National
‘Skim milk’ marriages not enough: Ginsburg remembered as LGBTQ ally
Attorneys who argued gay rights cases recall late justice’s influence
WASHINGTON ā As the nation mourns the passing of former U.S. Associate Justice Ruth Bader Ginsburg, attorneys who argued major LGBTQ cases before the U.S. Supreme Court remember her for interceding on behalf equality under the law for LGBTQ people.
From making a classic quip that same-sex marriages under the anti-gay Defense of Marriage Act were “skim milk” marriages to aiding lawyers under fire from conservative jurists, lawyers in these cases say she made her presence known in efforts to advance LGBTQ rights.
Mary Bonauto, a civil rights attorney at GLBTQ Advocates & Defenders who in 2015 argued for same-sex marriage before the Supreme Court in Obergefell v. Hodges, said a key moment for her was when Ginsburg interrupted questioning from skeptical judges.
Amid questions to Bonauto about the historical and cross-cultural practice of legal marriage between different sex couples, suggested there were rational and practical reasons for limiting marriage to a union of a man and a woman, Ginsburg pointed out the institution of marriage has evolved since that time.
āBut you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago,ā Ginsburg said. āI mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.ā
Bonauto said that moment allowed her to affirm Ginsburg’s point about the evolving nature of marriage as an institution and elaborate.
“[F]or centuries we had ĀĀand Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles,” Bonauto said at the time. “And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, sameĀ-sex couples fit quite well.”
Although former U.S. Associate Justice Kennedy ended up writing the decision for same-sex marriage nationwide, Bonauto said that line of reasoning is present in his decision ā so Ginsburg’s impact was apparent.
ā[Marriage] has not stood in isolation from developments in law and society,” the decision says. “The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time.”
Paul Smith, a Georgetown law professor who successfully argued Lawrence v. Texas before the Supreme Court in 2003, said Ginsburg gave him needed relief during oral arguments 17 years ago when the late U.S. Associate Justice Antonin Scalia was giving him the third-degree with aggressive questioning.
“The question was ‘I just wanted to be clear, you’re asking us to overrule Bowers v. Hardwick, the prior case, and she knew the answer to the question,'” Smith said. “It was just a way to let me break in, and let me say, ‘Yes. Let me give me you the three reasons why we think it should be overruled, and it was a very nice generous thing to do.”
After the court accepting Smith’s arguments and ruled against state laws criminalizing same-sex relations, he said he had a later engagement with Ginsburg months later at the first convention of the American Constitutional Society.
“She came over and I didn’t really know her that well, and she had a big smile on her face and said, ‘I bet your having a very nice summer,'” Smith said.
A mistress of the one liners, Ginsburg brought clarity to oral arguments with colorful language. John Bursch, now an attorney for the anti-LGBTQ legal firm Alliance Defending Freedom, was making the case different sex couples being able to conceive/bear children as the essence of marriage in 2015, Ginsburg got a chuckle in the courtroom when said asked, “Suppose a couple, 70-year-old couple, comes in and they want to get married?”
Ginsburg also lit up oral arguments on DOMA in 2013 when she said same-sex marriages under the law, which barred the federal government from recognizing same-sex unions, amounted to “skim-milk” marriages.
Roberta Kaplan, a New York-based who argued against DOMA on behalf of lesbian widow Edith Windsor, said on Twitter those three words “revolutionalized how people think about gay people and our relationships.”
“The minute it came out of her mouth, I knew in my gut we would win the Windsor case,” Kaplan said. “RBGās analogy to a ‘skim milk’ marriage was better by a mile than anything we or any of the other lawyers had used to describe Edieās marriage under DOMA in the dozens of briefs in the case.”
Kaplan added Ginsburg subsequently told her people had told her afterwords “they thought it was the single best thing that she ever had said or would say from the bench,” although she didn’t say whether she agreed with that assessment.
Although Ginsburg didnāt author major LGBTQ decisions from the court, she did join Kennedy for every opinion. Among them was Romer v. Evans in 1996, which struck down Coloradoās anti-gay Amendment 2, Lawrence v. Texas in 2003, which struck down state laws criminalizing sodomy. Both decisions were early indications the nation was beginning to head into a different direction to accept.
Ginsburg also joined rulings that advanced same-sex marriage, including Windsor v. United States in 2013, which struck down the anti-gay Defense of Marriage Act; Hollingsworth v. Perry in 2013, which restored marriage equality to California after Proposition 8; and Obergefell v. Hodges, which struck down state bans on same-sex marriage and extended full marriage equality throughout the country.
For each of these rulings on marriage, justices were split 5-4, so Ginsburg werenāt on the court, the decisions may not have come out in favor of the LGBTQ community.
One opinion Ginsburg did author was the 2010 decision in Christian Legal Society v. Martinez, which requires student groups at colleges, including religious groups with objections to LGBTQ people, to accept all students to obtain official recognition.
“A collegeās commission ā and its concomitant license to choose among pedagogical approaches ā is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process,” Ginsburg wrote.
More recently, Ginsburg joined the decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act. The broad ruling grants protections to LGBTQ people wherever there are laws against sex discrimination, including employment, housing, health care and education.
Smith said Kennedy was given wide latitude in writing the gay rights decisions from the Supreme Courts because the liberal justices needed him as the fifth vote in those decisions, but nonetheless Ginsburg found to be live up to her reputation as a supporter of LGBTQ equality under the law.
“Those gay opinions, they were all hand-written on a yellow pad by Justice Kennedy and the other justices didn’t interfere; they just let him have his way because they knew he was the key fifth vote,” Smith said. “And they didn’t write any concurrences, they didn’t try to edit it, so it’s very much Kennedy’s voice, but she was a huge supporter of LGBT equality and pleased as punch to have seen it come about while she was on the court.”
Bonauto said the key to understanding Ginsburg’s worldview is a non-LGBTQ decision she wrote in 1996, United States v. Virginia, which struck down the long-standing male-only admission policy of the Virginia Military Institute. At the end of the opinion, Ginsburg talks about how the history of the Constitution as a history of including people formerly excluded.
“[That] can be tracked from Romer in the same year and through to Lawrence, Windsor and Obergefell,” Bonauto concluded. “After all, in Obergefell, the Court decided that same-sex couples also enjoy a fundamental right to marry even if in the past it had been limited to different-sex couples. And it discussed four factors ā mostly grounded in constitutional law or the reality of what marriage has become as an evolving institution ā about why marriage is fundamental.”
U.S. Federal Courts
Federal court: Maryland parents cannot opt out of LGBTQ lessons
The lawsuit challenges Montgomery County Public Schoolsā policy that āmandates the inclusion of literature with LGBTQ+ characters”
RICHMOND, Va. – A federal appeals court on Wednesday ruled a group of Montgomery County parents cannot āopt outā their children from classes in which lessons or books on LGBTQ-related topics are taught.
The parents filed their lawsuit in May 2023.
An American Civil Liberties Union press release notes the lawsuit challenges Montgomery County Public Schoolsā policy that āmandates the inclusion of literature with LGBTQ+ characters as part of the ELA (English and Language Arts) curriculum, aiming to promote understanding and acceptance among students.ā
āAlthough the district originally allowed parents to opt their children out of some ELA lessons, it rescinded the opt-out policy because the number of requests grew too difficult to manage, student absenteeism soared, and it created a stigmatizing environment for students who are LGBTQ or have LGBTQ family members, undermining the purpose of the inclusivity requirement,ā said the ACLU.
U.S. District Judge Deborah L. Boardman of the U.S. District Court for the District of Maryland ruled against the parents. The 4th U.S. Circuit Court of Appeals in Richmond, Va., upheld the decision.
āWeāre talking about books like āPride Puppy,ā which is light-hearted and affirming,ā saidĀ ACLU of Maryland Legal Director Deborah Jeon in a press release. āDuring a time of intensifying calls to ban books and limit access to information about LGBTQ+ people and identities, this ruling in support of inclusion in education matters.ā
Louisiana
Bills targeting Louisiana’s LGBTQ+ youth close to final approval
Hortonās bill could potentially hinder student chapters of the Gay-Straight Alliance and other LGBTQ+ student organizations
ByĀ Piper HutchinsonĀ | BATON ROUGUE, La. – Two anti-LGBTQ+ bills advanced Wednesday from the Louisiana Senate Committee on Education, putting them one step away from final legislative approval.Ā
The committee advanced House Bill 121 by Rep. Raymond Crews, R-Bossier City, which prohibits the use of transgender and nonbinary youthās chosen names and pronouns in public K-12 schools without parental permission.
House Bill 122 by Rep. Dodie Horton, R-Haugton, which limits discussion of gender and sexuality in public K-12 schools, was also approved.
Both bills were advanced without objection. Sen. Katrina Jackson-Andrews, D-Monroe, was the only Democrat present.
The Legislature approved both bills last year. Then-Gov. John Bel Edwards, a Democrat, vetoed them, and Republicans were unable to overturn his action. Lance Maxwell, a legislative liaison for Republican Gov. Jeff Landry, attended the committee meeting in support of Crewsā and Hortonās bills.
Wednesdayās emotional hearing marked the latest step for an advancing culture-war agenda, once held back under a Democratic governor. With the support of an ultra-conservative in the governorās mansion, a slew of anti-LGBTQ+ proposals are rapidly advancing toward enactment.
āI donāt know how yāall continue to hear things from us about our pain and our trauma, and just still pass bills,ā Peyton Rose Michelle, executive director of Louisiana Trans Advocates, said. āI donāt know how yāall sit through these things, and you donāt break down.ā
Crewsā bill would require teachers and other school personnel to use a studentās given name and pronouns that align with their birth sex unless a student has permission from their parents to use their chosen name. The proposal has been promoted as a āparental rightsā bill.
āThis bill is a grave violation of parental rights by prioritizing the moral objections of others over the fundamental rights of transgender students to be recognized by their chosen names, pronouns and identities,ā SarahJane Guidry, executive director of LGBTQ+ rights group Forum For Equality said. āThis legislation sets a dangerous and discriminatory precedent.ā
āThis relentless focus on legislating the lives of a small, vulnerable population diverts precious time, money and energy away from addressing real educational issues,ā Guidry added.
Under Crewsā bill, teachers would be allowed to disregard a parentās choice to respect their transgender or nonbinary childās name and pronouns if they have religious opposition to doing so.
In an interview, Crews said that while his bill supports parental rights, parents should not be able to eclipse somebody elseās religious rights.
His bill does not have an exception for those who have a religious opposition to deadnaming or misgendering students. Deadnaming is when someone uses a transgender or nonbinary personās birth name or ādead nameā against their wishes. Misgendering occurs when someone refers to an individual as a gender that they do not identify.
While the bill would allow parents to request a classroom change if a teacher disregards their permission for their transgender or nonbinary child to use their name or pronouns, it does not require this change to take place. Advocates have argued such classroom changes may not be feasible in smaller schools.
Jacob Newsom, an Ascension Parish public school teacher, said disregarding studentsā names and pronouns would make them uncomfortable, which he believes would hamper the learning environment.
āHow am I going to reach this child? How am I going to effectively teach this child?ā Newsom said.
āThere is an undeniable correlation between feeling safe and secure and being able to learn,ā Megan Sheehan-Dean, a child learning expert, later added.
At the core of Crewsā proposal is his belief that parents have the right to know whether their children are transgender. Advocates for the LGBTQ+ community say the bill would force transgender youth to out themselves to their parents or else be deadnamed and misgendered at school. They have raised concerns about what happens when parents find out ā and donāt approve.
A survey from the Trevor Project found 38% of transgender women, 39% of transgender men and 35% of nonbinary youth have experienced homelessness as a result of parental rejection.
Hortonās bill is similar to a Florida law referred to by critics as a āDonāt Say Gayā bill. Her proposal is much broader and would apply to K-12 grades, whereas Floridaās law applies only to early grade students.
Florida recently settled a lawsuit over the law filed by civil rights activists. As part of the agreement, students and teachers are permitted to discuss gender and sexuality as long as it is not part of classroom instruction.
Horton said she didnāt believe teachers should discuss their ālifestyle choicesā with students.
āHaving sexualized personal discussions between educators and students in our classrooms are not appropriate, and they can rob our children of their innocence while imposing suggested influence over their developing young minds,ā Horton said.
Hortonās bill would not just apply to classroom instruction. It also prohibits ācovering the topics of sexual orientation or gender identityā during any extracurricular and athletics events, meaning it could potentially hinder student chapters of the Gay-Straight Alliance and other LGBTQ+ student organizations.
When asked by committee Chair Sen. Rick Edmonds, R-Central, Horton agreed that heterosexuality falls under āsexual orientationā and is also not appropriate for classroom discussion.
The bills will next be discussed in the Senate.
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Piper Hutchinson is a reporter for the Louisiana Illuminator. She has covered the Legislature and state government extensively for the LSU Manship News Service and The Reveille, where she was named editor in chief for summer 2022.
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The preceding pieceĀ was previously publishedĀ by the Louisiana Illuminator and is republished by permission.
Louisiana IlluminatorĀ is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Louisiana Illuminator maintains editorial independence.
Tennessee
Federal judge refuses to dismiss trans kid’s suit against Tennessee
The case involves a 9-year-old trans child who was male at birth but identifies as female & Williamson County Schools
ByĀ Sam StockardĀ | NASHVILLE, Tenn. – A challenge of Tennesseeās law dealing with the use of public school restrooms and locker rooms by transgender students remains alive after a federal judge declined to dismiss all claims against the state education department and Williamson County Schools.
U.S. District Court Judge William Campbell denied the stateās request in to dismiss the childās claim of a violation of rights under the Equal Protection Clause.
The judge, however, granted a request to dismiss the childās claim that her Title IX rights were violated. The ruling notes that because the federal law allows schools to maintain separate restrooms for āthe different sexes,ā requiring the child to use the restroom based on her biological sex doesnāt violate Title IX.
The judge also dismissed the childās request to correct all records to reflect her female gender.
Tennessee lawmakers have taken steps in recent years to prevent transgender athletes from playing sports based on their sexual identity. The Legislature enacted restrictions in 2023 on transgender medical treatment and this year adopted a bill preventing adults other than parents and guardians from taking children outside the state for transgender care.
The case against the Tennessee Department of Education and Williamson County Schools involves a 9-year-old transgender child who was male at birth but identifies as female, according to court filings. The child uses āshe/herā pronouns and lives socially as a girl by wearing her hair long and dressing in a manner usually associated with girls.
The complaint was brought by a friend and the childās parents when the child was 8, claiming the Williamson County elementary school she attends requires her to use a single-occupancy restroom, not the multi-use girlsā restroom.
The child claims the schoolās āinsistenceā that she use a separate restroom āisolates her and distinguishes her from her classmates and exacerbates the stress and anxiety she experiences while trying to fit in and avoid being stigmatized on the basis of her sex and gender identity.ā The child also claims the restroom designated for her has problems with distance from her class, safety and cleanliness.
The Tennessee Legislature passed the Tennessee Accommodations for All Children Act in May 2021, requiring public schools to provide a āreasonable accommodationā to students, teachers and employees who want āgreater privacy when using a multi-occupancy restroom or changing facility designated for [their] sex and located within a public school building.ā
āReasonable accommodationsā include single-occupancy restrooms or changing facilities or use of an employee restroom or changing facility.
The āreasonable accommodationsā donāt include restrooms or changing areas designated for use by members of the opposite sex while the opposite sex is present or could be present. They also donāt require remodeling or structurally changing a school facility, or limiting access to a restroom or changing room designated for use by members of the opposite sex if that creates a violation or state or local building codes.
The new state law defines sex as āa personās immutable biological sex as determined by anatomy and genetics existing at the time of birth.ā It also provides students, parents, guardians, teachers and employees the right to sue public school systems for āpsychological, emotional, and physical harm,ā including monetary damages, legal fees and costs if they āencounter a member of the opposite sex in a multi-occupancy restroom or changing facility located in a public school building ā¦ [and] the public school intentionally allowed a member of the opposite sex [defined as sex at birth] to enter the multi-occupancy restroom or changing facility while other persons were present.ā
Campbell denied the childās request for an injunction against the school district to stop it from enforcing the state law.
Yet the judge opted not to dismiss the childās claims under the Equal Protection Clause, which prohibits a state from ādenying to any person within its jurisdiction the equal protection of the lawsā and prevents government discrimination that āeither burdens a fundamental right, targets a suspect class or intentionally treats one differently than others similarly situated without any rational basis for the difference.ā
The judgeās ruling points out that classifications by the government based on sex are recognized as āa quasi-suspect classification subject to intermediate scrutiny.ā
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Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state’s best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial and Best Single Feature from the Tennessee Press Association.
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The preceding articleĀ was previously publishedĀ by the Tennessee LookoutĀ and is republished with permission.
Now more than ever, tough and fair journalism is important. The Tennessee Lookout is your watchdog, telling the stories of politics and policy that affect the people of the Volunteer State.
Weāre part ofĀ States Newsroom, the nationās largest state-focused nonprofit news organization.
Kansas
Kansas AG sues over revised Title IXĀ for LGBTQ+ students
āI can certainly tell you that if any of my girls are competing in sports against boys, that is going to make me very unhappy,ā Kobach said
ByĀ Rachel Mipro | TOPEKA, Kan. āĀ Kansas Attorney General Kris Kobach announced Tuesday he has sued President Joe Bidenās administration over the rewrite of federal rules to protect LGBTQ+ students.
Alaska, Utah and Wyoming partnered with Kansas on the lawsuit, which follows the U.S. Department of Educationās release in April of new guidelines to prohibit discrimination at federally funded schools.
Set to go into effect Aug. 1, the revised Title IX rules explicitly ban discrimination based on sexual orientation or gender identity. Under the revision, LGBTQ+ students who face discrimination will be entitled to a response from their school and can seek action from the federal government.
Kobach said the change would violate the First Amendment rights of teachers and school employees whose religious beliefs would prevent them from complying with the rule.
āItās insanity,ā Kobach said. āBidenās Title IX rule is unconscionable. Itās dangerous to girls and women, and itās against federal law.ā
Explaining the 85-page lawsuit in a news conference Tuesday, Kobach focused on his assertion that transgender athletes shouldnāt participate in womenās sports. In 2023, Kansas lawmakers passed a ban prohibiting transgender student athletes from participating in girls and womenās sports. The state law could conflict with the new federal rules, although the federal revision doesnāt explicitly address transgender athletes.
āI can certainly tell you that if any of my girls are competing in sports against boys, that is going to make me very unhappy,ā Kobach said.
The issue is whether cisgender and transgender girls should play together. When asked about his use of the term āboysā to describe transgender girls and women, and if he respected the transgender identity, Kobach said people had a right to change their appearance and presentation, but āthe bottom line is that they canāt change the structure and other advantages that males gain.ā
āAnyone who observes sports and observes the competition by these biological males in female sports has seen the obvious unfairness of it,ā Kobach said. āThe idea that someone should be punished or should be canceled by simply speaking what they have observed is really disturbing. Itās Orwellian if someone is canceled or punished simply for saying what they believe.ā
Melissa Stiehler, advocacy director at Loud Light, a Kansas-based organization focused on LGBTQ+ rights and social issues, questioned Kobachās motives.
āDuring his career, Mr. Kobachās actions and legal theories have yet to show that he has the best interest of women and our legal protections at heart,ā Stiehler said. āIn fact, Kobach has actively sought to take away constitutional rights from Kansas women. With the experience of facing adversity as a woman, I fully encourage the AG to accept that transgender kids deserve protection from sex-based discrimination just as I received as a girl going through public school. Protection for trans kids doesnāt nullify any gains women and girls have made in our strides towards realizing equity.ā
Kobach is part of a wave of attorney generals in red states that have scrambled to challenge the ruling since the publication of the revised guidelines. Legal counsel from Alliance Defending Freedom joined Kobach in the news conference. ADF is known for promoting anti-LGBTQ+ policies.
Civil rights advocates oppose the legal challenges to anti-discrimination rules.
āKobach is claiming that he is standing up for girls and women,ā said Micah Kubic, executive director of the Kansas branch of the American Civil Liberties Union. āBut what he is really doing is continuing his decades-long crusade against our shared values and fundamental rights, using his misleading legal interpretations to try to transform the law into a tool that persecutes Kansans instead of protecting them.ā
Reporters asked Kansas Gov. Laura Kelly about Kobachās lawsuit after an unrelated news conference Tuesday.
āI wish that we would focus on issues that really make a difference in Kansansā lives,ā Kelly said. āI would suggest that that makes a difference in very few peopleās lives, and not in a good way.ā
Kobachās lawsuit marks the latest stand in a series of anti-trans movements. Lawmakers passed a law in 2023 that bans gender marker changes on driversā licenses and birth certificates.
In this legislative session, lawmakersĀ revived an effortĀ to block teenagers from receiving gender-affirming care, such as hormones and puberty blockers.Ā Senate Bill 233Ā also would have banned state employees from supporting āsocial transitioning,ā which was defined to include the use of preferred pronouns. A Republican-driven effort to override Kellyās veto narrowly failed in the House.
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A graduate of Louisiana State University, Rachel Mipro has covered state government in Baton Rouge and New Orleans. She and her fellow team of journalists were 2022 Goldsmith Prize Semi-Finalists for their work featuring the rise of the KKK in northern Louisiana, following racially-motivated shootings in 1960. With her move to the Midwest, Rachel is now turning her focus toward issues within Kansas public policies.
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The preceding article was previously published by the Kansas Reflector and is republished with permission.
Kansas Reflector is a nonprofit news operation providing in-depth reporting, diverse opinions and daily coverage of state government and politics. This public service is free to readers and other news outlets.
Weāre part of States Newsroom, the nationās largest state-focused nonprofit news organization.
Alabama
Alabama legislative session ends, āDonāt Say Gayā expansion dies
āDonāt Say Gayā laws had spread around conservative states, though they have also brought litigation- Florida settled a lawsuit over its
ByĀ Jemma StephensonĀ | MONTGOMERY, Ala. – A bill that would have expanded Alabamaās āDonāt Say Gayā law died on the final day of the 2024 regular session.
HB 130, sponsored by Rep. Mack Butler, R-Rainbow City, would have extended Alabamaās prohibition on discussion of sexual orientation and gender identity from kindergarten to fifth grade to kindergarten to eighth grade. It also would have banned flags or other insignia indicating gender identity or sexual orientation.
Butler said in a Friday phone interview that he didnāt know what the issues were in the final days of the session but said there was a filibuster in the Senate āwhich is not uncommon.ā
The legislation was the latest in a years-long attempt by Alabama Republicans to push LGBTQ+ Alabamians out of public life and in some cases restrict their health care. In 2021, the Legislature passed a ban on transgender students playing high school sports and the original āDonāt Say Gayā law, tacked into a bill restricting bathroom use by transgender youth.
The following year, the Legislature banned puberty blockers and hormones for use in gender-affirming care for transgender youth. The Legislature last year expanded the transgender sports ban to college athletics.
Katie Glenn, a policy associate with Southern Poverty Law Center, which opposed the bill, said in a phone interview Friday that it could have had a chilling effect which, she said, was emerging in some areas of the state.
āThat chilling effect is absolutely what is intended by bills like HB 130,ā she said. āitās not actually to punish people, although it can be used to do that. Itās to scare people, to scare administrators, staff, teachers and students into hiding who they are while theyāre at school.ā
Butler also said he was not sure why the bill began moving again near the end of the session but said that bills ādeemed a little controversialā are sometimes pushed back due to the amount they can take to pass.
āThey shut down the House and the Senate,ā he said.
But Butler said he would bring the bill back next year. He said that he has not met any parents who want the topics discussed in schools and claimed that āthere is a move across this nation to sexualize our children.ā
āOur schools in Alabama arenāt performing well enough to be going away from academics,ā he said.
Legislative questions
The bill passed the House in late April and was in position for a final vote in the Senate. But Democrats repeatedly criticized the measure, and even some conservative Republicans had questions about its scope.
As originally filed, the bill would have extended the ban up to 12th grade. Butler described it in a House committee meeting as a measure to āpurifyā public schools, a statement he walked back after criticism from Rep. Barbara Drummond, D-Mobile. Drummond later amended the bill on the House floor to limit the grades to eighth grade.
In the Senate committee, senators had questions about the extent of the bill and potential constitutional violations, especially around the flag and insignia. One speaker suggested the bill was broad enough that it would ban rainbow stickers in parking lots. Sen. Larry Stutts, R-Tuscumbia, said he was āconfusedā after Butler said that parking lots were not part of school property. āThe property is not the parking lot?ā he asked.
āWell, weāre talking about the actual building,ā said Butler.
The bill passed out of committee 5-2-2.
Butler said Friday that that concern is āridiculousā and one of the committee members might have been having fun. He compared it to teachers being allowed to have political bumper stickers but not political signs in classrooms.
Glenn said the confusion could have contributed to the billās demise.
āThere were lots of questions from legislators on both sides of the aisle,ā she said.
She said the vague language bill does make it unclear what the impact of the bill would ultimately be.
Glenn said the bill eventually suffered from organizing from people in the state, as well as the work of Democratic lawmakers, especially in filibustering.
Carmarion D. Anderson-Harvey, Human Rights Campaignās Alabama state director, said in a statement Friday that Alabama lawmakers should spend their time on other issues, saying that LGBTQ+ Alabamians would continue fighting ādespite years of dehumanizing rhetoric and relentless attacks on our communityās existence.ā
āMost Americans, in addition to Alabamians, see these bills for what they really are ā disgraceful, MAGA-led attempts to recycle false and outdated tropes about LGBTQ+ identities,ā the statement said. āAlabama has real issues facing education, voting rights, and criminal justice reform, and now itās time that lawmakers turn their attention to those issues instead of wasting taxpayersā money to demonize an entire community.ā
āDonāt Say Gayā laws had spread around conservative states, though they have also brought litigation Florida, which passed a version of the bill in 2022, settled a lawsuit over it in March,Ā according to the Associated Press.
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Jemma Stephenson covers education as a reporter for the Alabama Reflector. She previously worked at the Montgomery Advertiser and graduated from the Columbia University Graduate School of Journalism.
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The preceding articleĀ was previously publishedĀ by the Alabama ReflectorĀ and is republished with permission.
The Alabama Reflector is an independent, nonprofit news outlet dedicated to covering state government and politics in the state of Alabama. Through daily coverage and investigative journalism, The Reflector covers decision makers in Montgomery; the issues affecting Alabamians, and potential ways to move our state forward.
Weāre part ofĀ States Newsroom, the nationās largest state-focused nonprofit news organization.
Pennsylvania
PA LGBTQ+ Equality Caucus pushes to codify marriage equality
Enact legislation that would update current laws to remove āoutdated, unconstitutional, and unnecessary sections of lawā
ByĀ John Cole | HARRISBURG, Penn. – Later this month, Pennsylvania will mark 10 years since a judge struck down the stateās ban on same-sex marriage. But lawmakers and advocates say thereās still work to be done, and that itās time to codify marriage equality protections into law.Ā
āToo often we have seen long held rights and freedoms vanish in the blink of an eye,ā state Sen. Carolyn Comitta (D-Chester) said at a press conference last Tuesday at the Capitol in Harrisburg, alongside fellow members of theĀ Pennsylvania LGBTQ+ Equality Caucus. āThe fact is, we cannot rely solely on the courts to fix the failings of our laws. There is just too much at stake.ā
āWe have the power to affirm this right,ā she added. āAnd we must continue to advance equality for same sex couples, and all LGBTQ+ individuals in Pennsylvania.ā
In May 2014, a federal judge ruled that Pennsylvaniaās ban on same-sex marriage was unconstitutional. In June 2015, the U.S. Supreme Court ended same-sex marriage bans nationwide.
Comitta and state Reps. Jessica Benham (D-Allegheny) and Malcolm Kenyatta (D-Philadelphia) have legislation currently before the House Judiciary Committee that would update current laws to remove āoutdated, unconstitutional, and unnecessary sections of law,ā in regards to marriage equality. They argue that this language still present in Pennsylvaniaās laws would ban same-sex marriage if both the state and national court decisions were overturned.
Ryan Matthews, Pennsylvania State Director of the Human Rights Campaign, cited a Public Religion Research Institute poll that found 66% of Pennsylvanians support codifying marriage equality into law. He said it was time for Pennsylvaniaās legislature to follow the lead of President Joe Biden, who signed the Respect for Marriage Act in 2022.
āSo when our allies stand up and introduce important legislation like this, we are here to thank them, but weāre also here to say to all of the other legislators that ask why is this an important step, to show that it is because of basic respect for us and our community that we need to be recognized and protected in law,ā Matthews said.
Benham, who was the first openly queer woman elected to the Pennsylvania General Assembly, said legislation needs to go further in protecting marriage equality rights.
āBut I do think it is important, too, when we talk about marriage equality being the law of the land to recognize that there is a group of people who still do not have full access to marriage rights,ā Benham said. āUntil individuals with disabilities can get married without losing their Social Security, disability or health care benefits, marriage equality is not a law of the land for all.ā
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John Cole is a journalist based in Philadelphia. He’s worked for various outlets such as The Northeast Times, PoliticsPA, and PCN. In these previous roles, he covered a wide range of topics from local civic association meetings to races across the commonwealth. He earned a degree in journalism from Temple University.
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The preceding articleĀ was previously publishedĀ by the Pennsylvania Capital-StarĀ and is republished with permission.
The Pennsylvania Capital-Star is a nonpartisan, nonprofit news site dedicated to honest and aggressive coverage of state government, politics and policy.
Weāre part ofĀ States Newsroom, the nationās largest state-focused nonprofit news organization.
U.S. Federal Courts
11th Circuit rules against trans exclusions, cites Title VII guidance
In making its decision, the court referenced two recent developments that may change the legal landscape for transgender people
By Erin Reed | ATLANTA, Ga. – On Monday, theĀ 11th Circuit Court of Appeals ruledĀ that transgender health insurance exclusions violate Title VII of the Civil Rights Act. The case was brought by a transgender employee of the Houston County Sheriff’s Office in Georgia who was denied coverage for gender-affirming surgery.
The employee sued in 2019, and after a protracted lawsuit,Ā won at the district court level. Now, with this 11th Circuit Court ruling in favor of transgender employees, a significant precedent is building to protect transgender employees against health insurance restrictions that deny them the ability to get gender-affirming care.
The employee in question first transitioned in 2017. After informing Sheriff Cullen Talton at the Houston County Sheriffās Office of her decision to transition, she was told that he ādoes not believe inā being transgender, but that she would be allowed to keep her job.
However, when it came time to obtain gender-affirming surgery, significant controversy erupted: her claims were denied. When she filed a lawsuit to have her surgery covered, the sheriff’s office and county fought against her right to equitable health care coverage.
Since then, the county has spent incredible amounts of money denying the plaintiff her care. As of 2023, Houston County, Georgia,Ā had spent $1,188,701Ā fighting against providing health care coverage for the transgender plaintiff.
This is significant: ProPublica reports that it is over three times the countyās annual physical and mental health budget. Importantly, no other employee has requested coverage for gender-affirming surgery, so fighting against coverage has significantly cost the county far more than it would have gained by simply providing the employee with that coverage.
Ultimately, a lower courtĀ ruled in her favor, stating that such exclusions violate Title VII of the Civil Rights Act. In the decision, the judge stated, āthe implication of Bostock is clearā¦ discrimination on the basis of transgender status is discrimination on the basis of sex and is a violation of Title VII.ā
The judge then ruled that the exclusion was facially discriminatory and violates Title VII. In doing so, he ordered that the county must drop such exclusions. The plaintiff wasĀ also awarded $60,000Ā following the ruling.
The county appealed the ruling to the 11th Circuit Court of Appeals, which seemed primed to potentially reverse it. Recently, the 11th Circuit hasĀ issued harsh rulingsĀ toward transgender individuals, such as a ruling that gender-affirming care bans for transgender youth do not violate Equal Protection and Due Process rights.
In this particular case, though, the court considered a different argument: whether such exclusions on transgender insurance coverage violate employment law under the Civil Rights Act. The 11th Circuit concluded that they did: āThe exclusion is a blanket denial of coverage for gender-affirming surgeryā¦ because transgender persons are the only plan participants who qualify for gender-affirming surgery, the plan denies health care coverage based on transgender status.ā
In making its decision, the court referenced two recent developments that may change the legal landscape for transgender people.
In one footnote, the court mentionedĀ Kadel v. Folwell, a case just decided in the 4th Circuit Court of Appeals,Ā with the court rulingĀ that discrimination against transgender health care violates the Equal Protection Clause. Though it does not reference the case elsewhere, the 11th Circuit used similar legal arguments: that you cannot circumvent discrimination cases by discriminating by proxy. In this case, like in the Kadel case, the judge ruled that discriminating against transgender health care is also discriminating against transgender status.
The judge ruled that the defendantās āsex is inextricably tied to the denial of coverage for gender-affirming surgery,ā and thus, one cannot circumvent discrimination statutes by claiming they are only discriminating against a procedure and not a category of people.
The court also referenced new Title VII guidance from the Biden administration in a footnote when making its decision that exclusions violate those regulations. On April 29, the U.S. Equal Employment Opportunity CommissionĀ issued updated guidanceĀ stating that Title VII protections include protections on gender identity.
Although the guidance does not have the force of law, ānumerous courts, including the Supreme Court, have said: Because these guidelines are based on the expertise and careful reasoning of the agency thatās charged with enforcing anti-discrimination laws, theyāre to be given deference by the courts,ā Christopher Ho, the director of the National Origin and Immigrantsā Rights Program at Legal Aid at Work, stated in an interview with the Washington Post at the time of the guidelines’ release. Now, it appears that a major court, which has ruled against transgender rights in the past, has indeed given those guidelines some credit in their ruling.
The ruling is significant and will likely be one of the many rulings referenced whenever such cases eventually reach the Supreme Court.Ā Multiple courtsĀ haveĀ ruled in favorĀ of transgender people and their health care, but someĀ significant courts, including in a recent decisionĀ by the 11th Circuit CourtĀ on health care for transgender youth, have ruled against such legal protections. It is likely that this decision will be cited favorably in many other court cases in the coming months.
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Erin Reed is a transgender woman (she/her pronouns) 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.
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The preceding articleĀ was first publishedĀ atĀ Erin In The MorningĀ and is republished with permission.
New York
NY Court: County exec exceeded authority with transphobic order
The New York Civil Liberties Union had filed aĀ lawsuitĀ challenging Blakeman’s executive order on behalf of the Long Island Roller Rebels
MINEOLA, N.Y. āĀ A judge from the Nassau County Supreme Court has struck down Nassau County Executive Bruce Blakeman’s February 22, 2024 executive order banning transgender girls and women from participating in girlsā and womenās sports at county-run facilities.Ā Ā
In March, the New York Civil Liberties Union filed aĀ lawsuitĀ challenging Blakeman’s executive order on behalf of the Long Island Roller Rebels, a Nassau County recreational womenās flat track roller derby league. Under the executive order, the league, which welcomes trans women, was barred from using Nassau Countyās facilities.Ā
The lawsuit argues that the policy violates New Yorkās Human Rights Law and Civil Rights Law, which explicitly prohibit discrimination based on gender identity following passage of New Yorkās Gender Expression Non-Discrimination Act (GENDA).Ā Ā
This past Friday, Nassau County Supreme Court Judge Francis Ricigliano ruled that Blakeman did not have the authority to issue such an order. āIn doing so, this Court finds the County Executive acted beyond the scope of his authority as the Chief Executive Officer of Nassau County,ā Ricigliano wrote.
Judge Ricigliano also noted that Blakeman could not act without corresponding action by theĀ Nassau County Legislature. It includes representatives from each of the countyās 19 districts.
Reacting Blakeman responded in a statement, saying, “Lack of courage from a Judge who didn’t want to decide the case on its merits. Unfortunately, girls and women are hurt by the Court.”
āWe are gratified the court has struck down a harmful policy that belongs in the dustbin of history,ā saidĀ Gabriella Larios, staff attorney at the New York Civil Liberties Union.Ā āThe ruling deals a serious blow to County Executive Blakemanās attempt to score cheap political points by peddling harmful stereotypes about transgender women and girls. We will continue to ensure that the attacks against LGBTQ+ rights that are sweeping the nation will not stand in New York.āĀ Ā
āTodayās decision is a victory for those who believe that transgender people have the right to participate in sports just like everyone else. It sends a strong message that transphobic discrimination cannot stand,ā saidĀ Curly Fry, president ofĀ Long IslandĀ Roller Rebels.Ā āAs a league welcoming trans women and committed to providing a safe space for everyone to be their full selves, County Executive Blakemanās order tried to punish us just because we believe in inclusion and stand against transphobia. Trans people belong everywhere including in sports, and they will not be erased.āĀ
In early April, U.S. District Court Judge Nusrat Choudhury, who is on the bench of the U.S. District Court for the Eastern District of New York, denied Blakemanās request for a temporary restraining order against New York Attorney General Letitia James.
On March 1st, the New York State Attorney General sent a order of cease and desist to Blakeman demanding that the Republican Nassau County Executive rescind his February 22 directive within five days or else face additional legal actions.Ā
āThe law is perfectly clear: you cannot discriminate against a person because of their gender identity or expression. We have no room for hate or bigotry in New York,ā the Attorney General wrote. āThis executive order is transphobic and blatantly illegal. Nassau County must immediately rescind the order, or we will not hesitate to take decisive legal action.ā
The Nassau County Executive then announced he was filing a lawsuit over the Attorney Generalās actions.
Federal Government
FBI warns of potential threats to LGBTQ+ Pride month events
Increased threat levels domestically included recently documented instances of homophobic and transphobic threats
WASHINGTON – Citing the rising numbers of violent threats primarily across the digital landscape online including emailed bomb and death threats, officials from the Federal Bureau of Investigation and Homeland Security Investigations have issued warnings that foreign terrorist organizations (FTOS) or their supporters are targeting the LGBTQ+ community during Pride Month.
In a notice released on May 10, the FBI and HSI warn that efforts to commit or inspire violence against LGBTQ+ celebrations, including Pride celebrations or other LGBTQ+-related venues, are compounded by the current heightened threat environment in the United States and other western countries.Ā
The FBI and HSI noted that June 12, 2024 marks the eighth anniversary of the Pulse Nightclub Orlando shooting, during which the attacker killed 49 and wounded 53 people. After the Pulse shooting, pro-ISIS messaging praised this attack as one of the high-profile attacks in Western countries, and FTO supporters celebrated it. There are concerns that instances like the Pulse anniversary could spark a violent attack.
In addition to the threats posed by off-shore groups, increased threat levels domestically including recently documented instances of homophobic and transphobic threats exemplified recently from reporting by multiple media outlets regarding Libs of TikTok’s creator Chaya Raichik, who hadĀ initiated an ongoing campaign against Planet Fitness, demanding a boycott in retaliation for the gym’s trans-inclusive locker room policy.
At least 53 locations of Planet Fitness have reported hoax bomb threats in recent weeks, the threats were primarily reported through emails, and in some cases, phone calls.Ā continuing what has become aĀ trendĀ of violent threats against institutions targeted by Raichik.Ā
Raichik has a long documented history of fostering anti-LGBTQ+ animus through her posts which in turn has led to what NBC News, Media Matters, the SPLC, the Blade, and others documenting Raichikās anti-LGBTQ+ acts of arguably stochastic terrorism.
In February, NBC News technology reporter David Ingram, detailed bomb threats and violent threats inspired by Raichikās social media posts. NBC News identified 33 instances, starting in November 2020, when people or institutions singled out by Libs of TikTok later reported bomb threats or other violent intimidation.Ā
During his April 11 testimony on Capitol Hill, FBI Director Christopher Wray issued a warning to lawmakers telling a House subcommittee that there is a growing fear among law enforcement officials of possible “coordinated attack” inside the U.S. telling committee members that a “lone-wolf” attack promulgated by events in Middle East are the agency’s overarching worry.
Speaking with the Blade on background, a senior FBI official noted that Pride events in locales other than major urban settings, particularly the largest Pride gatherings in New York, San Francisco, Los Angeles, and Washington D.C. which have a traditionally large police presence, smaller cities and towns are at elevated risk.
In an emailed statement, the FBI said it has, in general, observed an increase in threats of violence targeting institutions like hospitals and schools.
āAs a country and organization, we have seen an increase in threats of violence targeting government officials and institutions, houses of worship, schools, and medical facilities, just to name a few. The FBI and our partners take all threats of violence seriously and responding to these threats ties up law enforcement resources.
āWhen the threats are made as a hoax, it puts innocent people at risk, is a waste of law enforcementās limited resources, and costs taxpayers. The FBI and our state and local partners will continue to aggressively pursue perpetrators of these threats ā real or false ā and hold them accountable,ā the FBI statement said.ā
Reacting to the elevated threat levels in a statement, GLAAD President Sarah Kate Ellis said:
āA fringe few extremists, domestically and overseas, are irrationally threatened by the rising tide of acceptance for LGBTQ people. It is important to keep Prides safe for all attendees, and for people to keep showing up during Pride and throughout the year to speak up for the equality and safety of their communities and all marginalized people.ā
The FBI is asking that Pride event planners, organizers, and others be aware of possible indicators of potential threat activity:
- Violent threats made online, in person, or via mail.
- Unusual or prolonged testing or probing of security measures at events or venues.
- Photography of security related equipment, personnel, or access points consistent with pre-operational surveillance without a reasonable alternative explanation.
- Unusual surveillance or interest in buildings, gatherings, or events.
- Attempts to gain access to restricted areas, bypass security, or impersonate law enforcement officials.
- Observation of or questions about facility security measures, including barriers, restricted areas, cameras, and intrusion detection systems without a reasonable alternative explanation.
- Eliciting information from facility personnel regarding the nature of upcoming events, crowd sizes, busiest times of day, etc. without a reasonable alternative explanation.
- Attempts to enter a restricted area, bypass security, or impersonate law enforcement officials.
New Hampshire
Bill allowing parental opt-outs for LGBTQ+ school topics advances
āParents should have these discussions with their own children- not have teachers.. This bill is for parents to have those conversationsā
ByĀ Ethan DewittĀ | CONCORD, N.H. – In early May, Democrats in the House defeated theĀ āHonesty in Education Act.ā The bill was the latest effort to require public school teachers to answer parents when they ask about changes to their childās gender identity.Ā
But another bill is moving forward that supporters say would give parents more control over their childrenās instruction in schools ā and opponents say would intrude on classroom instruction.
House Bill 1312 would allow parents to opt their children out of any āinstruction or program ofā sexual orientation, gender, gender identity, or gender expression.
Currently, state law allows parents to withdraw their children from classes related to human sexual education. HB 1312 would expand that ability to apply to the additional topics.
Under the existing process, parents must notify the school district in writing that they object to the class material. And the parents must propose alternative instruction that is agreed upon by the school district, and pay for it themselves if there is a cost.
HB 1312 would expand the withdrawal and require school district staff to notify parents at least two weeks in advance of any material that might fall into the category.
Separately, the bill would prevent school districts from requiring that teachers withhold information from parents about their childās well-being ā including information about their sexuality. Individual teachers could still choose not to answer questions from parents about their childās sexuality, but school districts could not make it a blanket policy under the bill.
The legislation, which passed the House 186-185, appears likely to clear the Republican-led Senate, too; the Senate Education Committee voted to recommend that it pass, in a 3-1, party-line vote.
Supporters say the bill would give parents a greater say in how their children learn about sensitive topics. But opponents said the bill would empower discriminatory views against LGBTQ+ people, and that the notification process would be disruptive to teachers.
āThe bill seems to be targeting, and I think stigmatizing, any instruction concerning LGBTQ+ people, and I think that this language really sends the message to LGBTQ+ students that their feelings and identities are something to be shunned, feared, potentially even censored, or not even acknowledged,ā said Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire.
To Sen. Tim Lang, a Sanbornton Republican, the bill would encourage parents to communicate with their children about the topics ā knowing that they were coming up in the curriculum ā which he said could foster better connections between parents and children.
āParents should have these discussions with their own children and not have teachers do this. This bill is the prompt for parents to have those conversations.ā
Lang said the notification requirements would not prevent school districts from teaching the topics, but would rather allow parents to choose whether to participate in them. And he argued that the bill is not intended to allow parents to withdraw their child from materials that relate to LGBTQ+ people or movements in history.
āItās just informative to parents,ā he said. āNothing stops the school from doing those classes. The class is allowed. That just says that if you do it though, because this is a sensitive topic, you need to notify parents.ā
A class about Harvey Milk, the openly gay San Francisco politician who was assassinated in 1978, would not fall under the definition of instruction of sexual orientation, Lang said, because Milk was a historical figure. But any instruction directed at students themselves that delved into their own sexual orientations or gender identity ā such as that in a sex education class ā would need to be disclosed, he said.
But representatives of teachers unions said the bill as written does not make those distinctions clear. Teachers might interpret the law to mean that any class that discussed the history of LGBTQ+ rights would need to be noticed ahead of time, opponents said. And English teachers might feel compelled to disclose any book that featured LGBTQ+ characters, and to empower parents to prevent their children from reading those books.
āIf you pass this bill that expands the areas that a parent is required notification of and can opt a child out of, where will it stop?ā said Deb Howes, president of the American Federation of Teachers of New Hampshire. āā¦ Can you study the pay gap between men and women in the same jobs in an economics class, which has to do with policies around gender discrimination?ā
Lang disagreed with that characterization; books that happen to include transgender or non-heterosexual characters would not automatically invoke the disclosure requirement, he said. Only instruction that was specifically intended to teach students about sexual orientation or gender identity would need advanced notice, he said.
Brian Hawkins, director of government relations for the National Education Association of New Hampshire, argued that the topics the bill would add to the parental notification law were so broad that teachers would find the law difficult to follow.
āWe think that 1312 is another piece of legislation that would significantly limit educatorsā ability to teach, and provides far too many instances of vague language and framework to determine when certain actions violate the statute,ā Hawkins said.
New Hampshire lawmakers first passed the law allowing parental opt-out from sex ed in 2017. In recent years, Republicans have pushed to allow more parental control over school library books, and have pressed for legislation to require teachers to answer any questions from parents about their childās preferred pronouns or gender identity in school.
The latest parental notification bill effort,Ā Senate Bill 341, was āindefinitely postponedā earlier this month, on a voting day when House Democrats had a majority over Republicans in the near-evenly divided chamber. That motion means that the bill is dead and that it cannot return as an amendment to another bill this legislative session.
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Ethan DeWitt is the New Hampshire Bulletinās education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email:Ā [email protected]
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The preceding articleĀ was previously publishedĀ by the New Hampshire BulletinĀ and is republished with permission.
The independent, nonprofit New Hampshire Bulletin is guided by these words from our state constitution: āGovernment, therefore, should be open, accessible, accountable and responsive.ā We will work tirelessly every day to make sure elected officials and state agencies are held to that standard.
Weāre part ofĀ States Newsroom, the nationās largest state-focused nonprofit news organization.
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