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Democrats in danger and playing defense

Pro-LGBT Senate allies Reid, Feingold, Boxer face tough re-election battles

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U.S. Senate Majority Leader Harry Reid is one of several pro-LGBT lawmakers facing a tough battle for re-election this fall. (Photo courtesy of Reid's office)

Several veteran senators viewed as supportive of LGBT rights are facing tough re-election campaigns, prompting some activists and lobbyists to gear up for a defensive battle this fall.

Mike Mings, director of the Human Rights Campaign’s political action committee, said his organization is “certainly aware” that Democrats face a more difficult environment than in the previous two congressional elections.

“I think the Democrats were able to play offense in the last two cycles in a way that has created a different field today,” he said. “So, they’re [now] really looking at defense.”

Recently published polls brings into stark relief the troubling news for several incumbent U.S. senators. Rasmussen unveiled numbers last week showing Senate Majority Leader Harry Reid (D-Nev.) trailing potential Republican opponents by double digits.

According to the polls, Reid would lose in a match with former Nevada Republican Party Chair Sue Lowden, 54-39; in a contest between Reid and former State Assembly member Sharron Angle, he trails 51-40; and in a contest against attorney Danny Tarkanian, Reid comes up short again, 49-42.

Viewed as an LGBT ally on Capitol Hill, Reid was involved last year in the decision to attach the hate crimes bill to the defense authorization bill and has often spoken in favor of ending “Don’t Ask, Don’t Tell” in the U.S. military.

Also last year, Reid was the highest-ranking elected public official to endorse the National Equality March in D.C. A Mormon, Reid also reportedly criticized the Church of Jesus Christ of Latter-day Saints for backing Proposition 8, which ended same-sex marriage in California.

Another longtime senator who could face an uphill re-election fight is Sen. Russ Feingold (D-Wisc.). A Wisconsin Public Radio/St. Norbert College poll published last week found him behind Tommy Thompson, a former Wisconsin governor and former secretary of the U.S. Department of Health & Human Services who’s reportedly considering entering the Senate race.

In a hypothetical matchup, Feingold would lose to Thompson 45-33, according to the poll.

In 1996, Feingold was one of 14 senators to vote against the Defense of Marriage Act. Now a co-sponsor of the Employment Non-Discrimination Act and legislation to overturn “Don’t Ask, Don’t Tell,” Feingold introduced a resolution earlier this year to condemn legislation pending in Uganda that would institute the death penalty as punishment for those convicted of homosexual acts.

Also facing a tough re-election bid is Sen. Barbara Boxer (D-Calif.). A poll published late last month by the Public Policy Institute of California found her in a dead heat with three potential Republican opponents.

According to the poll, Boxer would be essentially tied with former congressman Tom Campbell, with him leading 44-43. She would also be in a dead heat with former Hewlett-Packard CEO Carly Fiorina, with Boxer leading 44-43. Late last month, The Hill newspaper’s election forecasters moved the race from “leans Democratic” to “toss-up.”

Boxer was also among the 14 senators to vote against DOMA in 1996. A co-sponsor of ENDA and of legislation to overturn “Don’t Ask, Don’t Tell,” Boxer last month introduced a bill that would allow same-sex domestic partners to have the same access to COBRA benefits as married couples in some circumstances.

Rose Kapolczynski, Boxer’s campaign manager, said the senator has “always expected a tough race” and has been “working for months to build a broad coalition of Californians from every background and walk of life.”

“With the active involvement of our supporters in the LGBT community and so many others, we will be able to reach out to the millions of Californians who will vote in November,” Kapolczynski said. “We need to do more to let California voters know that Barbara Boxer is focused on creating jobs and turning the economy around.”

The campaigns for Feingold and Reid didn’t respond to DC Agenda’s request for comment.

Mings said he couldn’t predict whether these senators would emerge victorious in their re-election campaigns. Still, he noted that they have an advantage because they’re incumbents, who traditionally fare better in elections.

“It’s not necessarily as big an advantage this year to be an incumbent as it is in other cycles, but it’s still [a] humongous advantage to be [an] incumbent, in terms of visibility, in terms of the organization and operations that they have, so I certainly wouldn’t count any of them out,” Mings said.

Hari Sevugan, press secretary for the Democratic National Committee, said in a statement that it’s important for LGBT people to support these Democrats in their re-election campaigns because the party “values equality, inclusion and fairness.”

“From expanding partnership benefits in the workplace to lifting the ban on travel for those living with HIV/AIDS, from passage of hate crimes legislation to beginning to end [‘Don’t Ask, Don’t Tell] — we have worked to advance gay-rights in all corners of our society,” he said. “It’s not where we want to be yet, but we are moving forward.”

Sevugan warned “the progress we made could be lost” and “we could once again move backward” if Democrats aren’t re-elected or lose their control of Congress.

“We’ve seen what’s happened in Virginia where a Republican governor has taken the Commonwealth backward in history,” he said. “That is why we are committed to working with the LGBT community to elect allies that will continue to move the country toward fulfilling its promise of equality and justice for all.”

Mings said HRC has already given the maximum allowed donations of $10,000 each to Reid and Boxer to help them with their re-election campaigns. For Feingold’s race, Mings said HRC is waiting to see if Thompson will enter the fray.

“If he does, obviously, that changes our calculation quite a bit,” Mings said. “We need to step in and make sure that we’re engaging our membership in Wisconsin as much as possible to help [Feingold].”

In addition to moving to protect senators, Mings said HRC donated the maximum of $5,000 last year to many vulnerable allies in the U.S. House who are part of the Democratic Congressional Campaign Committee’s Frontline Program.

“We don’t support all of those folks because some of them are pretty conservative Southerners or just conservative Blue Dogs, but we did make endorsements of a lot of those folks in late 2009 and made PAC contributions to them to try and help them with early money to boost their early financial filings,” Mings said.

Marty Rouse, HRC’s national field director, said his organization for now is focused on field work that seeks to persuade key senators to vote in favor of “Don’t Ask, Don’t Tell” and is “still trying, where we can, to mobilize in support of ENDA, expecting a vote in the House in next couple weeks.”

But around mid-to-late summer, Rouse said HRC will “pivot big time and shift all of our resources” to re-electing supporters in Congress, especially in the Senate.

“Clearly it’s going to take a few months to really flesh out, but our membership is already being messaged that our No. 1 priority this fall is going to be to re-elect our friends and mobilize our members as much as possible,” Rouse said.

Rouse said HRC will be as “strategic as possible” in determining the best way to support its allies, but it’s too early to say what exactly the plan will be. Rouse noted that polling data for these races is still early and many states still have primary elections.

“What is clear right now is that we’ll be spending the significant amount of our resources on defense and protecting our friends and making sure that they’re back there in 2011 and beyond,” he said.

Even with HRC’s field team working to re-elect these senators, Rouse said it’s important for LGBT people to look to themselves to ask what they’re doing to help in the election.

“One can discuss and look at the polls about where Harry Reid is, how’s he doing, and what’s going on, but the fact of the matter is we need to make sure that anyone we know that lives in Nevada is working as hard as they can to help re-elect Harry Reid,” Rouse said. “So we can ask those questions, but we really have to ask, ‘What are you doing to make sure that Harry Reid gets re-elected? What are you doing to help make sure Barbara Boxer gets re-elected?’”

Rouse said it’s important that LGBT people are visible and working to help the re-election of congressional supporters.

“Once we’re in full election mode, we need to be there on the campaign trail supporting our allies and working really hard to be visible in helping them be re-elected because they will remember that we are there,” he said.

But could incumbent lawmakers become victims of political apathy among LGBT people if legislative priorities like ENDA and repeal of “Don’t Ask, Don’t Tell” don’t move this year?

Michael Cole, an HRC spokesperson, said LGBT voters are “certainly” looking to this Congress for “action on pressing equality issues” and will be mindful of this progress as November approaches.

“That being said, there are a number of pro-LGBT champions up for reelection this year who have the record to deserve whole hearted support from the community,” he said.

But Jimmy LaSalvia, executive director for GOProud, a gay conservative group, said LGBT voters should carefully consider whether to support incumbent lawmakers this year.

“There [are] a lot of issues that gay people care about and there isn’t a single one of those Democrats, in my opinion, who have done anything that I would deem worthy of re-election,” LaSalvia said. “So ask yourself as a gay voter, ‘Well, what have they done that I agree with?’ And I’ll bet you that gay and lesbian [voters] can look at any of those senators and say, ‘You’re fired!’”

Should enough Democrats lose their seats this fall, control of either chamber of Congress could switch hands. Republicans would have to take 10 seats in the Senate and 41 seats in the House to regain control of both chambers of Congress. Such a loss of control would recall the 1994 election, when Republicans retook control of the House and Senate during Democratic President Bill Clinton’s first term in office.

LaSalvia said it’s too early to tell whether Democrats will lose control of Congress this fall, but noted that the situation would become clearer as the year progresses.

“I think it’s way too early to tell, but certainly they would lose seats, and all signs [show] gains by the Republicans,” he said. “I think that we’ve got a long summer ahead of us and the electoral picture and landscape will be a lot clearer when we get to September.”

Mings said he didn’t think Democrats would lose control of Congress because not enough seats are in jeopardy, but he noted that polling and fundraising numbers indicate the party will lose some seats.

“So the thing that’s important to remember is that a lot of people were caught off guard in 1994, and that’s something the Democrats are not going to let happen this time,” he said. “They’re really making sure that their folks are prepared for a really tough, brutal, expensive election and they’re out there really trying to show that their candidates are doing that.”

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National

United Methodist Church removes 40-year ban on gay clergy

Delegates also voted for other LGBTQ-inclusive measures

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Underground Railroad, Black History Month, gay news, Washington Blade
Mount Zion United Methodist Church is the oldest African-American church in Washington. (Washington Blade photo by Michael Key)

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.”

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Federal Government

Republican state AGs challenge Biden administration’s revised Title IX policies

New rules protect LGBTQ students from discrimination

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

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.”

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Federal Government

4th Circuit rules gender identity is a protected characteristic

Ruling a response to N.C., W.Va. legal challenges

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Lewis F. Powell Jr. Courthouse in Richmond, Va. (Photo courtesy of the U.S. Courts/GSA)

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:

4th Circuit rules against legal argument that trans treatment bans do not discriminate against trans people because ‘they apply to everyone.’

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:

The 4th Circuit majority rebuts the state’s proxy discrimination argument.

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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