National
Gay group calls on Supreme Court to strike down DOMA
GLAD brief says ‘reasons are strong’ for review
GLAD’s Mary Bonauto (center) poses for a photo with Gill plaintiffs (Blade file photo by Chris Johnson)
The New England-based LGBT group responsible for the most successful lawsuit to date targeting the Defense of Marriage Act on Thursday filed a formal request asking the U.S. Supreme Court to strike down the anti-gay law.
The filing from Gay & Lesbian Advocates & Defenders responds to petitions from the House Republican-led Bipartisan Legal Advisory Group and the U.S. Justice Department calling on the Supreme Court to take up the lawsuit — the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services.
In a historic decision on May 31, the U.S. First Circuit Court of Appeals overturned Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, as a result of this litigation.
BLAG, which is defending DOMA under the direction of House Speaker John Boehner, had filed a request with the Supreme Court in June asking justices to overturn the ruling and uphold the constitutionality of the anti-gay law.
In the 39-page brief filed Thursday, GLAD’s lawyers say they agree that “the arguments for a grant of review in this case are strong.” The plaintiffs also present the same question for the Supreme Court to answer as other petitions: does Section 3 of DOMA violate the equal protection guarantee of the Fifth Amendment to the U.S. Constitution for legally married same-sex couples?
But GLAD and BLAG have wildly different conclusions on what the Supreme Court should determine with regard to this question. In its filing, GLAD says the court shouldn’t “be persuaded by the distorted analysis” put forward by BLAG, and, instead, affirm the First Circuit’s ruling.
“The Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition,” GLAD writes, “[A]s multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.”
GLAD notes BLAG devotes much of its petition to contending the First Circuit was “inventing” a new standard of review in its decision to overturn DOMA. Disputing this argument, GLAD says BLAG “does not accurately characterize the First Circuit’s holding or analysis” and the First Circuit had correctly applied rational basis holdings from earlier cases.
GLAD lays out several reasons why the First Circuit ruled that DOMA is unconstitutional, saying Congress could only have passed DOMA out of animus toward gay people.
“Whether animated by ‘moral disapproval’ toward gay men and lesbians, open hostility, ‘insensitivity’ to the lives of the people against whom they were discriminating, or simply a reaction against people who ‘appear[ed] to be different,’ Congress enacted a statute whose object was to subject gay men and lesbians to different, and less-favorable, treatment,” the brief states. “This Congress may not do.”
Additionally, GLAD says the Supreme Court should take up the case to establish that laws targeting gay Americans should be subject to heightened scrutiny, on the assumption that they’re unconstitutional.
“Because DOMA imposes indisputable de jure discrimination on the basis of sexual orientation, this case presents an ideal vehicle for this Court to clarify how courts should scrutinize such laws going forward, and to ensure that lower courts afford gay men and lesbians the constitutional protections to which they are entitled under a proper application of the Equal Protection Clause,” the brief states.
The Obama administration announced it held the view that laws related to sexual orientation should be subjected to heightened scrutiny at the same time it announced it would no longer defend DOMA in court in February 2011. BLAG, under the direction of House Speaker John Boehner (R-Ohio) following a party-line vote, has since taken up defense of DOMA.
GLAD is now one of several groups asking the Supreme Court to examine the constitutionality of DOMA. The Justice Department has asked the high court to take up the Massachusetts case as well as a California lawsuit known as Golinski v. United States. Additionally, New York widower Edith Windsor has asked the Supreme Court to take up her lawsuit against DOMA filed by the American Civil Liberties Union as has New York City Mayor Michael Bloomberg and New York City Council Speaker Christine Quinn in a jointly filed friend-of-the-court brief.
The Supreme Court won’t decide whether it will take up DOMA until Sept. 24. The high court will begin hearing arguments for its 2012-2013 term in October.
In the meantime, Aug. 31 is the last day for BLAG to respond to or oppose the Justice Department’s petition, and Sept. 10 is the last day for the Justice Department to reply to BLAG. Additionally, BLAG can choose to reply to GLAD’s filing. There’s no set deadline for that, but normally, that would occur within 10 days.
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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