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Equality California, NCLR, GLAD file for emergency relief against Trump’s transgender military ban

Motion calls for courts to enjoin ban to stop harms happening now

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Equality California filed Stockman v Trump on Sept. 5, naming President Trump, Defense Secretary James Mattis, and other top military officials as defendants. On Aug. 31, GLAD and NCLR filed the first motion for preliminary injunction and amended their initial complaint, Doe v. Trump, to include two new named plaintiffs and several powerful declarations supporting the motion from top military officials from the Army, Navy, and Air Force about why the ban would irreparably harm transgender servicemembers and their families and undermine national security.Among the declarations was one submitted by out former US Army Sec. Eric Fanning. The NCLR/GLAD lawsuit was the first of four lawsuits filed against the Trump Administration’s transgender military ban across the country.

“Through this Motion, Plaintiffs seek preliminary relief prohibiting Defendants from implementing the ban on military service by transgender individuals as an infringement of Plaintiffs’ rights under the United States Constitution,” the motion says. “The ban inflicts irreparable injuries upon Plaintiffs and Plaintiff Equality California’s members. The ban denies Plaintiffs and their members the equal protection of the laws, their right to liberty and privacy, and their right to freedom of expression in violation of the United States Constitution.”

“As set forth below,” the motion continues, “Plaintiffs are likely to succeed on the merits of these claims. Plaintiffs also easily satisfy the other preliminary injunction factors. As the Ninth Circuit has held, the unlawful deprivation of liberty constitutes irreparable harm. Moreover, particularly where transgender people have been serving loyally and with distinction since the ban’s reversal, the balance of hardships and public interest favor an injunction. For these reasons, the Court should grant this Motion and enjoin the implementation of the ban.

Equality California filed Stockman v Trump on Sept. 5, naming President Trump, Defense Secretary James Mattis, and other top military officials as defendants. GLAD and NCLR previously filed an injunction initially on behalf of one defendant. That complaint was amended in August to include two more servicemembers and a student enrolled in ROTC as defendants. They also submitted declarations against the ban from such prominent military experts as out former US Army Sec. Eric Fanning. That lawsuit, Doe v. Trump, was the first of four lawsuits filed against the Trump Administration’s transgender military ban across the country.

“The President’s reckless ban is harming transgender troops in communities all across the country,” said Shannon Minter, NCLR’s Legal Director. “Despite their dedicated service, the President has thrown the lives of thousands of military servicemembers and their families into chaos, devastating their livelihoods and dreams, and harming our country. We must use every tool in our power to fight this ban immediately, here in California and throughout the country.”

Stockman v. Trump claims the ban unlawfully discriminates against transgender people on the basis of their gender identity; impinges upon transgender people’s fundamental rights by penalizing and stigmatizing them for expressing a fundamental aspect of their personal identity; and unfairly punishes transgender people who came out in the military in reliance on the government’s assurances that they could serve openly, the three groups say in a press release.

“California is home both to the nation’s largest population of LGBTQ people and to the largest number of servicemembers,” says Rick Zbur, executive director of Equality California. “With his unnecessary and unjust ban, President Trump has attacked American heroes who simply want to serve their country. This ban will tear apart lives and livelihoods, cost taxpayers hundreds of millions of dollars and deprive the military of loyal, talented service members –it will not stand.”

Equality California has 500,000 members, the concentration of which is in California, but a number of members are scattered throughout the United States since the battle over Prop 8 in 2008. That’s one of the reasons EQCA is seeking a nationwide injunction against the trans ban, Zbur told the Los Angeles Blade.

“I was in eighth grade when I first told my mother I dreamed of joining the military. During my junior year of high school, I took the Armed Services Vocational Aptitude Battery (ASVAB) test to prepare for a future in the Air Force that I have continued to plan for and work toward. The moment I learned of President Trump’s tweets, I was crushed. Right now, I work at a grocery store for minimum wage, and my store is shutting down. I live paycheck to paycheck. In the military, I would have access to training, a steady income, and career opportunities. If the ban were lifted today, I would go to a recruiter to discuss enlisting in the Air Force as soon as I could. Transgender individuals are just as qualified and capable to serve our country as any of our peers and many of us are eager to do so,” says 20 year-old plaintiff Aiden Stockman from Yucca Valley, California, after whom the lawsuit is named.

“When I read President Trump’s tweets, my heart sank. I feared that I would never be permitted to fulfill my longtime dream of military service. Small towns like Lisbon, Ohio—where I live—do not have many job opportunities. I am actively searching for a job where I can support myself and my grandmother who is unwell,” says 23 year-old plaintiff Nicolas Talbott for whom Trump’s tweeted policy change was more than just bias. “Enlisting in the military provides a stable job, steady income, health benefits, and the pride of serving my country. If the ban were lifted today, I would immediately enlist in the United States Military. No one could be more dedicated and committed to wanting to serve,”

“Thousands of transgender Americans serving around the globe have committed their lives and planned their futures around military service. The President’s ban is putting them and others around them in harm’s way,” says Jennifer Levi, Director of GLAD’s Transgender Rights Project, in the press release. “This cruel, unfounded reversal of policy undermines the strength of our Armed Forces and threatens the safety of our nation. We cannot let it move forward.”

Sec. of Defense Jim Mattis, who has made it clear he opposes Trump’s change in personnel policy, says the open service policy is still operational until a panel of experts recommends to him how to conform to the President’s directive without disrupting military readiness. On Sep. 26, Gen. Joseph F. Dunford Jr. chair of the Joint Chiefs of Staff, the told Senate Armed Services Committee that he advised the White House that he does not believe gender identity is a sufficient reason to discharge service members, especially those who have served “with honor and value.”

“I would say that I believe any individual who meets the physical and mental standards and is worldwide deployable and is currently serving should be afforded the opportunity to continue to serve,” Dunford said.

Meanwhile, trans servicemembers and possible recruits are in limbo about their job status—issues which the lawsuits address. Members of the panel that will study the issue and give recommendations to Sec. Mattis have not been named yet, nor is there any indication of a trans service member, currently serving or retired, will have a seat at that table. Nor is there any indication what might happen should the panel agree with the organization filing suit, that the ban is biased, targeting one group, and is thus unconstitutional and unworkable. What might President Trump do if Sec. Mattis says the experts recommend NO to Trump’s trans service ban before the courts rule?

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Anti-LGBTQ Colorado baker loses Trans birthday cake court case

Phillips violated Colorado’s ant-discrimination law citing the fact that at issue was a ‘product’ not freedom of speech or expression

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Screenshot via CBSN Denver

DENVER – A Colorado State District Court Judge ruled against the baker who had previously refused to bake a cake for a same-sex wedding and won at the U.S. Supreme Court a partial narrow victory in that case in 2018.

CBSN Denver reported that Denver District Judge A. Bruce Jones order that Jack Phillips violated Colorado’s anti discrimination law Tuesday citing the fact that at issue was a ‘product’ not freedom of speech or expression.

In court documents, Jones said that Phillips refusal to make the plantiff, Autumn Scardina a cake made with blue icing on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status but without a written message, was in violation of the law. Phillips was ordered to pay a $500 fine.

Jones noted in his ruling that Phillips testified during a trial in March that ‘he did not think someone could change their gender’ and he would not celebrate “somebody who thinks that they can.”

“The anti-discrimination laws are intended to ensure that members of our society who have historically been treated unfairly, who have been deprived of even the every-day right to access businesses to buy products, are no longer treated as ‘others,‘” the judge wrote.

The Scottsdale, Arizona based Alliance Defending Freedom, an anti-LGBTQ legal group that has been place on the Southern Poverty Law Center’s Hate Watch List for spreading propaganda and lies about LGBTQ people, told CBSN that the group would appeal Jones’ ruling.

“Radical activists and government officials are targeting artists like Jack because they won’t promote messages on marriage and sexuality that violate their core convictions,” ADF’s general counsel, Kristen Waggoner, said in a media statement.

The maximum fine for each violation of Colorado’s Anti-Discrimination Act is $500. But it was not clear from the ruling if the fine was for the two attempts that Scardina made to order the cake or just one.

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Supreme Court rules for religious agency rejecting LGBTQ families

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city

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Blade file photo by Michael Key

WASHINGTON – In a ruling released Thursday, the U.S. Supreme Court ruled decided in favor of a religious-affiliated foster care agency seeking to refuse child placement into LGBTQ homes, determining the City of Philadelphia’s enforcement of a contract with non-discrimination provisions violates freedom of religion under the First Amendment.

In a surprise twist, the ruling was unanimous with nine justices on the court agreeing to the result in favor of Catholic Social Services, with Chief Justice John Roberts writing the opinion. As noted by SCOTUSblog, the court seemed much more divided in oral arguments, although inclined to rule for the foster care agency.

“The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment,” Roberts writes.

Although Catholic Social Services had also contended a freedom of speech right under the First Amendment to reject same-sex couples, Roberts adds the court didn’t reach a conclusion on that part of the argument.

Marianne Duddy-Burke, executive director of the Catholic LGBTQ group DignityUSA, condemned the decision in a statement immediately after it was handed down.

“Today, the well-being of our country’s most vulnerable children has been sacrificed to preserve tax-payer funded discrimination for a powerful group of religious institutions,” Duddy-Burke said. “The Supreme Court just decreased the number of homes available to our youth in foster care, making what was already a crisis worse. Same-sex couples are seven times more likely than straight couples to adopt or be foster parents and are more likely to have trans-racial families. This ruling means tens of thousands of children may never have a family to love and support them.”

The Supreme Court reversed and remanded decision of the U.S. Third Circuit of Court of Appeals, which had ruled in favor of City of Philadelphia enforcing its contract with Catholic Social Services. Both the appeals courts and the lower trial court had come to the opposite conclusion of the U.S. Supreme Court.

A key portion of the Roberts decision that could limit its reach is language specific to Philadelphia’s contract with the city allowing for discretion on enforcement, which he says means the measure isn’t generally applicable measure.

“Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation,” Roberts writes. “But section 3.21 also permits exceptions to this requirement at the ‘sole discretion’ of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.”

David Flugman, a lawyer at the New York-based Selendy & Gay PLLC whose practice includes LGBTQ rights, said in a statement the technical nature of the Fulton is “sure to invite even more litigation.

“Today the Supreme Court held, on narrow, technical grounds, that the City of Philadelphia’s attempt to ensure that Catholic Charities abide by the same non-discrimination provisions applicable to all other city contractors could not withstand Catholic Charities’ religious right to refuse to screen loving same-sex couples to act as foster parents,” Flugman writes. “The Court did not take up Catholic Charities’ invitation to scuttle the 30 year-old test for free exercise claims that was announced in Smith v. Employment Division, which held that a neutral law of general applicability could survive even if it burdens religious practice.”

Notably, although the City of Philadelphia in addition to the contract it struck with Catholic Social Services has in a place LGBTQ non-discrimination ordinance, the Supreme Court determines that measure doesn’t apply in the context of foster care services because it’s limited to the services “made available to the public.”

“Certification is not ‘made available to the public’ in the usual sense of the words,” Roberts writes. “Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus.”

Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement the decision from the Supreme Court is a harmful loss to the children in the foster care system in Philadelphia as well as the countless LGBTQ parents.”

“Weakening the government’s ability to protect their civil rights is hardly in their best interest, and we’re committed to ensuring this loophole is not stretched to further justify hatred or prejudice,” Graves added. “We must protect the right of every person to live without fear of discrimination because of who they are or who they love, and we must hold that value particularly close when it comes to the best interest of LGBTQ youth and the families who love them.” 

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U.S. Senate to consider apology for past anti-LGBTQ discrimination

Report shows 70-year history of gov’t persecution, purges of ‘sex deviates’

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Pioneering activist Frank Kameny, who was fired from his government job for being gay, received an apology from the government decades later, but that apology did not extend to the thousands of other LGBT Americans persecuted by their government. (Blade file photo by Michael Key)

WASHINGTON – U.S. Sens. Tammy Baldwin (D-Wisc.) and Tim Kaine (D-Va.) are preparing to introduce a first-ever resolution calling on the Senate to acknowledge and apologize for the federal government’s discrimination against LGBTQ federal workers and members of the military over a period of at least 70 years.

The two senators have agreed to introduce the proposed resolution at the request of the Mattachine Society of Washington, D.C., an LGBTQ group that specializes in archival research into the federal government’s decades-long policy of banning LGBTQ people from working in federal jobs and serving in the U.S. military and purging them when found to be in those positions.

The Mattachine Society, in partnership with the international law firm McDermott Will & Emery, prepared a 28-page white paper reporting in extensive detail the U.S. government’s history of what it calls discrimination and persecution of LGBTQ federal workers and LGBTQ military service members.
The white paper is entitled, “America’s Promise of Reconciliation and Redemption: The Need for an Official Acknowledgement and Apology for the Historic Government Assault on LGBT Federal Employees and Military Personnel.”

In a statement, the Mattachine Society says the paper is the product of a two-year research project involving a team of five attorneys with the McDermott Will & Emery firm and Mattachine Society.

“Over many decades, the United States government, led by teams within the Federal Bureau of Investigation (FBI), the Office of Personnel Management (OPM), and nearly every agency and branch of government, began the process of investigating, harassing, interrogating, court-martialing, terminating, hospitalizing, and, in some cases, criminally prosecuting LGBT Americans for no other reason than their sexual orientation or gender expression,” the paper says.

“This wholesale purging left tens of thousands in financial ruin, without jobs, with personal lives destroyed, and, in many cases, completely estranged from their own families,” the paper states.

“A straightforward acknowledgement of the mistreatment of these military and civilian employees and an official apology is overdue,” the paper continues. “Both the Congress and the Executive Branch were complicit in this pervasive mistreatment of LGBT citizens.”

The paper points out that over the past 30 years Congress has officially acknowledged and apologized on six different occasions for U.S. mistreatment of other marginalized groups.

Among the subject areas of those apologies were the enslavement of African Americans, the failure to enforce anti-lynching laws to protect African Americans, the internment of Japanese Americans during World War II, the mistreatment of Native Hawaiians, the mistreatment of Native Americans, and government polices of exclusion of Chinese immigrants.

The paper says the time has come for the federal government to issue its own “acknowledgement and apology” to the LGBT community by following the precedent established by Congress with respect to apologies to the other marginalized groups.

Jeff Trammell, a Mattachine Society board member who led the project to prepare the white paper, said Baldwin and Kaine were in the process of lining up other senators to sign on as co-sponsors of the resolution.

Baldwin is the Senate’s only out lesbian member. Kaine is a longtime supporter of LGBTQ rights.
Trammell said Mattachine of Washington considers the Senate resolution the first step in an ongoing effort to obtain a similar resolution in the U.S. House of Representatives and a possible similar statement of acknowledgement and apology from the executive branch, including the Biden administration.

He said he and the resolution’s supporters were hopeful that most senators, including Republicans, would view it as non-controversial and as a nonpartisan measure because it seeks only the acknowledgement of historical facts. Trammell noted that unlike other resolutions of apology pertaining to other minorities approved by Congress in the past, the LGBT apology resolution does not call for any financial reparations.

The eight-page proposed resolution addresses that question by stating, “Nothing in this resolution…authorizes or supports any claim against the United States or serves as a settlement of any claim against the United States.”

Trammell noted that under the Obama administration, John Berry, the director of the U.S. Office of Personnel Management, issued an official government apology for the firing of D.C. gay rights pioneer Frank Kameny from his government job in the late 1950s. But Trammell said the apology to Kameny, which was considered important and groundbreaking, did not extend to the thousands of other LGBTQ employees fired or harassed in the years before and after Kameny’s firing.

The white paper also points out that at least seven U.S. allied nations have issued apologies for past mistreatment of their own LGBTQ citizens. Among them are Spain, Canada, United Kingdom, Australia, Germany, Brazil, and The Netherlands.

“We believe the time has come to understand and acknowledge the historical animus that LGBT federal employees and military personnel faced for generations from their own government to ensure it can never happen again,” Trammell said.

The white paper can be accessed here.

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