National
54 groups call on Obama to take action for bi-national couples
Letter asks DHS to place on hold marriage-based green card applications
54 groups are calling on the White House to hold the marriage-based green cards for bi-national couples in abeyance. (Washington Blade file photo by Michael Key)
A coalition of LGBT and immigration advocacy groups are teaming up for the first-time ever to call on the Obama administration to take action on behalf of bi-national same-sex couples in the wake of the Supreme Court’s decision to take up litigation challenging DOMA.
In a letter written Monday to President Obama and other administration officials, the groups call on the administration to place on hold the marriage-based green card applications for bi-national same-sex couples as observers await a final decision from the Supreme Court on DOMA’s constitutionality.
“With the Supreme Court’s decision to rule on DOMA’s constitutionality, we will know by next June whether or not applications for lawful permanent residence for lesbian and gay spouses will ultimately be approvable,” the letter states. “Therefore, we are only asking that, in the interim, these applications be held for a period of a few months. Doing so will prevent extreme hardship to lesbian and gay immigrant families. By holding applications for lawful permanent residence in abeyance neither granting them nor denying them LGBT families can remain securely together in the U.S. until the Supreme Court issues its ruling next year.”
Among the 54 signatories of the letter are LGBT groups such as Immigration Equality, the Human Rights Campaign and the National Gay & Lesbian Task Force as well as the immigration groups such as the Mexican American Legal Defense & Educational Fund (MALDEF) and the National Council of La Raza.
Rachel Tiven, executive director of Immigration Equality, said in a statement the Supreme Court’s decision to rule on DOMA signals the anti-gay law is near its end, which creates an opportune moment for the Obama administration to take action.
“The Supreme Court’s decision to review DOMA means we now have a date-certain for a final determination about the law,” Tiven said. “It makes no sense to continue denying green card applications which, if the law is struck down by the court, would be approved. By holding these applications, the administration can ensure couples will not be separated or forced into exile.”
Straight Americans can sponsor their foreign national spouses for residency in the United States. However, that option isn’t available to gay Americans in legal same-sex marriages to foreign nationals because of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. Under current immigration code, bi-national same-sex couples could be in danger of separation and the immigrant in the relationship without legal status could be subject to deportation. Legislation known as the Uniting American Families Act would address the issue, although the bill hasn’t moved forward.
In the letter, the groups advocacy point out that the Obama administration has taken a similar course of action in past — holding the green card applications of immigrant widows of U.S. citizens in abeyance while litigation was pursued on their behalf — in addition to holding in abeyance applications for HIV-positive foreign nationals while they awaited the end to the HIV travel ban.
Groups such as Immigration Equality have called on the Obama administration for some time to hold the marriage-based green cards in abeyance for bi-national couples, but each time in response the Department of Homeland Security says it will continue to enforce DOMA as long as it’s on the books. According to an article earlier this year in The Advocate, White House officials told LGBT advocacy groups during a meeting that the Obama administration would not take this course of action to help same-sex couples.
But Steve Ralls, spokesperson for Immigration Equality, said this letter marks the first time that LGBT and immigration groups have jointly made the request to the Obama administration.
“We have made the request before – prior to the SCOTUS cert announcement – with a smaller group of LGBT organizations,” Ralls said. “The coalition this time, however, is much larger and includes our allies in the immigration movement for the first time, too.”
In response to a request to comment on the letter, a White House spokesperson referred questions to DHS, which offered the same position articulated earlier.
Peter Boogard, a DHS spokesperson, said, “Pursuant to the Attorney General’s guidance, the Defense of Marriage Act remains in effect and the Department of Homeland Security will continue to enforce it unless and until Congress repeals it, or there a final judicial determination that it is unconstitutional.”
Amid calls to hold the marriage-based green cards in abeyance, the Obama administration has taken action to address the issue. Just last month, the Department of Homeland Security issued guidance stipulating 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.
NOTE: This posting has been updated from its initial posting to reflect the comment from Steve Ralls.
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.
Blade Summer Kickoff Party returns to Rehoboth
Andy Cohen coming to D.C.
Want to dance for a good cause?
Calendar: May 3-9
Brittney Griner considered suicide in Russian prison
HHS reverses Trump-era anti-LGBTQ rule
4th Circuit rules gender identity is a protected characteristic
Pride season has begun
PHOTOS: Capital Pride Pageant
