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What will the Tenth Circuit do with Utah marriages?

Don’t read too much into court decision to reject a stay: experts

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National LGBT Bar Association, Gay News, Washington Blade

It’s unclear what the Tenth Circuit will do over Utah same-sex marriages. (Image via wikimedia)

As celebrations continue in Utah following its surprise entry as a marriage equality state, one lingering question is whether the U.S. Tenth Circuit Court of Appeals will allow gay couples to continue to marry there.

The court will face two questions regarding the ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage is unconstitutional. First, whether to institute a stay on Utah’s same-sex marriages as it considers the decision on appeal, and second, whether to overturn or uphold the district court decision.

Suzanne Goldberg, a lesbian and co-director of Columbia Universityā€™s Center for Gender & Sexuality Law, said Sunday the Tenth Circuit’s previous rejections of a stay are no indication it’ll decide the same way the next time around.

“I know the 10th circuit declined to issue a stay today, but that decision is consistent with standard procedure, which provides that the district court should rule on a stay request before the appellate court responds,” Goldberg said. “The decision does not tell us what the court will do if and when the stay request is properly presented.”

Appeals courts have made various decisions on whether to institute a stay on same-sex marriages as marriage equality litigation has advanced. The U.S. Ninth Circuit Court of Appeals issued a stay on same-sex marriages after it determined California’s Proposition 8 was unconstitutional. But the New Jersey State Supreme Court refused to stay a lower court’s ruling in favor of marriage equality, prompting New Jersey Gov. Chris Christie to drop his defense of the marriage ban.

State officials ā€” Utah Gov. Gary Herbert and the Utah attorney general’s office ā€” have repeatedly sought stays on the weddings, but have been rebuffed by both the district court and the Tenth Circuit. However, the appeals court allowed officials to refile yet again. The Tenth Circuit could make a decision on a stay at any time and is expected to do so soon, perhaps on Christmas Eve.

Brian Brown, president of the National Organization for Marriage, is calling on the Tenth Circuit to issue a stay on the same-sex marriages.

ā€œThis decision provokes a constitutional crisis,” Brown said. “Not only is it unlawful, it roils the body politic and does great damage to the peopleā€™s confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state. We call on the Tenth Circuit to grant an immediate stay so that our higher courts can carefully and thoughtfully consider the profoundly important issues raised by this case.ā€

In the event that the Tenth Circuit rejects a stay, state officials could take their request to the U.S. Supreme Court.

Rick Hasen, a professor of law and politics at University of California, Irvine, said via Twitter that the request would go to U.S. Associate Justice Sonia Sotomayor, who could refer the issue to the entire court.

Jon Davidson, legal director for Lambda Legal, said determining which way the Supreme Court will rule on a stay is difficult ā€” even with the precedent of declaring Section 3 of the Defense of Marriage Act unconstitutional.

“Given that couples are now marrying in many other states without any harm to anyone, the Court might choose simply not to get involved at this point, but, as Iā€™ve said, I canā€™t make any prediction at this point with any degree of confidence,” Davidson said.

Regardless of whether or not the court issues a stay, state officials ā€” Gov. Gary Herbert and newly appointed Utah Attorney General Sean Reyes ā€” have the right to automatic appeal, so the Tenth Circuit has no option but to take up the case on its merits.

The makeup of the U.S. Tenth Circuit Court of Appeals is split just about down the middle between judges appointed by Democrats and Republicans. Three were appointed by President Obama, one by President Clinton, one by President George H.W. Bush, and four by President George W. Bush, making for a 4/5 split of Democratic vs. Republican appointees. There are also two vacancies on the court.

Davidson nonetheless said the political affiliation of the president who appointed a judge doesn’t necessarily predict the way they will decide a case.

“Of course, who appointed a judge does not necessarily tell you how a judge would rule, as some appointees of Democratic presidents have been quite moderate or even, in some states, somewhat conservative, and a number of Republican judges throughout the country have ruled in favor of marriage equality,” Davidson said.

It’s also hard to predict which combination of judges will decide the Utah case. Just as two judges on the court have denied previous stay requests in the case, certain motions, including motions to stay, are randomly assigned to a rotating two-judge panel. In the event of a tie, those judges may request that a third judge be added to decide the matter.

The consistency of the Tenth Circuit stands in contrast to the U.S. Ninth Circuit of Appeals, which has a 27-15 split of Democratic vs. Republican appointees and has a reputation for being a liberal court. The court affirmed California’s Proposition 8 was unconstitutional on the basis that marriage rights for gay couples can’t be rescinded once initially offered, and upheld California’s law prohibiting widely discredited “ex-gay” conversion therapy for minors.

As far as previous rulings, as state officials have noted in their requests for a stay on Utah same-sex marriages, no judge in the Tenth Circuit ā€” at the district or the appeals level ā€” has ever issued an opinion on marriage equality besides Shelby. As the judge noted in his ruling, the Tenth Circuit had determined in 2008 that sexual orientation discrimination doesn’t merit heightened scrutiny, but Shelby said that doesn’t matter because Utah’s ban on same-sex marriage doesn’t pass rational basis review.

But there is precedent for pro-gay rulings in the Tenth Circuit. In 2007, the appeals court in the case of Finstuen v. Crutcher struck down under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state.

The timing for when the Tenth Circuit will make a decision regarding the appeal also remains in question. As Columbia University’s Goldberg noted, the process can take about a year, but there’s no standard timeline.

“Usually it can take up to a year, or even more, for an appeal to be briefed, argued and decided,” Goldberg said. “In marriage cases, there is a compelling reason for courts to act more quickly because people are being actively denied their rights, but there are no strict rules on the timetable.”

Davidson said it will take at least three months before a briefing is completed in the Kitchen case, but it could be considerably longer if parties seek an extension. More time is needed for oral arguments and for judges to write their decisions.

“Sometimes the period between notice of appeal and decision can be as short as six months or so, and sometimes it can be a matter of years,” Davidson said.

Shelby’s ruling had the distinction of being the first ruling on a marriage ban as a result of a federal lawsuit following the Supreme Court decision against DOMA. While other courts in New Jersey and New Mexico instituted marriage equality following the high court decision, these lawsuits were in state court, not federal court.

However, it’s not the most advanced marriage equality lawsuit. The case against Nevada’s ban on same-sex marriage, Sevcik v. Sandoval, is pending before the U.S. Ninth Circuit Court of Appeals. It remains to be seen which of these two cases, or yet another, will be the first marriage equality lawsuit to reach the Supreme Court in the aftermath of the decisions this year.

However the Tenth Circuit decides, the decision from Shelby is expected to have an impact on other courts evaluating the issue of marriage equality.

Davidson said Lambda Legal submitted a copy of the ruling to the U.S. District Court for the Western District Court just before it allowed a lawsuit challenging a state ban on same-sex marriage in Virginia to proceed.

“Judge Shelbyā€™s opinion is very persuasive, in my view, and I think it will be given significant consideration by other judges deciding these issues,” Davidson said.

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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 ā€” which, likewise, concerned their inclusion of trans student-athletes in competitive sports ā€” 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 stateā€™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, Indianaā€™s response was sluggish. The stateā€™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 administrationā€™s HIV goals were championedā€ by Pence along with Trumpā€™s U.S. Surgeon General, Jerome Adamsthe, who was Indianaā€™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.”

Trumpā€™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 donā€™t know why they hate public health so muchā€™

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

ā€œTheyā€™re dismantling all the things aroundā€ the first Trump administrationā€™s Ending the HIV Epidemic in the U.S. effort, he said, eliminating key positions and offices within Americaā€™s health agencies that support this effort, including by tracking progress toward ā€” or movement away from ā€” 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 Americansā€™ 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€œTheyā€™ll start looking like we havenā€™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 CDCā€™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 doesnā€™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€œweā€™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 governmentā€™s work by employees and divisions that were cut by Kennedyā€™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 diseaseā€™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 NCHHSTPā€™s Prevention Communication Branch, the health secretaryā€™s near 20 percent cut to CDC staff also eliminated the centerā€™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€œYouā€™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 agencyā€™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 governmentā€™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 administrationā€™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 Healthā€™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 womenā€™s health and womenā€™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  administrationā€™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 ā€” 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  ā€” 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 ā€” 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 ā€” 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 Americaā€™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 administrationā€™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 Networkā€™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 ACAā€™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 governmentā€™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 presidentā€™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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