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Prop 8 attorneys confident court will strike down marriage ban

Olson hopes U.S. gov’t will take part in lawsuit

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Ted Olson, gay news, Washington Blade
Ted Olson speaks at the Cato Institute

Ted Olson said U.S. government intervention in the Prop 8 case would have “great effect’ on its outcome (Washington Blade file photo by Michael Key)

The organizers behind the lawsuit challenging California’s Proposition 8 are excited and optimistic about the prospects for a Supreme Court ruling against the anti-gay measure as one attorney on the team said he hopes the Obama administration will assist in the effort.

Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

Olson said if the Obama administration were to file a brief before the Supreme Court in the Prop 8 case, it would do so at about the same time it would file a brief in the DOMA case. The Justice Department has already filed briefs against DOMA in lower courts.

The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.ā€

That might change now that the Supreme Court has taken up the case. Like other interested parties, the Justice Department will have an opportunity to file a friend-of-the-court brief in the upcoming days as the court accepts other briefs in the lawsuit.

The organization behind the lawsuit, the American Foundation for Equal Rights, held the conference call in the wake of the Supreme Court’s decision to take up the Prop 8 case as well as one of the cases against the Defense of Marriage Act known as Windsor v. United States.

Olson was confident about a positive outcome for same-sex couples, saying the denial of their marriage rights will receive significant attention simply by being before the Supreme Court.

“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”

David Boies, co-counsel in the lawsuit, said the decision of the Supreme Court to take up the case means only a short time remains before a final resolution is reached in the Prop 8 case.

“We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago,” Boies said. “I think we are encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality. This is a momentous case; I think the attention that it has already received by the Supreme Court indicates their recognition of the importance of this issue.”

Human Rights Campaign President ChadĀ Griffin, who co-founded AFER, also expressed excitement about the prospects of a victory at the Supreme Court on the conference call.

“Today is nothing short of a milestone moment, quite frankly, for equality,” Griffin said. “We are gratified that the court has taken this challenge to Prop 8. We should also mention the challenge to the ridiculously named Defense of Marriage Act. Millions of loving couples — married and unmarried — have been waiting for their day in court, and now they’re finally going to have it.”

Also taking part in the conference call were the two plaintiff couples in the case:Ā Kris Perry and Sandy Stier, who tried to obtain a marriage license inĀ Alameda County,Ā as well as Jeff Zarrillo and Paul Katami, who tried to obtain a marriage license in Los Angeles.

Had the Supreme Court decided not to take up Prop 8, a U.S. Ninth Circuit Court of Appeals ruling against the measure would have been allowed to stand and same-sex marriage would have returned to California.

But plaintiffs in the case didn’t express disappointment. Asked whether she’s unhappy the Supreme Court took up the case, Perry replied, “You may find this a little surprising: the answer is ‘no’.”

“We’ve always been very patient and understanding of this process,” Perry said. “We always wanted the biggest, boldest outcome possible, and that can only happen if the Supreme Court listens to the case.”

Stier echoed those remarks, saying she feels “zero disappointment,” but instead hope that areas affected by discrimination other than in California will obtain relief as a result of the case.

Also during the conference call, Olson and Boies answered questions about the the Supreme Court’s request for additional briefings on whether opponents of Prop 8 have standing to defend the law in court. California state officials aren’t defending the law in court, and anti-gay groups have taken up defense of the anti-gay measure instead.

Olson said that question may present an opportunity for the Supreme Court to strike down Prop 8 on the grounds that anti-gay groups can’t defend the law in court as opposed to deciding the case on the merits. Such a ruling would abrogate a ruling against Prop 8 from the Ninth Circuit that allowed anti-gay groups and let stand a district court ruling against the measure.

“If the court were to decide this on standing as far as the Perry case is concerned, that would reinstate the 134-page opinion from District Judge Vaughn Walker, which decided all of the issues comprehensively in favor of the constitutional rights of marriage equality,” Olson said.

Asked by Buzzfeed’s Chris Geidner whether attorneys would actively argue that proponents of Prop 8 don’t have standing in court, Boies said that would indeed be the case.

“We will be making the standing argument,” Boies said. “We think the standing argument is strongly supported by existing Supreme Court precedent.”

The Prop 8 attorneys had previously filed a brief with the Supreme Court asking justices not to hear the case, but Olson said during the conference call his team has maintained at the same time that the lawsuit would be “the perfect vehicle” for deciding the right to marriage equality throughout the country.

“Gay and lesbians and all citizens have the right to have this issue … before the court with a fully developed record, with evidence on history, the importance of marriage, the damage done by discrimination and the fact that all Americans will benefit by the fact that people will be treated equally throughout this country to marry the person that they love,” Olson said.

In response to a question from The Huffington Post’s Sam Stein on whether opponents of Prop 8 would be better off if a ruling against DOMA came first, Olson denied sequencing would be a problem, saying, “We have never agreed with those concerns.”

“In short, the record is so complete that we have always felt that if the issue of marriage equality was going to be before the Supreme Court, the Proposition 8 Perry case should be a part of it because it has vastly more developed evidentiary record and specific thoughtful findings by a district judge who listened to all the evidence, and there was no evidence of any persuasive effect on the other side,” Olson said.

The opportunity for the court to hear the Prop 8 lawsuit means the Supreme Court may make a national ruling on same-sex marriage that affects not just California, but every state in the country with a ban on same-sex marriage.

Asked by The Advocate’s Julie Bolcer about scenarios in which a Supreme Court ruling might have an impact outside California, Boies said may justices may issue a ruling with larger reach depending on the way they examine the case.

Boies said if the Supreme Court addresses in its ruling the “fundamental merit” issue of whether discrimination against gays and lesbians is unconstitutional under the U.S. Constitution, that ruling would mean “there would be a fundamental right to marry in every state in the country because obviously the federal Constitution applies to every state in the country.”

Still, Boies said the ruling would be limited to California if justices decide the case on same narrow ground as the Ninth Circuit or simply determine that proponents of Prop 8 don’t have standing to defend the law in court. Even so, Boies said such rulings would establish precedent that would have an impact on other marriage cases throughout the country.

NOTE: An additional quote from Olson was added to this piece following its initial publication that better reflected his confidence the Supreme Court would strike down Prop 8 on its merits.

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U.S. Military/Pentagon

Pentagon urged to reverse Naval Academy book ban

Hundreds of titles discussing race, gender, and sexuality pulled from library shelves

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U.S. Defense Secretary Pete Hegseth (Washington Blade photo by Michael Key)

Lambda Legal and the Legal Defense Fund issued a letter on Tuesday urging U.S. Defense Secretary Pete Hegseth to reverse course on a policy that led to the removal of 381 books from the Nimitz Library of the U.S. Naval Academy in Annapolis, Md.

Pursuant to President Donald Trump’s executive order 14190, “Ending Radical Indoctrination in K-12 Schooling,” the institution screened 900 titles to identify works promoting “diversity, equity, and inclusion,” removing those that concerned or touched upon “topics pertaining to the experiences of people of color, especially Black people, and/or LGBTQ people,” according to a press release from the civil rights organizations.

These included “I Know Why the Caged Bird Singsā€ by Maya Angelou, ā€œStone Fruitā€ by Lee Lai,Ā ā€œThe Hate U Giveā€ by Angie Thomas, ā€œLies My Teacher Told Me: Everything Your American History Textbook Got Wrongā€ by James W. Loewen, ā€œGender Queer: A Memoirā€ by Maia Kobabe, and ā€œDemocracy in Black: How Race Still Enslaves the American Soulā€ by Eddie S. Glaude, Jr.Ā 

The groups further noted that “the collection retained other books with messages and themes that privilege certain races and religions over others, including ‘The Clansman: A Historical Romance of the Ku Klux Klan’ by Thomas Dixon, Jr., ‘Mein Kampf’ by Adolf Hitler, and ‘Heart of Darkness’ by Joseph Conrad.

In their letter, Lambda Legal and LDF argued the books must be returned to circulation to preserve the “constitutional rights” of cadets at the institution, warning of the “danger” that comes with “censoring materials based on viewpoints disfavored by the current administration.”

“Such censorship is especially dangerous in an educational setting, where critical inquiry, intellectual diversity, and exposure to a wide array of perspectives are necessary to educate future citizen-leaders,”Ā Lambda Legal Chief Legal Officer Jennifer C. PizerĀ andĀ LDF Director of Strategic Initiatives Jin Hee Lee said in the press release.

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Federal Government

White House sues Maine for refusing to comply with trans athlete ban

Lawsuit follows months-long conflict over school sports in state

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U.S. Attorney General Pam Bondi (Washington Blade photo by Michael Key)

The Justice Department is suing the state of Maine for refusing to comply with President Donald Trump’s executive order banning transgender athletes from participating in school sports, U.S. Attorney General Pam Bondi announced on Wednesday.

DOJ’s lawsuit accuses the state of violating Title IX rules barring sex discrimination, arguing that girls and women are disadvantaged in sports and deprived of opportunities like scholarships when they must compete against natal males, an interpretation of the statute that reverses course from how the law was enforced under the Biden-Harris administration.

ā€œWe tried to get Maine to comply” before filing the complaint, Bondi said during a news conference. She added the department is asking the court to ā€œhave the titles return to the young women who rightfully won these sports” and may also retroactively pull federal funding to the state for refusing to comply with the ban in the past.

Earlier this year, the attorney general sent letters to Maine, California, and Minnesota warning the blue states that the department “does not tolerate state officials who ignore federal law.ā€

According to the Maine Principals’ Association, only two trans high school-aged girls are competing statewide this year. Conclusions from research on the athletic performance of trans athletes vis-a-vis their cisgender counterparts have been mixed.

Trump critics and LGBTQ advocates maintain that efforts to enforce the ban can facilitate invasive gender policing to settle questions about an individual athlete’s birth sex, which puts all girls and women at risk. Others believe determinations about eligibility should be made not by the federal government but by school districts, states, and athletics associations.

Bondi’s announcement marked the latest escalation of a months-long feud between Trump and Maine, which began in February when the state’s Democratic governor, Janet Mills, declined to say she would enforce the ban.

Also on Wednesday, U.S. Education Secretary Linda McMahon said the findings from her department’s Title IX investigation into Maine schools — which, likewise, concerned their inclusion of trans student-athletes in competitive sports — was referred to DOJ.

Earlier this month, the Justice Department pulled $1.5 million in grants for Maine’s Department of Corrections because a trans woman was placed in a women’s correctional facility in violation of a different anti-trans executive order, while the U.S. Department of Agriculture paused the disbursement of funds supporting education programs in the state over its failure to comply with Title IX rules.

A federal court last week ordered USDA to unfreeze the money in a ruling that prohibits the agency from ā€œterminating, freezing, or otherwise interfering with the state’s access to federal funds based on alleged Title IX violations without following the process required by federal statute.ā€Ā 

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Federal Government

Expert warns Trump’s drastic cuts to HHS will have far-reaching consequences

HRC’s HIV and LGBTQ health policy advocate shared his concerns with the Blade

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

Ten years ago, as the opioid epidemic ripped through communities across the United States, the recreational use of oxymorphone with contaminated needles led to an explosion of new HIV infections in southern Indiana’s Scott County.

In places like Austin, a city with about 4,000 residents, the rate of diagnoses quickly ballooned to levels seen in some of the hardest-hit nations of sub-Saharan Africa, more than 50 times higher than the national average.

Thankfully, by 2020, NPR reported that the area was rebounding from what was the most devastating drug-fueled HIV epidemic that rural America had ever experienced, with three-quarters of patients managing the disease so well with antiretroviral therapies that their viral loads were undetectable.

Five years after officials called a public health emergency over the outbreak in Scott County, Austin had opened new addiction treatment centers, support groups, and syringe exchanges. 

Initially, Indiana’s response was sluggish. The state’s governor at the time, Mike Pence, opposed clean needle exchanges for 29 days before ultimately signing an executive order allowing for a state-supervised program. 

The administration in which he would go on to serve as vice president, however, launched an ambitious initiative designed around the objective of ending the HIV epidemic in the U.S. by the end of the decade, using proven public health strategies including syringe exchanges. 

NPR further noted ā€œthe administration’s HIV goals were championedā€ by Pence along with Trump’s U.S. Surgeon General, Jerome Adamsthe, who was Indiana’s health commissioner during the outbreak in Austin. 

Still, the news service warned, the Centers for Disease Control and Prevention determined that 220 U.S. counties were vulnerable to outbreaks of HIV and other blood borne infectious diseases like hepatitis C. 

“When you have these outbreaks, they affect other states and counties. It’s a domino effect,” Dr. Rupa Patel, an HIV prevention researcher at Washington University in St. Louis, told NPR. “We have to learn from them. Once you fall behind, you can’t catch up.”

Trump’s approach to public health, including efforts to prevent, detect, mitigate, and treat  outbreaks of infectious diseases, looks radically different in his second term.   

ā€˜I don’t know why they hate public health so much’

The Washington Blade spoke with Matthew Rose, senior public policy advocate for the Human Rights Campaign, during a recent interview about the the administration’s dramatic cuts and mass layoffs that will totally reshape the way America’s health agencies are run under Trump’s secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy, Jr.  

ā€œThey’re dismantling all the things aroundā€ the first Trump administration’s Ending the HIV Epidemic in the U.S. effort, he said, eliminating key positions and offices within America’s health agencies that support this effort, including by tracking progress toward — or movement away from — the 2030 goalposts. 

Rose said there is no evidence to suggest the initiatives combatting HIV that were begun when Trump was in office the first time were ineffective,  either in terms of whether their long term cost-savings justified the investment of government resources to administer them or with respect to data showing measurable progress toward ending the epidemic within the decade. 

Therefore and in the absence of an alternative explanation,, Rose said he is left with the impression that the Trump-Vance administration does not care about Americans’ public health, especially when it comes to efforts focused on disfavored populations, such as programs supporting access to PrEP to reduce the risk of HIV transmission through sex. 

The outbreak in Scott County ā€œcan happen over and over again, if we don’t have CDC surveillance,ā€ he warned. ā€œWe’re still having a fentanyl crisis in the country that we don’t seem to really want to deal with, but you end up with outbreaks that bloom and bloom very quick and very fast.ā€ 

Rose added, ā€œThe really crazy thing is that they got rid of disease intervention and branch and response,ā€ referring  to the CDC’s National Center for HIV, Viral Hepatitis, STD, and Tuberculosis Prevention, specifically its Division of HIV Prevention, and the various branches within that division that are responsible for different aspects of HIV prevention, care, and research. They include HIV Research, Behavioral and Clinical Surveillance, and Detection and Response. 

ā€œThese are literally the disease detectives that chase down outbreaks,ā€ Rose added. ā€œWhen there’s a syphilis outbreak in an area, when COVID came along and we had to trace COVID outbreaks, like, those folks are the folks who do this.ā€

If (or perhaps when) communities experience an outbreak, ā€œWe wouldn’t truly know what’s going on until probably 10 years later, when those folks’ CD4 counts finally crash to an AIDS diagnosis level,ā€ he said, at which point ā€œthey’re very, very sick.ā€

ā€œThey’ll start looking like we haven’t seen people look since probably 30, 40 years ago,ā€ Rose said, a time well before the advent of highly effective medicines that from the perspective of many patients turned HIV from a death sentence to a manageable disease.Ā Ā Ā 

Additionally, ā€œevery person that we lose to follow up and care, if they don’t know their status, that’s where the majority of new diagnoses come from,ā€ he said, noting that without the CDC’s work ā€œbringing people back into care,ā€ there is ā€œno way of tracking that.ā€ HIV positive people will continue to potentially transmit the disease to others as ā€œtheir own health deteriorates at levels that it doesn’t need to deteriorate at,ā€ Rose said, ā€œso, we make it worse.ā€ 

Along with the breakthroughs in drug discovery that led to the introduction of highly efficacious and well tolerated antiretrovirals, the use of PrEP by those who are HIV-negative to drastically reduce the risk that they may contract the virus through sex has put the goal of eliminating the epidemic within reach. 

ā€œOne of the things we learned from things like the PROUD study,ā€ Rose said, referring to randomized placebo-controlled HIV trials conducted in the U.K. in  2016 ā€œ is that if you can get to the highest impacted folks, the most vulnerable folks, for every one person you get on PrEP, you’re getting anywhere from 16 to 23 infections averted.ā€ 

Disparities in health outcomes are likely to worsen 

Rose noted that ā€œwe’re finally starting to stabilizeā€ the disproportionately high rate of new infections among gay and bisexual Black men who have sex with men thanks in large part to the federal government’s work by employees and divisions that were cut by Kennedy’s restructuring of HHS, initiatives like culturally competent public health messaging campaigns for vulnerable populations, addressing subjects like PrEP, other prevention methods, the importance of regular HIV/STI screenings, and the availability of treatments for HIV and other sexually transmitted infections. 

There is no way of knowing if any intervention was effective in the absence of “surveillance unitsā€ to monitor the disease’s spread through communities and track mitigation efforts, he said, adding that the gutting of these positions comes as ā€œLatin men have actually been catching [up to] Black men in terms of new diagnosesā€ while rates among Black and Latina trans women remain high. 

Along with NCHHSTP’s Prevention Communication Branch, the health secretary’s near 20 percent cut to CDC staff also eliminated the center’s  Division of Behavioral & Clinical Surveillance Branch, its Capacity Development Branch, its Quantitative Sciences Branch, and its HIV Research Branch. 

As a result, Rose said ā€œYou’re going to see these populations get hit hardest again,ā€ communities that have long suffered disproportionately from the HIV epidemic due to factors like racial or income-based disparities in access to testing and treatment. 

Broadly, the CDC is distinguished from other agencies because the Atlanta-based agency’s remit is focused to a significant extent on the population level implementation of public health interventions, endeavoring to change health outcomes, he explained. With respect to PrEP, for example, once the drug was shown safe and effective in clinical research and the evidence supported its use as a critical tool in the federal government’s effort to stop the epidemic, the CDC is responsible for work like making sure at-risk populations who are disinclined to use condoms can stick with (or are sticking with) the medication regimen.  

The administration’s cuts encompass programs on the research side as well as the implementation side, Rose said. For example, he pointed to the ā€œdecimationā€ of divisions within the National Institutes of Health’s National Institute of Allergy and Infectious Diseases, which conducts studies on HIV interventions from the preclinical basic science stage to double blind clinical trials such as those that led to the introduction of injectable PrEP, which can be administered once every other month after the first two doses. 

In fact, Rose said he worked alongside Dr. Jeanne Marrazzo, who succeeded Dr. Anthony Fauci as head of NIAID, on the Microbicide Trials Network board looking for behaviorally congruent HIV prevention products for populations that might not wish to take an oral or injectable formulation of PrEP. He added that she is a ā€œbrilliant scientistā€ who helped him better understand the vaginal microbiome as well as the ways in which ā€œwe fall short on women’s health and women’s sexual health, and what that means in the context of HIV prevention.ā€ 

Together with other top officials like Dr. Jonathan (ā€œJonoā€)  Mermin, who led the NCHHSTP, on or around April 1, Marrazzo was reportedly offered the chance to either be placed on administrative leave or relocate to Indian Health Service outposts in rural American Indian or Native Alaskan communities located in states like Montana, Oklahoma, and Alaska. 

Rose stressed the risks presented by the  administration’s decision to shutter divisions within NCHHSTP that were responsible for communications, education and behavioral studies around tuberculosis, especially provided how the disease is underdiscussed as a public health issue within U.S, borders — where rates of infection are elevated in certain communities, like unhoused and incarcerated populations, where queer folks are disproportionately represented. 

The restructuring of NCHHSTP and NIAID also raises the chances of outbreaks of viral and bacterial infections spread through sex that these public health workers could have prevented or better contained, Rose said. 

Instead, ā€œfor some reason, someone thought it was a good idea to get rid of labs at the Division of STIs,ā€ at a time when ā€œwe’ve had increases in STIs for the last, like, six years,ā€ including rising rates of congenital syphilis, ā€œthe one that kills babiesā€ and increased diagnoses of the disease among gay men.

Additionally, Rose noted disparities in health outcomes for people living with hepatitis C are likely to worsen by the cessation of federal government initiatives to slow the spread of the disease  — which co-infects one of every four patients with HIV and can be fatal if untreated because the virus can cause cirrhosis, cancer, failure of the liver — because direct acting antivirals that cure 95 percent of all cases are covered by most insurance plans only when the policyholder has already sustained severe liver damage. 

Broadly, ā€œthe fact that we’re like, getting rid of the labs to test people means that we’re literally choosing to go backwards, stick our heads in the sand, and hope that no one has the ability to want to say anything,ā€ he added. 

Even populations who are less susceptible to infection with diseases like HIV stand to benefit from basic and clinical science research into the disease, Rose said. 

He pointed to such examples as the drug discovery studies targeting a vaccine for HIV that ultimately led to the identification of combinations of antivirals that were capable of curing most cases of hepatitis C, the inclusion of participants with HIV in clinical trials that led to the introduction of Ebola vaccines, and breakthroughs in the biomedical understanding of aging that were reached through research into why patients with untreated HIV age more rapidly. 

ā€œWe continuously find new scientific endeavors that are able to help the general population, but also able to help the LGBTQ population,ā€ Rose said, as ā€œthe things that happen in the HIV space spill over to other places.ā€

ā€œFrom the LGBTQ health perspective, and especially from the research side,ā€ he said, ā€œwe have just, in the last decade, started to really think about what interventions those populations need — not just [with respect to] HIV, but [other health issues like] smoking, alcohol and substance use and abuse,ā€ including ā€œcrystal meth, which is always the number two drug in most major cities.ā€ 

Likewise, as large swaths of America’s public health infrastructure are unraveled under the direction of the president and his health secretary, the dissolution of each position or each division should not be considered in isolation given (1) the interdisciplinary nature of the work in which these individuals and entities are engaged and (2) the administration’s efforts elsewhere to restrict access to healthcare, especially for disfavored populations like trans and gender-diverse communities. 

ā€œThere’s first the attack on the research pipeline,ā€ Rose said, such as the HIV Vaccine Trials Network’s identification of an urgent or unmet need (behaviorally congruent methods of HIV prevention for women) and its discovery of a new intervention through research and clinical trials (a ring worn inside the vagina that releases an antiretroviral drug to stop the virus from entering the body during sex). 

ā€œThen there’s the destruction of key health interventions,ā€ he said. For example, ā€œSTI testing is a public health intervention. It keeps people healthy, and we’re able to reduce the amount of STI floating in populationsā€ through regular testing and monitoring of new diagnoses. ā€œGetting rid of programs that look at and support these [efforts] is really, really bad,ā€ Rose said. 

He noted that the administration has endeavored to restrict healthcare access along a variety of fronts, especially when it comes to transgender medicine for youth, Rose said, from working to pass regulations circumscribing the scope of the ACA’s coverage mandate to gutting the HHS Office of Civil Rights such that vulnerable populations have less recourse when they are denied access to care or experience unlawful discrimination in healthcare settings, and conditioning the government’s federal funding for providers and hospital systems on their agreement not to administer guideline directed, evidence based interventions for the treatment of gender dysphoria in youth. 

ā€œLast year, CDC documented that we had reduced new HIV infections by 6% and by 23% and 26% in counties that were in the Ending the Epidemic jurisdictions,ā€ Rose said.  

In the face of these challenges shortly into the president’s second term, he said, ā€œwe will stand up to a scientific rigorous process every time, because we’ve done it every time, and every time we’ve done it, the world has been better for it.ā€

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