National
Gay New Yorker in tight race with GOP incumbent
Maloney seeks to oust Hayworth; race a ‘tossup’
U.S. House candidate Sean Patrick Maloney (Blade photo by Michael Key)
Sean Patrick Maloney has ambitious goals for someone in a tight race seeking his first term in Congress. His priorities upon taking office would be “getting Congress working for people who need it working in their lives.”
“I think the most important thing right now is that too many voices aren’t being heard in Congress — the middle class, working people and people who care about equality, care about a future where we all count, we all work together,” Maloney said.
He’s seeking to unseat freshman Rep. Nan Hayworth (R-N.Y.) to represent New York’s 18th congressional district.
Maloney, who if elected would be the first openly gay member of Congress from New York, touted his previous work in Washington. He was a senior West Wing adviser in the Clinton administration and was first deputy secretary for former New York Gov. Eliot Spitzer.
“I know my way around Washington, and I’ve spent years working on different types of policies and partnerships in people in state government, people in local government, with the private sector,” Maloney said. “And so, I think I bring a set of relationships to the job that is unique for a freshman member, and a degree of experience in how Washington works when it’s working well.”
While he acknowledged the importance of having a Democratic majority in the U.S. House that “cares about LGBT people,” Maloney said he sees an opportunity for passage of pro-LGBT legislation even if Republicans remain in power — provided what he called the “extreme wing” of the party isn’t in control.
Maloney said New York could serve as an example because marriage equality legislation was passed in a Republican-controlled Senate under the leadership of Gov. Andrew Cuomo. The House candidate took credit for helping draft the New York marriage equality bill under the Spitzer administration, but said he wasn’t involved in the process of moving the law through in 2011.
“New York is the example,” Maloney said. “New York is where Democrats and Republicans have figured out how to work together on issues of LGBT equality. We don’t — look, you’ll never get everybody, but I do believe the day is coming when moderate voices, people who care about equality within the Republican Party will begin working with those of us who have been fighting for years on these issues.”
National LGBT groups are backing Maloney in pursuit of his U.S. House seat, including the Human Rights Campaign and the Gay & Lesbian Victory Fund.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said his organization is working to help Maloney win.
“Sean Patrick Maloney is a wonderful candidate and will be a tremendous leader in the House,” Cole-Schwartz said. “HRC is committed to helping him win and we’re encouraging our members to support his campaign through our candidate fundraising tool at www.hrc.org/candidates.”
Maloney said he supports pro-LGBT legislation that Congress has yet to pass — including the Uniting American Families Act and the Employment Non-Discrimination Act — in addition to repeal of the Defense of the Marriage Act.
“I think a lot of us hope that the Supreme Court will establish as it did in the area of interracial marriage that denying equal marriage rights to same-sex couple is a violation of the federal Constitution as applied to the states, and so you’ll get a national constitution grounding for marriage,” Maloney said. “But Congress certainly has a role to play. We absolutely should repeal DOMA.”
Maloney also called on President Obama to revisit the idea of issuing an executive order that would bar federal contractors from discriminating in the workplace against LGBT people, saying the White House announcement in April that the order wouldn’t happen at this time “was a mistake.”
“I was disappointed that the White House made that decision,” Maloney said. “And I say that as someone who gives the president a great deal of credit for the position he took on marriage, which was historic, and for putting marriage equality front and center at the Democratic National Convention.”
Maloney lives in Cold Springs, N.Y. He has been with his partner, Randy Florke, a Realtor, since 1992 and they have three children: Jesús, Daley, and Essie. They also have homes in Sullivan County and New York City.
Rep. Nan Hayworth attends the 2012 Log Cabin annual dinner (Blade photo by Michael Key)
The contest to represent New York’s 18th congressional district is tight. Polls in recent weeks have showed Maloney running even with Hayworth, or slightly behind. A Public Policy Polling survey published Sept. 21 found Maloney and Hayworth both receiving 43 percent of support, while 14 percent were undecided.
Jessica Taylor, a senior analyst for the Rothenberg Political Report, ranked the race as a “pure toss-up” because even though being an incumbent would give her an advantage, Hayworth won her seat in a good Republican year, and the district is generally Democratic and would probably see more Democratic turnout in the presidential election.
“I think it’s going to be a really close battle,” Taylor said. “Her first ad against Maloney hits him on how he just moved into the district. I think that could be an effective strategy, but also, this is not a new thing for New York — people first living in the city and moving out to the suburban areas.”
During the Blade interview, Maloney criticized Hayworth, calling her “one of the most extreme members of Congress” and saying she’s “out of step with her district” for supporting legislation put forward by House Republican leaders.
“She wants to end Medicare and give massive tax cuts to multi-millionaires like herself,” Maloney said. “She wants to defund Planned Parenthood. She wants to deny women access to contraception. … On issue after issue that is important to LGBT equality, that is important to the middle class that is important to women’s rights and women’s health, she has been an extreme conservative.”
But Hayworth has a fairly good record on LGBT issues during her first term in Congress. A member of the LGBT Equality Caucus, Hayworth voted against three amendments on the House floor that reaffirmed the Defense of Marriage Act. She’s also a co-sponsor of ENDA and the Domestic Partner Tax Parity Act, which would end the tax penalty by individuals who receive health insurance for their partners from their employers.
R. Clarke Cooper, executive director of the Log Cabin Republicans, praised Hayworth’s action on LGBT issues upon taking her House seat. The organization as of Tuesday hasn’t endorsed Hayworth.
“When Nan Hayworth came to Congress as a freshman in 2011, she quickly distinguished herself by becoming Deputy Majority Whip and joining the bi-partisan LGBT Equality Caucus,” Cooper said. “Her active presence among her peers in the House and within the House Republican leadership is critical to advancing equality, restoring fiscal discipline and maintaining a majority in the Congress.”
Will Hayworth (Blade photo by Michael Key)
Hayworth has a gay son, Will Hayworth, who lives in D.C. According to his website, he studied economics and computer science at Bard College and has experience as a research intern covering monetary policy at libertarian think-tank called the Cato Institute. He identifies as “a registered Republican with very, very libertarian leanings.”
But Maloney was unimpressed with Hayworth’s actions and called on her to articulate her position on marriage equality — which he said 60 percent of his district supports — and say whether she wants to repeal DOMA.
“It’s real simple,” Maloney said. “All she has to do is say she supports marriage equality and repeal of DOMA. She won’t. So, talk is cheap, procedural votes are cheap. When the rubber meets the road, she is not our friend. She is terrible on LGBT equality and I’ve been working on these issues for 20 years of my life. So, I would invite her to — and you should ask her — does she support marriage equality? Will she support the repeal of DOMA? She won’t. I will. That’s the choice.”
The Blade attempted to speak with the Republican lawmaker during the Log Cabin’s “Spirit of Lincoln” awards dinner in D.C. on Sept. 20 — which she attended with her son Will Hayworth — about her position on marriage equality and DOMA, but she refused to take questions. Requests to comment for this article weren’t returned by Hayworth’s campaign or her office.
Maloney said he’s aware Hayworth has a gay son. Asked whether that heightens the need for her to address her positions on LGBT issues, Maloney replied, “All that we have is her record, and she will not say that she supports marriage equality and she will not support the repeal of DOMA. Why she believes that, what she really believes, you’ll have to ask her. I’m not qualified to speak to anything other than what her record is as a member of Congress. And her record is terrible for the most important issue for our community: She is not our friend on marriage equality.”
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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Calendar: May 3-9
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HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
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PHOTOS: Capital Pride Pageant
