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Williams Institute panel dissects ‘ministerial’ and other problems with landmark Bostock jobs ruling

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LGBTQ people are not a social or cultural issue. LGBTQ people are human beings linked by love and sexual attraction who confront issues of race, gender, age, legal and economic discrimination largely in intersectional silence due to explicit and internalized systemic homophobia and transphobia. The Williams Institute, an LGBTQ legal and policy think tank, counters that silence through scholarship, collecting and analyzing data that presents the persistent need for LGBTQ rights.

The data illuminates the LGBTQ community: As of April 2020, there are an estimated 13,042,000 million LGBT people age 13 and older in America. As of May, 1.7 million live in California, 15% of all LGBT adults in the U.S., Legal Director Christy Mallory told the Los Angeles Blade.

Williams Institute founding director Brad Sears noted during a July 31 webinar “Are We There Yet? LGBTQ Rights and the Bostock Decision,” that each number is an individual LGBTQ person struggling amid the cacophony of the COVID crisis and the uncertain economic future. That struggle could possibly be compounded by failure to enforce the June 15 landmark Supreme Court ruling in Bostock v. Clayton County  affirming that Title VII protects employees nationwide from discrimination based on their sexual orientation and gender identity.

“We know that there are over 8 million LGBTQ people in our workforce and that half of them live in States that don’t have state laws protecting them from discrimination,” Sears said. And with the Equality Act stuck in Congress, there is no federal statute that explicitly provides that protection, either.

“We know that that has consequences,” Sears said, noting numerous Williams Institute studies reporting much higher rates of LGBTQ unemployment, poverty, food insecurity and housing instability. “In this time of economic downturn, we can see really what that looks like,” along with the greater LGBTQ vulnerability to COVID-19.

And while “it’s good to quantify the impact of that discrimination,” Sears said, “we also need to recognize that every one of those numbers represents thousands and thousands of individual people.”

As background to the webinar, the Williams Institute released a pre-COVID paper looking at state nondiscrimination laws.  A key finding: “3.6 million more LGBT people will gain non-discrimination protections if state-level sex non-discrimination laws in their states are interpreted consistent with Bostock,” said Mallory. HRC published an analysis, as well: “What the Supreme Court Ruling in Bostock Means For State Legislative Efforts.”

Along with Sears, who is also Associate Dean of Public Interest Law at UCLA Law, the webinar featured Alphonso David, President of the Human Rights CampaignAndy Marra, executive director of the Transgender Legal Defense & Education Fund (TLDEF), and Melissa Zahra, whose brother was a one of the plaintiffs in the Bostock case.

Professor Cary Franklin of the University of Texas laid out the case. She explained how Justice Gorsuch, who wrote the positive 6-3 decision, interpreted Title VII using textualism which looks at the text of a law, not what the original legislators intended. Therefore, the courts have held that “any time you discriminate against people because they are gay, lesbian or transgender, you are in part discriminating against them on the basis of their sex.” (Bisexual and non-binary people were not discussed.)

Dissenter Justice Alito was “apoplectic” about that interpretation, saying legislators in 1960 did not intend these sorts of protections. But, Franklin noted, the legislators didn’t then consider discrimination on the basis of motherhood or sexual harassment as forms of behavior that were discrimination on the basis of sex. “Now the court agrees that those things are sex discrimination.”

Unfortunately, Franklin said, the Court didn’t end there, mentioning three possible exceptions to avoid infringements on the rights of religious people: the exemption in Title VII itself for religious organizations to prefer “co-religionists” and discriminate against those who don’t conduct themselves according to the tenants of the religion; the “ministerial exception;” and expanded interpretation of the 1993 Religious Freedom Restoration Act (RIFRA).

“The ministerial exception is not part of Title VII. It is a court created doctrine,” Franklin said. “The court has interpreted the First Amendment to say that when religious organizations are hiring ministers, they don’t have to follow any anti-discrimination law. The Title VII exemption allows you to discriminate on the basis of religion. The ministerial exception allows you to discriminate at all the bases — race, national origin, sex, disability, and age, any anti-discrimination protections.”

Franklin put it into a larger context:

“It’s part of an enormous movement on the part of the religious right to blunt the effect of anti-discrimination law — courts have expanded the concept of ‘minister.’ Expanded it quite far. When I say ‘minister,’ you’re thinking of minister, priest, rabbi, Imam.  That’s not what it means in the law anymore. It increasingly means workers for religiously-affiliated organizations.

 

As you may know, a decision came down this summer involving two fifth grade teachers at a Catholic school. Those teachers filed age and disability discrimination suits. And the court said their employer was not required to follow anti-discrimination law because those teachers were ministers.

 

Now this is an expansion of the law because those teachers didn’t have any particular religious training. They weren’t referred to by the title of ‘minister.’ They spent almost all of their day teaching math and English and science — but the Court held them to be ministers. So Justice Sonia Sotomayor in dissent says this is extremely worrisome. Coaches, camp counselors, social service workers, in house lawyers, media relations personnel, many folks who work for religious organizations could now be counted as ministers.

 

And I will tell you my concern and the kind of maximalist reading of the ministerial exception would extend to healthcare. You could imagine, and this is certainly the movement arguing that religiously affiliated hospitals, the folks who work for them, nurses, maybe even doctors are ministering to the sick.

 

This is a campaign to define an enormous swath of the American workforce as ministers and strip them of any anti-discrimination protection, certainly to protections annunciated in Bostock. But any protection of Title VII.”

The third exemption the Court mentions is RIFRA, originally enacted by the left “as a shield to protect the religious freedom of minority groups who were being injured by laws of general applicability.” But now it is being used as a sword to grant religious individuals license to discriminate against others by exempting them from the entire anti-discrimination regime, says Franklin.

“If the court continues to interpret RIFRA to excuse religious organizations from the mandates of anti-discrimination law, this will truly be the monster that eats anti-discrimination law,” says Franklin. “We will not have much of it left.”

Punctuating Sear’s point that real people are hurt by discrimination, Melissa Zahra told the story of her late brother, Donald Zarda who sued Altitude Express, alleging his employment was terminated because of his sexual orientation.

Gerald Bostock (Photo courtesy CNBC)

Zarda’s lawsuit had been consolidated with a lawsuit brought by Gerald Bostock who alleged he was fired from his child welfare job for being gay by officials in Clayton County, Georgia, and a lawsuit brought by Aimee Stephens, an employee at R.G. & G.R. Harris Funeral Homes, Inc., who alleged she was fired for being transgender.

Aimee Stephens (Photo courtesy ACLU)

Melissa Zahra wanted to put a face behind the story to her brother’s lawsuit.

“Every single thing that mattered to my brother for the majority of his life was being in the air. This was something that he discovered when he was in the military and from the moment of his very first jump, it was his mission to be in the air.

 

He got every single certification that a skydiving instructor could get. He accumulated easily over 10,000 jumps. He got his pilot’s license. He completed his degree in aviation management, He even liked zip-lining — just any way to be in the air.

 

Once he had discovered skydiving, he had my family’s full support because we loved seeing how happy he was. It became his entire world and all of the time what he would be traveling around to all these different drop zones and airports and different countries and teaching and being an instructor. And whenever he came home, he would have a new batch of videos for us to all watch. And of course we found it frightening, but also cool. And, you know, he was just so happy. It was his passion and he loved sharing it with people. So when he decided to dedicate his career to it — he was actually in school for engineering and he decided this is what he wanted to do  and it’s what made him happy.

 

It was about this time in 2010 where he’d already been a skydive instructor for a long time and he had a lot of experience. He was working at a drop zone in New York and he was doing tandem jumps where you’re strapped to the other person with close physical contact.

 

There’s a lot of joking by the instructors and people on the job because people are understandably nervous, especially first-timers. They try to break the ice and lightened things up a little bit. And in an effort to make a student more comfortable with their close physical contact, my brother mentioned he was gay — kind of like, ‘don’t worry about me. I’m gay.’

 

After that jump, he was fired from his job that he loved so, so much.  He was just absolutely devastated by this.

 

It’s important to note that this wasn’t just a skydiving instructor job, like a summer job for him. It was his entire passion. He was afraid that it would be harder to get employment at other skydiving places because it’s a small community and people share and he didn’t want to be seen as difficult or whatever — but at the same time, he knew that he needed to stand up and that it wasn’t fair and that it wasn’t right. So he ended up bringing this suit against his former employer and it just went on for what felt like forever. He would be calling my sister and my mom and me for counsel and support. He was just heartbroken.

 

And he started at this point taking a little bit more risks because he felt like, ‘I’m not going to be able to work. My life’s changed because of this.’ And he started taking riskier jobs. He started getting involved with base jumping, wing suit flying, and the combination of all of that. And it was that that ultimately led to his passing in 2014 in an accident.

        Don Zarda, Melissa Zahra, and Bill Moore (Photo courtesy ACLU)

At that point myself and his partner Bill Moore were left as executors of his estate and we decided we definitely needed to pursue this in Don’s memory because it was so important to him and he wanted nothing more than to clear his name.

 

So that’s what we did. And we had a wonderful team of people who helped us along the way. And I can’t even imagine having been able to do this without them. Every single person was so amazing. And the ruling came out and we were beside ourselves — and that’s where we are today.”

TLDEF‘s Andy Marra talked about the importance of trans employee Aimee Stephens bringing her case – the first-ever trans rights case to be heard by SCOTUS. She was represented by the ACLU, with trans attorneys, Gabriel Arkles, and Chase Strangio who appeared before a conservative-leaning Court and transgender leaders across the country signed numerous amicus briefs “to make sure that our voices were well-represented.”  Unfortunately, like Don Zarda, Stephens did not live to see her Supreme Court victory.

“LGBTQ+ people won because of Title VII of the Civil Rights Act of 1964,” Marra said, “and LGBTQ+ people across the country owe a debt of gratitude to Black and Brown people who came before us and fought so hard for civil rights protections.”

Marra focused on Justice Samuel Alito’s sharp dissent and some of the challenges that trans people face, doing so as an “optimistic person” who believes “our movement will win” — and through a movement and activist lens.

Marra’s first concern was how Alito compared the litigants to pirates. What was most disturbing about Alito’s dissent is that it “relied on harmful and already debunked myths about our community,” Marra said. “LGBTQ people were essentially compared to being rapists and sexual predators. And we were also being cast as folks that had suffered from severe mental illness.”

Marra also noted the “hopeful aspect” for the movement of Alito’s dissent: “essentially Justice Alito laid out a roadmap for advancing legal equality for transgender people and some of that work is already underway,” such as in healthcare access and protections, sex- segregated facilities in sports, and transgender people being recognized with proper pronouns.

There are a number of active litigation being brought that relies on Title VII, including healthcare. One of TLDEF’s lawsuits was cited by Alito “and we’re absolutely proud to be a part of the parade of horribles, as I’m sure we could be described as,” Marra said.

“Because of this ruling, we have a strong case to argue future litigation,” Marra said. This is a window of opportunity for us, in terms of pronouns and the First Amendment. There was a separate section in the Alito dissent that covered freedom of speech and raising the concerns around, essentially, people being forced to use gender pronouns against their will.”

Though military issues are not part of TLDEF‘s litigation portfolio, Marra did note that there are more than 14,000 trans service members, though courts have held that Title VII does not pertain to them.

“It’s worrying,” Marra said, “that the military is the nation’s largest employer for trans folks and I think that will be very interesting to see how that particular issue moves forward.”

Finally, Marra pointed out the importance on educating attorneys and law students,  especially those engaged in public interest law or pro bono work, about how Bostock pertains to trans people, especially people of color.

“There is a belief that this recent ruling and Title VII really doesn’t impact their day to day lives,” Marra said. “I think it reflects the fundamental struggles for transgender people to even attain an appointment or even have access to economic opportunity, let alone be fired from a job.”

Sears introduced HRC’s Alphonso David with accolades. “I’m just blown away by what you’ve been able to accomplish there already,” he said.

David noted that the Williams Institute has been “so instrumental to the movement over the past several decades. I know I’ve been doing this work for more than 20 years, and I’ve been relying on the research from the Williams Institute.”

The Bostock decision, David said, “yes, it is a significant decision. But it has significant limitations, as well.”

The ruling reminded him of the 1998 Oncale v. Sundowner Offshore Services, Inc.lawsuit brought by a male oil rig worker who alleged repeated subjected to sexual harassment by male coworkers. Justice Anton Scalia wrote the majority opinion saying workplace discrimination includes sexual harassment by male coworkers.

“It was a great ruling, but we were also concerned about the application” said David. “And we were concerned about the holding in Oncale being limited or limiting same sex harassment to three situations that were enumerated in the holding. We also were concerned about the difficulties of proving an aggressor’s sexual desire or orientation because of the inference that is not really presumed and how our plaintiff’s going to have to prove that someone was actually harassing them when the person sexual orientation may not be presumed in those cases.”

David noted that there have been many decisions over the years that are inconsistent about the application Oncale. He felt the same about Bostock.

“Here we have a significant ruling that says that LGBTQ people should be treated the same as everyone else under Title VII, because of sex includes sexual orientation and gender identity, which is great.

But we know about the limitations: the Court said it doesn’t relate to religious objections — they’re not talking about that issue. They’re certainly not talking about sex-segregated spaces so we’re talking about bathrooms. We’re also talking about sports. Those issues, the Court did not address it all in Bostok, and I’m not suggesting that we would lose those cases if they were to be advanced to the Supreme court — but it does open up the possibility that we will be confronted with those cases in the near future, where opponents of equality will use Bostock against us. So I’m concerned about that.”

David also raised the point of the implications of Bostock on people of color since often discussion about the LGBTQ community historically do not include people of color.

“That has to change,” David said, as well as considering how Bostock does not apply to public accommodations.

“We have places of public accommodations that are not included in the 1964 Civil Rights Act,” he said. “So restaurants and hotels are certainly included. But there are other places — retail stores, salons, transportation hubs — are not included and that is of significant concern for me.”

David noted that “people of color continue to face persistent discrimination on a daily basis in stores and salons in accessing transportation services, like car services and taxis.”

He cited the example of clerks in a Georgetown neighborhood in Washington, DC, using a mobile app that allowed them to profile suspected shoplifters.

“When they reviewed the data, 90% of the photographs that they took were of Black people, often accompanied by racist language,” David said. Additionally, in Wisconsin, “a Black professional basketball player was denied access to a jewelry store based on his race. This is happening all over the country” where states or locales do not have non-discrimination laws.

“There are no federal laws that protect correct us when I get into an Uber or Lyft as a Black man or as a gay man.  There are no federal laws that protect me in the instance of a retail establishment if I want to go in and purchase a suit or a tee shirt. I can face discrimination unless I have recourse under state law,” David said. “So Bostock is incredibly important for us, is a huge landmark achievement. But we cannot lose sight of how much work we have to do.”

Here are additional resources:

Cary Franklin’s 2012 Harvard Law Review article, which the Supreme Court cited in Bostock:

 

Human Rights Campaign’s recent legal actions:

 

TLDEF’s recent initiatives:

  • Boston v. HHS filed on July 9th by TLDEF and other civil rights groups to challenge new rules released as it pertains to Section 1557 of the ACA https://tldef.org/stay-informed/breaking-were-suing-administration/

  • TLDEF’s Trans Health Project takes a comprehensive, systematic approach to expanding access to transgender-related health care by educating affected individuals about their legal rights; cultivating a robust movement to achieve health care equity; expanding enforcement of existing legal protections; and driving clinical policy changes among insurance carriers.

Here’s the full panel discussion, as well as questions and answers at the end:

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Oklahoma

Owasso, Okla. police release body cam footage of non-binary teen

In the video, 16-year-old Nex Benedict describes how they were bullied by three girls for “the way that we dress”

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Screenshot/YouTube Owasso Police Department body cam footage.

OWASSO, Okla. – The Owasso Police Department released Body Cam footage from the interview conducted by the Owasso High School resource officer taken at the emergency room, investigating the attack on a non-binary high school student who died a day after the attack.

In the video, 16-year-old Nex Benedict describes how they were bullied by three girls for “the way that we dress.” After Nex dumped some water on them, the girls pinned them to the floor of the restroom and beat Nex until Nex blacked out.

Nex’s mother stresses that Nex did not throw any punches or get physically combative during the attack. Facts that Nex then verified in their account to the investigating officer.

Police have confirmed to multiple media outlets that the school failed to follow procedure and notify law enforcement about the beating.

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U.S. Military/Pentagon

U.S. Army anesthesiologist charged in sexual assault of 42 males

The sheer number of alleged victims could make this one of the U.S. Army’s largest sexual assault prosecutions

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Troops pass in review at Joint Base Lewis-McChord in Washington State. (Photo Credit: U.S. Army)

OLYMPIA, Wash. – Prosecutors with the U.S. Army’s Judge Advocate General’s Corps formally charged Maj. Michael Stockin, a pain management anesthesiologist at Madigan Army Medical Center at Joint Base Lewis-McChord on this sprawling base located between Olympia and Tacoma in eastern Washington State with sexually assaulting 42 male service members.

The Army’s Office of Special Trial Counsel spokeswoman Michelle McCaskill told Army Times in a statement Friday that in January prosecutors referred 53 charges and specifications against Stockin to a general court-martial. Those charges included “multiple instances of abusive sexual contact and indecent viewing.”

Stockin’s trial is currently scheduled for Oct. 7.

McCaskill’s statement added that the investigation into Stockin remains open and will remain open through the trial. “Army (Criminal Investigation Division) has interviewed patients from Maj. Stockin’s duty stations and will further investigate should additional victims come forward.”

In addition to the charges Stockin is facing stemming from incidents at the Madigan Army Medical Center Lewis-McChord, Army investigators are now widening their inquiry to bases in Hawaii, Maryland and Iraq. The sheer number of alleged victims could make this one of the Army’s largest sexual assault prosecutions.

CBS News reported Friday that the chairman of the powerful Senate Armed Services Committee, Senator Jack Reed (D-RI), has sent a letter asking the Pentagon’s inspector general to investigate whether the military “failed” to support the alleged victims of Maj. Stockin.

CBS also noted that Ryan Guilds, an attorney who is representing seven of the 42 alleged victims, says that from the outset of the Army’s CID investigation, his clients have been kept in the dark and have not been properly supported or provided with victims’ resources, including access to legal services.

“These services have failed because leadership has failed,” Guilds wrote in a letter to the House and Senate Armed Services subcommittees on personnel.

Robert F. Capovilla, Stockin’s attorney, told Army Times in a statement that his client will plead not guilty to all charges and specifications in today’s hearing.

“At this point, the defense can say with supreme confidence that we intend to fight against every single allegation until the jury renders their verdict,” Capovilla wrote. “Until then, we sincerely hope that the United States Army is fully prepared to respect Major Stockin’s Constitutional rights at every phase of this process, both inside and outside of the courtroom.”

Capovilla added that “in today’s political culture” the media will condemn Stockin and render judgement before the judge or jury hear evidence.

“We urge everyone to keep an open mind, to remember [Maj.] Stockin is presumed innocent and understand that this fight is just getting started,” Capovilla wrote.

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The White House

White House addresses ‘gut-wrenching’ death of Nex Benedict

Press Secretary Karine Jean-Pierre expressed she was “absolutely heartbroken” to learn about the death of nonbinary Okla. teen Nex Benedict

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White House Press Secretary Karine Jean-Pierre delivers a briefing on Feb. 23 2024 (Washington Blade photo by Christopher Kane)

WASHINGTON – White House Press Secretary Karine Jean-Pierre began Friday’s press briefing by expressing how “absolutely heartbroken” she was to learn about the death of nonbinary Oklahoma teenager Nex Benedict.

“Every young person deserves to feel safe and supported in school,” she said. “Our hearts are with Nex Benedict’s family, friends, entire school community in the wake of this horrific and gut wrenching tragedy.”

Jean-Pierre added, “I know that for many LGBTQ+ students across the country this may feel personal and deeply, deeply painful. There’s always someone you can talk to if you’re going through a hard time and need support.”

“The president and his administration launched the 988 line to help, and we have a line dedicated to serving LGBTQ+ young people that can be reached by dialing 933 and pressing 3,” she said. “Through devastating tragedies like these we must support each other and lift one another up.”

Authorities are still investigating the circumstances surrounding Benedict’s death on Feb. 8, which allegedly came the day after they were attacked in a restroom at Owasso High School, which followed months of bullying from peers.

This week, political leaders including Vice President Kamala Harris, Speaker Emerita Nancy Pelosi (D-Calif.), U.S. Rep. Mark Pocan (D-Wis.) and Jean-Pierre issued statements on X, formerly Twitter.

In recent years the state of Oklahoma has become a hotbed of anti-LGBTQ legislation, including an anti-trans bathroom bill signed into law by Gov. Kevin Stitt in 2022.

Many LGBTQ advocates responded to news of Benedict’s death by calling out the escalation of hostile policies and rhetoric targeting transgender and gender-diverse communities, which advocates have warned can carry deadly consequences.

Human Rights Campaign President Kelley Robinson has urged federal investigators at the Justice and Education Department to get involved in the case.

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Montana

Montana returns to near ban on trans birth certificate changes

The agency’s announcement reignites a civil rights feud with transgender residents that was the subject of a prior lawsuit

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Montana Department of Public Health and Human-Services. (Photo by Eliza Wiley/MTFP)

By Mara Silvers | HELENA, Mont. The Montana state health department has announced its return to a near prohibition on individuals updating the sex on their birth certificates to match their gender identity, reigniting a civil rights feud with transgender residents that was the subject of a prior lawsuit.

In a Tuesday press release, the Gov. Greg Gianforte administration’s Department of Public Health and Human Services said the latest rule applies to any not-yet-adjudicated request to update the “male” or “female” category on a birth certificate submitted or pending with the department on or after Oct. 1, 2023. 

The rule now in effect was originally created by the department in 2022 as a way to restrict changes to birth certificates for transgender Montanans while the agency was involved in a court battle over a related Republican law from the prior legislative session. 

The rule was ultimately blocked from taking effect because of the pending litigation in the Yellowstone County case brought by the ACLU of Montana. At that point in the litigation, the judge overseeing the case slammed the department for attempting to write new rules about birth certificates before the related lawsuit had been resolved, later holding the agency in contempt of court

However, when the law at issue, Senate Bill 280, was permanently enjoined in June of last year, the state health department was no longer barred from creating administrative rules about how to handle changes to sex on birth certificates.

In the announcement Tuesday, the department outlined the narrow circumstances that would allow an individual to change the sex listed on their birth certificate under the current rule. 

“The 2022 final rule states the sex of a registrant on a birth certificate may only be corrected if the sex of an individual was listed incorrectly on the original certificate as a result of a scrivener’s error or a data entry error, or if the sex of the individual was misidentified on the original certificate,” the state health department said. “In both cases, the department must receive a correction affidavit and supporting documents consistent with the law.”

The state health department said the rule, though years old, also complies with a law from the 2023 Legislature that seeks to create a strict definition of “sex” across state government. That law, Senate Bill 458, is sponsored by the same Republican lawmaker who brought the original bill to restrict birth certificates in 2021, Sen. Carl Glimm, R-Kila

“DPHHS must follow the law, and our agency will consequently process requests to amend sex markers on birth certificates under our 2022 final rule,” said department director Charlie Brereton in a written statement. “This notification serves to keep the public apprised of the law and what to expect from DPHHS going forward.”

While there have been legal challenges filed against SB 458 in recent months in state and federal court, the law has not been enjoined and is currently in effect.

Alex Rate, legal director of the ACLU of Montana, said the health department’s latest action is grounds for a new lawsuit against the 2022 rule and the agency’s interpretation of SB 458. 

“We’ll be back in court, no doubt,” Rate told Montana Free Press Tuesday. “The new rule runs afoul of the same constitutional provisions, from dignity to privacy to equal protection.”

In explaining the grounds for a lawsuit, Rate said the rule implementation and SB 458’s effects more broadly signal the state’s prohibitive stance towards trans people. 

“Once again, this latest action by the [health department] betrays the state’s deep and abiding animus towards trans people in Montana,” Rate said. “Trans people belong here. They are trying to live out their ordinary lives.”

Rate said the organization aims to file its latest lawsuit in the coming weeks but did not provide a more precise timeline. 

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Mara Silvers headshot white background

Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016. 

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The preceding piece was previously published by Montana Free Press and is republished with permission.

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Oklahoma

LGBTQ+ leaders call for DOJ to investigate Nex’s death

Police backtracked after claiming trauma “did not cause” death of Nex, a trans teen beaten in an Oklahoma bathroom, and now suspect foul play

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16-year-old Nex Benedict (Family Photo)

By Erin Reed | OWASSO, Okla. – On Thursday afternoon, investigators from the Owasso Police Department filed a search warrant for cellphones and lockers of students involved in the beating of Nex Benedict, a transgender teenager in Oklahoma who lost their life following the incident.

The announcement came after a previous claim by police that initial paraphrased autopsy results showed Nex “did not die as a result of trauma,” a finding that came under scrutiny by LGBTQ+ activists and Nex’s family.

Now, LGBTQ+ rights leaders are calling for a DOJ investigation into their death, casting doubt on the initial statements of local police officers and school officials.

Here is what we know: According to early reports, after a year of being bullied over their transgender identity, Nex Benedict was involved in a fight in a bathroom in which three girls allegedly beat them. Some reports state that Nex’s head was “banged into the floor.” Nex’s mother substantiated the reports in an interview with The Independent. The school reportedly did not call an ambulance for Nex, and instead, Nex was brought to the hospital by their mother and was discharged from the hospital later that evening. The following day, Nex collapsed and was pronounced dead. In later released text messages, Nex revealed that those involved in their beating had a history of bullying them.

Following news of Nex’s death, many pointed to the influence of major anti-LGBTQ+ figures in Oklahoma and nationally. Libs of TikTok, for instance, targeted a previous teacher and mentor of Nex two years prior. Chaya Raichik, who runs the anti-LGBTQ+ hate account, was appointed to an advisory role in the state Department of Education in Oklahoma as part of a plan to “make schools safer,” according to State Schools Superintendent Ryan Walters. Walters himself has led extreme anti-trans initiatives in the state, such as directing the Department of Education to release a video calling trans people in bathrooms “an assault on truth.”

On Wednesday, though, police officers in Oklahoma released a statement questioned by many, stating that Nex’s death was not due to trauma, even though they were taken to the hospital over their head injury and experienced difficulty walking. You can see that police statement here:

While the investigation continues into the altercation. Preliminary information from the medical examiner’s office is that a complete autopsy was performed and indicated that the decedent did not die as a result of trauma. At this time, any further comments on the cause of death are currently pending until toxicology results and other ancillary testing results are received. The official autopsy report will be available at a later date” – Owasso Police

The statement immediately aroused suspicion. Independent journalist Judd Legum wrote about the event, noting that the statement released by the police closely mirrored that issued by the school. “If the police will not release the autopsy report, why are they releasing partial, paraphrased information?” asked Legum. These sentiments were echoed by many following the case.

The statement also prompted a response by attorneys for Nex’s family calling into question the police statement:

While various investigations are still pending, the facts currently known by the family, some of which have been released to the public, are troubling at best. We urge those tasked with investigating and prosecuting all potentially liable parties to do so fully, fairly and expediently. Notwithstanding, the family is independently interviewing witnesses and collecting all available evidence.”

Meanwhile, a local transgender student who went to the same high school released their own video, claimed that they were “called slurs almost daily” and “called slurs by a teacher in the school.” They also allege that they were sexually assaulted in the school and told by the administration to keep quiet so as not to ruin their attacker’s life. “The administration has never cared about its LGBTQ+ students, the murder of Nex is a direct product of their design,” they say, adding later, “Now they are playing the cover-up game, one that they know all to well, because they have been using it the last ten years.”

The same day, many LGBTQ+ leaders began calling for a civil rights investigation by the Department of Justice, casting doubt on the credibility of local police officers and investigators’ ability to impartially carry out justice. Brandon Wolf, a Pulse survivor and national press secretary for the Human Rights Campaign, stated, “The Department of Justice needs to tap in. Nex’s family deserves a full, thorough investigation into what happened.” Similar calls for DOJ involvement came from Kelly Robinson, president of the Human Rights Campaign. Other major LGBTQ+ figures, such as Senator Sarah McBride, the first transgender candidate for the U.S. House of Representatives, similarly called for a “full investigation.”

Now, one day after releasing their statement that trauma was not involved in Nex’s death, the Owasso Police Department appears to be backtracking. A search warrant from the police department was filed looking targeting the cell phones and lockers of those suspected of involvement in Nex’s death. The search warrant states that “Owasso police officers suspect foul play involved and need to initiate an in-depth investigation into the death.”

The search warrants of cellphones may be important in establishing if any premeditation occurred around the incident and can establish a track record around targeted hate and a history of animosity towards Nex over their transgender status.

Many prominent Democrats have issued calls for justice for Nex and an end to anti-LGBTQ+ hate, including Representative Nancy PelosiSenator Elizabeth Warren, and Representative Mark Takano.

The Biden administration and the Department of Justice, however, have yet to comment on the incident. Meanwhile, questions about the competency and motives of the Owasso Police Department remain prominent. Unless the Department of Justice gets involved, there may always be lingering questions and doubts about the ability to serve justice in Nex’s death.

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Erin Reed is a transgender woman and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

The preceding post was previously published at Erin in the Morning and is republished with permission.

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Mississippi

HIV criminal laws lopsided impact on Black men in Mississippi

Mississippi’s 2021 Ending the HIV Epidemic Plan called for reform of the state’s HIV criminal laws to align with modern HIV medicine

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Los Angeles Blade graphic

LOS ANGELES – A new report by the Williams Institute at UCLA School of Law finds that at least 43 people in Mississippi were arrested for HIV-related crimes between 2004 and 2021. Half of all arrests in the state happened between 2017 and 2021.
 
The HIV epidemic and Mississippi’s HIV-related criminal laws disproportionately impact men, and Black men in particular. Men make up 49% of Mississippi’s population, 71% of people living with HIV (PLWH), and 72% of HIV-related arrests. Black men comprise 18% of the state’s population and 50% of PLWH. However, they make up 47% of HIV-related arrests.
 
Researchers analyzed data obtained from the Mississippi Department of Public Safety. Findings show that the enforcement of HIV criminal laws is concentrated around the state’s capital and most populous city, Jackson, and near the Gulf Coast. Almost 20% of arrests occurred in three counties: Harrison (15%), Hinds (13%), and Lamar (11%).
 
HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or increase the penalties for illegal conduct based on a person’s HIV-positive status. Nearly two-thirds of U.S. states and territories currently have laws that criminalize people living with HIV.
 
Mississippi has two HIV criminal laws. The knowing exposure law makes it a felony to knowingly expose another person to HIV, hepatitis B, or hepatitis C and is punishable by up to 10 years in prison and/or a $10,000 fine. Mississippi’s endangerment by bodily substance law makes it a misdemeanor to attempt to expose or expose anyone at a correctional facility to bodily fluids. However, if someone knows their HIV or hepatitis status, the crime is upgraded to a felony punishable by 3 to 10 years in prison and/or a $10,000 fine.
 
“Mississippi’s criminal laws do not require the actual transmission of HIV, the intent to transmit, or even conduct that can lead to the transmission of HIV,” said lead study author Nathan Cisneros, HIV Criminalization Project Director at the Williams Institute. “We now have medical treatments that wholly eliminate the risk of transmitting HIV through sex, yet these advances are not reflected in Mississippi’s laws.”
 
Mississippi’s 2021 Ending the HIV Epidemic Plan called for reform of the state’s HIV criminal laws to align with modern HIV medicine.
 
“HIV criminal laws perpetuate stigma and can discourage testing and treatment,” said co-author Brad Sears, Founding Executive Director at the Williams Institute. “That’s why many national and state organizations, including the American Medical Association, have called for a repeal of these laws.”
 
This report is part of a series of reports examining the ongoing impact of state HIV criminalization laws on people living with HIV.
 
Read the report

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Virginia

Virginia lawmakers give final approval to marriage equality bills

Voters in 2006 approved an amendment to Virginia’s constitution that defines marriage as between a man and a woman

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Virginia House of Delegates in session. (Photo Credit: Commonwealth of Virginia government)

RICHMOND, Va. – Virginia lawmakers this week approved two bills that would affirm marriage equality in the state.

The Virginia House of Delegates approved state Sen. Adam Ebbin (D-Alexandria)’s Senate Bill 101 by a 58-42 vote margin. The Virginia Senate passed state Del. Rozia Henson (D-Prince William County)’s House Bill 174 by a 22-17 vote margin.

Both bills now go to Republican Gov. Glenn Youngkin. 

“Virginians across the political spectrum have taken heart to see these bills receive bipartisan support in the General Assembly,” said Ebbin, a gay Democrat, in a press release. “I hope Gov. Youngkin will sign this critical legislation to create state-level protections for all Virginians regardless of who they love.” 

Voters in 2006 approved an amendment to Virginia’s constitution that defines marriage as between a man and a woman.

Same-sex couples have been able to legally marry in the state since 2015.

The General Assembly in 2021 approved a resolution that seeks to repeal the marriage amendment. It must pass in two successive legislatures before it can go to the ballot.

“Senator Ebbin and I introduced this legislation to codify marriage equality in Virginia’s Code so that all marriages are protected under Virginia law beginning July 1, 2024,” said Henson, who is also gay. “Codifying marriage equality will assuage concerns from the LGBTQ+ community in Virginia following the Dobbs v. Jackson Women’s Health Organization (2022) reversal on abortion rights by the Supreme Court and Justice Thomas’ comments in his concurrence.”

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Tennessee

New Tenn. law allows refusal to conduct same-sex marriages

Republicans control both chambers of the state house & have been advancing what Tennessee Equality Project called a “slate of hate” bills

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Tennessee’s Republican Governor Bill Lee signing legislation. (File photo credit: Office of the Governor)

By Rob Salerno | NASHVILLE, Tenn. – Tennessee’s Republican Governor Bill Lee signed a law Wednesday that allows people to refuse to solemnize a marriage if they disagree with it, a measure critics say was designed to allow officials to refuse to solemnize same-sex marriages.

Bill HB 0878 adds a single section to the Tennessee Code, stating “A person shall not be required to solemnize a marriage if the person has an objection to solemnizing the marriage based on the person’s conscience or religious beliefs.” The bill was given an emergency clause, making it come into effect upon the governor’s signature.

Under existing Tennessee law, couples get a marriage license from a county clerk before having their marriage solemnized by a notary public, government official, or religious figure. Religious figures already have protections under the first amendment allowing them to deny solemnizing marriages contrary to their faith.

Chris Sanders, executive director of the Tennessee Equality Project says his organization is ready to fight the law in court.

“Half of this bill is unnecessary because clergy are already protected. The other half is discriminatory because it allows public officials to turn away couples who have obtained a valid marriage license. Public officials should serve the entire public. We would be glad to work with organizations seeking to bring a legal challenge to the law,” he says.

Tennessee Equality Project is encouraging anyone who has a public official refuse to solemnize their wedding to contact them.

The law has the potential to affect more than the LGBT community. Under the law, officials could refuse to marry interfaith or interracial couples. While couples may have the opportunity to find alternate officials to solemnize their marriages in larger cities, couples in smaller or rural communities may be forced to travel far simply to find someone willing to solemnize their legal marriage.

The bill passed the Tennesseee state house 74-22 last March and passed the state senate 27-5 on Feb 12.  Only one house Democrat supported the bill; no Republicans voted against it.

Republicans control both chambers of the state legislature and have been advancing what Tennessee Equality Project has called a “slate of hate” bills this session. 

Also on Wednesday, a bill that would ban any flag but the flag of the United States or the state of Tennessee from being displayed in any school narrowly advanced out of the senate education committee. The bill is one of many copycat bills being introduced by Republican legislators attempting to ban the Pride flag in schools.

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A companion bill in the House has had an amendment added which would allow the display of certain other flags, including the flags of other countries, Native American tribes, and military flags. The Tennessean reported that during debate, the house education committee attorney said it was unclear if the Confederate flag or the Nazi flag would be banned from schools under the amended bill.

Another bill is scheduled for consideration in the senate judiciary committee that would bar the department of children’s services from requiring that foster parents support a policy on sexual orientation or gender identity that conflicts with their beliefs. The bill would essentially require the department to place queer and trans foster kids with non-affirming parents.

The legislature is also considering bills to bar trans people from using a gender-appropriate bathroom, removing the concept of “gender identity” from state law, forcibly outs trans students to their parents, and creates a separate marriage procedure for same-sex couples.

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Rob Salerno is a writer and journalist based in Los Angeles, California, and Toronto, Canada.

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Iowa

Iowa senate passes “blank check to discriminate” opponents say

Critics charge businesses could use the law to circumvent civil rights laws by citing religious beliefs as justification to deny services

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Iowa state capitol building in Des Moines. (Photo credit: State of Iowa)

DES MOINES, Iowa – The Iowa Senate passed legislation Tuesday that opponents say will be used as as a “blank check to discriminate” against LGBTQ+ Iowans and marginalized communities.

The legislation bars governments across Iowa from “substantially burdens” meaning that any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person’s exercise of religion and includes but is not limited to withholding of benefits; assessment of criminal, civil, or administrative penalties; or exclusion from governmental programs or access to governmental facilities.

The Des Moines Register noted that the legislation would say that state and local governments shall not “substantially burden” someone’s exercise of religion unless it is in furtherance of a compelling government interest and the least restrictive means of pursuing that interest.

A person, corporation, church, foundation or other entity whose exercise of religion has been burdened would have the power to go to court to seek damages or other means of redressing the harm against them.

The Republican majority-held Senate voted 31-16 along party lines with all Democrats in opposition to pass Senate File 2095, which its sponsor, state Sen. Jason Schultz, R-Schleswig, told the Register: “I believe that it is time for Iowa to add a religious freedom restoration act to our code.”

The Register also reported that Republicans have consistently introduced similar religious freedom bills since taking control of the House, Senate and governor’s office in 2016, but Tuesday’s vote was the first time such a proposal has passed the Senate.

Opponents and critics charge that people or businesses could use the law to circumvent civil rights laws by citing religious beliefs as justification to deny services, housing, employment or other public accommodations to LGBTQ Iowans or other minority groups, the Register reported.

State Senator Zach Wahls, D-Coralville, the son of two married moms reflected:

“This legislation is not about restoring religious freedom at all. This legislation is about allowing some people to cite their religious beliefs to violate the basic civil rights protections that all Iowans benefit from. This bill is a direct assault on the basic idea of equal protection under the law,” said Wahls.

Sen. Jeff Taylor, R-Sioux Center, told the Register it seems like the bill’s opponents see it as “some kind of a plot by conservative Christians to discriminate against people.” But he said the legislation would benefit people of all faiths, not just conservative Christians.

“This is not religion specific,” he said. “This is going to benefit everybody.”

The Republican Party controls the offices of governor, secretary of state, attorney general, and both chambers of the state legislature. The Register noted that An identical version of the bill advanced through a committee in the Iowa House. It must still pass the full chamber before it could go to Gov. Kim Reynolds for her signature.

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Oklahoma

White House responds to nonbinary teenager’s death

The victim’s mother told the Independent that Benedict had suffered bullying over their gender since the start of the 2023 school year

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Nex Benedict, a 16-year-old nonbinary student from Oklahoma, died on Feb. 8 after a fight at their high school. (Family photo)

WASHINGTON – White House Press Secretary Karine Jean-Pierre and national advocacy groups issued statements on Wednesday about the death of nonbinary Oklahoma teenager Nex Benedict after they were allegedly assaulted in a high school restroom.

Benedict died on Feb. 8. According to ABC News, officials investigating the incident said they will be interviewing students and staff “over the next few weeks” and plan to share findings with the Tulsa County District Attorney’s Office.

The victim’s mother told the Independent that Benedict had suffered bullying over their gender since the start of the 2023 school year, shortly after Oklahoma Gov. Kevin Stitt signed a bill to prohibit students from using public school restrooms that do not match the sex listed on their birth certificates.

“Every young person deserves to feel safe and supported at school,” Jean-Pierre said in a post on X. “Our hearts are with Nex Benedict’s family, their friends, and their entire school community in the wake of this horrific tragedy.”

Calling Benedict’s death a “gut-wrenching tragedy that exposes the chilling reality of anti-trans hatred,” Human Rights Campaign President Kelley Robinson said. “We are reaching out to the DOJ, we are encouraging the community to speak out.”

Along with Robinson’s remarks, HRC’s Press Team included a link to the organization’s blog post about Benedict and a statement from Tori Cooper, director of community engagement for the HRC Transgender Justice Initiative:

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“Extremist anti-LGBTQ+ hate accounts, like online troll Chaya Raichik, the woman behind ‘Libs of TikTok’, who was recently appointed to Oklahoma’s library advisory board, are perpetuating a vile and hateful narrative that is permitting these types of public attacks,” she wrote.

State schools superintendent Ryan Walters, who last year called transgender youth using public restrooms “an assault on truth” and a danger to other kids, was responsible for naming Raichik to the library media panel.

“The assault on Nex is an inevitable result of the hateful rhetoric and discriminatory legislation targeting Oklahoma trans youth,” Lambda Legal, the American Civil Liberties Union and the ACLU of Oklahoma wrote in a joint statement.

“We are deeply troubled by reports the school failed to respond appropriately to the altercation that preceded Nex’s death and demand a thorough, open investigation into the matter,” the groups wrote.

Their statement also notes the organizations’ lawsuit challenging Oklahoma Senate Bill 615, the bathroom bill signed by Stitt last year.

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