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Court ruling deals blow to North Carolina anti-LGBT law

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Pat McCrory, Republican Party, South Carolina, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade

Gov. Pat McCrory (R-N.C.) has said he would comply with a court ruling in favor of Virginia transgender student. (Photo by Hal Goodtree; courtesy Wikimedia Commons)

A federal appeals court ruling in favor of a Virginia transgender student seeking to use school restrooms consistent with his gender identity constitutes a blow to North Carolina’s recently enacted anti-LGBT law, legal experts say.

Although the U.S. Fourth Circuit Court of Appeals decision pertains to a school district in Virginia, the case has bearing on House Bill 2 because the court also has jurisdiction over North Carolina along with Maryland, South Carolina and West Virginia. Legal experts say the decision has the effect of rendering unenforceable the component of HB 2 that prohibits transgender students from using school restrooms consistent with their gender identity.

Upon news of the decision, North Carolina Gov. Pat McCrory told reporters he would “make sure these court rulings are abided to,” but would need to consult with lawyers to verify the necessary approach.

“We’ve got to evaluate the impact of this court ruling on existing legislation, on existing policy that we have throughout North Carolina, and I will do just that,” McCrory said.

McCrory added he expects more action in the form of a petition for review to the U.S. Supreme Court, but meanwhile he needs to ascertain whether the ruling requires schools to allow transgender students to use public restrooms and locker rooms consistent with their gender identity, which would be contrary to House Bill 2.

“This is a major, major change in social norms not only to North Carolina, but also to the 27 other states that don’t allow this at this point in time,” McCrory said.

Signed into law last month by McCrory after an emergency session of the state legislature, HB 2 undoes all pro-LGBT non-discrimination ordinances in North Carolina, including one recently enacted in Charlotte, and prohibits transgender people from using public restrooms in schools and government buildings consistent with their gender identity.

But at the same time this law was passed, Gavin Grimm, a transgender student at Virginia’s Gloucester County High School, was appealing before the Fourth Circuit a lower court decision affirming the right of his school district’s policy barring him from using the boys restroom or locker room.

One friend-of-the-court brief was filed by the U.S. Justice Department, which argued the policy was in violation of Title IX of the Education Amendments of 1972. Another was filed by state leaders, including McCrory, and argued the court should rule in favor of the school district. Ultimately, the Fourth Circuit ruled in favor of Grimm and remanded the case to the trial court, establishing precedent in favor of transgender students.

Douglas NeJaime, faculty director of the Williams Institute at the University of California, Los Angeles, was among those saying the court decision makes unenforceable the component of HB 2 restricting bathroom use for transgender people in schools.

“The part of North Carolina’s bill that is specifically about bathrooms, or public accommodations, to the extent that they would apply to schools, which are subject to Title IX, then I think it’s suggesting in the North Carolina bill are unenforceable,” NeJaime said. “This would obviously apply to North Carolina because its in the Fourth Circuit, and the federal regulations would govern over any contrary state regulations.”

The next step in the process, NeJaime said, is for state attorneys and North Carolina Attorney General Roy Cooper, a Democrat who has refused to defend HB 2 in court, to declare that portion of the law unenforceable. If that doesn’t happen, or if Cooper and McCrory’s attorneys disagree, NeJaime said a federal court in North Carolina would make that declaration and clarify the language cannot be enforced.

“I would guess that the ACLU and Lambda attorneys would probably quite quickly file papers and ask for an injunction just on that issue fairly quickly, but then, of course, it would be up to how quickly things can be scheduled,” NeJaime said. “I would imagine that that would move forward on an accelerated schedule.”

Neither McCrory’s office nor Cooper’s responded to the Washington Blade’s request to comment late Tuesday on their determination for what the Fourth Circuit ruling means for HB 2.

Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Fourth Circuit ruling immediately requires North Carolina to allow transgender students to use public restrooms consistent with their gender identity.

“This ruling not only gives appropriate deference to the Department of Education’s interpretation of Title IX as allowing transgender students to use school restrooms consistent with their gender identity, it also is binding on the state of North Carolina,” Warbelow said. “We therefore expect public schools, including those in North Carolina, to immediately comply, ensuring transgender students full protections under the law, which includes full access to the appropriate facilities.”

Legal groups — Lambda Legal, the American Civil Liberties Union, the ACLU of North Carolina — filed a lawsuit against HB 2 last month on the basis the law violates the equal protection and due process clauses under the Fourteenth Amendment of the U.S. Constitution and Title IX of the Education Amendments of 1972.

In a joint statement, the groups said the ruling has major implications on HB 2, but were more focused on the decision serving as an impetus for full repeal of the law.

“Today’s ruling makes plain that North Carolina’s House Bill 2 violates Title IX by discriminating against transgender students and forcing them to use the wrong restroom at school,” the statement says. “This mean-spirited law not only encourages discrimination and endangers transgender students – it puts at risk billions of dollars in federal funds that North Carolina receives for secondary and post-secondary schools. House Bill 2 exposes North Carolinians to discrimination and harm, is wreaking havoc on the state’s economy and reputation, and now more than ever, places the state’s federal education funding in jeopardy. We again call on Gov. McCrory and the General Assembly to repeal House Bill 2 and replace it with full nondiscrimination protections for LGBT people.”

Despite the different focuses of the statements, Warbelow told the Washington Blade the Human Rights Campaign and legal groups behind the lawsuit are on the same page.

“There’s no daylight between us,” Warbelow said. “North Carolina schools should follow Title IX immediately as underscored by Fourth Circuit decision. There still needs to be a full repeal of HB 2 to address its broad array of harms.”

But the ruling doesn’t have any impact on the portions of HB 2 prohibiting municipalities from enacting pro-LGBT non-discrimination ordinances, nor does it hold sway over the part that bars transgender people from using public restrooms in government buildings consistent with their gender identity.

NeJaime pointed out the Fourth Circuit ruling is based only on Title IX, which affects only students, and makes no headway into the whether equal protection and due process under the U.S. Constitution comes into play for any issue in HB 2.

“The only issue this ruling is tackling is access that trans people have to restrooms, and so the pre-emption of local non-discrimination ordinances isn’t at all impacted by this,” NeJaime added.

The district court reviewing the litigation challenging HB 2, NeJaime said, could elect to issue a more immediate ruling on use public restrooms for transgender students, but hold off until later to make a decision on other components of the law.

Although McCrory said the Gloucester County High School may seek to petition the U.S. Supreme Court for review, which could impact the result of the ruling on North Carolina, NeJaime said justices are unlikely to take action as a result of only one circuit court decision and no split among the others.

“Certainly, we saw in the marriage cases, there were cert petitions filed after preliminary injunction motions. We also saw that DOMA in litigation,” NeJaime said. “In all those cases, the court waited until there was more resolution.”

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U.S. Supreme Court

Concern over marriage equality in US grows two decades after first Mass. same-sex weddings

Gay and lesbian couples began to marry in Bay State in 2004

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(Bigstock photo)

Two decades after Massachusetts became the first state to legalize same-sex marriage, a new study reveals both significant progress and ongoing challenges for married LGBTQ couples in the U.S., with a growing sense of insecurity about the future of their rights.

The Williams Institute at UCLA School of Law surveyed 484 married same-sex couples from all 50 states and D.C. The study, released Monday, marks the 20th anniversary of legal same-sex marriage in the U.S.

Researchers found that 93 percent of respondents cited love as a primary reason for marrying, with 75 percent also mentioning legal protections. Over 83 percent reported positive changes in their sense of security, and 74.6 percent noted improved life satisfaction since marrying.

However, the study also highlighted persistent discrimination and growing concerns about the future. About 11 percent of couples who had a wedding reported facing prejudice during the planning process.

Alarmingly, nearly 80 percent of respondents expressed concern about the potential overturning of the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. This anxiety has been exacerbated by initiatives like Project 2025, a conservative policy blueprint that some fear could roll back LGBTQ rights if implemented.

The possibility of a former President Donald Trump victory in the upcoming election has further intensified these concerns. Many respondents cited Trump’s previous U.S. Supreme Court appointments and his statements on LGBTQ issues as reasons for their apprehension. One participant stated, “The thought of another Trump presidency keeps me up at night. We’ve come so far, but it feels like our rights could be stripped away at any moment.”

The current political climate has 29 percent of respondents considering moving to another state, with 52.9 percent citing socio-political concerns as a primary reason. This reflects a growing sense of insecurity among LGBTQ couples about their rights and freedoms.

Brad Sears, founding executive director of the Williams Institute, noted, “The data clearly show that marriage equality has had a profound positive impact on same-sex couples and their families. However, it also reveals ongoing challenges and serious concerns about the future of these rights in light of current political trends and the upcoming election.”

Christy Mallory, legal director at the Williams Institute and lead author of the study, added, “This research provides crucial insights into the lived experiences of same-sex couples two decades after marriage equality began in the U.S. The high level of concern about potential loss of rights underscores the continued importance of legal protections and public support for LGBTQ+ equality.”

The study found that 30 percent of surveyed couples have children, with 58.1 percent of those parents reporting that marriage provided more stability for their families. However, many of these families now worry about the security of their legal status in the face of potential policy changes and shifting political landscapes.

As the nation reflects on two decades of marriage equality, the study underscores both the transformative power of legal recognition and the ongoing need for vigilance in protecting LGBTQ+ rights. The findings highlight the complex reality faced by same-sex couples in America today: Celebrating hard-won progress while grappling with uncertainty about the future, particularly in light of upcoming political events and potential shifts in leadership.

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State Department

State Department hosts meeting on LGBTQ rights and foreign policy

Event took place before Pride Month reception

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Secretary of State Antony Blinken speaks at the State Department Pride Month event on June 27, 2024. (Screen capture via Forbes Breaking News YouTube)

Secretary of State Antony Blinken on Thursday hosted a group of LGBTQ activists and politicians from around the world at the State Department.

The event — described as a “Convening on U.S. Foreign Policy: National Security, Inclusive Development, and the Human Rights of LGBTQI+ Persons” — took place before the State Department’s annual Pride Month reception. Participants included:

• Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights

• U.S. Ambassador to the U.N. Linda Thomas-Greenfield

• U.S. Trade Representative Katherine Tai

• U.S. Ambassador to India Eric Garcetti

• Suzanne Goldberg, senior advisor to the Under Secretary of State for Civil Security, Democracy, and Human Rights

• Under Secretary of State for Civilian Security, Democracy, and Human Rights Uzra Zeya

• U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam

• USAID Counselor Clinton D. White

• National Security Council Senior Director for Democracy and Human Rights Kelly Razzouk

• Assistant U.S. Secretary of Health Adm. Rachel Levine

• National Security Council Human Rights Director Jess Huber

• U.N. Assistant Secretary General for Human Rights Ilze Brandt Kehris

• Icelandic Ambassador to the U.S. Bergdís Ellertsdóttir

• Council for Global Equality Co-Executive Director Mark Bromley

• Outright International Senior Advisor for Global Intersex Rights Kimberly Zieselman

• Essy Adhiambo, executive director of the Institute for Equality and Non Discrimination in Kenya

• Pau González, co-chair of Hombres Trans Panamá and PFLAG-Panamá

“Forty-five years ago, thousands gathered in D.C. in what became the first national march for LGBTQI+, demanding their voices be heard,” said Thomas-Greenfield in a post to her X account that showed her speaking at the event. “We must continue to carry forward the spirit of these pioneers and fight for equal rights and dignity for all.”

President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administration’s overall foreign policy.

“LGBTQI+ rights are human rights,” said Blinken. “Our government has a responsibility to defend them, to promote them — here and everywhere.”

Blinken noted consensual same-sex sexual relations remain criminalized in 64 countries, with the death penalty in 11 of them.

He specifically highlighted Uganda’s Anti-Homosexuality Act and Hungarian Prime Minister Viktor Orbán’s government’s “smearing scapegoating, stigmatizing LGBTQI+ persons — vilifying them with degrading labels, denying them equal rights, normalizing violence against them.” (Gay U.S. Ambassador to Hungary David Pressman this month marched in the annual Budapest Pride parade.)

Blinken noted Iraqi MPs earlier this year “passed legislation that punishes same-sex relations with up to 15 years in prison.” He also pointed out that Indonesian lawmakers approved a new criminal code banning extramarital sex.

“In a nation where same-sex couples cannot marry, these laws effectively make all same-sex conduct illegal and they undermine privacy for all Indonesians,” said Blinken.

“We’re defending and promoting LGBTQI+ rights around the world,” he said.

Blinken noted seven countries — Barbados, St. Kitts and Nevis, Antigua and Barbuda, Dominica, Namibia, Singapore, the Cook Islands — have decriminalized consensual same-sex sexual relations over the last two years. He also highlighted Greece, Liechtenstein, and Thailand this year extended marriage rights to same-sex couples, and other countries are banning so-called “conversion therapy.”

“These achievements are possible because of incredibly courageous human rights defenders and government partners on the ground, but I believe America’s support is indispensable,” said Blinken. “When we engage — sometimes publicly, sometimes privately, sometimes both — when we share our own knowledge and experience, we can and we do achieve change.”

Blinken also announced the U.S. now considers sexual orientation and gender identity are part of the International Covenant on Civil and Political Rights that took effect in 1976.

“This is one of the key treaties committing nations to upholding universal rights,” he said. 

“In our regular reporting to the council on human rights, we will continue to include incidents of discrimination or abuse committed against LGBTQI+ persons, now with the clear framework of this well-supported interpretation,” added Blinken. “That will further empower our efforts.”

Blinken reiterated this point and the Biden-Harris administration’s commitment to the promotion of LGBTQ and intersex rights abroad when he spoke at the State Department’s Pride Month event.

“Defending, promoting LGBTQI+ rights globally is the right thing to do, but beyond that, it’s the smart and necessary thing to do for our country, for our national security, for our well-being,” he said.

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The White House

Jill and Ashley Biden headline White House Pride celebration

First lady celebrated historic pardons of LGBTQ veterans

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First lady Jill Biden speaks at the White House Pride event on June 26. (Washington Blade photo by Michael Key)

First lady Jill Biden and the president and first lady’s daughter, Ashley Biden, headlined the White House Pride celebration on the South Lawn on Wednesday, followed by a performance by singer and actress Deborah Cox.

“My dad has built the most pro-equality administration” in history, Ashley Biden said, crediting the work of LGBTQ people of color like Marsha P. Johnson, a prominent figure in the Stonewall uprising of 1969, as well as “so many of you [who] have continued to lead their fearless fighting against against injustice here and around the world.”

She introduced her mother as “the woman who taught me to be myself up showed me in so many ways how I can make a difference” and who “works every single day, tirelessly, to ensure that all people have the opportunities and freedoms that they deserve.”

“I hope that all of you feel that freedom and love on the South Lawn today,” Jill Biden said.

Her remarks were briefly interrupted by a protestor’s chants of “no Pride in genocide,” which was drowned out by chants of “four more years.”

The first lady noted how many of the attendees came “here from states that are passing laws targeting LGBTQ Americans.”

“There are those who see our communities and our families and wish to tear them down,” she said, “those who can’t see that the world is so much bigger and [more] beautiful than they know — but when our homes are threatened, when they strip away our rights, and deny our basic humanity, we say, ‘not on our watch.'”

“Pride is a celebration, but it is also a declaration,” the first lady said, highlighting the U.S. Supreme Court’s ruling in Obergefell v. Hodges nine years ago, which established marriage equality as the law of the land.

She then credited the accomplishments of the Biden-Harris administration on matters of LGBTQ rights, including the repeal of the previous administration’s ban on military service by transgender servicemembers and the FDA’s loosening of restrictions on blood donation by gay and bisexual men.

The first lady also celebrated the president’s announcement earlier on Wednesday that he will pardon LGBTQ veterans who were discharged and court martialed because of their sexual orientation or gender identity.

“We will never stop fighting for this community,” she said.

First lady Jill Biden and daughter, Ashley Biden, attend the White House Pride celebration on June 26, 2024. (Washington Blade photo by Michael Key)
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