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Marriage equality threat post-Roe highlighted in congressional hearing

Hearing was wide-ranging on issues in the aftermath of the Dobbs decision, including marriage, contraception & intimacy for same-sex couples

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U.S. Capitol building (Blade file photo by Michael Key)

WASHINGTON – Marriage equality advocates during a congressional hearing Thursday raised fears that the right for same-sex couples to marry could be in peril in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade.

LGBTQ activists delivered testimony before the House Judiciary Committee in a hearing titled, “What’s Next: The Threat to Individual Freedoms in a Post-Roe World,” putting the rights for same-sex couples to marry on par with abortion rights targeted by social conservatives in a 50-year effort.

Jim Obergefell, who was the lead plaintiff of the Obergefell v. Hodges decision that led the Supreme Court to rule in favor of marriage equality nationwide in 2015, gave deeply personal testimony about his efforts in securing state recognition of his marriage to his late spouse, who died of Lou Gehrig’s disease, as he made the plea to keep protection in courts.

“No couple, no family, should be forced to go to great financial expense and legal effort to gain a pale approximation of the rights and protections that come automatically with marriage,” Obergefell said. “That is not marriage, and it sets our relationships and families apart as something less worthy.”

The hearing was wide-ranging in the issues seen at play in the aftermath of the Dobbs decision, including marriage, contraception and intimacy for same-sex couples, which were called into question after Justice Clarence Thomas wrote in a concurrence decision that granting those rights should be reevaluated. Americans United for Life CEO Catherine Glenn Foster made news when she said a 10-year-old who was impregnated by rape should be forced to carry the child to full term.

Also delivering testimony before the committee was Human Rights Campaign Legal Director Sarah Warbelow, who envisioned an end to Lawrence v. Texas, the 2003 Supreme Court decision that struck down anti-sodomy laws, as a precursor to the end to marriage equality.

“To put it squarely, if Lawrence were overturned a marriage certificate could be evidence of a crime,” Warbelow said. “Today, nearly a dozen states retain laws criminalizing same-sex sexual relationships, and 35 states still have laws or constitutional amendments on the books that bar same-sex couples from marrying.”

Fears the Lawrence decision could be in danger were stoked by remarks from Texas Attorney General Ken Paxton, who said when asked during a media interview about having to defend his state’s laws against contraception, marriage or sodomy that he had a duty to defend the state law.

One pointed exchange during the hearing took place between Warbelow and U.S. Rep. Matt Gaetz (R-Fla.), who asked her about whether it was more likely a lesbian women would be impregnated by sexual assault and want an abortion or a same-sex couple to seek to adopt a child.

It would make no sense, Gaetz said in a dubious argument, for same-sex couples to support abortion because many seek to adopt.

Warbelow had none of it.

“It may not be more likely, but it’s an important interest someone who needs access to abortion care be able to access it,” she said.

As part of the questioning, Gaetz also asked whether the definition of a bisexual woman is someone who would pursue sexual relationships with both men and women, but Warberlow said that was not the case. Gaetz’s response was part of an exchange that went out on social media.

Gaetz himself tweeted out the video, commenting it was a “truly remarkable” attempt to redefine bisexuality.

The Florida Republican concluded his testimony by asking to Warbelow to verify that no state legislatures has introduced legislation, or even conducted a hearing, on the idea of rescinding same-sex marriage in the aftermath of the Dobbs decision. Warbelow started to deny that account and say the time after Dobbs has been brief.

Any effort seeking to roll back marriage rights for same-sex couples have not yet reached federal or state courts thus far. The last such challenge was in 2020 and from the solicitor general of Indiana, who was seeking to challenge the decision on the basis of birth certificates for the children of women in same-sex marriages. The Supreme Court declined to hear the case.

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Congress

Out U.S. Rep. introduces bill to create U.S. LGBTQ history museum

“It is vital to remember our collective past when certain states seek to constrain & repeal existing rights by passing laws that harm LGBTQ+”

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Rep. Mark Pocan (D-Wis.) (Blade file photo by Michael Key)

WASHINGTON – U.S. Rep. Mark Pocan (D-Wis.) has introduced legislation that would set up the process to create a National Museum of American LGBTQ+ History & Culture, potentially as an official site within the Smithsonian Institution in Washington, D.C.

Pocan, one of nine openly gay members of the U.S. House and co-chair of the LGBTQ+ Equality Caucus, said in a statement Thursday the measures would are effort to preserve LGBTQ history “as our community faces unprecedented attacks and attempts to erase our history.” The pair of bills is H.R.9070 and H.R.9071.

“It is vital to remember our collective past – particularly when certain states seek to constrain and repeal existing rights by passing bills that harm LGBTQ+ youth and our community at large,” Pocan said. “Let’s tell these stories, and honor the many contributions the LGBTQ+ community has made to this nation with a museum in Washington, D.C.”

The first bill, according to a news statement, would creates an eight-member commission of individuals with expertise in museum planning or LGBTQ+ research and culture “to look into the viability of establishing such a facility in the nation’s Capital.”

Among other things, the commission would be charged with recommending a plan on action for museum, including fundraising for the museum, and submitting to Congress a plan for construction of the museum, the statement says.

The bill would also instruct the commission to address whether the museum should be part of the Smithsonian Institution, based in the nation’s capital and the world’s largest museum and research complex, per the news statement. The full study, the statement says, would have to be completed in 18 months.

If the Smithsonian were to adopt the a museum on LGBTQ history and culture, it would be similar to other museums under its jurisdiction focused on minority populations in the United States, including the National Museum of African American History & Culture and the National Museum of the American Indian.

The second bill, according to a news statement, would be eligible for consideration by Congress after the commission completes its work and issues its recommendations and allow for formal creation of the museum. More than 50 lawmakers, including all nine openly gay members of the U.S. House, co-sponsor the legislation.

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Congress: Make “X” gender marker obtainable on all travel docs

The letter was inspired by a constituent who reached out trying to get an emergency passport appointment with an X gender marker

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Los Angeles Blade file photo via Bigstock

WASHINGTON – The Chair of the House Intelligence Committee Rep. Adam Schiff (D-Calif.), along with 18 fellow House Democrats sent a letter to the U.S. Departments of State and Homeland Security Tuesday encouraging them to make the “X” gender marker available for all U.S. passport applications and Trusted Travelers programs.

A spokesperson for Rep. Schiff told the Blade in an email:

The letter was inspired by a constituent who reached out to our office trying to get an emergency passport appointment with an X gender marker – right now you can only get rush passport service with the X gender marker at one passport agency in DC, so if they had gone through the LA passport agency, they only would have been able to get a passport with the M or F gender marker. Our office was able to resolve the case successfully, but it inspired our team to figure out a legislative solution that will help LGBTQI+ individuals access these services in the future.

Last March, U.S. Secretary of State Antony Blinken announced passports with an “X” gender marker will be available starting April 11. Dana Zzyym, an intersex U.S. Navy veteran who identifies as non-binary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym last October received the first gender-neutral American passport.

In Tuesday’s letter, the House members noted that while the U.S. Departments of State and Homeland Security made history by expanding the gender marker options available for U.S. passports and TSA PreCheck applications, creating a new “X” marker for individuals who identify as unspecified or another gender identity.

[…] The departments have yet to implement the “X” gender marker for their wide range of passport services and application forms, including the rush, non-routine, and Trusted Traveler programs such as Global Entry that are currently accessible to other travelers.

The letter also highlights: “As long as the Department of State fails to provide non-routine services to individuals seeking an X as their gender marker, non-binary applicants will continue to face an undue and unjust burden when pursuing international travel. The State Department’s current timeline to provide these services by late 2023, with no clear date released to the public, would deny these travelers equal access for far too long. Moreover, the Department of Homeland Security’s current policy limitations simply force non-binary travelers to choose a gender that does not reflect their gender identity.”

The members and concerned LGBTQ+ advocacy groups who endorsed the letter are asking the State Dept. and Homeland Security to ensure.

  • Solidified and accelerated implementation of the “X” gender marker option for passport cards, emergency passports printed at embassies and consulates, Consular Reports of Birth Abroad (CRBAs), and on Trusted Traveler Programs forms
  • A public date by which the “X” gender marker will be available for applicants for all passport services and application forms

Schiff was joined by Representatives Pramila Jayapal (D-Wash.), Ayanna Pressley (D-Mass.) Eleanor Holmes Norton (D-DC), Earl Blumenauer (D-Ore.), Jim McGovern (D-Mass.), Janice Schakowsky (D-Ill.), Raúl Grijalva (D-Ariz.), Mike Quigley (D-Ill.), Suzanne Bonamici (D-Ore.), Donald Payne Jr. (D-N.J.), Dina Titus (D-Nev.), Mark Pocan (D-Wis.), Bonnie Watson Coleman (D-N.J.), Dwight Evans (D-Pa.), Lisa Blunt Rochester (D-Del.), Dean Phillips (D-Minn.), Katie Porter (D-Calif.), and Rashida Tlaib (D-Mich.).

Schiff’s office also noted that this request was endorsed by COLAGE, Equality California, Equality Federation, Family Equality, GLBTQ Legal Advocates & Defenders, Human Rights Campaign, Los Angeles LGBTQ Center, National Center for Transgender Equality, and the Trevor Project.

Additional reporting by Michael K. Lavers

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Senate Democrats push for expanded access to testosterone

Senators Ed Markey & Elizabeth Warren urging the Biden administration to expand access to testosterone for gender affirming hormone therapy

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Photo Credit: National Library of Medicine/NIH-HHS USA.gov

WASHINGTON – Sen. Ed Markey (D-MA) has issued a letter cosigned by fellow Democratic Massachusetts Sen. Elizabeth Warren urging the Biden administration to expand access to testosterone for gender affirming hormone therapy

The letter was sent on Thursday to U.S. Attorney General Merrick Garland, U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra and U.S. Drug Enforcement Administration (DEA) Administrator Anne Milgram. 

A press release from Sen. Markey’s office announcing the move notes that testosterone, a masculinizing hormone therapy, causes “physical changes such as suppressed menstruation, decreased estrogen production, deepened voices, and increased facial hair growth.” 

As such, the sex hormone is considered crucial for transgender men and transmasculine nonbinary people, but there are substantial barriers to access because the treatment was listed as a Schedule III controlled substance in 1990 over concerns with its non-medical use as anabolic steroids. 

“Testosterone’s Schedule III status adds barriers to medically necessary, gender-affirming care while leaving transgender people vulnerable to harassment, discrimination, and surveillance,” the Senators wrote in their letter. “Rescheduling or descheduling testosterone would further the goals and policies already announced by the White House and HHS.” 

The lawmakers noted the Biden administration’s work strengthening Section 1557 non-discrimination rulemaking and collaboration with states on broadening access to gender-affirming healthcare. 

Their letter explains how the classification of testosterone makes it difficult for many patients to obtain: “Prescriptions for Schedule III and Schedule IV substances cannot be filled or refilled six months after the prescription was issued, or be refilled more than five times. On top of these requirements, states and private health insurers may impose further restrictions, such as 30-day limitations on controlled substances or limitations on mail delivery of prescriptions.”

Additionally, the Senators noted rescheduling or descheduling testosterone would exempt the drug from requirements that patients see their providers in-person before it is prescribed – requirements that might be reinstated if the pandemic-era rules broadening access to telemedicine are lifted. 

Because the prescription of controlled substances is documented and tracked via states’ Prescription Drug Monitoring Programs, transgender people have expressed concerns that they might be outed “to their health care providers, pharmacists, family members, and other people and agencies with access to these lists,” Markey and Warren wrote. 

Finally, they argued, the rules governing access to testosterone may increase instances of its illicit use by transgender people – raising health and safety concerns with the lack of medical supervision or monitoring and unregulated medicines and components. 

The lawmakers requested written answers and “a staff level briefing” to questions in their letter from the Justice Department and HHS by October 7. These include requests for details about the agencies’ steps to begin reconsidering the Schedule III classification of testosterone and information about meetings they’ve had with representatives of the transgender community.

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