying “that’s where we disagree” with the lawsuit.
Delery said Congress has the authority to define federal programs — even those related to marriage, where states traditionally have had jurisdiction on who can and cannot marry.
Defending DOMA in court was Paul Clement, a former U.S. solicitor general. After the Obama administration declared it would no longer defend DOMA, House Speaker John Boehner hired Clement to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.
Kicking off the arguments, Clement said the Obama administration is free to change its opinion on whether DOMA would pass a rational basis test, but nonetheless the administration has previously argued in a legal brief that DOMA shouldn’t be struck down on this standard.
“It’s certainly open to the president and the attorney general to change their position, and to say that heightened scrutiny should apply, but that doesn’t make their prior submission go away, and it doesn’t make the arguments in their about why there are rational bases — in addition to some that we’ve covered in our brief — to support the statute,” Clement said.
Clement offered many reasons why DOMA should be upheld — among them was an assertion that opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.
Additionally, Clement said DOMA isn’t an attempt to “override a state’s definition” of marriage, but merely allows the federal government to “preserve the status quo” as states began legalizing same-sex marriages in 1996 to keep benefits from federal programs, like Social Security, flowing only to opposite-sex married couples as they had in the past.
But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.
“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.
Significant discussion related to heightened scrutiny was focused on the case of Cook v. Gates, a challenge to “Don’t Ask, Don’t Tell” in which the First Circuit ruled that sexual orientation shouldn’t be considered a suspect class. Clement argued that the First Circuit is bound by this precedent not to apply heightened scrutiny to laws affecting gay people. But attorneys opposed to DOMA said this case shouldn’t be applied to the anti-gay law because courts traditionally grant the military a high level of deference.
Mary Bonauto, GLAD’s civil rights project director, represented her organization during the hearing and said the law violates equal protection under the Constitution regardless of whether heightened scrutiny or rational basis review is applied to the anti-gay law.
“To this day, the federal government defers to state marital determinations where marital status is a factor for federal protections,” Bonauto said. “But for DOMA, same-sex couples who began marrying here eight years ago like our plaintiffs would have been included in those federal laws, but DOMA’s precise point was to prevent that conclusion and created an across the board exclusion.”
Massachusetts Assistant Attorney General Maura Healey argued on behalf of Massachusetts, saying that DOMA violates the state’s right under the Tenth Amendment to regulate marriage. She said an end to DOMA would return the federal government to “what it always has done” by recognizing state authority on which couples should be able to marry.
In her conclusion, Healey drew on the lifting of “Don’t Ask, Don’t Tell” and its implications for gay troops as a reason why the court should overturn DOMA.
“I’ll take you to our state veterans cemeteries because here the operations of DOMA really revives the concept of separate but equal,” Healy said. “In this day and age, when gay people can now go serve in the military, fight for our country and even die, unlike other married service members, they can’t be buried with their spouse on state land in our veterans cemetery. Instead, Massachusetts is essentially required to build on the next hillside over a cemetery for those veterans. We think that’s wrong.”
The panel has no set time to make a ruling in the cases, but advocates are hoping for a speedy decision. Once a decision is reached, it can be appealed either to the full First Circuit or the U.S. Supreme Court.
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
Iran
LGBTQ groups condemn Trump’s threat to destroy Iranian civilization
Ceasefire announced less than two hours before Tuesday deadline
The Council for Global Equality is among the groups that condemned President Donald Trump on Tuesday over his latest threats against Iran.
Trump in a Truth Social post said “a whole civilization will die tonight” if Tehran did not reach an agreement with the U.S. by 8 p.m. ET on Tuesday.
Iran is among the handful of countries in which consensual same-sex sexual relations remain punishable by death.
Israel and the U.S. on Feb. 28 launched airstrikes against Iran.
One of them killed Supreme Leader Ayatollah Ali Khamenei. Iran in response launched missiles and drones against Israel and other countries that include Kuwait, Bahrain, Qatar, the United Arab Emirates, Jordan, Saudi Arabia, Azerbaijan, and Cyprus.
Gas prices in the U.S. and around the world continue to increase because the war has essentially closed the Strait of Hormuz, a strategic waterway that connects the Persian Gulf and the Gulf of Oman through which roughly 20 percent of the world’s crude oil passes.
Trump less than 90 minutes before his deadline announced a two-week ceasefire with Iran that Pakistan helped broker.
“We the undersigned human rights, humanitarian, civil liberties, faith-based and environmental organizations, think tanks and experts are deeply alarmed by President Trump’s threat regarding Iran that ‘a whole civilization will die tonight’ if his demands are not met. Such language describes a grave atrocity if carried out,” reads the statement that the Council for Global Equality more than 200 other organizations and human rights experts signed. “A threat to wipe out ‘a whole civilization’ may amount to a threat of genocide. Genocide is a crime defined by the Genocide Convention and by the Rome Statute of the International Criminal Court as committing one or more of several acts ‘with intent to destroy in whole or in part a national, racial or religious groups as such.'”
The statement states “the law is clear that civilians must not be targeted, and they must also be protected from indiscriminate or disproportionate attacks.”
“Strikes on civilian infrastructure — such as the recent attack on a bridge and the attacks President Trump is repeatedly threatening to carry out to destroy power plants — have devastating consequences for the civilian population and environment,” it reads.
“We urge all parties to respect international law,” adds the statement. “Those responsible for atrocities, including crimes against humanity and war crimes, can and must be held accountable.”
The Alliance for Diplomacy and Justice, Amnesty International USA, Human Rights Watch, the American Civil Liberties Union, the NAACP, MADRE, and the Robert and Ethel Kennedy Human Rights Center are among the other groups that signed the letter.
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
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LGBTQ groups condemn Trump’s threat to destroy Iranian civilization
Glisten’s 30th annual Day of Silence to take place April 10
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