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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.

U.S. Federal Courts

Federal Court upholds Washington state ban on conversion therapy

NCLR successfully moved to intervene in the lawsuit on behalf of Equal Rights Washington– the state’s largest LGBTQ civil rights organization

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The William Kenzo Nakamura United States Courthouse for the 9th Circuit, Seattle, WA. (Photo by Joe Mabel)

SEATTLE — The United States Court of Appeals for the Ninth Circuit on Monday rejected a therapist’s request for the court to reconsider its previous decision upholding the State of Washington’s law protecting minors from conversion therapy by licensed health professionals.

Conversion therapy is a dangerous and discredited practice that attempts to change a minor’s sexual orientation or gender identity.

Washington prohibited licensed mental health professionals from subjecting minors to conversion therapy in 2018, as more than 20 other states have also done.

Last September, the ninth circuit wrote:  “In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add ‘performing conversion therapy on a patient under age eighteen’ to the list of unprofessional conduct for the health professions.”

“The Ninth Circuit has affirmed that states can require licensed mental health providers to comply with ethical and professional standards prohibiting the use of unnecessary, ineffective, and harmful treatments on their minor patients,” said Shannon Minter NCLR Legal Director. “These are common sense protections that unfortunately are necessary to prevent unethical therapists from defrauding parents and causing severe harm to LGBTQ youth. Every major medical and mental health organization in the country supports these laws, which are supported by decades of research and clear standards of care.”

“We applaud the Ninth Circuit for permitting states to protect survivors like myself from the unethical practice of so-called ‘conversion therapy,” which has wreaked havoc on thousands of LGBTQ youth and their families,” said Mathew Shurka, a “conversion therapy” survivor and co-founder of Born Perfect. 

In 2018, Washington passed a law prohibiting state-licensed therapists from engaging in conversion therapy with a patient under 18 years old. Every leading medical and mental health organization in the country has warned that these practices do not work and put young people at risk of serious harm, including depression, substance abuse, and suicide. Twenty-five states and over 100 localities have laws or administrative policies protecting youth from these practices or preventing the expenditure of state funds on conversion therapy.

In 2021, an anti-LGBTQ legal group filed a federal lawsuit challenging the new law on behalf of Brian Tingley, a “therapist” and advocate of “conversion therapy”.

Tingley, who is represented by the Scottsdale, Arizona-based anti-LGBTQ Alliance Defending Freedom, (ADF), identifies himself as a “Christian licensed marriage and family therapist”  and alleges in the court filings that the provided definition of “conversion therapy” is “vague, content-biased, and biased against one perspective or point of view.”

 The National Center for Lesbian Rights (NCLR) successfully moved to intervene in the lawsuit on behalf of Equal Rights Washington (ERW) – the state’s largest LGBTQ civil rights organization and a primary supporter of the law during the legislative process. ERW and the State of Washington urged the court to uphold the law in light of the overwhelming consensus of medical and mental health professionals that conversion therapy poses a serious risk to the health and well-being of Washington’s youth. In August 2021, the federal district court for the Western District of Washington upheld the law and rejected Tingley’s challenge.

In September 2022, a three-judge panel of the Ninth Circuit affirmed the district court’s decision, ruling that state laws protecting minors from conversion therapy by licensed health professionals are constitutional. Tingley then asked the full Ninth Circuit to order the September decision to be reconsidered by a larger panel of Ninth Circuit judges. Today, the court rejected that request. 

The court’s order means that the September 2022 panel decision upholding the Washington law will be the Ninth Circuit’s final decision in the case.

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Federal Judge rules West Virginia can ban trans youth sports

“The legislature’s definition of ‘girl’ based on ‘biological sex’ is substantially related to equal athletic opportunities for females”

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Becky Pepper-Jackson (Photo credit: ACLU/Raymond Thompson)

CHARLESTON, W.Va. — U.S. District Court Judge Joseph Goodwin for the Southern District of West Virginia ruled last Friday that the ban on transgender athletes competing in female school sports that the state’s Gov. Jim Justice signed into law in 2021 is constitutional.

“I recognize that being transgender is natural and is not a choice,” Goodwin wrote in his decision. “But one’s sex is also natural, and it dictates physical characteristics that are relevant to athletics.”

The ruling came in the lawsuit challenging the ban filed by Lambda Legal, the American Civil Liberties Union, the ACLU of West Virginia and Cooley LLP on behalf of then 11-year-old Becky Pepper-Jackson, the plaintiff in the lawsuit.

When the suit was filed, Josh Block, senior staff attorney with the ACLU LGBTQ & HIV Project said: “Becky — like all students — should have the opportunity to try out for a sports team and play with her peers. We hope this also sends a message to other states to stop demonizing trans kids to score political points and to let these kids live their lives in peace.” 

West Virginia Attorney General Patrick Morrisey applauded the decision Thursday.

“This is not only about simple biology, but fairness for women’s sports, plain and simple,” the attorney general said. “Opportunities for girls and women on the field are precious and we must safeguard that future.”

NPR and the Associated Press reported the plaintiff’s lawsuit did not challenge whether schools should be allowed to have separate sports teams for males and females, and Goodwin was tasked with determining whether the Legislature’s definition of the terms “girl” and “woman” is constitutionally permissible. The Save Women’s Sports Bill signed by Republican Gov. Jim Justice says they mean anyone assigned the female gender at birth.

“The legislature’s definition of ‘girl’ as being based on ‘biological sex’ is substantially related to the important government interest of providing equal athletic opportunities for females,” Goodwin determined.

The judge also rejected the plaintiff’s claim that the state law violated Title IX, the landmark gender equity legislation enacted in 1972.

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Sharply divided 11th Circuit upholds trans bathroom ban in Florida

Plaintiff contended that the high school’s bathroom policy violated the Constitution’s Equal Protection clause and Title IX

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Elbert P. Tuttle U.S. Court of Appeals Building, Atlanta, Georgia (Photo Credit: U.S. Courts/GSA)

ATLANTA – The U.S. Circuit Court of Appeals for the 11th Circuit last week ruled in a 7-4 vote, that a Florida School District did not violate the U.S. Constitution nor federal civil rights laws by requiring students to use bathrooms corresponding to their biological sex as listed on their birth records.

All seven judges in the majority were appointed by Republican presidents, including six by former President Trump, while the four dissenting judges were Democratic appointees.

Because other federal appellate courts have issued previous rulings allowing a student to chose to use bathrooms based on their gender identity, an appeal to the United States Supreme Court is likely.

In June 2021, the high court declined to hear arguments in the earlier appeals court ruling of a former high school student who challenged his Virginia school district’s bathroom policy.

Gavin Grimm was a sophomore at Gloucester County High School when he filed a federal lawsuit against the Gloucester County School District’s policy that prohibited students from using bathrooms and locker rooms that did not correspond with their “biological gender.”

The 4th U.S. Circuit Court of Appeals in Richmond in 2016 ruled in Grimm’s favor.

The Biden administration had urged the 11th Circuit to strike down the Florida school board’s policy. The White House had no immediate comment in regard to Friday’s ruling.

The suit was brought by Drew Adams, a transgender man who sued in 2017 after being barred from using the boys’ bathroom when he attended the Allen D. Nease High School in Ponte Vedra Beach, Florida.

“This is an aberrant ruling that contradicts the rulings of every other circuit to consider the question across the country,” Tara Borelli, a lawyer with Lambda Legal representing Adams, said in a statement. “We will be reviewing and evaluating this dangerous decision over the weekend.”

In the suit Reuters reported that Adams contended that the high school’s bathroom policy violated the Constitution’s Equal Protection clause and Title IX, which bars sex discrimination in education.

Reuters notes:

Writing for the majority, Circuit Judge Barbara Lagoa disagreed, saying the school board had an important interest in protecting students’ privacy, and calling it “wrong” to suggest it relied on illegal stereotypes of transgender people.

The Trump appointee also said Title IX allows separate bathrooms based on biological sex, citing “the plain and ordinary meaning of ‘sex’ in 1972” when that law took effect.

She also warned that ruling for Adams could “transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities. Whether Title IX should be amended to equate ‘gender identity’ and ‘transgender status’ with ‘sex’ should be left to Congress – not the courts.”

Circuit Judge Jill Pryor, an appointee of Barack Obama, countered in dissent that by forcing Adams to use gender-neutral bathrooms, the St. Johns school board branded him with a “badge of inferiority” by deeming him “unfit” for equal protection.

“The Constitution and laws of the United States promise that no person will have to wear such a badge because of an immutable characteristic,” Pryor wrote. “The majority opinion breaks that promise.”

A legal analyst told the Blade that 11th’s ruling is a victory for anti-LGBTQ+ activists and so-called family focused conservatives who continue to push anti-LGBTQ+ and anti-trans legislation, including trans bathroom ban measures across the U.S.

Last May, Oklahoma Senate Bill 615 passed the Oklahoma legislature and was quickly signed into law by Republican Governor Kevin Stitt. The law requires all pre-K through 12th grade public schools and public charter schools to restrict the use of multiple occupancy restrooms and other facilities at school based on the sex listed on an individual’s original birth certificate.

Provisions in the language of the law requires schools to adopt disciplinary procedures to punish students who do not comply and allows parents and guardians to take legal action against any school that does not comply with the new law.

The American Civil Liberties Union (ACLU), the ACLU of Oklahoma Foundation (ACLU-OK), Lambda Legal, and pro-bono co-counsel Covington & Burling LLP filed a lawsuit this past September alleging that that S.B. 615 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title IX of the Education Amendments of 1972, by discriminating on the basis of sex, gender identity, and transgender status. 

 

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Supreme Court orders Title 42 remain in place until February 2023

19 Republican-led states argued lifting Title 42 would create a humanitarian crisis which would imperil the safety & resources of the states

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The U.S. Supreme Court (Photo by Michael Key, The Washington Blade)

WASHINGTON – The U.S. Supreme Court on Tuesday in a 5-4 ruling granted the request by Nineteen states led by Arizona and postponed lifting of Title 42 of the Public Health Services Act. Title 42 was a coronavirus pandemic measure implemented by the Trump administration to suspend the entry of migrants as a public health threat at all U.S. borders.

The policy allowed U.S. Border Patrol and Immigration and Customs Enforcement agents to turn back migrants quickly, without giving them an opportunity to seek asylum in the United States.

Arizona and 18 other Republican-led states argued that lifting the measure would create a humanitarian crisis which would imperil the safety and resources of the states particularly the states which border Mexico.

The high court has set oral arguments for the matter in February [2023]. Conservative Justice Neil Gorsuch joined the court’s three liberals in dissent.

The “current border crisis is not a COVID crisis,” he wrote in his dissent. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Reacting to the ruling by the Supreme Court, White House Press Secretary Karine Jean-Pierre issued the following statement:

The Supreme Court’s order today keeps the current Title 42 policy in place while the Court reviews the matter in 2023.  We will, of course, comply with the order and prepare for the Court’s review.
 
At the same time, we are advancing our preparations to manage the border in a secure, orderly, and humane way when Title 42 eventually lifts and will continue expanding legal pathways for immigration.  Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.  To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office.

Today’s order gives Republicans in Congress plenty of time to move past political finger-pointing and join their Democratic colleagues in solving the challenge at our border by passing the comprehensive reform measures and delivering the additional funds for border security that President Biden has requested.”

The Biden administration extended the Trump administration’s orders in August 2021, but in April of this year the government announced that it would end the policy, saying it was no longer necessary to protect public health.

But shortly before the policy was set to end in May, a federal judge in Louisiana ordered the Biden administration to continue the restrictions. U.S. District Judge Robert Summerhays concluded that the Biden administration had not provided proper notice of its decision to end the policy and an opportunity for the public to comment, as required by the federal law governing administrative agencies. The Biden administration appealed that decision to the U.S. Court of Appeals for the 5th Circuit.

The dispute now before the Supreme Court, known as Arizona v. Mayorkas, is a separate case. It began as a challenge to the policy in federal court in Washington, D.C., by six families who crossed the U.S.-Mexico border without authorization and now seek asylum – on their own behalf but also as a class action on behalf of other families in the same position. In November, U.S. District Judge Emmet Sullivan ruled for the families and ordered the government to end the policy by Dec. 21.

The states asked to intervene in the Washington, D.C., case to defend the policy. If Sullivan’s ruling remains in effect, they argued, it will effectively nullify Summerhays’ ruling. But on Friday the U.S. Court of Appeals for the District of Columbia Circuit rejected the states’ request to join the case on appeal.

The court explained that the states’ request came too late. The states should have known “long before now,” the court reasoned, that they did not have the same interest in continuing the policy as the Biden administration, especially when the Biden administration announced several months ago that it intended to end the policy.

Facing the termination of the policy prior to Christmas under Sullivan’s order, the states asked the justices to step in on an emergency basis and block that order from taking effect.

Additional reporting by Amy Howe, SCOTUSBlog

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DC’s Attorney General leads 18 states against ‘Don’t Say Gay’ law

18 Attorneys General argue that extreme bill lacks legitimate educational purpose, would harm students, parents, and teachers

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Karl A. Racine (Washington Blade file photo)

WASHINGTON – The District of Columbia’s Attorney General Karl A. Racine announced that he is leading a coalition of 18 other states’ Attorneys General opposing Florida’s controversial parental rights law colloquially referred to as the “Don’t Say Gay.”

Racine, alongside New Jersey AG Matthew J. Platkin and the Attorneys General from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New York, Oregon, Rhode Island, and Washington, filed an Amicus curiae brief last week in the U.S. District Court for the Northern Division of Florida.

The brief makes two main points

  • Florida’s law is unconstitutional. Although Florida claims the Act is intended to protect children and preserve parental choice, the attorneys general have curricula in place that allow for age-appropriate discussion of LGBTQ+ issues while respecting parental views on the topic.  
     
  • The law is causing significant harms to students, parents, teachers, and other states. Non-inclusive educational environments have severe negative health impacts on LGBTQ+ students, resulting in increased rates of mental health disorders and suicide attempts. These harms extend to youth not just in Florida, but throughout the country. 

“My office has a strong track record of fighting for LGBTQ+ rights in the District and across the country to make sure that everyone can simply be who they are and love who they love,” said Racine in a press statement. “Florida’s law offers no benefit to anyone and in fact puts children and families in harm’s way. We will continue to use all of our authority to help strike down this law and any other hateful, discriminatory policies that threaten people’s fundamental freedoms.” 

The attorneys general also contend that the “Don’t Say Gay” law is causing, by example, significant harm to students, parents and teachers in other states.

This brief challenges Florida’s “Parental Rights in Education Act,” otherwise known as the “Don’t Say Gay” bill, which outlaws “classroom instruction” on sexual orientation or gender identity in kindergarten through Grade 3 entirely.

The law also requires that the state education agency write new classroom instructions for standards that must be followed by Grades 4 through 12. But the law does not define many of its key terms, like “classroom instruction,” so Florida teachers are already censoring themselves out of fear of the law. Indeed, the law allows a parent to bring a civil claim against a school district to enforce its vague prohibitions.

 

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Man sent to prison for threats against California Rep. Eric Swalwell

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Fred Guttenberg & Jennifer Guttenberg who lost their daughter Jaime in the mass-shooting Marjory Stoneman Douglas High School in Parkland, Florida at the White House with Congressman Eric Swalwell (Photo credit: Swalwell/Twitter)

NEW YORK – A Pennsylvania man who had pled guilty to one count of making interstate communications with a threat to injure against U.S. Rep. Eric Swalwell (D-CA) last October was sentenced to 20 months in a federal prison on Monday.

Joshua Hall, 22, of Mechanicsburg, Pennsylvania, according to Damian Williams, the United States Attorney for the Southern District of New York, did on or about August 29, 2022, placed a series of telephone calls from in or around Yonkers, New York, to the Castro Valley, California office of U.S. Rep. Eric Swalwell.

During those telephone calls, Hall conveyed threats to kill the Congressman to at least three different members of the Congressman’s staff (“Staff Member-1,” “Staff Member-2,” and “Staff Member-3”). 

In a tweet released by the Congressman on Tuesday, August 30, Swalwell describes the threat that was forwarded to him by his district office. In the accompanying tweeted photo of the incident report, the caller declares that he is a “gay” man who “doesn’t take it up the ass but gives it” and dropped the homophobic epithet ‘fags’ along with peppering the call with F-bombs.

The caller also issued death threats claiming to be in possession of an AR-15 assault rifle and claiming he would travel to the district office to make good on his threats to kill the Congressman.

Hall had pled guilty before United States District Judge Gregory H. Woods on Friday, October 28, 2022. At the time the U.S. Attorney said: ” “Joshua Hall made terrifying threats to the staff of a United States Congressman whom he disliked rather than attempting to effect change through any of the freedoms of expression that all Americans enjoy.  These threats of violence endanger our public officials and thwart common decency, which is why this Office will continue to prosecute crimes like those committed by Joshua Hall.”

Law and Crime reported that Hall faced a statutory maximum of five years on the threat charge and up to 20 years on the wire fraud charge. The sentence from U.S. District Judge Gregory H. Woods, an Obama appointee, was less than the 27 months prosecutors had requested, based on the U.S. Sentencing Guidelines Range of 27 to 33 months.

Hall’s lawyers had requested a sentence of six months followed by supervised release that included at least six months of inpatient treatment, despite having received such treatment in the past and fleeing from at least one such program, according to the government’s sentencing memo.

Rep. Swalwell has been a leading voice for progressive causes in the House, taking stands on gun control, LGBTQ+ rights & equality and most recently on women’s reproductive rights and access to abortion, all deeply offensive to many in far right circles, particularly those labeled ‘MAGA Republicans’ by President Joe Biden.

Swalwell is an influential Democratic member of three powerful congressional committees; House Committee on the JudiciaryHouse Permanent Select Committee on Intelligence and House Committee on Homeland Security.

In his victim impact statement, the Congressman said:

“Everyone in the chain of this threat was terrified. And everyone affected deserves the justice of the caller, HALL, receiving a sentence no less than the maximum,” he then noted that Hall’s threats came at a particularly politically volatile time:

“Hall threatened the life of an elected federal representative during an era that his fragile country was experiencing acts of political violence,” the statement said. “Mr. Hall sought to use a terrorizing threat to intimidate an elected leader he disagreed with. Hall’s threats to me and my colleagues were fuel thrown on an already raging fire in America and should be viewed in that context as the Court decides the appropriate sentence.”

Swalwell said that Hall’s threats forced his wife, their three young children and himself to change the way they live, and were felt deeply among his staffers.

“[W]hile I have the luxury of working in a somewhat secure building, my family and I do not live in a secure home,” the statement said. “This threat changed the habits of my family. We are more careful about having our kids in our front yard. I have to use hard-earned campaign funds to pay for a security detail when I travel out of state. These threats change daily habits and make life less comfortable and more worrisome.”

“But even worse, I was not the first person to receive Hall’s threat,” the statement continued. “An intern heard it first. And it doesn’t take many hops in logic for the intern to conclude that she and her colleagues are also in danger. We work in a public building. The interns sit at the desk closest to the front door of our office. If an armed intruder brought harm to our office, it’s likely the intern would suffer death first.”

“Mr. Hall is not worthy of mercy for the terror he brought to me, my family, and my staff,” the final sentence of the statement read. “Mr. Hall should receive the maximum sentence.”

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Federal court upholds Connecticut’s trans youth sports inclusion

The ruling came in a federal lawsuit challenging trans youth participation policy of the Connecticut Interscholastic Athletic Conference

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Andraya Yearwood, defendants-Appellees, represented by the ACLU in Soule et al v. CT Association of Schools et al (Photo Credit: ACLU)

NEW YORK – In a victory for transgender youth wanting to play sports, the U.S. Second Circuit Court of Appeals has upheld a student athletic policy in Connecticut allowing trans students to play on the teams most consistent with their gender identity.

The ruling came in a federal lawsuit that had challenged the transgender youth participation policy of the Connecticut Interscholastic Athletic Conference, the nation’s first federal court case challenging such a policy.

On behalf of Andraya Yearwood and Terry Miller, two transgender young women, the American Civil Liberties Union and the ACLU Foundation of Connecticut defended the transgender youth participation policy.

In today’s ruling, the Second Circuit ruled the claims that cisgender girls were denied opportunities or championships are moot and unfounded, ultimately ruling they lacked standing to challenge the CIAC’s policy.

The court noted that, on numerous occasions, the cisgender plaintiffs placed first in various events, even sometimes when competing against Yearwood and Miller. The court also affirmed discrimination against transgender students violates Title IX, the federal law that prohibits sex discrimination in educational programs, aligning today’s ruling with the Supreme Court’s ruling on Title VII in Bostock v. Clayton County.

“Today’s ruling is a critical victory for fairness, equality, and inclusion” said Joshua Block, senior staff attorney for the ACLU’s LGBTQ & HIV Project. “The court rejected the baseless zero-sum arguments presented by the opposition to this policy and ultimately found transgender girls have as much a right to play as cisgender girls under Title IX. This critical victory strikes at the heart of political attacks against transgender youth while helping ensure every young person has the right to play.”

“Trans student athletes belong on our sports teams and in our schools, and all trans youth should be celebrated and protected for who they are. Today, the courts have once again dismissed this lawsuit seeking to attack trans student athletes. The record shows that our clients played by the rules, and the court agreed,” said Elana Bildner, ACLU Foundation of Connecticut senior staff attorney.

During their senior year, cisgender girls represented by the Alliance Defending Freedom – an organization that takes credit for a record surge in anti-transgender bills introduced by state legislators in recent years – filed a lawsuit arguing that the presence of transgender girls on girls’ sports teams violated Title IX. The federal district court in Connecticut dismissed the case last year, but the plaintiffs immediately appealed to the Second Circuit.

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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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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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