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Will Obama speak out again on marriage lawsuits?

Many advocates would welcome continued participation

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Proposition 8, Human Rights Campaign National Dinner, David Boies, Ted Olson, gay news, Washington Blade
Human Rights Campaign National Dinner, David Boies, Jeff Zarillo, Paul Katami, Kris Perry, Sandy Stier, Ted Olson, Proposition 8, gay news, Washington Blade

From left, lawyer David Boies , plaintiffs Jeff Zarillo, Paul Katami, Kris Perry, Sandy Stier and lawyer Ted Olson at the HRC National Dinner. Olson and Boies say they’d welcome President Obama’s participation in their lawsuit (Washington Blade photo by Michael Key).

Amid a frenzy of new marriage equality lawsuits making their way to the Supreme Court, some LGBT advocates say continued participation from the Obama administration in litigation would boost their chances for success.

One advocate eager for the administration to continue its participation in litigation seeking marriage equality is Evan Wolfson, president of Freedom to Marry.

“There are 20-some freedom to marry cases underway around the country now, including the two in Virginia, and President Obama’s and the Justice Department’s support for the freedom to marry and constitutional guarantees should absolutely be part of all of them,” Wolfson said.

Because the Obama administration isn’t a party to any of the lawsuits pending, under ordinary circumstances the administration would participate by filing a friend-of-the-court brief before the courts.

But at this stage, some legal experts who spoke to the Washington Blade are taking a more passive stance on whether the Obama administration should take part, saying they’d “welcome” help from the administration’s lawyers without issuing an overt call for action.

Ted Olson and David Boies, the legal duo that brought marriage equality to California by challenging Proposition 8, articulated this view during a conference call with reporters last week when asked by the Washington Blade if they want the administration’s support in Bostic v. Rainey, the lawsuit in Virginia they joined last week.

Boies, the Democratic half of the legal team representing the American Foundation for Equal Rights, said the administration’s participation would be welcome because “the views of the administration are important.”

“Exactly when they will get involved and how they will get involved and what stage they will get involved is something that is obviously up to the administration,” Boies said. “Whether they will decide to wait until we get to the Supreme Court or express views earlier is up to them. But whenever they come in, their support would be welcome.”

Boies’ comments during the conference call follow an endorsement of participation from the Obama administration in his lawsuit during a National Press Club event earlier in the day.

Echoing that sense was Olson, the Republican half of the legal duo that presented the case against Prop 8 during oral arguments before the Supreme Court.

“To have the president’s imprimatur on this issue is so very, very important to the court,” Olson said. “There are institutional reasons for why the Justice Department with the president gets in cases at particular times and we’ll wait till what they decide the right time is, but we very much welcome their support in this case.”

The administration has taken part in previous marriage lawsuits. When the case against Prop 8 came before the Supreme Court, the Justice Department filed a friend-of-the-court brief in favor of plaintiffs and sent U.S. Solicitor General Donald Verrilli to take part in oral arguments before the Supreme Court.

Although the administration didn’t argue the U.S. Constitution guarantees marriage rights for gay couples nationwide, it did contend Prop 8 was unconstitutional and suggested states that offer domestic partnerships should have to afford full marriage rights to gay couples.

The administration’s participation in cases against the Defense of Marriage Act has been more extensive. After announcing it would no longer defend the law in court, the administration filed briefs against the anti-gay law and sent Justice Department lawyers to argue against it in district courts, appellate courts and the Supreme Court.

The Bostic case is but one pending marriage equality lawsuit. According to a tally provided by Lambda Legal, there are 35 marriage lawsuits before 19 states. Just last week, Lambda filed an additional federal lawsuit seeking marriage equality in West Virginia.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the involvement from the administration in the marriage lawsuits would reinforce that “the lives of all Americans are deeply affected when states discriminate actively against some of their constituents.”

“The Justice Department’s participation puts additional moral force behind the claims for equality and fairness that gay and lesbian couples make in these cases,” Goldberg continued. “In that sense, the federal government’s participation in state law challenges can be important and helpful, but even if it does not participate, it is also important and helpful that the administration is on record decrying the injustice of unequal marriage rules.”

But the sense that the Obama administration should file additional friend-of-the-court briefs in the marriage lawsuits isn’t universal.

Roberta Kaplan, a lesbian attorney at Paul & Weiss who argued against DOMA before the Supreme Court, said she’s unsure additional friend-of-the-court briefs are necessary.

Courts already know the Justice Department’s position in the aftermath of the Perry case, Kaplan said, and filing additional briefs in every marriage lawsuit out there would be “frankly, a logistical pain in the butt for them.”

“What they said in Perry pretty much answers the question,” Kaplan said. “Frankly, a court knows what their position is because they’ve said it. It’s the same issue…There should be no mystery to anyone what their position is.”

Kaplan said if the administration would participate, chances are it would happen at the appellate or Supreme Court level.

“I’m sure at the Supreme Court, when and if one of these cases gets up there, they will be asked to participate and they will,” Kaplan said. “At the appellate courts, I think it pretty much depends on which case and whether they’re going to have a policy of putting in the same brief in 20 different cases that all say the same thing when they’ve already done it once.”

The Justice Department hasn’t responded to repeated requests for comment. The answering machine at the public affairs line says it will respond to calls in the aftermath of the government shutdown.

The administration may not be able to participate in a marriage equality case as long as the government remains closed. According to the shutdown plan on the Justice Department website, civil litigation, the category of litigation for marriage lawsuits, will be “curtailed or postponed.”

“Litigators will need to approach the courts and request that active cases, except for those in which postponement would compromise to a significant degree the safety of human life or the protection of property, be postponed until funding is available,” the website states. “If a court denies such a request and orders a case to continue, the government will comply with the court’s order, which would constitute express legal authorization for the activity to continue.”

But if the Obama administration were to file a brief in a marriage case before an appellate court, the one for which the opportunity is coming soon is in the case challenging the same-sex marriage ban in Nevada known as Sevcik v. Sandoval. The case, filed by Lambda, is pending before the U.S. Ninth Circuit of Appeals and is one of the cases that has thus far advanced the furthest. Friend-of-the-court briefs are due Oct. 25.

Lisa Hardaway, a Lambda spokesperson, said the attorney working on the case would welcome support from the administration.

“Tara Borelli, our lead attorney on the Sevcik matter, says that we would welcome a brief from the Obama administration,” Hardaway said.

Considering Lambda in the Sevcik case is arguing the ban on same-sex marriage in Nevada is unconstitutional because the state is relegating gay couples to second-class domestic partnerships, the case seems like a natural fit for an administration that has previously said all civil union states should offer marriage to gay couples.

But Kaplan said the more interesting question is whether the administration will articulate a response in the marriage lawsuits that are contending a state must recognize a same-sex marriage from another jurisdiction. Among these cases is Whitewood v. Corbett, the marriage lawsuit pending in Pennsylvania.

“I think the more interesting issues are, frankly, like when the issues come up about recognition…of marriages in states that don’t permit,” Kaplan said. “That at least presents a different question than something they’ve already put out.”

Chad Griffin, president of the Human Rights Campaign, said “it goes without saying” that he shares Olson and Boies’ views and predicted the Obama administration would come on board based on its previous actions and stated commitment to LGBT rights.

“The administration not only stopped defending the Defense of Marriage Act, as you know, but weighed in as we all hoped they would, and encouraged them to, in the Prop 8 case, going the distance there in that case before the Supreme Court,” Griffin said. “And again, we’re just announcing this case today and it still has a distance to go, but I’m optimistic that at the right time, the administration will be there in support of this.”

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Uganda

LGBTQ Ugandans targeted ahead of country’s elections

President Yoweri Museveni won 7th term in disputed Jan. 15 vote

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Barely a week after Ugandan President Yoweri Museveni secured a 7th term in an election marred by state violence, intimidation, and allegations of fraud, the country’s queer community spoke about how the election environment impacted it.

The LGBTQ lobby groups who spoke with the Washington Blade noted that, besides government institutions’ failure to create a safe and inclusive environment for civic participation by all Ugandans, authorities weaponized the Anti-Homosexuality Act to silence dissent and discourage queer voter engagement.

The rights groups note that candidates aligned with Museveni’s ruling National Resistance Movement — including Parliament Speaker Anita Among — during the campaigns accused their rivals of “promoting homosexuality” to discredit them while wooing conservative voters. 

Queer people and LGBTQ rights organizations as a result were largely excluded from the formal political processes for the election as voters, mobilizers, or civic actors due to fear of exposure, stigma, violence, and legal reprisals. 

“This homophobic rhetoric fueled public hostility and emboldened vigilante violence, forcing many queer Ugandans into deeper hiding during the election period,” Uganda Minority Shelters Consortium Coordinator John Grace stated.

Some queer people had expressed an interest in running for local council seats, but none of them formally registered as candidates or campaigned openly because of safety concerns and local electoral bodies’ discriminatory vetting of candidates.

“UMSC documented at least three incidents of election-related violence or intimidation targeting LGBTQ+ individuals and activists,” Grace noted. “These included harassment, arbitrary detentions, extortions by state and non-state actors, digital cat-fishing, and threats of outing.” 

Amid such a militarized and repressive election environment, Let’s Walk Uganda Executive Director Edward Mutebi noted queer-led and allied organizations engaged in the election process through restricted informal voter education, community discussions, and documenting human rights violations. 

“Fear of backlash limited visibility and direct participation throughout the election cycle,” Mutebi said. “But despite the hostile environment of work, Let’s Walk Uganda was able to organize a successful transgender and gender diverse youth training on electoral security and safety.” 

Museveni’s government escalated its repressive actions during the Jan. 15 elections by shutting down the internet and suspending nine civil society organizations, including Chapter Four Uganda and the National Coalition of Human Rights Defenders, for allegedly engaging in activities that are prejudicial to the security and laws of the country. 

The suspension of the rights organizations remains in force, an action both Mutebi and Grace condemn. They say it prevents queer Ugandans from accessing urgent services from the affected groups.

“For the LGBTQ community, the impact has been immediate and deeply harmful. Many of the suspended organizations, like Chapter Four Uganda, were critical partners in providing legal representation, emergency response, and documentation of rights violations,” Grace said.

This has compelled UMSC and its other partners to handle increased caseloads with limited resources, while navigating heightened scrutiny and operational risk. 

“The suspension has disrupted referral pathways, delayed urgent interventions, and weakened collective advocacy for marginalized groups and minority rights defenders, which calls for urgent international solidarity, flexible funding, and protection mechanisms to safeguard the work of grassroots organizations operating under threat,” Grace stated. 

Mutebi warned that such repressive actions are tyrannical and are indicative of shrinking civic space, which undermines democratic accountability as the promotion and protection of human rights is ignored.

With Museveni, 81, extending his tenure at State House from a landslide win of 72 percent, UMSC and LWU consider a bleak future in the protection of rights for queer Ugandans and other minority groups.

“Without significant political and legal shifts, LGBTQ persons will face continued criminalization, reduced civic space, and heightened insecurity, making sustained advocacy and international solidarity more critical than ever,” Mutebi said. “ It is unimaginable how it feels to live in a country with no hope.”

Grace, however, affirmed the resistance by local queer lobby groups will continue through underground networks, regional solidarity, and digital organizing.

The duo noted that a win by Museveni’s main challenger and rapper, Bobi Wine, who only managed 24 percent of the total votes cast, could have enabled the opening up of civil space and human rights protections in Uganda. 

Wine, for his part, spoke in favor of the respect for the rule of law and human rights during his campaign.

“While Bobi Wine’s past stance on LGBTQ rights was inconsistent, his recent shift toward more inclusive rhetoric and international engagement suggested a potential opening for dialogue,” Grace said. “A win might have created space for policy reform or at least reduced state-sponsored homophobia, though structural change would still require sustained pressure and coalition-building.”

Mutebi stated that a change in Uganda’s leadership to a youthful leader like Wine could have offered an opening, but not a guarantee for progress on inclusion and human rights. Mutebi added existing institutionalized and societal homophobia remain in place.

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Federal Government

Trump-appointed EEOC leadership rescinds LGBTQ worker guidance

The EEOC voted to rescind its 2024 guidance, minimizing formally expanded protections for LGBTQ workers.

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The U.S. Equal Employment Opportunity Commission voted 2–1 to repeal its 2024 guidance, rolling back formally expanded protections for LGBTQ workers.

The EEOC, which is composed of five commissioners, is tasked with enforcing federal laws that make workplace discrimination illegal. Since President Donald Trump appointed two Republican commissioners last year — Andrea R. Lucas as chair in January and Brittany Panuccio in October — the commission’s majority has increasingly aligned its work with conservative priorities.

The commission updated its guidance in 2024 under then-President Joe Biden to expand protections to LGBTQ workers, particularly transgender workers — the most significant change to the agency’s harassment guidance in 25 years.

The directive, which spanned nearly 200 pages, outlined how employers may not discriminate against workers based on protected characteristics, including race, sex, religion, age, and disability as defined under federal law.

One issue of particular focus for Republicans was the guidance’s new section on gender identity and sexual orientation. Citing the 2020 U.S. Supreme Court’s Bostock v. Clayton County decision and other cases, the guidance included examples of prohibited conduct, such as the repeated and intentional use of a name or pronoun an individual no longer uses, and the denial of access to bathrooms consistent with a person’s gender identity.

Last year a federal judge in Texas had blocked that portion of the guidance, saying that finding was novel and was beyond the scope of the EEOC’s powers in issuing guidance.

The dissenting vote came from the commission’s sole Democratic member, Commissioner Kalpana Kotagal.

“There’s no reason to rescind the harassment guidance in its entirety,” Kotagal said Thursday. “Instead of adopting a thoughtful and surgical approach to excise the sections the majority disagrees with or suggest an alternative, the commission is throwing out the baby with the bathwater. Worse, it is doing so without public input.”

While this now rescinded EEOC guidance is not legally binding, it is widely considered a blueprint for how the commission will enforce anti-discrimination laws and is often cited by judges deciding novel legal issues. 

Multiple members of Congress released a joint statement condemning the agency’s decision to minimize worker protections, including U.S. Reps. Teresa Leger Fernández (D-N.M.), Grace Meng (D-N.Y.), Mark Takano (D-Calif.), Adriano Espaillat (D-N.Y.), and Yvette Clarke (D-N.Y.) The rescission follows the EEOC’s failure to respond to or engage with a November letter from Democratic Caucus leaders urging the agency to retain the guidance and protect women and vulnerable workers.

“The Equal Employment Opportunity Commission is supposed to protect vulnerable workers, including women, people of color, and LGBTQI+ workers, from discrimination on the job. Yet, since the start of her tenure, the EEOC chair has consistently undermined protections for women, people of color, and LGBTQI+ workers. Now, she is taking away guidance intended to protect workers from harassment on the job, including instructions on anti-harassment policies, training, and complaint processes — and doing so outside of the established rule-making process. When workers are sexually harassed, called racist slurs, or discriminated against at work, it harms our workforce and ultimately our economy. Workers can’t afford this — especially at a time of high costs, chaotic tariffs, and economic uncertainty. Women and vulnerable workers deserve so much better.”

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Local

Comings & Goings

Gill named development manager at HIPS

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Warren Gill

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success. 

Congratulations to R. Warren Gill III, M.Div., M.A. on being appointed as the development manager at HIPS. Upon his appointment, Gill said, “For as long as I’ve lived in Washington, D.C., I’ve followed and admired the life-saving work HIPS does in our communities. I’m proud to join the staff and help strengthen the financial support that sustains this work.”

Gill will lead fundraising strategy, donor engagement, and institutional partnerships. HIPS promotes the health, rights, and dignity of individuals and communities impacted by sexual exchange and/or drug use due to choice, coercion, or circumstance. HIPS provides compassionate harm reduction services, advocacy, and community engagement that is respectful, non-judgmental, and affirms and honors individual power and agency.  

Gill has built a career at the intersection of progressive politics, advocacy, and nonprofit leadership. Previously he served as director of communications at AIDS United, supporting national efforts to end the HIV epidemic. Prior to that he had roles including; being press secretary for Sen. Bernie Sanders during the 2016 presidential primary, and working with the General Board of Church and Society, the United Methodist Church, the denomination’s social justice and advocacy arm.

Gill earned his bachelor’s degree in philosophy and religious studies, Jewish Studies, Stockton University; his master’s degree in political communication from American University, where his graduate research focused on values-based messaging and cognitive linguistics; and his master of Divinity degree from the Pacific School of Religion.  

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