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Boehner panel directs counsel to defend DOMA

Panel votes 3-2 to defend anti-gay statute

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U.S. House Speaker John Boehner (Blade photo by Michael Key).

A U.S. House panel on Wednesday voted along party lines to direct general counsel to defend the Defense of Marriage Act in court following President Obama’s announcementĀ that his administrationĀ would no longer defend the statute against litigation.

In a statement, House Speaker John Boehner (R-Ohio) said the Bipartisan Legal Advisory Group, which he convened last week after the president’s announcement, had come to the conclusion to direct the House General Counsel to defend DOMA after the Wednesday meeting.

“Today, after consultation with the Bipartisan Leadership Advisory Group, the House General Counsel has been directed to initiate a legal defense of this law,” Boehner said. “This action by the House will ensure that this lawā€™s constitutionality is decided by the courts, rather than by the President unilaterally.ā€

The five-member Bipartisan Legal Advisory Group consists of the speaker, the majority leader, the majority whip, the minority leader, and minority whip.

Michael Steel, a Boehner spokesperson, said the panel voted 3-2 to direct the House General Counsel to take up defend of DOMA, but had no information on any discussion that took place beforehand.

Boehner as well as House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) voted in favor of directing counsel to defend the statute, while House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) voted against such action.

Passed by Congress in 1996 and signed into law by then-President Clinton, DOMA prohibits the federal government from recognizing same-sex marriages and providing married gay couples with the federal benefits of marriage.

Last month, U.S. Attorney General Eric Holder announced that the Obama administration would no longer defend DOMA in court and sent a letter to Congress informing lawmakers of the Justice Departmentā€™s decision. TheĀ move left the decision of whether to continue defense of DOMA in court to Congress.

Litigation filed against the statute in the Second Circuit ā€” where thereā€™s no precedent for laws related to sexual orientation ā€” allowed the administration to conclude that DOMA is unconstitutional and to call on the court to examine the lawĀ with heightened scrutiny.

House Minority Leader Nancy Pelosi (Blade photo by Michael Key)

In a statement, Pelosi denounced the panel’s decision to take up defense of DOMA in court and called theĀ statute “discriminatory” as well as “unfair and indefensible.”

ā€œSince its proposal and passage, this legislation has raised constitutional questions and has been viewed as a violation of the equal protection clause,” Pelosi said. “The House should not be in the business of defending an unconstitutional statute that is neither rational nor serves any governmental interest.Ā DOMA actually discriminates against American families.”

Pelosi said the defense of DOMA would sap the U.S. government of “hundreds of thousands of taxpayer dollars, if not more” at a time whenĀ fiscal resources are limited.

ā€œPursuing this legal challenge distracts from our core challenges: creating jobs, strengthening the middle class, and responsibly reducing the deficit,” she said. “And that is why I voted against this action today.ā€

Joe Solmonese, president of the Human Rights Campaign, also criticized the panel for voting to take action to defend DOMA.

ā€œApparently, the Republicansā€™ jobs plan is a full employment project for right-wing lawyers bent on defending discrimination,ā€ Solmonese said.Ā ā€œWith todayā€™s vote, Speaker Boehner has made clear that an anti-equality agenda trumps helping American families in tough economic times, including loving and committed couples who are legally married in their states.ā€

But Casey Pick, programs director for Log Cabin Republicans, said Boehner’s decision to defend DOMA after consulting with the panel is “entirely appropriate.”

“While Log Cabin Republicans firmly believe that DOMA is an unconstitutional intrusion on statesā€™ rights and a violation of individual liberty, we agree with the speaker that the constitutionality of this law should be determined by the courts and not by the president unilaterally,” she said.

Pick said “nobody should be surprised that Congress has decided to exercise its legal right, and some would say duty” to defend DOMA given how controversial same-sex marriage is at this time.

“We are confident that this law will ultimately be overturned despite any defense presented by House Counsel, and will continue to work with our allies in Congress to advocate for legislative repeal,” she said.Ā “With that decided, it is critical that Congress not waste anymore time on the president’s efforts to distract Republicans with divisive social issues, and instead return to working on the issues that matter most: jobs and the economy.ā€

A Democratic aide, who spoke on condition of anonymity,Ā said Democrats on the panel pushed back on the decision to interveneĀ on behalfĀ ofĀ DOMA before the vote took place.

The aide said Boehner’s statement is misleading becaues it implies the panel held a bipartisan vote in favor of defending DOMA when in fact Pelosi and Hoyer “forcefully argued against the House intervening in these cases.”

According to the aide, Pelosi and Hoyer pressed General Counsel Kerry Kirchner on how much intervening to defend the statute in court would cost the U.S. government.

“General Counsel Kerry Kirchner would only say it would ‘not be inexpensive,'” the aide said.Ā “Mr. Kirchner noted that there are currently at least 10 cases and he does not have the in-house resources to deal with that many cases as he has a staff of five with one lawyer currently on maternity leave.”

The aide said KirchnerĀ told the panelĀ he believed the House intervention in the DOMA case would take a minimum of 18 months because litigation couldĀ continue for years beforeĀ the U.S. Supreme CourtĀ hears one of these cases.

“Mr. Kirchner also laid out that the Reagan Administration chose to no longer defend 5 laws in the 1980s,” the aide said.Ā “Clearly, the Republicans were fine with a Republican President choosing not to defend statutes passed by the Congress.”

According to the aide, Pelosi repeatedly pushed back on assertions that the administration was deciding the constitutionality of DOMA by declining toĀ defend the law in court.

“She noted that judicial review was continuing and that a number of groups were filing pro-DOMA briefs in the cases so there was no need for the House to intervene,” the aide said.Ā “And that the administration was still enforcing the law.”

In response,Ā a Republican aide, who also spoke on condition of anonymity, called the Democratic aide’s account of the discussion that took place “silly.”

TheĀ GOP aide took issue with the Democratic aide’sĀ assertion that Republicans were fine when President Reagan declined to defend laws in court against litigation.

“Republicans didnā€™t have the majority in the House during the Reagan administration,” the GOP aide said.Ā “That comparison doesnā€™t even make sense.”

Additionally, theĀ Republican aide also said decisions haven’t yet been made on the cost and duration of any potential DOMA cases.

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U.S. Military/Pentagon

Air Force rescinds rule barring inclusion of preferred pronouns in email signatures

Conflict with language in military funding package may explain reversal

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The Pentagon (Photo by icholakov/Bigstock)

The U.S. Air Force has issued a ā€œdirective to cease the use of ā€˜preferred pronounsā€™ (he/him, she/her, or they/them) to identify oneā€™s gender identity in professional communications,” according to a report published in the Hill on Wednesday.

The rule, which applies to both airmen and civilian employees, was first adopted on Feb. 4 pursuant to President Donald Trump’s anti-transgender executive order called, ā€œDefending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.ā€

Days after the administration’s issuance of that order on the first day of the president’s second term, the Office of Personnel Management instructed agencies across the whole of the federal government to remove pronouns from email signatures and enforce the policy barring employees from using them.

Additionally, on Jan. 27 Trump published an order barring trans people from joining the U.S. Armed Forces, indicating that those who are currently in serving would be separated from the military. The Pentagon is fending off legal challenges to the ban in federal courts.

Particularly given the extent of the new administration’s efforts to restrict the rights of trans Americans and push them out of public life, the Air Force’s reversal of the pronoun guidance was surprising.

According to reporting in Military.com, the move might have come because officials concluded the rule was in conflict with language in the military appropriations funding legislation passed by Congress in 2023.

The NDAA established that the defense secretary “may not require or prohibit a member of the armed forces or a civilian employee of the Department of Defense to identify the gender or personal pronouns of such member or employee in any official correspondence of the Department.”

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The White House

USCIS announces it now only recognizes ‘two biological sexes’

Immigration agency announced it has implemented Trump executive order

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An American flag flies in front of a privately-run U.S. Immigration and Customs Enforcement detention center in the Southeast U.S. on July 31, 2020. U.S. Citizenship and Immigration Services has announced it now only recognizes "two biological genders, male and female." (Washington Blade photo by Yariel ValdƩs GonzƔlez)

U.S. Citizenship and Immigration Services on Wednesday announced it now only “recognizes two biological sexes, male and female.”

A press release notes this change to its policies is “consistent with” the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” executive order that President Donald Trump signed shortly after he took office for the second time on Jan. 20.

ā€œThere are only two sexes ā€” male and female,ā€ said DHS spokesperson Tricia McLaughlin in a statement. “President Trump promised the American people a revolution of common sense, and that includes making sure that the policy of the U.S. government agrees with simple biological reality.”

“Proper management of our immigration system is a matter of national security, not a place to promote and coddle an ideology that permanently harms children and robs real women of their dignity, safety, and well-being,ā€ she added.

The press release notes USCIS “considers a personā€™s sex as that which is generally evidenced on the birth certificate issued at or nearest to the time of birth.”

“If the birth certificate issued at or nearest to the time of birth indicates a sex other than male or female, USCIS will base the determination of sex on secondary evidence,” it reads.

The USCIS Policy Manuel defines “secondary evidence” as “evidence that may demonstrate a fact is more likely than not true, but the evidence does not derive from a primary, authoritative source.”

“Records maintained by religious or faith-based organizations showing that a person was divorced at a certain time are an example of secondary evidence of the divorce,” it says.

USCIS in its press release notes it “will not deny benefits solely because the benefit requestor did not properly indicate his or her sex.”

ā€œThis is a cruel and unnecessary policy that puts transgender, nonbinary, and intersex immigrants in danger,” said Immigration Equality Law and Policy Director Bridget Crawford on Wednesday. “The U.S. government is now forcing people to carry identity documents that do not reflect who they are, opening them up to increased discrimination, harassment, and violence. This policy does not just impact individuals ā€” it affects their ability to travel, work, access healthcare, and live their lives authentically.” Ā 

“By denying trans people the right to self-select their gender, the government is making it harder for them to exist safely and with dignity,” added Crawford. “This is not about ā€˜common senseā€™ā€”it is about erasing an entire community from the legal landscape. Transgender, nonbinary, and intersex people have always existed, and they deserve to have their identities fully recognized and respected. We will continue to fight for the rights of our clients and for the reversal of this discriminatory policy.ā€Ā 

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Federal Government

Mass HHS layoffs include HIV/AIDS prevention, policy teams

Democratic states sue over cuts

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HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

Tuesday began a series of mass layoffs targeting staff, departments, and whole agencies within the U.S. Department of Health and Human Services under Secretary Robert F. Kennedy Jr., who reportedly plans to cut a total of 10,000 jobs.

On the chopping block, according to reports this week, is the Office of Infectious Disease and HIV/AIDS Policy. A fact sheet explaining on the restructuring says “a new Administration for a Healthy America (AHA) will consolidate the OASH, HRSA, SAMHSA, ATSDR, and NIOSH, so as to more efficiently coordinate chronic care and disease prevention programs and harmonize health resources to low-income Americans.”

The document indicates that “Divisions of AHA include Primary Care, Maternal and Child Health, Mental Health, Environmental Health, HIV/AIDS, and Workforce, with support of the U.S. Surgeon General and Policy team.”

“Today, the Trump administration eliminated the staff of several CDC HIV prevention offices, including entire offices conducting public health communication campaigns, modeling and behavioral surveillance, capacity building, and non-lab research,” said a press release Tuesday by the HIV + Hepatitis Policy Institute.

The organization also noted the “reassignments” of Jonathan Mermin, director of the National Center for HIV, Viral Hepatitis, STD, and TB Prevention, and Jeanne Marrazzo, director of the National Institutes of Health’s National Institute of Allergy and Infectious Diseases. Both were moved to the Indian Health Service.

ā€œIn a matter of just a couple days, we are losing our nationā€™s ability to prevent HIV,” said HIV + Hepatitis Policy Institute Executive Director Carl Schmid. “The expertise of the staff, along with their decades of leadership, has now been destroyed and cannot be replaced. We will feel the impacts of these decisions for years to come and it will certainly, sadly, translate into an increase in new HIV infections and higher medical costs.”

The group added, “We are still learning the full extent of the staff cuts and do not know how the administrationā€™s announced reorganization of HHS will impact all HIV treatment, prevention, and research programs, including President Trumpā€™s Ending the HIV Epidemic initiative,” but “At the moment, it seems that we are in the middle of a hurricane and just waiting for the next shoe to drop.”

A group of 500 HIV advocates announced a rally planned for Wednesday morning at 8 a.m., at the U.S. Capitol lawn across from the Cannon House Office Building, which aims to urge Congress to help stop the cuts at HHS.

“Over 500 advocates will rally on Capitol Hill and meet with members of Congress and Hill staff to advocate for maintaining a strong HIV response and detail the potential impact of cuts to and reorganization of HIV prevention and treatment programs,” the groups wrote.

The press release continued, “HHS has stated that it is seeking to cut 10,000 employees, among them 2,400 CDC employees, many doing critical HIV work. It also seeks to merge HIV treatment programming into a new agency raising concerns about maintaining resources for and achieving the outstanding outcomes of the Ryan White HIV/AIDS Program.”

On Tuesday a group of Democratic governors and attorneys general from 23 states and D.C. filed a lawsuit against HHS and Kennedy seeking a temporary restraining order and injunctive relief to halt the funding cuts.

U.S. Centers for Disease Control and Prevention withdrew approximately $11.4 billion in funding for state and community health departments during the COVID-19 pandemic response, along with $1 billion to the Substance Abuse and Mental Health Services Administration.

ā€œSlashing this funding now will reverse our progress on the opioid crisis, throw our mental health systems into chaos, and leave hospitals struggling to care for patients,ā€ New York Attorney General Letitia James said.  

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