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Supreme Court won’t review Texas decision against same-sex benefits

Court will now hear arguments on whether businesses can refuse service to same-sex couples

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Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

The U.S. Supreme Court won’t take up a Texas decision against same-sex benefits.
(Washington Blade file photo by Michael Key)

The U.S. Supreme Court has declined to take up review of a Texas Supreme Court decision casting doubt on whether the 2015 ruling for marriage equality nationwide requires municipalities to offer same-sex spousal benefits to employees.

The Supreme Court announced it has denied certiorari, or refused to take up the petition seeking review of the decision, in an order list Monday reflecting decisions justices made during a conference last week Friday. It takes a vote of four justices to take up a case, but the vote on petitions isn’t made public.

The petition was filed in September by Wallace Jefferson, an attorney at the Austin-based law firm Alexander Dubose Jefferson & Townsend LLP.

Jefferson told the Washington Blade after the announcement the rejection of the petition was based on ongoing review in the state judiciary.

“I believe the Supreme Court deferred review because the Texas Supreme Court remanded the case for further consideration,” Jefferson said. “We anticipate that the Texas courts will fully embrace Obergefell’s holding, just as the United States Court of Appeals for the Fifth Circuit has done.”

Jonathan Mitchell, a Stanford, Calif., based attorney who represents opponents of same-sex benefits, deferred comment to Jonathan Saenz of the anti-LGBT group Texas Values, who hailed the decision in a statement.

“This is an incredible early Christmas present from the U. S. Supreme Court for taxpayers,” Saenz said. “We’re grateful that the U.S. Supreme Court has allowed our lawsuit to go forward. Mayor Annise Parker defied the law by providing spousal benefits to same-sex couples at a time when same-sex marriage was illegal in Texas, and we intend hold the city accountable for Parker’s lawless actions and her unauthorized expenditures of taxpayer money.”

To the consternation of gay rights advocates, the Texas Supreme Court in June determined the 2015 Obergefell decision “is not the end” of the same-sex marriage issue and state workers have no established right to obtain benefits, such as health insurance, for their same-sex spouses in the same way as other employees.

“The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and — unlike the Fifth Circuit in De Leon — it did not hold that the Texas DOMAs are unconstitutional,” Justice Jeffrey Boyd wrote in the decision.

The case was filed by Jack Pidgeon and Larry Hicks after former Houston Mayor Annise Parker, a lesbian, instructed her city to provide spousal benefits to city employees in same-sex marriages. Parker cited the Supreme Court’s 2013 ruling against the anti-gay Defense of Marriage Act as the basis for her decision. Pidgeon and Hicks contended state law, which at the time barred same-sex marriage, prevented Parker from taking that action.

Legal observers found the Texas Supreme Court’s conclusion to be totally off-track with the Obergefell decision.

After all, the Supreme Court made clear in Obergefell the ruling compels states to afford the “constellation of benefits” of marriage to same-sex couples. The Texas decision also came the same week the U.S. Supreme Court affirmed Obergefell by overturning an Arkansas Supreme Court decision upholding a state law against placing both lesbian parents’ names on the birth certificates of their children.

Many observers pointed to the makeup of the Texas Supreme Court — justices who are elected, not appointed — as they reason they came to the decision. Texas Gov. Greg Abbott and other Republican lawmakers urged the court to take the case after justices initially refused and allowed a lower court decision in favor of benefits to stand.

(Side note: One of the justices in the Texas decision was Associate Justice Don Willett, whom President Trump has nominated to a seat on the U.S. Fifth Circuit Court of Appeals. Trump also named Willett to his short list of potential U.S. Supreme Court nominees.

In part because of his decision in the Houston benefits case, LGBT advocates have come out against Willett’s confirmation to the Fifth Circuit. Last month, the LGBT legal group Lambda Legal organized 26 other national, state, and local LGBT groups to express opposition to Willett before the Senate Judiciary Committee.)

The Texas Supreme Court decision fell short of outright denying spousal benefits for married same-sex couples and instead remanded the case to a trial court for reconsideration. The lawsuit remains pending before trial court.

Jefferson said there’s “no telling” when the trial court will reach its determination and the case “will proceed according to the trial court’s scheduling.”

Mark Phariss, one of the plaintiffs in the lawsuit that brought marriage equality to Texas, had filed a friend-of-the-court brief calling on the U.S. Supreme Court to review the Texas decision and expressed disappointment justices wouldn’t take up the case.

“I am very disappointed that the Supreme Court did not grant cert today,” Phariss said. “It means we must continue to fight in the courts in the State of Texas for full marriage equality. Today ‘Equal Justice Under Law’, as promised by the inscription to the front of the Supreme Court building, was not rendered. Ultimately, we will prevail, because history, justice, equality, and fairness are on our side.”

The denial of the petition by the Supreme Court isn’t the first time the federal judiciary has declined to review the Texas benefits decision.

In August, Lambda Legal and the law firm Morgan, Lewis & Bockius LLP filed a lawsuit in a federal court to affirm the Obergefell decision ensures health coverage and other benefits to the same-sex spouses of city employees. Months later in November, U.S. District Judge Vanessa Gilmore dismissed the case on the basis that plaintiffs’ claims weren’t ripe for review.

However, Gilmore recognized a constitutional requirement to provide spousal benefits on equal terms based on the Obergefell decision.

“In light of this precedent, which the Texas trial court is required to follow, it seems constitutionally impermissible for the city to deny benefits to the same-sex spouses of its employees,” Gilmore wrote.

The U.S. Supreme Court announced it won’t take up the benefits case on the day before it’s set to hear oral arguments in the Masterpiece Cakeshop case in which a Colorado baker is asserting a First Amendment right to deny wedding cakes to same-sex couples.

Sarah Kate Ellis, CEO of GLAAD, said in a statement the denial of certiorari in the Texas is disconcerting, especially on the day before justices are set to consider a major gay rights case.

“With all eyes on tomorrow’s oral arguments in the Masterpiece Cakeshop religious exemptions case, the Supreme Court has just let an alarming ruling by the Texas Supreme Court stand which plainly undercuts the rights of married same-sex couples,” Ellis said. “Today’s abnegation by the nation’s highest court opens the door for an onslaught of challenges to the rights of LGBTQ people at every step.”

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New York Governor Cuomo signs Gender Recognition Act into law

“New York continues to lead the way in ensuring LGBTQ people are treated equally in every part of the law and society”

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NY Governor Cuomo Signs the Gender Recognition Act (Screenshot via Gov. Cuomo YouTube Channel)

ALBANY, Ny. – New York Democratic Governor Andrew Cuomo signed into law the state’s Gender Recognition Act Thursday. With a final push shepherded by openly gay New York State Assemblymember Daniel O’Donnell, (D), the New York State Assembly passed New York Senate Bill S4402 and its Assembly companion bill A5465, (GRA) two weeks ago in early June.

“Every New Yorker deserves to be free from discrimination and have state-issued identification and processes that respect them for who they are, recognize their gender identity and protect their safety,” Governor Cuomo said. “New York continues to lead the way in ensuring LGBTQ people are treated equally in every part of the law and society, and this bill is another landmark that ensures New Yorkers can express ourselves for who we are.”

On Wednesday, Lambda Legal and Governor Cuomo reached an agreement that puts on hold the lawsuit Lambda Legal filed on behalf of Sander Saba, a nonbinary transgender New Yorker seeking an “X” gender marker on their New York state driver’s license. In exchange for putting Mx. Saba’s lawsuit on hold, the State has committed to update its legacy computer system to be able to issue state ID cards and official driver’s licenses with X gender markers by May 24, 2022. 

“Lambda Legal applauds the signing of the Gender Recognition Act (GRA) into law, an important and long-awaited bill we strongly supported for years. […] This long-awaited law will remove the publication requirement for name changes, allow for a self-attestation system for DMV-issued IDs, including drivers’ licenses, allow for gender-neutral X markers on state-issued IDs, and codify into law several recent legal wins by Lambda Legal and others such as allowing for self-attestation and X gender markers on NY State birth certificates, permitting corrections to the gender marker on minors’ birth certificates, and permitting parents to correct the parent’s name and gender on their child’s birth certificate, among other important updates. We welcome Governor Cuomo signing this bill and hope the state continues to ensure all transgender, nonbinary, and gender non-conforming New Yorkers have access to correct documentation,” Ethan Rice, Senior Attorney with the Fair Courts Project at Lambda Legal said.

“This change will bring New York up to date with the 19 other states and the District of Columbia that maintain policies respecting the lives of nonbinary people and giving them access to accurate identity documents and the ability to be fully themselves in their day-to-day lives,” Rice added.

“We are thrilled to know that after years of advocacy, transgender and nonbinary people in New York now finally have many more of the critical protections we need. The Gender Recognition Act makes updating ID documents easier and less expensive by removing both the requirement for a doctor’s note to change gender markers and the publishing requirement for court-ordered name changes” said Charlie Arrowood, the Transgender Legal Defense & Education Fund’s  Name Change Project Counsel. “Having accurate ID documents that reflect who you are is critical for the health and safety of transgender and nonbinary New Yorkers.”  

WATCH: Governor Cuomo Signs the Gender Recognition Act

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Transgender immigrant activists march to White House

Marchers demanded end to ICE detention of trans, HIV-positive people

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Transgender immigrant activists who marched to the White House on June 23, 2021, stand in the intersection of 16th and H Streets, N.W., near Black Lives Matter Plaza. (Washington Blade photo by Michael Key)

WASHINGTON — More than 100 people marched to the White House on Wednesday to demand the Biden administration end the detention of transgender people and people with HIV/AIDS in U.S. Immigration and Customs Enforcement facilities.

Casa Ruby CEO Ruby Corado and other marchers left National City Christian Church in Thomas Circle after organizers held a “funeral” for three trans women — Roxsana Hernández, Victoria Arellano and Johana “Joa” Medina Leon — who died while in ICE custody or immediately after the agency released them.

Hernández, a trans woman with HIV from Honduras, died in a hospital in Albuquerque, N.M., on May 25, 2018, while in ICE custody. Arellano, a trans woman with HIV from Mexico, passed away at a hospital in San Pedro, Calif., while in ICE custody.

ICE released Medina, a trans woman with HIV from El Salvador, from its custody on May 28, 2019, the same day it transferred her to a hospital in El Paso, Texas. Medina died three days later.

Hernández’s family has filed a lawsuit against the federal government and the five private companies that were responsible for her care.

Isa Noyola, deputy director of Mijente, one of the immigrant advocacy groups that organized the march, emceed the “funeral.” Noyola played a message that Hernández’s nephew in Honduras recorded.

“The state does not recognize our humanity,” said Noyola, who became emotional at several points during the service.

A press release that announced the events said 25 trans women who had previously been in ICE custody participated. They, along with other participants, blocked traffic at the intersection of 16th and H Streets, N.W., near Black Lives Matter Plaza for several minutes before they marched into Lafayette Square.

March participants also carried three pink coffins that represented Hernández, Arellano and Medina. They propped them up on a security fence along Pennsylvania Avenue before they staged a die-in.

The march took place a week after Mijente and seven other immigrant advocacy groups in a letter to Homeland Security Secretary Alejandro Mayorkas and acting ICE Director Tae Johnson demanded the release of all trans people and people with HIV who are in immigrant detention facilities.

The White House on Tuesday announced asylum seekers who saw their cases closed under the previous administration’s “Remain in Mexico” policy will be allowed to enter the U.S. in order to pursue them. Vice President Kamala Harris, who traveled to Guatemala earlier this month, has also acknowledged anti-LGBTQ violence is one of the “root causes” of migration from Central America’s Northern Triangle.

‘Our only crime is to seek opportunities, to seek refuge’

Li An “Estrella” Sánchez, a trans woman from Mexico’s Veracruz state who the U.S. has granted asylum, is among those who participated in the march.

She told the Los Angeles Blade during an interview in Lafayette Square after the march that she spent 13 months in ICE custody at three Georgia detention centers — the Atlanta City Detention Center, the Irwin County Detention Center and the Stewart Detention Center — before her release in 2013. Sánchez, who founded Community Estrella, an Atlanta-based organization that advocates for ICE detainees who identify as LGBTQ, said she and other trans ICE detainees face inadequate access to health and solitary confinement, among other things.

“I know first hand what they felt,” said Sánchez, referring to the three trans women who died in ICE custody or immediately after their release. “I wouldn’t wish it upon my worst enemy to be in a jail.”

“Our only crime is to seek opportunities, to seek refuge, to seek protection, to seek security,” she added.

Sánchez also had a message for President Biden.

“Listen, because the people are continuing the fight,” said Sánchez. “You have promised to support the LGBT community and you are really forgetting the immigrant community.”

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Chaos erupts at Virginia school board meeting over trans students rights

Two people arrested, two others injured

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Screenshot via WJLA ABC 7 News Washington

LEESBURG, Va. — The Loudoun County School Board abruptly ended its meeting Tuesday as chaos erupted after parents who were against the school district’s implementation of Policy 8040 failed to observe rules regarding disruptions and decorum.

Loudoun Now reports Vice Chair Atoosa Reaser made the motion to curtail public comment about an hour after that portion of the meeting began. A brawl then broke out between members of the public, and Loudoun County Sheriff’s Department deputies were called to clear the room. 

Two people were arrested, and two people also suffered minor injuries. The names of those who were taken into custody and injured have not been made public.

The school board resumed its meeting at 6:30 p.m. after it ended the public comment session and deputies cleared the room. The school board entered into closed session to meet with legal counsel and discuss negotiations involving a bid award.

In light of the events that transpired at the school board meeting, a group of LGBTQ groups in neighboring Fairfax County in a statement called upon prominent community members to condemn the anti-transgender hate in Loudoun County.

“A coalition of organizations based in Northern Virginia is calling on local officials … to condemn the rise of anti-LGBTQIA+ hate, in particular animosity towards transgender and gender-expansive students, on display in Loudoun County,” reads the statement 

“In addition, the coalition is asking for the denouncement of support for this hate from other local groups, including the Fairfax County Republican Committee, the Family Foundation of Virginia and the Family Research Council,” it adds. “Finally, the members of these organizations are requesting visible displays of support for LGBTQIA+ students, particularly trans and gender-expansive students, in both words and deeds.”

More than 300 people attended the school board meeting, with many of them opposing Policy 8040 which would allow transgender students to use their preferred name and pronouns regardless of the name and gender in their permanent education record. The proposed policy would also not require them to provide any substantiating evidence.

Parents also expressed their support for Policy 8040 during the public comment session.

They spoke in favor of inclusivity and equality in the Loudoun County School District.

Parents who were against the policy cited the need to respect biology and privacy as their arguments. In addition, some speakers, including former state Sen. Dick Black expressed anger at the previous school year’s events such as the suspension of physical education teacher Tanner Cross after he refused to refer to trans students using their preferred pronouns.  

“The crowd repeatedly cheered public speakers who lashed out at school board members and denounced the plan that would provide bathroom and locker room access based on a student’s gender identity,” WTOP News reports.

Only 51 of the 249 speakers who had signed up for public comment ended up speaking before Reaser’s motion was passed.

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