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HISTORIC: Oral arguments heard in DOMA challenge

First time appeals court has considered case to overturn anti-gay law

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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.

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National

Supreme Court deals blow to trans student privacy protections

Under this ruling, parents are entitled to be informed about their children’s gender identity at school, regardless of state protections for student privacy.

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Transgender rights activists protest outside the Supreme Court in early 2026. (Washington Blade Photo by Michael Key)

The Supreme Court on Monday blocked a California policy that allowed teachers to withhold information about a student’s gender identity from their parents.

The policy had permitted California students to explore their gender identity at school without that information automatically being disclosed to their parents. Now, educators in the state will be required to inform parents about developments related to a student’s gender identity, depending on how the case proceeds in lower courts.

The case involves two sets of parents — identified in court filings as John and Jane Poe and John and Jane Doe — both of which say their daughters began identifying as boys at school without their knowledge, citing religious objections to gender transitioning.

The Poes say they only learned about their daughter’s gender dysphoria after she attempted suicide in eighth grade and was hospitalized. After treatment for the attempt and after being returned to school the following year, teachers continued using a male name and pronouns despite the parents’ objections, citing California law. The Poes have since placed their daughter in therapy and psychiatric care.

Similarly, the Does say their daughter has intermittently identified as a boy since fifth grade, but while their daughter was in seventh grade, they confronted school administrators over concerns that staff were using a male name and pronouns without informing them. The principal told them state law barred disclosure without the child’s consent.

Both sets of parents filed lawsuits in the U.S. District Court for the Southern District of California challenging the state policy that protects students’ gender identity and limits when schools can disclose that information to parents.

The justices voted along ideological lines, with the court’s six conservative members in the majority and the three liberal justices dissenting.

“We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim,” the court said in an unsigned order. “The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs.”

In dissent, the three liberal justices argued that the case is still working its way through the lower courts and that there was no need for the high court to intervene at this stage. Justice Elena Kagan wrote, “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State’s policy is what the Court does today.”

Conservative Justices Samuel Alito and Clarence Thomas indicated they would have gone further and granted broader relief to the parents and teachers challenging the policy.

The emergency appeal from a group of teachers and parents in California followed a decision from the United States Court of Appeals for the Ninth Circuit that allowed the state’s policy to remain in effect. The appeals court had paused an order from U.S. District Judge Roger Benitez — who was nominated by George W. Bush — that sided with the parents and teachers and put the policy on hold.

The legal challenge was backed by the Thomas More Society, which relied heavily on a decision last year in which the court’s conservative majority sided with a group of religious parents seeking to opt their elementary school children out of engaging with LGBTQ-themed books in the classroom.

California Attorney General Rob Bonta expressed disappointment with the ruling. “We remain committed to ensuring a safe, welcoming school environment for all students while respecting the crucial role parents play in students’ lives,” his office said in a statement.

The decision comes as the Trump administration has taken a hardline approach to transgender rights. During his State of the Union address last week, President Donald Trump referenced Sage Blair, who previously identified as transgender and later detransitioned, describing Blair’s experience transitioning in a public school. According to the president, school employees supported Blair’s chosen gender identity and did not initially inform Blair’s parents.

President Donald Trump acknowledges Sage Blair, pictured second from left, during his speech at the State of the Union on Feb. 24. (Washington Blade photo by Michael Key)

Last year, the court upheld Tennessee’s ban on gender-affirming medical care for transgender minors and has allowed enforcement of a policy barring transgender people from serving in the military to continue during Trump’s second term.

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Comings & Goings

Gil Pontes III named to Financial Advisory Board in Wilton Manors

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Gil Pontes III

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”

Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.

Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.

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ACLU sues Kansas over law invalidating trans residents’ IDs

A new Kansas bill requires transgender residents to have their driver’s licenses reflect their sex assigned at birth, invalidating current licenses.

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Kenda Kirby, transgender, Supreme Court, gay news, Washington Blade
A transgender flag flies in front of the Supreme Court. (Washington Blade file photo by Michael Key)

Transgender people across Kansas received letters in the mail on Wednesday demanding the immediate surrender of their driver’s licenses following passage of one of the harshest transgender bathroom bans in the nation. Now the American Civil Liberties Union is filing a lawsuit to block the ban and protect transgender residents from what advocates describe as “sweeping” and “punitive” consequences.

Independent journalist Erin Reed broke the story Wednesday after lawmakers approved House Substitute for Senate Bill 244. In her reporting, Reed included a photo of the letter sent to transgender Kansans, requiring them to obtain a driver’s license that reflects their sex assigned at birth rather than the gender with which they identify.

According to the reporting, transgender Kansans must surrender their driver’s licenses and that their current credentials — regardless of expiration date — will be considered invalid upon the law’s publication. The move effectively nullifies previously issued identification documents, creating immediate uncertainty for those impacted.

House Substitute for Senate Bill 244 also stipulates that any transgender person caught driving without a valid license could face a class B misdemeanor, punishable by up to six months in jail and a $1,000 fine. That potential penalty adds a criminal dimension to what began as an administrative action. It also compounds the legal risks for transgender Kansans, as the state already requires county jails to house inmates according to sex assigned at birth — a policy that advocates say can place transgender detainees at heightened risk.

Beyond identification issues, SB 244 not only bans transgender people from using restrooms that match their gender identity in government buildings — including libraries, courthouses, state parks, hospitals, and interstate rest stops — with the possibility for criminal penalties, but also allows for what critics have described as a “bathroom bounty hunter” provision. The measure permits anyone who encounters a transgender person in a restroom — including potentially in private businesses — to sue them for large sums of money, dramatically expanding the scope of enforcement beyond government authorities.

The lawsuit challenging SB 244 was filed today in the District Court of Douglas County on behalf of anonymous plaintiffs Daniel Doe and Matthew Moe by the American Civil Liberties Union, the ACLU of Kansas, and Ballard Spahr LLP. The complaint argues that SB 244 violates the Kansas Constitution’s protections for personal autonomy, privacy, equality under the law, due process, and freedom of speech.

Additionally, the American Civil Liberties Union filed a temporary restraining order on behalf of the anonymous plaintiffs, arguing that the order — followed by a temporary injunction — is necessary to prevent the “irreparable harm” that would result from SB 244.

State Rep. Abi Boatman, a Wichita Democrat and the only transgender member of the Kansas Legislature, told the Kansas City Star on Wednesday that “persecution is the point.”

“This legislation is a direct attack on the dignity and humanity of transgender Kansans,” said Monica Bennett, legal director of the ACLU of Kansas. “It undermines our state’s strong constitutional protections against government overreach and persecution.”

“SB 244 is a cruel and craven threat to public safety all in the name of fostering fear, division, and paranoia,” said Harper Seldin, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “The invalidation of state-issued IDs threatens to out transgender people against their will every time they apply for a job, rent an apartment, or interact with police. Taken as a whole, SB 244 is a transparent attempt to deny transgender people autonomy over their own identities and push them out of public life altogether.”

“SB 244 presents a state-sanctioned attack on transgender people aimed at silencing, dehumanizing, and alienating Kansans whose gender identity does not conform to the state legislature’s preferences,” said Heather St. Clair, a Ballard Spahr litigator working on the case. “Ballard Spahr is committed to standing with the ACLU and the plaintiffs in fighting on behalf of transgender Kansans for a remedy against the injustices presented by SB 244, and is dedicated to protecting the constitutional rights jeopardized by this new law.”

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