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Trump admin sued for refusing to back down on anti-trans health care rule

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With the Trump administration refusing to take back its rule permitting anti-transgender discrimination in health care following a U.S. Supreme Court ruling on LGBTQ rights effectively countermanding it, LGBTQ legal advocates are returning to the courts to bring the federal government into compliance.

The LGBTQ legal group Lambda Legal sued the Trump administration Monday over a rule from the Department of Health & Human Services permitting health care workers to refuse service to transgender people, including transition-related care and gender reassignment surgery. The case and the 85-page complaint is now pending before the U.S. District Court for D.C.

Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, said in a Zoom call with reporters Monday the lawsuit was necessary because the Trump administration has used the law as a “weapon to target and hurt vulnerable communities, particularly the LGBTQ community.”

“They are seeking to harm those who have already experienced alarming rates of discrimination when seeking care,” Gonzalez-Pagan said. “Even now, in the midst of a global pandemic, their actions are simply wrong, they are callous, they are immoral. More importantly, for purposes of today, they are illegally indefensible.”

The Trump administration rule change was based on Section 1557 of the Affordable Care Act, which bars discrimination on the basis of sex in health care. During the final year of the Obama administration, HHS issued a rule interpreting the definition of “sex” to apply to cases of discrimination in health care against transgender people, women who have had abortions and patients with limited English proficiency.

However, in defiance of widespread legal precedent affirming anti-transgender discrimination is unlawful — and refusing to wait until later in the month, when the U.S. Supreme Court would issue the final word on the issue — the Trump administration revoked those regulations earlier this month with a rule change based on a narrow interpretation of the word “sex.”

The move prompted an outcry from transgender advocates who said it would enable widespread discrimination in health care during the time of a global coronavirus pandemic. LGBTQ legal advocates had threatened to sue over the reversal, which came to pass on Monday.

Chief among the reasons cited in the lawsuit for the unlawfulness of the Trump administration’s action was the U.S. Supreme Court’s decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act.

Even though the Supreme Court ruling was based on employment, the lawsuit says the Bostock decision applies to the Trump administration’s health care rule, calling it “not in compliance with the law” in the aftermath of the landmark decision.

“To be clear, Bostock’s holding that discrimination on the basis of sexual orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health care settings,” the lawsuit says.

The lawsuit also seeks an injunction against the Trump administration rule change on the basis of it being arbitrary and capricious, in excess of statutory authority, in violation of due process and equal protection under the Fifth Amendment and in violation of freedom of speech and religion under the First Amendment.

“The Revised Rule violates the Establishment Clause by creating expansive religious exemptions for health care providers, plans, and employees at the expense of third parties – namely, plaintiffs, other providers, and most importantly the patients and the individuals whom plaintiffs serve,” the complaint says. “It invites health care providers, including insurance companies, hospitals, doctors, and nurses, to deny LGBTQ patients necessary medical treatment based on their religious beliefs.”

Although the lawsuit challenges the Trump administration rule change on legal grounds, representatives of plaintiffs in the lawsuit made an impassioned plea for reversal of the Trump administration rule change based on immortality and widespread harm of denying health care to LGBTQ people.

Naseema Shafi, CEO of the D.C.-based Whitman-Walker Health, said many D.C.-based LGBTQ patients come to the clinic because they experience marginalization and rejection in health care.

“Too often we learn of examples, such as a transgender patient who is subjected to hostile questions about who they are when seeking help from a hospital emergency room for deep pain, questions that may have long-term impact on whether that person seeks care when they are in pain again,” Shafi said.

Other examples Shafi cited were a transgender woman with cancer who was refused an ultrasound after being openly mocked by a technician performing the procedure, or patients trying to fill a prescription for PrEP for HIV prevention being denied service at a pharmacy.

“This type of discrimination is routine, and as health care providers we are obligated to do better and to rectify a history of upholding barriers to health and well-being,” Shafi said.

According to a 2017 survey conducted by the Center for American Progress, about 29 percent of transgender people reported being denied health care because of their actual or perceived gender identity. Eight percent of survey respondents reported being denied health care because of their sexual orientation.

Terra Russell-Slavin, deputy director of the Policy and Community Building Department at the Los Angeles LGBT Center, said on the Zoom call the Trump administration rule change is particularly reprehensible during the coronavirus pandemic.

“Many of our clients come to the center because they face discrimination and dehumanization when they seek basic medical care from other providers,” Russell-Slavin said. “That our government would seek to restrict access to care during a worldwide pandemic is yet another attack on their humanity.”

It should be noted that regardless of the outcome of the lawsuit, the underlying law on which the HHS rules are based, Section 1557 of the Affordable Care Act, is still in place, as is its language prohibiting discrimination on the basis of sex in health care. If LGBTQ people feel they experienced discrimination in health care, they can still sue in court, even if they can’t take it up with the HHS Office of Civil Rights under the Trump administration regulations.

One wrinkle in the lawsuit against the Trump administration is an injunction issued in 2016 by U.S. District Judge Reed O’Connor in Texas against the Obama administration’s trans-inclusive interpretation of the law.

The U.S. government was enjoined from enforcing the rule regardless of an administrative rule change in the back end. The Trump administration had the opportunity to appeal that injunction, but declined.

But if the injunction against Obama-era trans-inclusive interpretation of the law stays in place, and the district court in D.C. issues an injunction against the Trump administration reversal, what action should HHS take?

Gonzalez-Pagan, asked about potential conflicting injunctions by the Washington Blade, acknowledged higher courts may have to adjudicate conflicting injunctions to resolve them.

“Certainly if there are competing injunctions, we can see this move up to higher levels of courts, whether it’s a court of appeals, or at some point, even SCOTUS, if they so decide to take this case,” Gonzalez-Pagan said.

Each of the plaintiffs in the case are organizational plaintiffs or representatives of those organizations. One of them, the Los Angeles-based [email protected] Coalition, has members who say they’ve experienced discrimination in health care firsthand.

Bamby Salcedo, founder of the [email protected] Coalition, said she experienced discrimination in health care because she’s transgender, which is noted in the complaint.

“I myself as a trans Latina immigrant, and undocumented, has experienced discrimination while trying to access health care,” Salcedo said. “Not just myself, but Arianna Lint, as she was mentioned, but many members of our organization across the country have stated to us that they have been discriminated against while trying to access health care.”

An HHS spokesperson declined to comment on the lawsuit, citing a policy of no comment on pending litigation.

Click here for more information on other trans cases waged by Lambda Legal, plus resource links. – Karen Ocamb contributed to this story. 

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California Politics

Caitlyn Jenner: A one percenter gets one percent (actually 1.1%)

“If he doesn’t get recalled, I pity the people of California- It’s a shame, honestly you kind of get the government you deserve.”

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Screenshot via CBS Bay Area

LOS ANGELES – It was not the measured tones of a seasoned politician who had experienced the successes and failures inherent with any campaign for public office. Instead, in a speech given to a small gathering of supporters once it became clear that the recall effort against Democratic California Governor Gavin Newsom had failed, reality television celebrity Caitlyn Jenner took to the microphone and groused.

Sounding bitter Jenner said; “He didn’t campaign on not one of his successes, because he doesn’t have any,” she said. “I can’t believe that this many people actually voted to keep him in office. It’s a shame, honestly, it’s a shame. You kind of get the government you deserve.”

Jenner’s ‘it’s a shame’ echoed remarks she had made earlier during the day Tuesday when she told right-wing media outlet Newsmax; “For me, it’s just so up in the air [with] what is going to happen,” she said. “Number one, we gotta get Gavin Newsom outta there. I think it’s going to be difficult doing that, but I’m hoping for the best […] If he doesn’t get recalled, I pity the people of California.”

In the accumulated vote count tabulations listed Wednesday evening, Jenner had placed 12th in the field of candidates after fellow Republican frontrunner, conservative right-wing radio-talk show host Larry Elder, who had garnered 2,386,710 votes and 46.92% to Jenner’s 56,016 votes and 1.1%. (72.65 % Precincts Reporting | 74% expected vote as of Sep. 15, 2021 8:48 pm)

The Newsmax host also asked if she would consider running in 2022 in the regular gubernatorial race or a potential congressional race, Jenner indicated she “would keep her options open.”

“One thing I can say is I have thoroughly enjoyed this process,” she said. “It has been uplifting, rewarding. I’m a compassionate person. I love the people. The process has been great. Once this is over with, we’re gonna evaluate, see where we’re at.”

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California Politics

Californian voters reject Republican effort to recall Newsom

A Democratic party insider source told the Blade, “Look- this recall turnout means Californians rejected Larry Elder and Trumpism”

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Governor Gavin Newsom speaking to supporters Tuesday evening Sept. 14, 2021 (Screenshot via KTLA)

LOS ANGELES – The early results of the special recall election to remove Democratic California Governor Gavin Newsom revealed that a majority of the Golden State’s voters were not inclined to oust him. With 62.17 % precincts reporting at 11:00PM Tuesday, the ‘No’ vote was 65.66% versus the ‘Yes’ vote at 34.34%.

Speaking to Californians in a broadcast in the hours after polls had closed Newsom thanked his supporters but also cautioned that while the victory retains him in office- “Trumpism is still a threat,” the governor said.

“‘No’ is not the only thing that was expressed tonight,” Newsom said. “I want to focus on what we said ‘yes’ to as a state: We said yes to science, we said yes to vaccines, we said yes to ending this pandemic, we said yes to people’s right to vote without fear of fake fraud or voter suppression.”

The driving force to the recall had been the underlying conditions brought about by the coronavirus pandemic and anger over crushing job losses from business closures, shuttered schools and restrictions that kept most children out of classrooms. Rising homicides, a homelessness crisis and an unemployment fraud scandal further angered some voters particularly in Republican circles.

“Let’s be gracious in defeat. We may have lost the battle, but we are going to win the war,” Newsom said, later adding that the recall has forced Democrats to focus on issues such as homelessness and California’s high cost of living.

UC Berkeley Institute of Governmental Studies poll cosponsored by the Los Angeles Times released last Friday, showed that 60.1% of likely voters surveyed oppose recalling Newsom compared with 38.5% in favor of ousting the governor.

The rise of the highly contagious delta variant had also led the governor to frame the race as one of “life or death” consequences. Newsom would point out that measures he had taken versus actions by Governor Greg Abbott in Texas and his fellow Republican Governor Ron DeSantis Florida, which experienced worsening surges as Abbott and DeSantis both rejected mask and vaccine mandates.

Newsom warned that if conservative talk show host Larry Elder were to take the governor’s chair, California could become as bad off as Texas and Florida as Elder has expressed his opposition to mandatory mask orders and vaccination mandates for state workers.

Polling from the Public Policy Institute of California showed Newsom’s approval rating remaining above 50% throughout the pandemic. With weeks to go, the institute’s poll showed 60% of Californians approved of Newsom’s handling of the pandemic.

In a phone interview Tuesday evening after the polls had closed and it was apparent Newsom would remain Governor, Assemblymember Evan Low, (D) who represents the 28th California Assembly District and is the Chair of the California Legislative LGBTQ Caucus reflected on the results.

“I think that this shows two things- a resounding victory but also a clear rebuke of the general strategy of the GOP, ” Low said. “This is an affirmation- a yes on vaccines, a yes to addressing climate change, a yes on women’s rights and a yes to inclusiveness for LGBTQ people from the highest officeholder in the state,” he added.

“This shows that voters think the state is headed in the right direction and that they are behind having Newsom as the ‘CEO’ of the 5th largest economy in the world,” Low said.

“There is a mandate- really there’s a wide range of reasons but importantly having a pro-LGBTQ governor is critical, especially when you look at the divisiveness of the GOP and their policies,” Low told the Blade.

Rick Zbur, the outgoing Executive Director of Equality California, said in an emailed statement;

“Tonight, we have defeated the anti-LGBTQ+, anti-abortion, anti-immigrant, anti-science and anti-worker Republican Recall. We have affirmed our California values and our support for Gavin Newsom, the most pro-equality governor in California history, and his tireless efforts to build a California for all. LGBTQ+ Californians — 12% of registered voters in the Golden State — and our pro-equality allies played a decisive role in this resounding victory.

“To be clear, California has big challenges ahead of us. We need to beat this pandemic, rebuild our economy, safeguard reprodutive freedom, solve our homelessness crisis, save our planet from climate change and create a world that is healthy, just and fully equal for all LGBTQ+ people. Governor Newsom is up for the task, and so are we. Let’s get back to work.”

A Democratic party insider source told the Blade, “Look- this recall turnout means Californians rejected Larry Elder and Trumpism. This was also a referendum on LGBTQ equality- Gavin is the most pro-LGBTQ politician- hell he ran and continues to run on LGBTQ issues, tonight voters agreed that those matter, that people matter, and that Newsom is their choice to continue to lead the state.”

Although Newsom was handed as victory of sorts, the Los Angeles Times pointed out that the conservative right-wing radio host who emerged as the front runner will very much have a say as the Republican party looks to 2022.

Although the effort to recall California Gov. Gavin Newsom failed, the lightning two-month campaign appears to have had at least one clear beneficiary – Larry Elder.

The outspoken conservative talk show host is now the leader of the California Republican party, and a growing national figure. So what is next for Elder? He now has opportunities but also big challenges to broaden his appeal in a very blue state.”

The White House on Wednesday morning released a statement from President Joe Biden who had traveled to Long Beach to campaign for Newsom on Monday:

Congratulations to Governor Gavin Newsom on defeating the recall vote. This vote is a resounding win for the approach that he and I share to beating the pandemic: strong vaccine requirements, strong steps to reopen schools safely, and strong plans to distribute real medicines—not fake treatments—to help those who get sick. The fact that voters in both traditionally Democratic and traditionally Republican parts of the state rejected the recall shows that Americans are unifying behind taking these steps to get the pandemic behind us.”

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California Politics

Poll worker in West Hollywood fired after picture goes viral

Based on his response and reports that other workers had previously counseled him on this, he was released

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Picture via Twitter

WEST HOLLYWOOD – A picture of an elections poll worker in West Hollywood wearing Trump campaign apparel and a QAnon T-shirt went viral on Twitter and Facebook with hundreds of complaints about the worker’s appearance being directed at the office of the Los Angeles County Registrar-Recorder/County Clerk.

In a tweeted response the Los Angeles County Registrar-Recorder/County Clerk stated;

The election worker was contacted and advised that the attire was inappropriate and unacceptable. Based on his response and reports that other workers had previously counseled him on this, he was released and is no longer working at the vote center.

Mike Sanchez, a spokesperson for the Registrar-Recorder’s office, said the poll worker was initially warned against wearing political attire to the voting center on Monday, when he showed up to work wearing Trump campaign regalia, KTLA reported.

Sanchez said the clerk’s office and the supervisor at the West Hollywood polling place instructed the poll worker not to wear political attire, but the man came back Tuesday morning wearing Trump apparel.

“He was counseled and told not to wear anything political, but he still came wearing it,” Sanchez said. “Because of his response and not complying with the rules, he was released.”

California election laws prohibit what’s known as “electioneering” within 100 feet of an entrance to a polling place. That includes displaying a candidate’s name, likeness or logo, or specific references to ballot measures by number, title, subject or logo. It also includes no audible broadcasting of information about candidates or measures.

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