National
LGBT issues again absent from prez debate
Invigorated Obama takes on Romney in spirited town hall
Republican presidential nominee Mitt Romney and President Obama squared off in a town hall debate Tuesday. (Blade file photo by Michael Key)
The town hall presidential debate on Tuesday night included references to social issues, such as women’s rights, immigration and gun violence but as in the previous debate, there was no explicit mention of LGBT issues.
During the debate at Hofstra University, Republican presidential nominee Mitt Romney brought up his belief in marriage as a means to reduce the culture of violence in response to a question about banning assault weapons, saying “we need moms and dads helping raise kids” and espousing “the benefit of having two parents in the home.”
“A lot of great single moms, single dads,” Romney said. “But gosh, to tell our kids that before they have babies, they ought to think about getting married to someone — that’s a great idea because if there’s a two-parent family, the prospect of living in poverty goes down dramatically. The opportunities that the child will — will be able to achieve increase dramatically.”
Romney never explicitly said he was excluding opposite-sex couples when touting the importance of a “two-parent family” as the correct way to raise children, but didn’t take the opportunity to say that marriage should be between one man, one woman.
He has previously stated that gay couples shouldn’t be allowed to marry and supports a U.S. constitutional amendment that would ban same-sex marriage throughout the country.
The Romney campaign didn’t immediately respond to the Washington Blade’s request to clarify the marriage remarks, but LGBT rights groups on both sides of the aisle had differing interpretations of the candidate’s intended meaning.
Jerame Davis, executive director of the National Stonewall Democrats, said even though Romney didn’t mention same-sex couples in his remarks, the candidate’s past hostility toward LGBT people speaks for itself.
“Whether or not it was intentional, Mitt Romney has absolutely no respect for LGBT families,” Davis said. “His opposition to marriage equality and even civil unions makes clear that he really doesn’t believe our families are equal or deserving of the same status as other families.”
R. Clarke Cooper, executive director of the Log Cabin Republicans, said he didn’t believe Romney’s remarks were exclusionary based on comments he’s made at other times.
“I don’t think that was intended to be an exclusionary statement because he has made comments in support on [same-sex parent] adoption, and later in his closing comments, he made a reference to all of us being children of God,” Cooper said.
Romney once articulated that same-sex parent adoption was a “right” over the course of the presidential campaign, but later clarified his position in May to state he merely acknowledges the right of states to enable adoption by same-sex parents if they choose.
President Obama made a reference to opposing discrimination during the presidential debate in response to a question on pay equity for women, though he said nothing explicit on LGBT issues.
“And we’ve also got to make sure that in every walk of life, we do not tolerate discrimination,” Obama said. “That’s been one of the hallmarks of my administration. I’m going to continue to push on this issue for the next four years.”
Obama supports marriage equality and pushed for repeal of “Don’t Ask, Don’t Tell” as president — although he hasn’t spelled out what he would do to further advance LGBT rights if re-elected.
But these were the only times that any discussion remotely related to LGBT issues took place at the debate in Hempstead, N.Y. It’s unlikely LGBT issues will come up during the final debate next week because it’ll focus on foreign policy.
But other social issues emerged during the debate. On immigration, Romney said he doesn’t support amnesty for undocumented immigrants or offering them legal driver’s licenses, but took Obama to task for not accomplishing immigration reform over the course of his first term. Obama criticized Romney for his hard-line views on the issue, noting the GOP candidate has said he’d veto the DREAM Act.
Speaking about the inclusion of women in his administration, Romney made a gaffe when he said he was brought “binders full of women” as governor of Massachusetts that he said led him to appoint more women in senior leadership positions than any other state in America.
Heather Cronk, managing director of GetEQUAL, was disappointed by the lack of LGBT inclusion in the debate.
“In a debate that reduced marriage to a remedy for gun violence and workplace equality to women in a binder, it was hard for LGBT folks to see ourselves as part of a substantive and robust political conversation,” Cronk said. “The partisan folks will surely come out of the woodwork over the next few days to claim victory for one side or the other, but we still haven’t seen either candidate describe a path to victory for LGBT Americans — to be fully equal under the law.”
Most observers said Obama needed a win during the debate to come back after what was deemed a listless performance during the previous debate that preceded a drop for him in the polls. According to a CNN poll made public after the debate, 46 percent of respondents said Obama won the debate, compared with 39 percent for Romney.
But another poll of undecided voters showed mixed views. A CBS News/Knowledge networks poll of undecided voters who watched the debate found 37 percent said Obama won, 30 percent favored Mitt Romney and 33 percent called the debate a tie.
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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