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D.C. Circuit Court sides with Trump on trans military ban

Ruling cites Mattis plan, deference to military on combat-readiness

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The D.C. Circuit Court of Appeals sided with President Trump on the transgender military ban. (Photo by AgnosticPreachersKid via Wikimedia Commons)

A federal appeals court has sided with President Trump on his attempt to ban transgender people from the military, marking the first court victory for the administration on the anti-trans policy as litigation against it moves through the courts.

In a five-page decision, a three-judge panel on the D.C. Circuit Court of Appeals overturns a preliminary injunction issued by U.S. District Judge Colleen Kollar-Kotelly barring the Trump administration from banning transgender service members.

Although the D.C. Circuit has lifted one preliminary injunction against the transgender military ban, three more orders against the policy remain in effect. Transgender people will be able to continue to serve in the U.S. armed forces as litigation moves forward in the courts.

The unsigned ruling was a per curiam decision, which means it was unanimous. The three-judge panel consisted of U.S. Circuit Judge Stephen Williams, a Reagan appointee; U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee; and U.S. Circuit Judge Robert Wilkins, an Obama appointee.

The opinion indicates Wilkins and Griffiths plan to issue a longer opinion at some time in the future and Williams plans a concurring opinion.

The order might also not be the D.C. Circuit’s final word on the transgender military ban. The opinion itself notes “today’s decision is not a final determination on the merits,” but a decision on a whether a preliminary injunction should remain in place as litigation continues.

Cited as the D.C. Circuit’s reason for lifting the order is the plan issued by former Defense Secretary James Mattis seeking to implement Trump’s 2017 tweet and subsequent order against allowing transgender people to serve “in any capacity” in the military.

The court concludes Kollar-Kotelly “made an erroneous finding that the Mattis Plan was not a new policy” because she ignored certain nuances about the plan.

“The government took substantial steps to cure the procedural deficiencies the court identified in the enjoined 2017 Presidential Memorandum,” the order says. “These included the creation of a panel of military and medical experts, the consideration of new evidence gleaned from the implementation of the policy on the service of transgender individuals instituted by then-Secretary of Defense Ash Carter (‘the Carter Policy’), and a reassessment of the priorities of the group that produced the Carter Policy.”

The Mattis plan allows transgender people to continue to serve in the military if they “have been stable for 36 consecutive months in their biological sex” and do not seek transition-related case, such as gender reassignment surgery, are not diagnosed with gender dysphoria or came out as transgender during the period of open service under former Defense Secretary Ashton Carter during the Obama administration.

Although transgender advocates have made the case gender dysphoria is a defining characteristic of being transgender and thus the policy amounts to a full-fledged ban, the court disputes that notion.

“We can find nothing in the record to support this definition of being transgender, as all of the reports supporting both the Carter Policy and the Mattis Plan defined transgender persons as ‘identifying’ with a gender other than their biological sex,” the order says. “Indeed, those reports repeatedly state that not all transgender persons seek to transition to their preferred gender or have gender dysphoria.”

The order also cites legal precedent requiring courts to give deferences to the military on whether individuals are eligible for combat.

“We must recognize that the Mattis Plan plausibly relies upon the ‘considered professional judgment’ of ‘appropriate military officials,’ and appears to permit some transgender individuals to serve in the military consistent with established military mental health, physical health and sex-based standards,” the order says.

The ruling was handed down in the case of Doe v. Trump, the case against the transgender military ban filed by the National Center for Lesbian Rights and GLBTQ Advocates & Defenders.

Shannon Minter, legal director for the National Center for Lesbian Rights, said in a statement the ruling is “a devastating slap in the face to transgender service members who have proved their fitness to serve and their dedication to this country.”

“We will keep fighting this cruel and irrational policy, which serves no purpose other than to weaken the military and punish transgender service members for their patriotism and service,” Minter said.

Minter told the Blade the legal team is considering asking the D.C. Circuit for an en banc rehearing, adding, “This is not a final decision on the merits, and we are very confident of our ability to make our case in the district court as the case proceeds.”

Jennifer Levi, director of the Transgender Rights Project for GLBTQ Advocates & Defenders, said in a statement the opinion is “based on the absurd idea that forcing transgender people to suppress who they are in order to serve is not a ban.”

“It ignores the reality of transgender people’s lives, with devastating consequences and rests on a complete failure to understand who transgender people are,” Levi said. “It is also destabilizing to the military to so dramatically reverse a policy that has been in place for over 2 years that senior military officials acknowledge has operated with no problems.”

The U.S. Justice Department didn’t immediately respond to the Blade’s request to comment on the opinion.

The D.C. Circuit issues the order less than a month after hearing oral arguments on whether to dissolve Kollar-Kotelly injunction against the transgender military ban. At the time, the three-judge panel didn’t give a clear signal on which way they’d rule on the issue.

The order is handed down as the Justice Department has two requests pending before the U.S. Supreme Court seeking intervention in three transgender military cases, including Doe v. Trump. The other two cases are Karnoski v. Trump and Stockman v. Trump, which are pending before the U.S. Ninth Circuit Court of Appeals.

One request calls on the Supreme Court to take the rare step of granting review of the cases on an interlocutory basis to allow enough time for justices to issue final decision on the policy before the end of the year. The other seeks a stay on the preliminary injunctions against the policy, which would essentially allow the Trump administration to bar transgender service members as litigation moves forward.

Minter said the D.C. Circuit decision moots the Justice Department’s request for cert before judgment and a stay in the Doe v. Trump case, but doesn’t directly affect the Trump administration’s requests before the Supreme Court in other cases.

With respect to those cases, Minter said the D.C. Circuit decision “may weigh against the court granting cert” because the Trump administration urged the Supreme Court to consolidate all of them.

“It does not directly affect the government’s motion for stays of the injunctions in Karnoski and Stockman, though it certainly raises the stakes of that request, since the injunction in Doe has now been dissolved by the D.C. Circuit,” Minter added.

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U.S. Federal Courts

Indiana GSA sues school district that banned Pride flags over another ban

“The treatment aimed at PHGSA by administrators is unwarranted- these students must be treated in the same manner all others are treated”

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Pendleton Heights High School in Pendleton, Indiana (Screenshot via WTHR NBC 13 News)

INDIANAPOLIS – A student led Gay-Straight Alliance at Pendleton Heights High School in Pendleton, Indiana filed suit against their school and the South Madison Community Schools District for banning public announcements and adverts in-school for their club.

Last Spring officials in the Schools District, in this suburban community 30 miles northeast of Indianapolis, ordered faculty members at Pendleton Heights High School to remove Rainbow Pride flags from classrooms. The Schools District labeled the flags “political paraphernalia”  and instructed the Spanish, French and art teachers to get the flags out of their classrooms saying the flags violate their school district’s “political paraphernalia” policy.

In the suit filed last Wednesday by the American Civil Liberties Union of Indiana on behalf of the Pendleton Heights High GSA, in U.S. District Court for the Southern District of Indiana, the ACLU noted that the principal at Pendleton Heights has stated that the PHGSA cannot publicize its existence on school bulletin boards or on the school’s radio station, while other curricular and non-curricular clubs at the school are able to do so. 

“This group aims to create an environment that provides support to students, during a time that otherwise might be increasingly difficult for LGBTQ students,” said Kit Malone, advocacy strategist at ACLU of Indiana. “The differential treatment aimed at Pendleton Heights Gay-Straight Alliance by administrators is unwarranted and these students must be treated in the same manner that all other student groups are treated.” 

Pendleton Heights Principal Connie Rickert has the authority to decide what student groups are allowed to meet at the school and which ones are deemed to be “official.” Last Spring she deflected on the apparent anti-LGBTQ+ messaging the order to remove the flags sent telling one media outlet; ““Teachers are legally obligated to maintain viewpoint neutrality during their official duties to ensure all students can focus on learning and we can maintain educational activities and school operations,” she said. “Our counselors are trained to respond to any student who desires support.”

While she has allowed the GSA club to meet, her banning announcements and notifications for the GSA runs contrary to her statements last Spring that that her school prides itself on creating a welcoming environment for all. 

“Students at Pendleton Heights High School may participate in non-curricular clubs recognized by the school,” said Ken Falk, ACLU of Indiana legal director. “By creating additional hurdles for Pendleton Heights Gay-Straight Alliance such as censoring the group’s promotions and prohibiting fundraising, the school is infringing on these students’ rights.” 

The South Madison Community Schools District has declined comment.

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Mexico

Mexicans with HIV/AIDS lack treatment access

Government in 2019 created new health care entity

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Roberto Navarro (Photo courtesy of Roberto Navarro)

MEXICO CITY — Roberto Navarro has been a dancer since he was 17. Jazz became his passion and he fell in love with classical dancing after he took many classes. And he began to teach four years later.

“I’m so happy when I teach dancing to my girls because they bring me so much joy, I feel like I help my girls to become better women, without noticing I’m some kind of a therapist,” Navarro told the Los Angeles Blade. 

He discovered the discipline of dancing in heels in 2014, which made him connect and explore more with his sexuality. He did, however, suffer a lot of bullying because of it.

Navarro — a 33-year-old gay man who is originally from Sahuayo de Morelos in Michoacán state —  currently owns a dance salon. Navarro said he started to become an entrepreneur, but it hasn’t been easy because of the pandemic. 

He was diagnosed with HIV in 2016. Navarro suffered from depression for several months after he learned his status.

“I woke up very overwhelmed in the morning thinking that I had to go to the hospital to make a long line of patients; to have blood drawn for fast screening tests,” he said. “We arrived at 7 in the morning and left until 1 in the afternoon.”

Navarro has been receiving treatment for almost five years, and he is still dancing.

“Subsequently, I went to my consultations every three or six months depending on my results,” he stated. “By the third month I was undetectable.”

Navarro started with Atripla, an antiretroviral drug he received through Mexico’s Seguro Popular, and he was undetectable a month later. 

A shortage of Atripla forced a change to Biktarby after President Andrés Manuel López Obrador in 2019 scrapped Seguro Popular and created the Health Institute for Wellbeing (INSABI). The pharmaceutical company Gilead has said there are many counterfeit versions of the drug on the market.

Seguro Popular in 2018 had almost 52 million beneficiaries. The National Council for the Evaluation of Social Development Policy (CONEVAL) said INSABI at the end of 2020 had more than 34 million beneficiaries.

Antiretroviral drugs have been available in Mexico since 2003, although the Mexican health system is divided into various subsystems based on where one works.

  • Institute of Social Security and Services for State Workers (ISSSTE)
  • Mexican Institute of Social Security (IMS)
  • INSABI (Health Institute for Wellbeing) that was previously known as the Seguro Popular

They vary in the time it takes to receive medication and the time for CD4 viral load tests. The availability of appointments with infectious disease specialists varies in each of the three public health systems.

People with INSABI will take longer to get tests and have access to doctors. It must also be recognized that everyone, in theory, has the possibility of accessing medicines, but it also depends on the states in which they live. 

There are three health care systems in Mexico. (Washington Blade photo by Michael K. Lavers)

The number of people without access to healthcare in Mexico rose from 20 million to almost 36 million between 2018-2020. INSABI, more than a year after its creation, still does not completely cover the same amount as its predecessor.

INSABI is an independent agency through the Ministry of Health that aims to “provide and ensure the free provision of health services, medicines and other inputs associated with people without social security.” The General Health Law says it was to replace Seguro Popular, which was in place from 2004-2019.

“The situation for treatment right now, it’s quite complex, particularly because there have been many changes in the health department of Mexico, and this has to do with the fact that in 2003 when the Seguro Popular was established; there was an increase to comprehensive care for people living with HIV and resources for prevention strategies which are mainly handled through civil society organizations that obtained money from the government.” stated Ricardo Baruch, who has worked at the International Family Planning Federation for almost 15 years.

López,, who took office in 2018, sought to eliminate Seguro Popular, which was the mechanism by which access to antiretroviral drugs were given to most people living with HIV in the states with greater vulnerability. This change was done in theory to expand access for everyone, but the opposite happened.

There is less access due to the modification of purchasing mechanisms and a huge shortage throughout the country. Baruch says this situation has caused a treatment crisis across Mexico.

“The truth is that the Seguro Popular helped me a lot to have my treatments on time, what I do not like is that there is not enough staff to attend all the patients that we are waiting for our consultations,” said Erick Vasquez, a person who learned in February he is living with HIV.

Vasquez, 34, is an artist who works in Guadalajara and Playa del Carmen. 

Vasquez did not have health insurance like other people through IMS. He obtained access to Seguro Popular through an organization that supports people with HIV, but he has to wait until October for his first appointment.

Vasquez, who has a very low viral load, in March began a job through which he obtained IMS. He had access to his treatments through it.

He received three months worth of Biktarvy at the end of June; one prescription for each month. He said the drug is not difficult to obtain.

“I have not had any problem with the medication, it is not difficult to get it when you are on the insurance, but there is still a long time left until October,” said Vasquez.

The cost of the antiretroviral treatment in Mexico is approximately $650 per month, and one bottle has only 30 pills. 

“I have not had side effects, I have not had nausea, I don’t vomit, I take a pill daily, it is one every 24 hours,” Vasquez said. “I feel very well and I hope very soon to be undetectable.”

Members of the Gay Men’s Chorus of Mexico City who are living with HIV perform at Clínica Condesa, a public health clinic in Mexico City, on July 21, 2019. The clinic’s 20th anniversary coincided with the International AIDS Society’s Conference on HIV Science that took place in the Mexican capital. (Washington Blade photo by Michael K. Lavers)

Infrastructure over health 

Prevention resources were eliminated, and health resources today are used to finance the Felipe Ángeles International Airport at the Santa Lucía military base in Zumpango in Mexico state, a new refinery, the Mayan train and other major infrastructure projects. And this causes many people who want to access treatment not to receive them. It takes much 

The cost of the work, including the land connected with the Mexico City International Airport and various military facilities, is set at 82,136,100,000 Mexican pesos and there are provisions to serve 19.5 million passengers the first year of operations, according to a report from the Secretariat of National Defense (SEDENA). 

There are, on the other hand, far fewer HIV tests and this shortage has led to a much higher arrival of late-stage HIV cases and even AIDS in hospitals. This trend is particularly serious among transgender women and men who have sex with men.

“Here in Mexico we concentrate the HIV pandemic, and that we are at a time when this issue of shortages has not stabilized, that there is already more clarity in purchases, but it is well known that all these changes in health systems continue for a year over the years they cause the situation to be increasingly fragile and in the matter of migrants that previously there was certainty so that they could access medicines through the Seguro Popular, now there is a legal limbo for which in some states it depends: on the states, the clinic or social worker; whether or not they give you medications,” said Baruch.

“If you are not a resident or a national here in Mexico, this is a matter won for people in transit seeking political asylum or who had stayed in Mexico,” he added.

Migrants lack access to HIV treatment

Mexico is located between the three regions with the world’s highest rates of HIV: the Caribbean, Central America, and the U.S. This has been used as a foundation for a culture of hatred against migrants, according to Siobhan McManus, a biologist, philosopher, and researcher at the Center for Interdisciplinary Research in Sciences and Humanities of the National Autonomous University of Mexico.

The lack of opportunities, violence and climate change that forces people whose livelihoods depend on agriculture to abandon their homes prompts migration from Central America.

Most migrants — LGBTQ or otherwise — experience violence once they arrive in Mexico.

Migrants wait for humanitarian visas at the Ciudad Hidalgo port of entry in Ciudad Hidalgo, Mexico, on Jan. 30, 2019. (Washington Blade photo by Michael K. Lavers)

Chiapas and other states have created an extensive network of clinics known by the Spanish acronym CAPASITS (Centro Ambulatorio para la Prevención y Atención en SIDA e Infecciones de Transmisión Sexual) that are specific HIV and STD units in major towns. They are often within close proximity to most people’s homes.

Sonora and Chihuahua states, which border the U.S., often have such clinics in only one or two cities. This lack of access means people will have to travel up to six hours to access these treatments.

People who have already been receiving treatment for a long time were previously given up to three months of treatment. They now must travel every month to receive their medications because of the shortages.

PrEP available in Mexico

The shortage of medical drugs for people who already live with HIV is a current issue for the Mexican government, but they have made free PrEP available for those who want to prevent themselves from the virus. 

Ivan Plascencia,  a 24-years old, who lives in Guadalajara, the capital of Jalisco state , has been using PrEP for several years since he became sexually active and he never had any complaints about the medication. Plascencia instead recommends his close friends to take advantage of this prevention drug that is available in one of the CAPASITS where he lives.

Post-pandemic screening tests

There are an estimated 260,000 people in Mexico who are living with HIV. Upwards of 80 percent of them knew their status before the COVID-19 pandemic.

The number of new cases that were detected in 2020 were 60 percent less than the previous year, but this figure does not mean HIV rates have decreased. 

In Jalisco, which is one of Mexico’s most populous states with upwards of 8 million people, there was a 40 percent increase in positive cases in 2020 compared to 2019. This increase has put a strain on service providers.

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Europe

Swiss voters overwhelmingly approve ‘Marriage for All’ law

Statute received 64 percent support in referendum

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Screenshot of pro-same-sex marriage 'Yes, love wins' banner on a Swiss Fence via BBC Europe

BERN, Switzerland — Voters in Switzerland on Sunday voted overwhelmingly in favor of a law that extends marriage rights to same-sex couples.

Swiss voters supported the “Marriage for All” law by a 64-36 percent margin in the referendum.

Lawmakers approved the statue late last year. Marriage equality opponents were able to force a referendum on it.

Switzerland joins neighboring France, Germany, Austria and other European countries that have extended marriage rights to same-sex couples.

Maria von Känel, co-president of the “Marriage for All” campaign, described the referendum results as “a historic day, a milestone for LGBTQ equality.”

“It’s a great achievement,” she told the Los Angeles Blade. “All cantons and 64.1 percent of Swiss voters have voted yes for marriage for all. Our partnerships and families are now recognized equally and legally.”

“We have great support of the family, children and human rights organizations and many thousands of people who took to the streets for this cause and did public work,” added von Känel. “We are infinitely grateful.”

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