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Court: Employer provided insurance can exclude coverage of PrEP

Representing the company in both cases was Jonathan Mitchell, former solicitor general of Texas, a vocal opponent of LGBTQ+ rights

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The Eldon B. Mahon United States Courthouse, Ft. Worth (Photo Credit: U.S. Courts/GSA)

FORT WORTH, Tx – A U.S. District Court on Wednesday ruled against a federal mandate requiring employer provided health plans to cover PrEP (Pre-exposure prophylaxis), a drug used for the prevention of HIV. 

The mandate, a provision of the Affordable Care Act (ACA), violates tenets of the federal Religious Freedom Restoration Act, according to Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas. 

Insurance plans were required to cover PrEP following a 2019 recommendation from the U.S. Department of Health and Human Services for the drug to be prescribed for high-risk patients for the prevention of HIV infection. 

Braidwood Management challenged the ACA’s provision the grounds that covering PrEP would conflict with its religious convictions as the medication “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” 

Judge O’Connor ruled in favor of Braidwood Management in a separate case last year challenging the 1964 Civil Rights Act’s anti-bias protections for sexual orientation and gender identity, deciding Braidwood had the right to discriminate under the Religious Freedom Restoration Act and the First Amendment. 

Representing the company in both cases was Jonathan Mitchell, former solicitor general of Texas, a vocal opponent of LGBTQ+ rights who is credited as the architect of S.B. 8, which provides a right of action allowing private citizens to sue those who obtain an abortion. 

One of the more conservative judges in one of the most conservative federal district courts, O’Connor ruled in 2018 that the entire ACA was unconstitutional, which the U.S. Supreme Court subsequently overturned in 2021. 

Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, told Roll Call he expects Wednesday’s ruling will be appealed. “Preventive services covered by private insurance plans without cost-sharing, such as HIV testing, hepatitis B and C testing, and PrEP, are all critical and well-established public health preventive services that must continue,” he said. 

PrEP reduces by roughly 99% the risk of contracting HIV. It has been labeled an “essential medicine” by the World Health Organization. 

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U.S. Federal Courts

Federal Judge tosses guidance in LGBTQ healthcare discrimination

He ruled the Biden administration wrongly interpreted a provision barring health care providers from discriminating against LGBTQ+ Americans

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The J. Marvin Jones Federal Building and Courthouse, Amarillo, TX (Photo Credit: U.S. Courts/GSA)

AMARILLO – U.S. District Judge Matthew Kacsmaryk ruled Friday the Biden administration had wrongly interpreted a provision of the Affordable Care Act (ACA), colloquially known as Obamacare, as barring health care providers from discriminating against LGBTQ+ Americans.

Kacsmaryk wrote the U.S. Supreme Court decision in Bostock v. Clayton County in which it held that “an employer who fires an individual merely for being gay or transgender violates Title VII.”  The High Court’s opinion states that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The lawsuit was brought by two doctors represented by the America First Legal Foundation, set up by Stephen Miller, a former Trump White House official. The suit was filed after the U.S. Department of Health and Human Services issued a regulation in May 2021 outlying that its interpretation of Section 1557 of the ACA, which states that healthcare providers cannot discriminate on the basis of sex, extends to sexual orientation and gender identity.

Many observers and legal experts have opined that the Bostock decision, while affecting many other laws and expand equality for LGBTQ people, there were shortcomings in the application of the Bostock ruling.

Sharita Gruberg, currently the Vice President for Economic Justice at the National Partnership for Women & Families, wrote in August of 2020 as the Center for American Progress vice president for LGBTQI+ Research and Communications, outlining the shortcomings in Bostock when looking at a practical application for LGBTQ healthcare under Section 1557 of the ACA:

While Section 1557 of the ACA prohibits discrimination based on race, color, national origin, sex, age, or disability in covered health programs or activities, the statute’s text does not actually include any of these words. Instead, it refers to protected characteristics in other statutes: Title VI of the Civil Rights Act of 1964, which covers race, color, and national origin; the Age Discrimination Act of 1975; Section 794 of Title 29 of the U.S. Code, which covers disability; and Title IX of the Education Amendments Act of 1972, which covers sex.

As discussed above, since Title VII’s definition of sex informs the definition of sex in Title IX, it is clear that sexual orientation and gender identity discrimination are also prohibited under the ACA. As in the Title IX context, federal courts have consistently affirmed that the prohibition of sex discrimination in Section 1557 of the ACA prohibits gender identity discrimination.

In 2016, the Obama administration promulgated a rule clarifying that Section 1557 prohibited gender identity discrimination and sex stereotyping, which could include sexual orientation as well as discrimination based on pregnancy, false pregnancy, termination of pregnancy or recovery, childbirth, or related medical conditions.

This interpretation was quickly enjoined by Reed O’Connor, a conservative activist judge who has since ruled that the ACA as a whole is unconstitutional. Rather than defend the Obama administration’s interpretation of sex discrimination, the Trump administration elected to promulgate a new rule that not only erased the inclusive definition of sex discrimination but also eliminated sexual orientation and gender identity protections from a number of other regulations.

The administration also rolled back language access protections. Trump’s Department of Health and Human Services (HHS) posted its final rule four days after the Supreme Court’s decision in Bostock. The rule was slated to go into effect on August 18; however, a federal judge issued a preliminary injunction on August 17 finding that HHS’ position that sexual orientation and gender identity were not covered under Title IX was rejected by the Supreme Court in Bostock. As a result, the administration was blocked from rescinding the 2016 rule’s protections.

 Kacsmaryk, appointed to the federal bench by former President Trump, wrote that Congress, when adopting the law could have included “sexual orientation” or “gender identity” in the text, but “chose not to do so.” He noted that the ACA incorporated barring against discrimination “on the basis of sex” in Title IX- but specifically left out LGBTQ+ people.

Accordingly the judge wrote, the Supreme Court’s 6-3 conclusion that Title VII’s bar against sex discrimination covered LGBTQ workers did not lead to the same result.

“Title IX’s ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court,” he wrote.

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Military ban on enlistment by HIV+ people faces legal challenge

The DoD removed restrictions on deployment & stopped discharges of servicemembers who are HIV positive provided they are asymptomatic

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Reception day for the West Point's new cadets - The U.S. Military Academy class 2026 (U.S. Army Photography Unit)

ALEXANDRIA, Va. – Lambda Legal and a coalition of law firms and attorneys filed a lawsuit Thursday in a federal Virginia district court challenging the U.S. military’s prohibition of HIV-positive Americans from enlisting in the U.S. Armed Forces.

The legal challenge was filed on behalf of three individual plaintiffs and the Minority Veterans of America (MVA) in the U.S. District Court for the Eastern District of Virginia.

The action comes on the heels of the Department of Defense’s updates this summer to its policies concerning HIV positive servicemembers.

On June 7, the agency announced it would not restrict the deployability or ability to commission, nor discharge or separate any servicemembers based solely on their HIV-positive status, provided they are asymptomatic and have a “clinically confirmed undetectable viral load.”

“For years, the military has found it difficult to meet the recruitment and end-strength goals for an all-volunteer force,” Lambda Legal co-counsel Peter Perkowski, who is also the legal and policy director of MVA, said in a press release announcing the lawsuit.

“Given this reality, it is non-sensical for the nation’s largest employer to turn away healthy, fit, and fully capable recruits just because they have HIV,” Perkowski said. “A positive HIV status alone has no effect on a person’s ability to safely serve,” Kara Ingelhart, senior attorney at Lambda Legal, said in the press release. “Because HIV disproportionately impacts LGBTQ+ people and people of color, this discriminatory policy is not only outdated, but is also a serious equity issue that has a significant impact on communities who already face countless systemic barriers to accessing full life in America.”

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White House vows to appeal ruling striking down student debt

Ruling comes from conservative Texas court and the administration’s appeal will be heard by the country’s most conservative appellate court

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U.S. District Court for the Northern District of Texas, Earle Cabell Federal Building (Photo Credit: U.S. Courts/GSA)

WASHINGTON – White House Press Secretary Karine Jean-Pierre released a statement Thursday night vowing to appeal the decision by a conservative federal district court in Texas that struck down the Biden-Harris administration’s student debt relief program.

President Joe Biden and his administration “are determined to help working and middle-class Americans get back on their feet, while our opponents – backed by extreme Republican special interests – sued to block millions of Americans from getting much-needed relief,” Jean-Pierre said in the statement.

Judge Mark T. Pittman, who was appointed by former president Donald Trump to serve on the U.S. District Court for the Northern District of Texas, ruled that the administration’s program was a usurpation of power that belonged in the hands of Congress.

Sixteen million Americans have already been approved for student debt relief. The Department of Education will hold onto their information, along with that which has been submitted by ten million other borrowers, pending a decision from the 5th Circuit Court of Appeals.

The appellate court is the country’s most conservative, and therefore is expected to be sympathetic to arguments that the administration’s program is an overreach of its legal authority.

The administration contends that Congress vested it with the authority to provide relief to student borrowers through the HEROES Act, which expands the Executive Branch’s powers during times of national emergency, such as the COVID-19 pandemic.

The Supreme Court has refused to hear challenges to Biden’s relief plan, and six conservative states have sued separately to stop implementation of the administration’s program. So, the ultimate outcome will probably remain unclear for the foreseeable future.

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U.S. Federal Courts

Federal court rules beauty pageant can bar transwomen

Writing in dissent, 9th Circuit Judge Susan P. Graber, slammed the majority for its “radical departure” from “well-settled” legal rules

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Anita Green, a trans beauty pageant competitor (Instagram/ anitanoellegreen)

PORTLAND, Or.- A three-judge panel of the 9th U.S. Circuit Court of Appeals in a 2-1 decision ruled this week that a beauty pageant can bar transgender women competitors. Upholding an earlier ruling from the U. S. District Court of Oregon in the case of Green v. Miss United States of America, LLC, the court found that that requiring the pageant to be inclusive of trans contestants would be a violation of its First Amendment rights to free speech.

Anita Green, a trans woman, who has competed in multiple beauty pageants including Miss Montana and Miss Earth, filed an application to participate in the Miss USA pageant, but was rejected on the basis that the pageant’s rules specified that only “natural born females” can compete.

Green had applied in Oregon and filed the federal suit based on her allegation that the pageant’s rejection was a violation of the Oregon Public Accommodations Act’s (“OPAA”) prohibition against discrimination on the basis of gender identity. In its ruling the U. S. District Court found the pageant’s First Amendment right to free expression and free association eclipsed the OPAA.

In the 58-page opinion, 9th U.S. Circuit Judge Lawrence VanDyke, appointed to the federal bench by former President Trump, compared and contrasted the pageant’s requirement to that of Broadway composer and producer Lin-Manuel Miranda required protocols in casting his musical ‘Hamilton.’  

Law & Crime noted:

The musical utilizes hip-hop music and lyrics to detail the rise and fall of Founding Father Alexander Hamilton and has garnered widespread attention from the public and critics alike,” VanDyke wrote and also attributed “some of the musical’s popularity” to “its casting choices, namely the decision to cast the predominately white Founding Fathers with actors of color.”

VanDyke noted that creator Miranda’s casting decision “was widely—though not universally—applauded,” and included a footnote quoting an op-ed written by a University of Michigan student that questioned the messaging behind the choice of actors. Blogger Camille Moore wrote that despite Miranda’s aim to cast the Pulitzer Prize-winning show to reflect “America today,” the casting missed the mark in that in that it failed to acknowledge that even today, powerful figures would be rich, white men.

The judge continued, explaining that Hamilton’s mainly non-white cast makes an important statement about American history that is “integral” to the show’s message.

The ruling also noted “it is commonly understood that beauty pageants are generally designed to express the “ideal vision of American womanhood.” The panel held that the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants. The Pageant would not be able to communicate “the celebration of biological women” if it were forced to allow Green to participate.

The First Amendment affords the Pageant the ability to voice this message and to enforce its “natural born female” rule.

The judges concluded that forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment. The judge’ also pointed out that contrary to Green’s argument, it does not matter that the Pageant is a for-profit entity that engages in commerce. That alone is not enough to strip the Pageant of its First Amendment rights.

The ruling also noted that the application of the OPAA in this context lacks the compelling state interest. The State of Oregon has offered only “eliminating discrimination against LGBTQ individuals” as a compelling interest, but this broad formulation alone cannot suffice. The courts have a long-standing hesitation to enforce anti-discrimination statutes in the speech context. Application of the anti-discrimination law to the Pageant here would necessarily impact its message. Applying the proper Supreme Court guidance in this case required prohibiting the application of the OPAA to eliminate the Pageant’s “natural born female” rule.

Writing in dissent, 9th Circuit Judge Susan P. Graber, appointed to the Federal bench by former President Bill Clinton slammed the majority for its “radical departure” from “well-settled” legal rules.

Law & Crime reported:

Under the doctrine of “constitutional avoidance,” Garber explained that the court should have first determined whether OPAA even applied to Green’s claim before diving into First Amendment analysis. Graber reprimanded the majority for its “insistence in reaching an unnecessary constitutional issue,” and reminded her fellow judges that constitutional avoidance is, and has long been, a bedrock judicial principle.

Graber then used VanDyke’s proffered examples in a logical assault on the majority’s ruling: given the nature of performances, a solid argument could be made that OPAA does not even apply to beauty pageants. Therefore, VanDyke’s Hamilton analogy does more to undermine the majority’s ruling than to support it.

Graber wrote:

“Choosing actors for a production of Hamilton, making a sequel to an 80s cinema classic, and assembling a troupe of Beyonce’s backup dancers are intensely selective processes that cannot be said to be open to the public as contemplated by the OPAA. It is highly unlikely that the OPAA would apply to the selection of performers for those roles.”

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Federal charges of assault & attempted kidnapping in Pelosi case

Paul Pelosi later described to police that he had been asleep when DePape, whom he had never seen before, entered his bedroom

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U.S. Federal Building in San Francisco, California (Photo credit: T. Bayer)

SAN FRANCISCO – The 42-year-old suspect in the break-in and assault of U.S. House Speaker Nancy Pelosi’s husband Paul, was formally charged Monday with assault and attempted kidnapping in violation of federal law.

Richmond, California resident David Wayne DePape, 42, was arrested on Friday inside the Pelosi residence in Pacific Heights by San Francisco Police Department (SFPD) police officers responding to a 911 call from Paul Pelosi.

Pelosi was admitted to Zuckerberg San Francisco General Hospital for his injuries, the hospital confirmed. Pelosi underwent what officials described as successful surgery to repair a skull fracture and injuries to his right arm and hands after he was seriously wounded in the attack.

The House Speaker arrived in San Francisco late Friday aboard a U.S. Air Force VIP transport jet and published a “Dear colleague” letter this past weekend thanking fellow members of Congress for their support and expressing gratitude for the “quick response” of law enforcement and emergency services personnel. 

U.S. Attorney Stephanie M. Hinds for the Northern District of California, Special Agent in Charge Robert K. Tripp of the FBI San Francisco Field Office, and Chief J. Thomas Manger of the U.S. Capitol Police made the announcement. Hinds’  Special Prosecutions Section of the U.S. Attorney’s Office for the Northern District of California is prosecuting the case.

According to the complaint, David Wayne DePape, 42, of Richmond, was arrested on Friday inside the Pelosi residence by San Francisco Police Department (SFPD) police officers responding to a 911 call from Paul Pelosi, husband of U.S. House of Representatives Speaker Nancy Pelosi. Paul Pelosi later described to police that he had been asleep when DePape, whom he had never seen before, entered his bedroom looking for Nancy Pelosi.

According to the complaint, minutes after the 911 call, two police officers responded to the Pelosi residence where they encountered Paul Pelosi and DePape struggling over a hammer. Officers told the men to drop the hammer, and DePape allegedly gained control of the hammer and swung it, striking Pelosi in the head. Officers immediately restrained DePape, while Pelosi appeared to be unconscious on the ground. As set forth in the complaint, once DePape was restrained, officers secured a roll of tape, white rope, a second hammer, a pair of rubber and cloth gloves, and zip ties from the crime scene, where officers also observed a broken glass door to the back porch.   

DePape is charged with one count of assault of an immediate family member of a United States official with the intent to retaliate against the official on account of the performance of official duties, which carries a maximum sentence of 30 years in prison. DePape is also charged with one count of attempted kidnapping of a United States official on account of the performance of official duties, which carries a maximum sentence of 20 years in prison.

The FBI San Francisco Field Office, the U.S. Capitol Police, and the San Francisco Police Department are continuing to investigate the case.

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2nd Federal Judge dismisses a suit re: Florida ‘Don’t Say Gay’ law

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Jennifer and Matt Cousins are the parents of four children: 14-year-old N.C., 12-year-old S.C., 8-year-old M.C. and 6-year-old P.C. Jen and Matt’s 12-year-old, S.C., came out as non-binary. (Photo Credit: Lambda Legal)

ORLANDO – U.S. District Judge Wendy Berger dismissed a challenge to Florida’s notorious ‘Parental Rights in Education law, HB 1557’ that went into effect this past July 1, 2022. The preliminary injunction sought by clients of Lambda Legal, the Southern Poverty Law Center (SPLC), Southern Legal Counsel (SLC) and outside counsel Baker McKenzie would have prevented school districts from implementing the law while the law is challenged in court. 

“The court’s decision is wrong on the law and disrespectful to LGBTQ+ families and students. HB 1557 suppresses wholesale the speech and identities of LGBTQ+ students and their families,” said Kell Olson, Staff Attorney at Lambda Legal. “It sends a message of shame and stigma that has no place in schools and puts LGBTQ+ students and families at risk. The students and families at the heart of this case have experienced more bullying in the months since the law went into effect than ever before in their lives, but the court dismissed their experiences of bullying as ‘a fact of life.’ The court’s decision defies decades of precedent establishing schools’ constitutional obligations to protect student speech, and to protect students from targeted bullying and harassment based on who they are.” 

This is the second suit brought to block the law’s implementation. U.S. District Court Judge Allen Cothrel Winsor dismissed a lawsuit challenging the law earlier this month on the grounds that the plaintiffs lacked legal standing to challenge the law. 

That suit dismissed by Winsor alleged, in part, that the law violated First Amendment and due-process rights. It reads, “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

“Our plaintiffs, and other LGBTQ+ students and families throughout Florida, have experienced real harms caused by this law, which were not acknowledged by the Court,” said Simone Chriss, Director of Transgender Rights Initiative at Southern Legal Counsel. “This fight is not over – it has just begun. Florida’s LGBTQ+ students and families deserve better, and we will press forward to protect their rights.”

“The court’s order ignores the real harm this unconstitutional law causes to our plaintiffs, and LGBTQ+ students and families across Florida, every day that it remains in effect,” said Scott McCoy, Interim Deputy Legal Director at the Southern Poverty Law Center. “The callous disregard towards increased bullying based on gender identity and the removal of anti-bullying guidance shows exactly why we must keep fighting.”

“We very much look forward to continuing the fight against this unjust and dangerous law,” said Angela Vigil, Partner and Executive Director of Pro Bono Practice at Baker McKenzie LLP. “We plan to show the court and the state the harm caused to children and families by this law is destructive in so many ways for education, community, families and, most importantly, children.”  

Judges Berger and Winsor were both nominated to the federal bench by then-President Trump and were endorsed by the right wing Federalist society.

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Federal Appeals Court blocks Biden’s student debt relief plan

The order does not reverse the trial court’s dismissal of the case just prevents debt from being discharged until the court makes a decision

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President Joe Biden, joined by Education Secretary Miguel Cardona, delivers remarks about student loan forgiveness, Wednesday, August 24, 2022, in the Roosevelt Room at the White House. (Official White House Photo by Erin Scott)

ST LOUIS, Mo. – The U.S. 8th Circuit Court of Appeals issued an order late Friday that prohibits the Biden-Harris administration from “discharging any student loan debt” under the relief program until it rules on an emergency request by Republican-led states to block the policy.

The federal appeals court ruling temporarily blocks President Biden’s plan to cancel billions of dollars in student debt.

In a response to the 8th Circuit’s ruling, the White House Press Secretary Karine Jean-Pierre released a statement:

Tonight’s temporary order does not prevent borrowers from applying for student debt relief at studentaid.gov – and we encourage eligible borrowers to join the nearly 22 million Americans whose information the Department of Education already has. It also does not prevent us from reviewing these applications and preparing them for transmission to loan servicers. 

It is also important to note that the order does not reverse the trial court’s dismissal of the case, or suggest that the case has merit.  It merely prevents debt from being discharged until the court makes a decision.

We will continue to move full speed ahead in our preparations in compliance with this order. And, the Administration will continue to fight Republican officials suing to block our efforts to provide relief to working families.”

The Supreme Court on Thursday refused to block the rollout of the Biden administration’s student debt relief plan in an emergency request to the Supreme Court in a case was brought by the Brown County Taxpayers Association. That case is being heard by the United States Court of Appeals for the Seventh Circuit.

In the 7th circuit case, Brown County Taxpayers Association argues that the U.S. Department of Education is acting outside of its administrative authority by forgiving student loans. The Department of Education is vested with the power to manage various loan programs but cannot, the applicants contend, forgive loans “unilateral[ly].” This power, they say, rests with Congress.

A lower federal district court judge dismissed the lawsuit earlier this month, on grounds that the Brown County Taxpayers Association lacked “standing.” In short as simply taxpayers, they could not show a personal injury which is required to bring forth a suit.

In the 8th Circuit case, six states – Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina argued that the student debt relief plan contravenes the separation of federal versus state’s powers and violates the Administrative Procedure Act (APA) because it exceeds the Secretary of Education’s statutory authority.

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SCOTUS to hear case of anti-LGBTQ web designer in December

The court returns to the issue of whether providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds

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The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

WASHINGTON – The U.S. Supreme Court on Tuesday announced that it has set December 5, 2022 to hear oral arguments in the case of a Lakewood, Colorado based web designer, 303 Creative LLC v. Elenis, who sued to challenge Colorado’s anti-discrimination law as she was refusing to work on websites for same-sex couples’.

Last Fall, the Southern Poverty Law Center-listed hate legal group representing Lorie Smith, the Alliance Defending Freedom, had asked the high court on an appeal from the U.S. Court of Appeals for the 10th Circuit to review the case.

Smith, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression, citing that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

In its 2-1 ruling, the 10th Circuit panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

Earlier this year in January the Justices had declined to take up the case, but for the Fall term decided to revisit the earlier decision and agreed to take the case up.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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Supreme Court action will make Prop 8 video available to public

Justices signaled they wouldn’t intervene effectively green-lighting the process for making those confidential records open to the public

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Activists stand in front of U.S. Supreme Court March 26, 2013 for a rally in support of marriage equality. (Washington Blade file photo by Michael Key)

WASHINGTON – The U.S. Supreme Court announced on Tuesday it has declined to take up a case on video recordings from the 2010 trial against the California’s marriage ban known as Proposition 8, effectively green-lighting the process for making those confidential records open to the public.

Justices signaled on Tuesday they wouldn’t intervene in an orders list that included the litigation, Hollingsworth v. Perry, under a section of cases where certiorari was denied. Although the vote of individual justices isn’t listed, the denial of certiorari means there wasn’t at least three justices who would agree to take up the case when the issue came up in conference.

The battle over the video documentation of the trial has been going from more than a decade. U.S. District Judge Vaughn Walker, who presided over the case and later ruled against the same-sex marriage, is now retired and has since come out as gay himself. With the tapes sealed, gay writer Dustin Lance Black in 2012 wrote and produced a play based on the transcript of the trial, which featured high-profile Hollywood actors such as Brad Pitt, George Clooney and Kevin Bacon.

The U.S. Ninth Circuit Court of Appeals had ruled in November 2021 in favor of opening up the video record of the trial, despite efforts from proponents of the marriage ban to keep the material under wraps. The appellate court issued its decision on the basis of standing, finding proponents in the case failed to show they’d suffer injury if the records were made public or that opening up the tapes would harm the judicial process.

Christopher Dusseault, partner at the law firm Gibson, Dunn and Crutcher and attorney for plaintiffs in the case, hailed the Supreme Court’s decision in a statement to the Washington Blade.

“We are thrilled that the Supreme Court has denied the petition by supporters of Proposition 8 to seal the trial video of the successful constitutional challenge to California’s prohibition of same sex marriage, clearing the way for public release of this important historical record.” Dusseault said. “While the trial took place more than twelve years ago, the lessons that it teaches about equality and justice could not be more vital today. At long last, the public will be able to see for themselves how and why an unconstitutional, unjust and unfair ban on marriage equality fell in California.”

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Federal court curbs fed rules re: Texas trans kids & LGBTQ workers

Ruling in a suit brought by Texas vacated guidance on gender-affirming care, pronouns, dress and bathroom protections for LGBTQ workers

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J. Marvin Jones Federal building & Courthouse, Amarillo, TX (Photo Credit: Library of Congress)

By Roxanna Asgarian | AMARILLO – A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

The decision “is not only a win for the rule of law, but for the safety and protection of Texas children,” Paxton said in a statement. “The Biden Administration’s attempts to radicalize federal law to track its woke political beliefs are beyond dangerous.”

The ruling was a victory for Paxton in his campaign to challenge the rights of transgender Texans. After Paxton’s opinion led to Gov. Greg Abbott directing the state’s Department of Family and Protective Services to investigate families of transgender children for child abuse, the already struggling department was thrown further into crisis.

“This is government overreach at its worst,” Biden said in a statement after Abbott issued his directive. “These actions are terrifying many families in Texas and beyond. And they must stop.”

Later in March, Paxton sued two pharmaceutical companies for “deceptively marketing” puberty blockers as a treatment for gender dysphoria. He has tried unsuccessfully to intervene in a suit brought by a doctor seeking to reopen a Dallas gender clinic. And Paxton’s views on transgender people are not limited to the courtroom: He’s been flagged by Twitter for “hateful conduct” for a series of tweets misgendering Adm. Rachel Levine, assistant secretary of health and a transgender woman.

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

He was confirmed to the federal judiciary by the Senate in 2019 by a vote of 52-46.

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Roxanna Asgarian is the law and courts reporter for the Texas Tribune.

Her first book, “We Were Once A Family: Love, Death, and Child Removal in America,” a deeply reported story of a murder-suicide that claimed the lives of six children and a searing indictment of the American foster care system, will be published by Farrar, Straus & Giroux in March 2023.

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The preceding article was previously published by The Texas Tribune and is republished by permission.

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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues. 

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