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Two new lawsuits target DOMA

GLAD, ACLU argue no ‘legitimate reason’ for statute

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LGBT rights groups are continuing efforts to strike down the Defense of Marriage Act with two new federal lawsuits challenging the constitutionality of the statute.

On Tuesday, Gay & Lesbian Advocates & Defenders and the American Civil Liberties Union filed two separate lawsuits against Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriage.

Mary Bonauto, GLAD’s civil rights project director, said Tuesday in a conference call with reporters that the federal government has no valid reason to engage in the regulation of marriage.

“We think there’s no legitimate reason whatsoever for the federal government to take one group of people who are already married and treat them differently from every other married couple,” she said.

Bonauto added that the authority to determine who can marry in the United States has traditionally been left to the states and said DOMA is the only federal law in U.S. history “that puts the federal government in the marriage business.”

The cases contend that DOMA violates the equal protection rights of same-sex couples under the U.S. Constitution.

James Esseks, director of the ACLU’s lesbian, gay, bisexual transgender and AIDS project, said DOMA is unconstitutional because the U.S. government “defers to state’s determination of whether a couple is married in every single context except when the couple is a same-sex married couple.”

“In that case, the federal government pretends that the couple isn’t married, but instead are strangers one to the other,” Esseks said. “That’s discrimination, and it violates the Constitution’s equal protection guarantee.”

The GLAD lawsuit, known as Pedersen v. Office of Personnel Management, is pending before the U.S. District Court of Connecticut and was filed on behalf of five married same-sex couples and a widower who reside in Connecticut, Vermont and New Hampshire.

Each of the plaintiffs was denied the federal benefits of marriage in one respect or another, such as Social Security or the right to care for a spouse under the Family Medical Leave Act.

Joanne Pedersen, 57 and a Waterford, Conn., resident, said she’s participating in the lawsuit because although she’s a retiree of the Department of Naval Intelligence, DOMA prohibits her from insuring her spouse and partner of 12 years, who has a chronic lung condition.

“The naval community treated Ann just like other spouses, except when it came to sharing my benefits,” Pedersen said. “We both have some serious health challenges, and Ann has chronic health issues that make working stressful and draining for her. But Ann can’t hope to retire because DOMA prevents us from sharing health benefits.”

The ACLU lawsuit, known as Windsor v. United States, is pending before the U.S. District Court of Southern District of New York and was filed on behalf of a New York resident who had to pay $350,000 in federal estate taxes to receive her spouse’s inheritance.

Edith Windsor was partnered with Thea Spyer for 44 years before Spyer died last year after a battle with multiple sclerosis. The two married in Canada in 2007 and their marriage was recognized by the state of New York.

“After Thea died, the fact that the federal government refused to recognize our marriage was devastating,” Windsor said in a statement. “In the midst of my grief at the loss of the love of my life, I had to deal with my own government saying that we weren’t a family.”

Now that the organizations have filed the suits, the U.S. government has 60 days to respond. The Justice Department didn’t immediately respond to the Blade’s request for comment, but has previously defended DOMA against other lawsuits.

Esseks noted the Justice Department has a few months to answer. With regard to the ACLU lawsuit, he said “it’s too early to talk in any meaningful way” about the timeline for the case.

For the GLAD lawsuit, Bonauto said she hopes the case would be resolved at the district court level within 12 to 15 months. She said she doesn’t think the litigation would go to the U.S. Supreme Court before 2013.

The two new lawsuits come on the heels of other rulings by the U.S. District Court of Massachusetts in July determining that Section 3 of DOMA is unconstitutional.

U.S. District Court Judge Joseph Tauro made the decisions in case of Gill v. Office of Personnel Management, which was also filed by GLAD, and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.

Following the district court’s decision to rule that part of DOMA is unconstitutional, the U.S. government appealed the cases to the U.S. First Circuit Court of Appeals, where the litigation is pending.

Bonauto said the additional GLAD lawsuit is necessary to continue to educate people about the “harms imposed by DOMA.” Additionally, she noted many of the plaintiffs in the Pedersen live in Vermont and Connecticut, which is in the Second Circuit, and wouldn’t be affected by a ruling in the First Circuit as a result of the Gill case.

“We are in a different federal judicial circuit here, so we have a chance to press once again the basic claim that DOMA is legally unconstitutional in terms of having a double-standard imposed only on gay and lesbian married couples,” Bonauto said.

If both the Gill and the Commonwealth cases reach the Supreme Court at the same time as justices take up the Pedersen case, Bonauto said she thinks the newer lawsuits could be combined with the older ones.

The filing of the lawsuits has inspired different reactions among advocacy groups that work on marriage. In a statement to the Blade, Maggie Gallagher, chair of the National Organization for Marriage, chided LGBT groups for continuing to challenge DOMA in the wake of Election Day results.

“After Tuesday’s election, in which gay marriage lost big, it’s pretty clear gay marriage advocates have failed to win the majority of Americans and so are turning once again to courts to impose views and values they’ve failed to persuade their friends, neighbors and fellow citizens to support,” she said.

But Joe Solmonese, president of the Human Rights Campaign, said in a statement that the litigation provides further evidence that DOMA is “not simply an abstract insult to the dignity of same-sex couples and their families — although it is indeed a deeply offensive law.”

“DOMA causes real harm to people like Joanne Pedersen, Ann Meitzen and Edie Windsor, denying them economic security, health coverage and other critical federal rights and benefits that other married couples take for granted,” Solmonese said.

One legal expert praised the GLAD and ACLU lawsuits for their potential in striking down DOMA. Nan Hunter, a lesbian and law professor at Georgetown University, said forecasting the outcome of any particular lawsuit is difficult, but said the way DOMA is challenged in these cases is “quite promising.”

“It allows the courts to rule on a law that changed the status quo by singling out only gays and reversing — only for that one group — the federal government position of recognizing all marriages that were valid under state law,” she said.

Hunter said the litigation strategy is similar to what was presented in Romer v. Evans, a 1996 case before the U.S. Supreme Court that overturned a Colorado ban on making gays a protected class in the state. Hunter recalled that in the Romer case, the high court “invalidated a state provision that singled out gays for having to meet a higher barrier in order to enact a civil rights law.”

CORRECTION: An earlier version of this article misspelled the name of the name of James Esseks. The Blade regrets the error.

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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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