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DHS to spell out LGBT protections in guidance to immigration officials

Napolitano will clarify same-sex couples eligible for prosecutorial discretion

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United States Secretary of Homeland Security Janet Napolitano, gay news, Washington Blade
United States Secretary of Homeland Security Janet Napolitano, gay news, Washington Blade

Secretary of Homeland Security Janet Napolitano announced DHS will include same-sex couples in written guidance to immigration officers (Washington Blade file photo by Michael Key)

The Department of Homeland Security intends to spell out in written guidance that immigration officers should consider “long-term, same-sex partners” as families when considering whether to exercise prosecutorial discretion in the potential deportation of an undocumented immigrant.

In a letter dated Sept. 27, 2012Ā to Congress, Secretary of Homeland Security Janet Napolitano affirms U.S. Immigration and Customs Enforcement intends to disseminate this guidance to personnel in the field.

“In an effort to make clear the definition of the phrase ‘family relationships,’ I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners,” Napolitano writes.

Napolitano adds the applicability of family relationships should be “weighed on a individual basis” for each immigrant in a potential deportation case.

The new guidance follows up on a 2011 memorandum informing ICE personnel they should consider consider the totality of circumstances for an undocumented immigrant when making enforcement decisions in immigration law. Circumstances that were under consideration ā€” in addition to “ties and contributions to the community” ā€” included an undocumented immigrant’s age, military service and cooperation with authorities.

Advocates had been calling for on DHS to broaden the memo to include explicit protections for bi-national same-sex couples. Later, when DHS announced last year it would go through the deportation pipeline and take out low priority individuals on a case-by-case basis, it had informed the media that “LGBT families” would be among the factors considered, an assertion that was made on the record for the first time last month.

Still, advocates continued to seek more explicit protections.Ā The upcoming guidance will mark the first time DHS has explicitly spelled out this policy in guidance to immigration officers.

Rachel Tiven, executive director of Immigration Equality, called the DHS announcement “a huge step forward” in the organization’s effort to ensure bi-national same-sex couples can stay together within the United States.

“Until now, LGBT families and their lawyers had nothing to rely on but an oral promise that prosecutorial discretion would include all families,” Tiven said. “Today, DHS has responded to Congress and made that promise real. The administrationā€™s written guidance will help families facing separation and the field officers who are reviewing their cases.ā€

Peter Boogaard, a DHS spokesperson, confirmed plans for new guidance in an email to the Washington Blade, but said officers were already operating under the policy that will be spelled out in the document.

“This written guidance will simply reiterate existing policy regarding how DHS considers the totality of circumstances presented in individual cases when exercising prosecutorial discretion in enforcement matters,” Boogaard said. “Long-term, same-sex partners have been included as ‘family relationships’ under ICE Director Morton’s June 2011 prosecutorial discretion memorandum.”

Steve Ralls, a spokesperson for Immigration Equality, said DHS informed his organizationĀ that the written guidance should be issued within the next week.

Napolitano’s letter responds to an August 3 letter signed by 84 House Democrats ā€” led by House Minority Leader Nancy Pelosi (D-Calif.), Rep. Jerrold Nadler (D-N.Y.) and Rep. Mike Honda (D-Calif.) ā€” urging DHS to spell out this policy to immigration officers.

In a statement, Nadler said he’s “thrilled” the Obama administration is taking action to ensure bi-national same-sex couples are included in guidelines for prosecutorial discretion.

ā€œI am thrilled that the Obama Administration has taken to heart my concern about the need to explicitly protect LGBT immigrant families from being torn apart by needless and unwarranted immigration enforcement actions,” Nadler said. “I thank Secretary Napolitano for listening and supporting a policy that protects all American families, both straight and LGBT. With the written guidelines that I requested and which will be issued by ICE, federal immigration officials will finally have the clear direction they need to make responsible and compassionate decisions on family ties in immigration cases.ā€

Honda called the announcement from Napolitano “promising news” that came about as a result of collaboration between LGBT activists and lawmakers.

“After many conversations with President Obamaā€™s administration, a strong push by the LGBT community, and with the help of my colleagues, Secretary Napolitano has announced that she will disseminate written guidance to immigration authorities that confirms the interpretation of the phrase ā€˜family relationshipsā€™ to include LGBT relationships ā€” specifically the relationships of immigrants in same-sex marriages and partnerships with U.S. citizens,” Honda said.

But Honda added advocates should continue pressing for immigration reform because “current immigration laws are tearing families apart and separating American citizens from their loves ones.” In the case of same-sex couples, gay Americans are still unable to sponsor their foreign same-sex partners for residency in the United States ā€” regardless of whether these couples are married or otherwise.

Honda said the current situation with immigration is why he introduced the Reuniting Families Act,Ā which he said “ensures that they are treated equitably through an immigration reform that is both comprehensive and inclusive.”Ā It has a provision that would protect bi-national same-sex couples as one of its six prongs for immigrant families.

“The United States is a nation built upon the toil of immigrants hoping to build better lives for themselves and their families,” Honda concluded. “Our country deserves an immigration system that honors that legacy and keeps all families intact.ā€

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National

GLSEN hosts Respect Awards with Billy Porter, Peppermint

Annual event aims to ā€˜inspire a lot of people to get activeā€™

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Billy Porter is among guests at Mondayā€™s Respect Awards in New York.

GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter. 

Respect Awards director Michael Chavez said that the event will be moving. 

ā€œIt will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,ā€ he said. 

At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community. 

ā€œSophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.ā€ Chavez said. 

Chavez calls the students that attend the Respect Awards the ā€œbiggest celebritiesā€ of the evening. 

ā€œIt is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what itā€™s like to be in school today as a queer person,ā€ he said.

GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.

ā€œGLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,ā€ said actor Wilson Cruz.

Cruz is the chair of GLSENā€™s National Board, which works to fundraise and strategize for the organization.

ā€œI think we are fundamental to the education of LGBTQ students in school,ā€ he said. ā€œWe advocate for more comprehensive support at the local, national, and federal levels so our students are supported.ā€

Chavez is one of the students that was impacted by this work. He led his schoolā€™s GSA organization and worked with GLSEN throughout his youth. 

Cruz said Chavez is doing what he hopes todayā€™s GLSEN students do in the future, which is pay the work forward. 

ā€œThereā€™s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,ā€ he said. 

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Florida

Homeless transgender woman murdered in Miami Beach

Andrea Doria Dos Passos attacked while she slept

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Andrea Dos Passos (Photo courtesy of Equality Florida)

Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.

According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.

She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.

At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.

ā€œThe male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),ā€ according to the arrest report.

Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.

Victor Van Gilst, Dos Passosā€™s stepfather confirmed she was transĀ and experiencing homelessness.Ā 

ā€œShe had no chance to defend herself whatsoever. I donā€™t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,ā€ said Van Gilst. 

ā€œShe has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,ā€ he added.

Gregory Fitzgerald Gibert booking photo via CBS Miami.

The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged. 

ā€œThe suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,ā€ Miami Beach Mayor Steve Meiner said in a statement. 

Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that ā€œwhenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.ā€

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Federal Government

HHS reverses Trump-era anti-LGBTQ rule

Section 1557 of the Affordable Care Act now protects LGBTQ people

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U.S. Department of Health and Human Services Secretary Xavier Becerra (Public domain photo)

The U.S. Department of Health and Human Services Office for Civil Rights has issued a final rule on Friday under Section 1557 of the Affordable Care Act advancing protections against discrimination in health care prohibiting discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 

The updated rule does not force medical professionals to provide certain types of health care, but rather ensures nondiscrimination protections so that providers cannot turn away patients based on individual characteristics such as being lesbian, gay, bisexual, transgender, queer, intersex, or pregnant.

ā€œThis rule ensures that people nationwide can access health care free from discrimination,ā€ said HHS Secretary Xavier Becerra. ā€œStanding with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.ā€

The new rule restores and clarifies important regulatory protections for LGBTQ people and other vulnerable populations under Section 1557, also known as the health care nondiscrimination law, that were previously rescinded by the Trump administration.

ā€œHealthcare is a fundamental human right. The rule released today restores critical regulatory nondiscrimination protections for those who need them most and ensures a legally proper reading of the Affordable Care Actā€™s healthcare nondiscrimination law,ā€ said Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal.

ā€œThe Biden administration today reversed the harmful, discriminatory, and unlawful effort by the previous administration to eliminate critical regulatory protections for LGBTQ+ people and other vulnerable populations, such as people with limited English proficiency, by carving them out from the rule and limiting the scope of entities to which the rule applied,ā€ Gonzalez-Pagan added. ā€œThe rule released today has reinstated many of these important protections, as well as clarifying the broad, intended scope of the rule to cover all health programs and activities and health insurers receiving federal funds. While we evaluate the new rule in detail, it is important to highlight that this rule will help members of the LGBTQ+ community ā€” especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities ā€” to access the care they need and deserve, saving lives and making sure healthcare professionals serve patients with essential care no matter who they are.ā€

In addition to rescinding critical regulatory protections for LGBTQ people, the Trump administrationā€™s rule also limited the remedies available to people who face health disparities, limited access to health care for people with Limited English Proficiency, and dramatically reduced the number of healthcare entities and health plans subject to the rule.

Lambda Legal, along with a broad coalition of LGBTQ advocacy groups, filed a lawsuit challenging the Trump administration rule,Ā Whitman-Walker Clinic v. HHS, and secured a preliminary injunction preventing key aspects of the Trump rule from taking effect.

These included the elimination of regulatory protections for LGBTQ people and the unlawful expansion of religious exemptions, which the new rule corrects. The preliminary injunction in Whitman-Walker Clinic v. HHS remains in place. Any next steps in the case will be determined at a later time, after a fulsome review of the new rule.

GLAAD President Sarah Kate Ellis released the following statement in response to the news:

ā€œThe Biden administrationā€™s updates to rules regarding Section 1557 of the ACA will ensure that no one who is LGBTQI or pregnant can face discrimination in accessing essential health care. This reversal of Trump-era discriminatory rules that sought to single out Americans based on who they are and make it difficult or impossible for them to access necessary medical care will have a direct, positive impact on the day to day lives of millions of people. Todayā€™s move marks the 334th action from the Biden-Harris White House in support of LGBTQ people. Health care is a human right that should be accessible to all Americans equally without unfair and discriminatory restrictions. LGBTQ Americans are grateful for this step forward to combat discrimination in health care so no one is barred from lifesaving treatment.ā€

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