By Peter White | SAN FRANCISCO – The U.S. Supreme Court is expected to rule on two cases this month that could prohibit consideration of race in college admissions, undoing a 45-year history of Affirmative Action dating back to 1978.
Last October, conservative activist Edward Blum, president of Students for Fair Admissions, filed a lawsuit against Harvard claiming it discriminated against Asian-American applicants. Lower courts found no evidence of that claim, and no students testified against the current race-based policies at Harvard or in a separate suit involving the University of North Carolina.
Still, given the Supreme Court’s conservative majority, many expect an end to the policy, which supporters say has helped boost enrollment in colleges and universities for historically underrepresented groups.
“Progressives, patriots, and free thinkers of all colors and creeds and sexual orientations need to unite in the struggle to preserve the core American principles of inclusivity and multicultural democracy,” said civil rights lawyer Lisa Holder, president of the Equal Justice Society (EJS) in Oakland, California.
Holder spoke with reporters last week during a news briefing organized by Ethnic Media Services. She noted Affirmative Action is the best way to undo the historical legacy of inequality and discrimination in higher education, adding that California schools would become more segregated without it.
“We’re looking at apartheid schools where children of color are not getting access to opportunity. That is un-American,” she said. Holder noted the consensus among social scientists that diverse educational environments are 35% more productive than those that are more homogeneous.
Students who testified before the high court in both the Harvard case as well as a separate case involving the University of North Carolina – also filed by Blum’s group – stressed the advantages of being part of a more diverse student body.
Echoes of Roe v. Wade
In its 1978 Regents of University of California v. Bakke decision, the Supreme Court ruled that schools’ use of Affirmative Action policies to enhance student diversity is constitutional.
Tomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF) and former member of the Los Angeles County Board of Education – where he served for two decades – worries this current court is poised to overturn that longstanding precedent.
“We don’t know when it will come down,” Saenz said. But given the court’s stated views on race-conscious Affirmative Action policies, he expects the justices will overturn it just as they did with the Dobbs ruling last year overturning Roe v. Wade.
“I consider that to be the likely outcome,” he said, noting the Supreme Court revisited the issue of race conscious Affirmative Action in higher education on three separate occasions. Each time the court majority reasserted that the Bakke precedent continued to be the law.
“So, overturning that precedent would be extraordinary and on a par with the Dobbs decision of last year,” Saenz said.
He also predicted that opponents of Affirmative Action would seek to expand the court’s rationale. “This case will have nothing whatsoever to say about Affirmative Action in employment or contracting. And anyone who asserts otherwise, is misleading you,” Saenz said.
“You will hear folks from the right assert that somehow this Supreme Court decision also means that ethnic studies, even critical race theory, must be eliminated from schools.” On the contrary, Saenz says the decision will say nothing about curriculum.
Impacts on campus diversity
\John C. Yang, president and CEO of Asian Americans Advancing Justice (AAJC) reiterated that lower courts found no evidence of discrimination against Asian-Americans in Harvard’s admissions process, which is the basis of the lawsuit.
“An admissions process considering race… remains necessary to ensure that equally qualified students from communities of color have the same access as privileged white students,” Yang said.
He noted 28% of the incoming Harvard class are Asian-Americans and their numbers have quadrupled since 1978 when the Bakke decision was issued.
“Any suggestion that somehow Asian-Americans are being discriminated against is just belied by these simple facts,” Yang continued. If Affirmative Action is overturned, he anticipated campus diversity at Harvard would decrease from 14% to 6% for Blacks and from 14% to 9% for Latinos.
“At the end of the day, we have to recognize that we are not in a race-blind society. Our lived experiences should not be up for debate,” Yang said.
What about legacy admissions?
Michele Siqueiros has been supporting greater college access for students of color since 2004, and says it hasn’t been that long since women, Black, Latino, Indigenous and Asian-American students were even permitted to attend universities.
“Affirmative Action alone was never intended to be the panacea,” said Siqueiros, president of The Campaign for College Opportunity, a California-based non-profit.
“We must do everything in our power to provide all students an equal opportunity to pursue a college education,” she stressed, adding that with the anticipated SCOTUS ruling more will need to be done to ensure universities do not discriminate against students of color.
Siqueiros also pointed out that conservative opponents of Affirmative Action have nothing to say about legacy admissions – which can account for a quarter or more of all admissions at Ivy League schools like Harvard – or about recruiters exclusively visiting rich, wealthy, and predominantly white high schools.
“There are a lot of practices in higher education that should be challenged and removed,” said Siqueiros. “It’s really unfortunate that Affirmative Action is the one that’s being attacked today.”
The preceding article was published as part of an ongoing partnership between Ethnic Media Services and the Los Angeles Blade. For additional information or to learn more about Ethnic Media Services click on the link embedded in the logo above.
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Federal judge blocks policy stopping outing of queer kids to parents
“Disclosing that a student is transgender without the student’s permission may violate California’s anti-discrimination law”
SAN DIEGO, Calif. – A federal judge for the U.S. District Court for the Southern District of California issued a ruling a preliminary injunction blocking enforcement of a Escondido Union School District policy that bars teachers from discussing students’ gender identities with their parents.
The suit was brought by Elizabeth Mirabelli and Lori Ann West, two teachers at Escondido’s Rincon Middle School and both self-labeled Christians who alleged that the policy violates their religious beliefs.
The lawsuit, filed by the Chicago-based Thomas More Society, which is representing the two women, also names the California State Board of Education as a defendant.
The Thomas More Society is a conservative Roman Catholic public-interest law firm based in Chicago. The group has been engaged in many “culture war” issues, promoting its anti-abortion and anti-same-sex marriage beliefs through litigation.
U.S. District Judge Roger Benitez, appointed to the federal bench by President George W. Bush, wrote in his ruling Thursday that a parent’s right to make decisions concerning the care, custody control, and medical care of their children “one of the oldest of the fundamental liberty interests that Americans enjoy.”
He noted: “If a school student expresses words or actions during class that may be the first visible sign that the child is dealing with gender incongruity or possibly gender dysphoria, conditions that may (or may not) progress into significant, adverse, life-long social-emotional health consequences, would it be lawful for the school to require teachers to hide the event from the parents?”
“The school’s policy is a trifecta of harm: it harms the child who needs parental guidance and possibly mental health intervention to determine if the incongruence is organic or whether it is the result of bullying, peer pressure, or a fleeting impulse,” he added.
The California Department of Education’s policies state:
“Revealing a student’s gender identity or expression to others may compromise the student’s safety. Thus, preserving a student’s privacy is of the utmost importance. The right of transgender students to keep their transgender status private is grounded in California’s anti-discrimination laws as well as federal and state laws.”
[…] “Disclosing that a student is transgender without the student’s permission may violate California’s anti-discrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”
In a statement released Thursday evening, the Thomas More Society said:
“A federal judge has blocked California’s Escondido Union School District from forcing teachers Elizabeth Mirabelli and Lori Ann West to comply with a dangerous district policy that requires teachers to lie to parents about their own children’s gender identity. Thomas More Society attorneys today successfully won a preliminary injunction prohibiting the enforcement of EUSD’s offensive policy while the case is under court consideration.
“This is an untenable situation to put teachers in,” explained Paul Jonna, Thomas More Society Special Counsel and Partner.
A spokesperson for the Escondido Union School District, Michelle Breier, said, “Our leadership team is currently reviewing the decision.” A lawyer for the EUSD, which has around 16,000 students, did not respond to a request for comment on Friday.
California Attorney General Rob Bonta has been pursuing legal and other means across the state to protect LGBTQ+ students as some school boards have sought to enact policies that would involuntarily out trans and queer students to their parents.
- Last week, Attorney General Bonta issued a statement condemning the Rocklin Unified School District Board’s decision to implement a mandatory gender identity disclosure policy targeting transgender and gender-nonconforming students.
- Earlier this month, he issued a statement commending the San Bernardino Superior Court’s ruling to issue a temporary restraining order against Chino Valley Unified School District Board of Education’s (CVUSD) mandatory gender identity disclosure policy, immediately halting its enforcement.
- Last month, the Attorney General announced a lawsuit challenging the enforcement of CVUSD’s forced outing policy. Prior to filing a lawsuit, Bonta announced opening a civil rights investigation into the legality of CVUSD’s adoption of its mandatory gender identity disclosure policy. Prior to opening the investigation, the Attorney General in July sent a letter to Superintendent Norman Enfield and the Board of Education cautioning them of the dangers of adopting its forced outing policy, emphasizing the potential infringements on students’ privacy rights and educational opportunities.
- Recently, he issued a statement following Anderson Union High School District, and Temecula Valley and Murrieta Valley Unified School District Boards’ decisions to implement copy-cat mandatory gender identity disclosure policy targeting transgender and gender-nonconforming students.
Federal Judge denies motion to block adult trans healthcare
Judge Robert Hinkle issued a prior ruling on June 6 halting enforcement of the ban on healthcare for transgender minors
TALLAHASSEE – A U.S. District Court Judge on Tuesday denied a motion to temporarily block state restrictions on access to healthcare for transgender adults as the legal challenge continues.
U.S. District Court Judge Robert Hinkle issued the order denying a motion to stop enforcement of the law as the full trial addressing both the restrictions on adult care and the state’s bans on care for transgender adolescents is scheduled for November.
Judge Hinkle issued a prior ruling on June 6 halting enforcement of the ban on healthcare for transgender minors and saying the ban is likely unconstitutional. That order remains in effect.
Hinkle’s ruling allows Florida parents challenging the ban to access necessary medical care for their transgender children while the legal challenge to the bans continues. The ruling blocks enforcement of Florida state Boards of Medicine and Osteopathic Medicine rules banning established medical care for transgender adolescents as well as provisions in SB 254 that codify those rules into state law with added criminal and civil penalties.
The plaintiffs are represented by GLBTQ Legal Advocates & Defenders (GLAD), the National Center for Lesbian Rights (NCLR), Southern Legal Counsel, and the Human Rights Campaign Foundation.
In a statement to the Blade Tuesday, Shannon Minter the Legal Director for the National Center for Lesbian Rights said:
“We know the denial of preliminary relief is devastating for many transgender people in Florida and will prevent many from being able to obtain hormone therapy or surgical care. We strongly urge anyone who is experiencing this to reach out to us so that we can track the impact of this harmful law in as much detail as possible. We are going all-out to win at trial, and to do that, we will need as much information from the community as we can obtain. We also strongly urge allies to reach out to transgender family members and friends and assist them in making arrangements to obtain their health care out of state, if necessary. Being denied medically needed care is one of the most stressful experiences a person can undergo and can result in severe, irreparable harm. This is an all-hands-on-deck moment for the LGBTQ community in Florida.”
The group of attorneys for the plaintiffs issued the following statement:
“The state’s restrictions on well-established health care in SB 254 serve no purpose other than to intentionally prevent transgender people from receiving the care they need. This case is far from over and we will continue to take every legal step to challenge this law that takes away Floridian’s ability to make important decisions about their own lives and hands it over to the government instead.
We are preparing now for the trial in November at which we intend to lay out the full evidence of the state’s deliberate targeting of transgender Floridians through the harmful, arbitrary, and medically unjustified rules enacted in SB 254. We also encourage transgender Floridians and their families to seek out resources and take all the steps they can to get the essential medical care they need to live healthy and happy lives.
Florida’s SB 254 is part of a broader landscape of laws that are hurting transgender people in Florida and across the country. We will continue to challenge these dangerous bans that deliberately single out transgender people for discriminatory treatment and ignore well-established medical research until they are permanently overturned.
All of us who believe in fairness, science, and freedom must also keep fighting on every level to ensure people in Florida and across the country can live their lives free from draconian and unlawful attacks on their health and wellbeing.”
ICE has detained lesbian mother from El Salvador since 2017
Jessica Patricia Barahona-Martinez has won asylum twice
LAFAYETTE, La. — The American Civil Liberties Union and the ACLU of Louisiana on Wednesday asked a federal court to order the release of a lesbian mother from El Salvador who has been in U.S. Immigration and Customs Enforcement custody since June 2017
The writ for habeas corpus petition the ACLU filed in U.S. District for the Western District of Louisiana in Lafayette, La., on Jessica Patricia Barahona-Martinez’s behalf notes she and her three children entered the U.S. on May 31, 2016, “fleeing persecution she faced in El Salvador as a lesbian, and because the government had falsely identified her as a gang member.”
ICE released her “under conditions of supervision” and she “complied with these conditions for more than a year.”
ACLU Staff Attorney My Khanh Ngo on Thursday told the Washington Blade during a telephone interview that Barahona-Martinez, 40, was living with her sister and other family members in Woodbridge, Va., when ICE arrested and detained her on June 26, 2017.
“The sole reason for her arrest and detention was an Interpol Red Notice that was based on a Salvadoran warrant related to a charge of aggravated extortion for up to $30 — a charge for which she had initially been acquitted,” reads her petition.
She was at the Virginia Peninsula Regional Jail in Williamsburg, Va., before ICE transferred her to the Caroline Detention Facility in Bowling Green, Va., in October 2018. Barahona-Martinez arrived at the South Louisiana ICE Processing Center, a privately-run detention center the GEO Group, a Florida-based company, operates in Basile, La., in October 2020.
Barahona-Martinez’s petition notes an immigration judge has granted her asylum twice, most recently in November 2019, “on the grounds that she faces persecution on account of her sexual orientation.” The government appealed and the Board of Immigration Appeals, which the Justice Department oversees, ruled in their favor.
“In sustaining the government’s appeal of that grant, the Board of Immigration Appeals (‘BIA’ or ‘board’) did not address the merits of her asylum claim,” reads Barahona-Martinez’s petition. “Instead, in a two-to-one decision, over a strong dissent, it held that petitioner was ineligible for asylum under the ‘serious nonpolitical crime’ bar. The majority relied on the then-pending Interpol Red Notice and the Salvadoran warrant to find there were ‘serious reasons’ for believing she had committed such a crime. The dissenting Board member pointed out that petitioner had not only been acquitted of the alleged offense once, but had also submitted credible evidence to back up her claim of innocence.”
Her petition notes she appealed the Board of Immigration Appeals’ decision to the 4th U.S. Circuit Court of Appeals in Richmond, Va., “which granted her a stay of removal pending appeal, reflecting it assessment of the likelihood of her success on the merits of her appeal.” Her petition further indicates the Commission for the Control of Interpol’s Files, an independent body that oversees whether Interpol properly processes personal data, in April “permanently deleted the Interpol Red Notice that had been lodged against Ms. Barahona-Martinez” after her new lawyer made the request.
“Her pro bono counsel has since filed a motion to reopen proceedings before the BIA on this ground, as it is relevant to the board’s analysis of whether the serious nonpolitical crime bar applies to petitioner’s case and renders her ineligible for asylum,” reads the petition. “The government has agreed to hold her appeal in abeyance in light of the pending motion to reopen, yet ICE continues to detain Ms. Barahona-Martinez as her removal proceedings continue.”
U.S. Rep. Mike Quigley (D-Ill.) in June 2020 told the Blade that detainees at the South Louisiana ICE Processing Center did not have access to toilet paper or soap for nine days. The Illinois Democrat also said staff were not required to wear masks and they did not implement social distancing policies to mitigate the spread of COVID-19.
Ngo said Barahona-Martinez is at increased risk for COVID-19 because she has asthma.
Ngo said a doctor gave Barahona-Martinez Tylenol when she showed COVID-19 symptoms, “and unsurprisingly she got extremely sick.” Ngo told the Blade that Barahona-Martinez a few weeks ago went to the emergency room because of “excruciating stomach pain.”
“It’s clear that she’s been deteriorating in detention, both physically and mentally,” said Ngo.
Ngo told the Blade that Barahona-Martinez’s asthma has become worse since arrived in Louisiana, and suffers panic attacks nearly every day. Ngo said the only way that Barahona-Martinez can “get back into a mental state that will keep her going” is by talking with her family.
“The food is rotten. She is afraid because she is gay in attention. She’s been harassed and threatened by both officers and other detainees because of her sexual orientation,” said Ngo. “She doesn’t feel safe there at all. She tries to keep to herself.”
Ngo said Barahona-Martinez works up to five hours a day in the facility’s kitchen. She earns around $3 a day.
Transgender woman murdered after US deported her to El Salvador
Discrimination and violence based on sexual orientation and gender identity remains commonplace in El Salvador.
A court in San Salvador, the country’s capital, in 2020 sentenced three police officers to 20 years in prison for the murder of Camila Díaz Córdova, a Transgender woman.
Díaz asked for asylum in the U.S. because of violence against LGBTQ+ and intersex Salvadorans. The U.S. deported her in 2017, and her friend reported her missing at the end of January 2019. Díaz died at a San Salvador hospital on Feb. 3, 2019.
Barahona-Martinez is from San Salvador.
President Nayib Bukele in March 2022 declared a state of emergency that allowed his government to crackdown on rampant gang violence.
The Associated Press in July reported Salvadoran authorities have detained upwards of 70,000 people. Human Rights Watch and other groups say arbitrary arrests, torture of detainees and other human rights abuses have taken place since the crackdown began.
“The situation in El Salvador is much worse,” Ngo told the Blade. “It was bad in 2016 when she [Barahona-Martinez] fled, but with the state of emergency that’s in place right now, there’s been a lot of reporting about how much worse conditions are in the prisons against people who are accused of being with the gangs. There’s a lot of arbitrary detentions and killings and abuses.”
Ngo said Salvadoran authorities tortured Barahona-Martinez after they arrested her. Ngo said her former criminal defense attorney told her that Barahona-Martinez would be “in danger if she were returned” to El Salvador.
“She said, as much as possible, please keep her in the United States,” said Ngo. “She was known as a lesbian back then. It’s clear coming back they would know that she had applied for asylum in the United States and there’s the potential retaliation for that. She’s really risking her life if she’s sent back there.”
Barahona-Martinez’s petition names Homeland Security Secretary Alejandro Mayorkas, U.S. Attorney General Merrick Garland and South Louisiana ICE Processing Center Warden Eleazar Garcia are among those named as defendants.
ICE and the Department of Homeland Security have not responded to the Blade’s request for comment.
Barahona-Martinez, for her part, says she simply wants to be reunited with her children.
“I always think back on that day in 2017 when I was arrested by ICE and taken away from my children. They were so young at that time. I never thought that I would still be in detention six years later. I have missed so many of their birthdays, graduations, and other big life events,” she said in a statement to the ACLU. “Being separated from my children for this long has been so difficult, but I am fighting for a future here with them. All I want is the chance to show a judge why we should be reunited.”
Federal judge reverses, Georgia trans healthcare ban can resume
The judge rejected Georgia’s request the preliminary injunction be quashed permanently she stayed it pending the final outcome in Alabama case
ATLANTA – Two weeks after issuing a ruling that blocked a gender-affirming care ban for transgender minors in Georgia from taking effect, United States District Court Judge Sarah E. Geraghty lifted her preliminary injunction and will allow the ban to resume.
The Columbus, Georgia-based newspaper, the Ledger-Enquirer reported Wednesday Geraghty changed course on Tuesday, citing a decision by a three-judge panel of the 11th U.S. Circuit Court of Appeals the day after her earlier ruling. The appellate court reversed an injunction that had been imposed in the Alabama case.
U.S. District Judge Liles Burke of the U.S. District Court for the Northern District of Alabama preliminarily enjoined the state from enforcing the law criminalizing medical care for transgender minors in Alabama in the Spring of 2022.
Judge Liles Burke’s opinion held that Alabama’s law likely violated the federal Equal Protection Clause and parents’ fundamental right to make medical decisions for their children. Thus far, every single federal district court to hear a similar challenge has ruled similarly, holding that these state bans discriminate against transgender minors and burden their parents’ constitutionally protected rights.
Judge Burke however ruled that all other provisions of the Act remain in effect, specifically: (1) the provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.
The 11th Circuit panel disagreed, holding that Alabama’s law does not discriminate based on sex or transgender status and is therefore subject only to the lowest level of constitutional review.
According to the Ledger-Enquirer, Judge Geraghty wrote in Tuesday’s decision:
“It is undisputed that this court’s preliminary injunction order rests on legal grounds that have been squarely rejected by the panel in [Alabama]. This court’s injunction cannot stand on the bases articulated in the order.”
However, the judge rejected Georgia’s request that the preliminary injunction be quashed permanently. Instead, she stayed the injunction pending the final outcome of the Alabama case.
Federal judge blocks Texas porn law, says violates 1st Amendment
If website operators fail to adhere to the requirements- Texas AG would be able to sue non-complaint adult websites for $3 million per year
AUSTIN, Texas – U.S. District Judge David A. Ezra of the U.S. District Court for the Western District of Texas issued a preliminary injunction Thursday that blocked a Texas law from taking effect Friday that would have required adult websites to use “reasonable age verification methods”, such as government ID, to ensure users who are accessing explicit content are aged 18 or older.
The law, Texas House Bill 1181, which Texas Governor Greg Abbott signed on June 12, 2023, also required that websites display in 14-point font or larger the following warning: “Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.” There were provisions in the law that should the website operators fail to adhere to the requirements, Texas attorney general would be able to sue non-complaint adult websites for $3 million per year.
In his ruling, Judge Ezra noted that:
- The law violates First Amendment rights of creators and consumers
- The law has a chilling effect on legally-protected speech
- Parental filters are a less restrictive and more effective method of protecting minors
- The state does not have the right to compel speech in the form of health warnings
“The state has a legitimate goal in protecting children from sexually explicit material online,” Ezra wrote and added: “But that goal, however crucial, does not negate this Court’s burden to ensure that the laws passed in its pursuit comport with established First Amendment doctrine.”
“This is a huge and important victory against the rising tide of censorship online,” says Alison Boden, Executive Director of Free Speech Coalition. “From the beginning, we have argued that the Texas law, and those like it, are both dangerous and unconstitutional. We’re pleased that the Court agreed with our view that HB1181’s true purpose is not to protect young people, but to prevent Texans from enjoying First Amendment protected expression. The state’s defense of the law was not based in science or technology, but ideology and politics.”
The Free Speech Coalition has argued that these new and expensive verification technologies present an unreasonable burden for both sites and users, stressing that members of the adult industry already register with parental filters and other software to help parents easily block adult content.
“The ruling rebuffs nearly every argument made by state legislatures, and not only in Texas,” says Boden. “While Texas presented the most straightforward path to securing a ruling like this, the issues are the same whether in Utah, Louisiana or Virginia. Anyone who attempts to bring a case in those jurisdictions faces little hope of success. We are thrilled with the decision and thank our co-plaintiffs for joining this battle and defending the industry. We are confident that the law will ultimately be struck down permanently.”
Arkansas law requiring parental OK for minors social media blocked
The Governor reacted in a statement released by her spokeswoman. Sanders wrote, “Big Tech companies put our kids’ lives at risk”
FORT SMITH, Ark. – A U.S. District Judge Thursday issued a preliminary injunction temporarily blocking implementation of a controversial Arkansas law that would have required parental consent for minors to create new social media accounts.
U.S. District Judge Timothy L. Brooks granted a preliminary injunction that NetChoice — a tech industry trade group representing members including TikTok, Facebook parent Meta, and X, formerly known as Twitter had requested in their suit NetChoice v. Griffin.
The bill was signed into law by Republican Gov. Sarah Huckabee Sanders this past April and was due to go into effect September 1.
In his 50-page ruling, Brooks noted that NetChoice was likely to succeed in its challenge to the Arkansas law’s constitutionality and questioned the effectiveness of the restrictions.
“Age-gating social media platforms for adults and minors does not appear to be an effective approach when, in reality, it is the content on particular platforms that is driving the state’s true concerns,” the judge wrote.
“We’re pleased the court sided with the First Amendment and stopped Arkansas’ unconstitutional law from censoring free speech online and undermining the privacy of Arkansans, their families and their businesses as our case proceeds,” said Chris Marchese, Director of the NetChoice Litigation Center. “We look forward to seeing the law struck down permanently.”
Marchese continued: “If the law ultimately takes effect, Arkansans would only have access to a state-approved internet experience, and only after they hand over their private information. That is an unlawful power grab, and that’s why NetChoice is trying to stop it.”
The Associated Press reported that Arkansas’ law is similar to a first-in-the-nation restriction signed into law earlier this year in Utah. That law is not set to take effect until March 2024.
Arkansas Republican Attorney General Tim Griffin said in a statement he was disappointed with Brooks’ decision.
“But I will continue to vigorously defend the law and protect our children, an important interest recognized in the federal judge’s order today,” the Attorney General said.
In his ruling Judge Brooks noted that “not every online company or platform will be subject to the State’s new age verification requirements.” The Judge pointed out that the law, [Act 689] specifically exempts any company that “[derives less than twenty-five percent (25%) of [its] revenue from operating a social media platform”
Brooks went on to noted that “This exemption shields Google (a subsidiary of Alphabet, Inc.) from compliance. Neither Google Hangouts nor Google’s video-sharing platform, YouTube, will be required to verify the ages of their account holders.”
Brooks’ ruling said the the exemptions nullified the state’s intent for imposing the restrictions, and said the law also didn’t adequately define which platforms they would apply to. As an example, he cited confusion over whether the social media platform Snapchat would be subject to the age-verification requirement.
Social media companies have faced increasing scrutiny over their platforms’ effect on teen mental health, one of the concerns that Governor Huckabee-Sanders cited as she pushed for the legislation last Spring.
The Governor reacted in a statement released by her spokeswoman. Sanders wrote, “Big Tech companies put our kids’ lives at risk.”
Shannon Minter, Legal Director for the National Center for Lesbian Rights told the Blade:
“As this decision recognized, laws that require internet companies to verify the identity of users pose severe risks to privacy and free speech. Those risks are especially dangerous for LGBTQ individuals, who have compelling reasons to fear that such information may be improperly disclosed or used to facilitate government persecution or private harassment. And they may deter LGBTQ youth in particular from accessing lifesaving support.”
Federal judge limits trans Kansans ability to alter gender markers
Kobach sought the U.S. District Court’s intervention after the Kansas Legislature approved a law defining women and men by biological sex
By Tim Carpenter | TOPEKA — A federal judge granted Attorney General Kris Kobach’s request Thursday to significantly undermine provisions of a 2019 consent judgment granting transgender individuals born in Kansas the right to amend birth certificates to match their gender identities.
Kobach sought the U.S. District Court’s intervention after the Kansas Legislature approved a law defining women and men by biological sex and requiring state agencies to collect health data identifying people as either male or female consistent with that determination at birth. Impetus for the statute was a movement to prevent transgender people from using restrooms, locker rooms and other facilities based on an identity in conflict with their biological sex at birth.
While transgender Kansans considered the statute imposed in July to be harassment, the attorney general argued Senate Bill 180 enabled the court to end the Kansas Department of Health and Environment’s practice of correcting gender markers on birth certificates. Gov. Laura Kelly, a Democrat, opposed the law and objected to Kobach’s legal analysis.
“As long as I am attorney general, the laws of Kansas will be enforced as written,” Kobach said. “The Legislature decided that birth certificates must reflect biological reality, and they were quite clear in how they wrote the law. Today’s decision is a rejection of the activists’ and Governor Kelly’s attempt to twist the English language beyond recognition. The court has told the governor what the law clearly means. We now expect the governor to follow the law and cease changing birth certificates to something other than biological sex at birth.”
Four years ago, Lambda Legal, along with the Bryan Cave Leighton Paisner law firm, represented four transgender people who were unable to obtain birth certificates consistent with their gender identity. That negotiated agreement of that lawsuit set aside Kansas’ discriminatory birth certificate policy and allowed hundreds of people to modify the key identification document.
Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal, said Kobach’s interpretation of Senate Bill 180 was as unlawful as the Kansas administrative policy on birth certificates that was challenged by the 2018 lawsuit.
“We are disappointed that the court has saw fit to reopen the consent judgment, which has been in place for four years and operated without incident,” he said. “Let us be clear, however, today’s decision does not approve of SB180, as interpreted by the Kansas attorney general, but simply holds that the circumstances have changed. Indeed, the court went to great lengths to specify that it was not opining on SB 180’s constitutionality.”
Gonzalez-Pagan said an individual’s access to accurate personal documents was vital because lack of accurate identification placed transgender people at peril of discrimination, harassment and violence. A lawsuit challenging the state law could emerge from this court battle.
“We will evaluate next steps to determine how best to continue to secure the right of transgender Kansans to have identity documents consistent with who they are,” Gonzalez-Pagan said.
Under the original consent judgment, the federal court ordered the state Department of Health and Environment and other Kansas government officials to provide birth certificates that reflected sex consistent with gender identity. The order noted the state’s previous policy prohibiting gender marker corrections to birth certificates violated the equal protection clause and the due process clause of the 14th Amendment.
The Republican-led Legislature responded earlier this year with Senate Bill 180. Kelly vetoed the bill, but the Legislature overrode the governor.
In June, Kobach filed a motion in federal court to nullify the 2019 consent judgement. He said the original order conflicted with the new state law requiring state agencies to collect statistics based on a person’s sex assigned at birth.
The governor and attorneys for the original plaintiffs argued the 2023 law didn’t conflict with the consent judgment because state agencies could gather vital statistics in accordance with the statute and continue to issue modified birth certificates.
In wake of the attorney general’s effort to undo the consent order, Kansas ACLU executive director Micah Kubic said Kobach ought to rethink the “sheer indecency of this attempt to weaponize his office’s authority to attack transgender Kansans just trying to live their lives.”
The preceding article was previously published by the Kansas Reflector and is republished with permission.
Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.
Federal judge tells Tenn. DA leave Blount Pride alone
Blount Pride will take place on Saturday, September 2 from 1 – 8 p.m. ET at the Clayton Center for the Arts, Maryville College
KNOXVILLE, Tenn. – U.S. District Court Judge J. Ronnie Greer issued a ruling Friday that issued a ruling blocking Blount County District Attorney General Ryan K. Desmond from enforcing Tennessee’s “Adult Entertainment Act,” at the Blount County LGBTQ+ Pride scheduled for this Saturday.
Greer’s order said Desmond cannot enforce, detain, arrest or seek warrants to enforce the act and cannot interfere with Blount Pride’s festival.
The ruling comes in response to a lawsuit filed by the American Civil Liberties Union of Tennessee and attorneys Brice Timmons, Melissa Stewart, Daniel Horwitz, Melissa Dix, and Justin Gilbert on behalf of Blount Pride and Christian artist and drag performer Flamy Grant.
On April 1, 2023, Tennessee’s anti-drag law took effect, banning “male or female impersonators” from performing in public spaces. A U.S. District Court judge promptly blocked the law, stating it was specifically designed to stifle constitutionally protected speech and ultimately ruling it unconstitutional.
Blount County, a county located just outside of Knoxville, Tennessee, has held an annual pride event for the last three years at Maryville College. The event is open to all without age restrictions, as most Pride festivals in the United States are. Upon learning that there would be drag artists at the Pride festivities, District Attorney Desmond sent out a letter stating that holding the festival could result in criminal prosecutions.
The temporary restraining order blocks enforcement of the anti-drag law against Blount Pride.
“We are relieved that the court has taken action to ensure that law enforcement will not wrongly apply this unconstitutional law. This ruling allows us to fully realize Blount Pride’s goal of creating a safe place for LGBTQ people to connect, celebrate, and share resources. We appreciate the community support and look forward to celebrating with you all on Saturday,” Blount Pride board president Ari Baker said in a statement.
“This ruling confirms that despite continued attempts to remove LGBTQ people from public life, our First Amendment rights matter just as much as anyone else’s. Our fundamental right to exist as we are and to gather in celebration with our community is protected by the First Amendment on and off the stage,” plaintiff Flamy Grant said.
The ACLU-TN Legal Director Stella Yarbrough said: “This ruling reinforces that drag performance is constitutionally-protected expression under the First Amendment, regardless of where in the state it is performed. To anyone else seeking to restrict the constitutional right of drag performance – you’ll see us in court.”
Blount Pride will take place on Saturday, September 2 from 1 – 8 p.m. ET at the Clayton Center for the Arts, Maryville College, 502 E. Lamar Alexander Parkway in Maryville.
Federal judge bars Texas from enforcing book ban
The Texas Attorney General’s office said Thursday it would move to reverse the injunction and appeal the judge’s decision
By Alejandro Serrano | AUSTIN, Texas – A federal judge said Thursday he will stop a new Texas law aimed at keeping sexually explicit materials off of school library shelves on the eve of the law going into effect, according to state attorneys and lawyers for a group who sued over the proposal.
District Judge Alan D. Albright indicated during a hearing that he will grant a temporary injunction sought by a group of book groups and sellers, including two Texas bookstores, who sued the state over House Bill 900 in July, the group’s lawyers said in a statement. Albright will issue a written order in one to two weeks; in the meantime, the state cannot enforce the law, according to the statement.
HB 900, which was approved during this year’s regular legislative session, requires school library vendors to rate all their books and materials for appropriateness before selling them to schools based on the presence of sex depictions or references. It also requires vendors to rank materials previously sold to schools and issue a recall for those that are deemed sexually explicit and are in active use by a school.
The plaintiffs argue that the law violates their constitutional rights by targeting protected speech with its broad and vague language. The lawsuit further alleges HB 900 would force plaintiffs to comply with the government’s views, even if they do not agree with them, and that the law operates as prior restraint, which is government action that prohibits speech or other expression before the speech happens. The vendors say it is impossible for them to comply with the rating system because of the sheer volume of materials they would need to review.
The law also calls for creating state school library standards that prohibit sexually explicit materials, requiring parental consent for students to check out materials classified by vendors as “sexually relevant” and giving the Texas Education Agency authority to review a vendor’s rating. If the TEA disagrees with the vendor’s rating and gives it a different one, the vendor must use the agency’s rating. Vendors who do not will be added to a list of vendors that schools cannot buy library materials from.
During the bill’s legislative hearings, librarians and legal experts shared concerns and worries that its language would ensnare books that are not inappropriate and, to the contrary, may be titles important for students whose lived experiences may not be reflected in other literature.
The proposal, from Rep. Jared Patterson, R-Frisco, arrived amid an ongoing debate about what materials are appropriate to be stocked in school and public libraries. Patterson and supporters of such regulations say libraries are infested with inappropriate books that must be vetted and removed.
However, skeptics of that panic and literary advocates counter that the books singled out by politicians often explore sexuality and race, topics that have been swept up in culture-war politics but remain important for youth who may not be comfortable talking about such matters with others.
Despite the concerns, HB 900 sailed through the legislative process before Gov. Greg Abbott signed it in June. It was set to go into effect Friday; however, the law’s language suggests the new requirements won’t have to be fulfilled immediately.
Most, if not all, of the state’s roughly 5.4 million public schoolchildren have already begun the 2023-2024 school year.
The lawsuit’s plaintiffs include two bookstores, Austin’s BookPeople and West Houston’s Blue Willow Bookshop, as well as the American Booksellers Association, the Association of American Publishers, the Authors Guild and the Comic Book Legal Defense Fund.
The Texas Attorney General’s office said Thursday it would move to reverse the injunction and appeal the judge’s decision. The office had not received the judge’s written order or decision by Thursday afternoon, a spokesperson said.
A court representative for Albright did not respond to an inquiry about his comments during Thursday’s hearing, reported by the plaintiffs’ lawyers and on social media by at least one plaintiff.
“We are grateful for the court’s swift action in deciding to enjoin this law, in the process preserving the long-established rights of local communities to set their own standards; protecting the constitutionally protected speech of authors, booksellers, publishers and readers; preventing the state government from unlawfully compelling speech on the part of private citizens; and shielding Texas businesses from the imposition of impossibly onerous conditions,” the plaintiffs said in a joint statement after the hearing. “We look forward to reading the court’s full opinion once it is issued.”
The preceding article was previously published by the Texas Tribune and is republished with permission.
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Federal judge temporarily blocks Texas’ ban on drag performances
The ban would have taken effect on September 1 if the temporary restraining order by the judge had not been issued
HOUSTON, Texas – A federal judge in the Southern District of Texas today granted a temporary restraining order blocking the Texas the drag ban law, Senate Bill 12, from taking effect September 1 while the court deliberates on a permanent injunction.
The ban would have taken effect on September 1 if the temporary restraining order had not been issued.
Attorneys for the American Civil Liberties Union of Texas and Baker Botts LLP filed the lawsuit earlier this month on behalf of the plaintiffs: The Woodlands Pride; Abilene Pride Alliance; Extragrams, LLC; 360 Queen Entertainment LLC; and drag performer Brigitte Bandit. In court, the plaintiffs testified how S.B. 12 threatens their livelihoods, censors their freedom of expression, and vilifies an artform that has roots going back millennia.
“This law was obviously unconstitutional from the day it was first proposed, and we are grateful that the court has temporarily blocked it,” said Brian Klosterboer (he/him), attorney at ACLU of Texas. “Senate Bill 12 is vague, overbroad, and censors free expression. If allowed to take effect, S.B. 12 will make our state less free, less fair, and less welcoming for every artist and performer. This temporary order is a much-needed reprieve for all Texans, especially our LGBTQIA+ and transgender community, who have been relentlessly targeted by our state legislature.”
S.B. 12 bans any performance that could be perceived as “sexual” when a minor is present and on public property, and the law proposes criminal penalties, including up to a year in jail, for artists, business owners, and others accused of violating it.
The ACLU of Texas and Baker Botts LLP argued the law is unconstitutional and violates the First and Fourteenth Amendments because it’s written in a way that would have allowed a large number of constitutionally protected performances, from touring Broadway plays and professional cheerleading routines to karaoke nights and drag shows, to be censored.
“I am honored to serve as co-counsel alongside the ACLU of Texas in defending the constitutional rights of drag performers and their patrons,” said Brandt Thomas Roessler (he/him), senior associate at Baker Botts LLP. “Baker Botts has a long-standing commitment to pro bono work, including the advocacy of LGBTQIA+ civil rights.”
BREAKING: A federal judge just granted our request to temporarily block Texas’ drag ban from taking effect Sept. 1.— ACLU of Texas (@ACLUTx) August 31, 2023
Drag performers and LGBTQIA+ allied businesses belong in our state — and Texas politicians have no right to censor our free expression.
“Drag has always been a form of free expression,” said Brigitte Bandit (she/they), drag performer. “We use our performances to assert liberation, power and joy with our community. As a lifelong Texan, I’m sick of this state trying to censor art and stoke hatred and violence against drag artists and the LGBTQIA+ community. No one should be punished for performing drag, and I wish lawmakers would take steps to protect kids from real dangers in our state instead of trying to divide and marginalize us.”
“Our company had a performance last weekend that we imagined might be our final show, but the court’s ruling gives us hope that we may again have spaces where our LGBTQIA+ community and allies can both perform and enjoy drag,” said Richard Montez (he/him), co-owner of 360 Queen Entertainment. “I never imagined that we would need to go to federal court to stand up for our performers, customers, and community, or that the Texas Attorney General’s Office would request I demonstrate twerking in the courtroom. LGBTQIA+ Texans, including queer and trans Texans of color, belong in this state. Drag performances allow us to celebrate and provide economic support to our community. We are asking the court to permanently stop S.B. 12 from stripping away our joy, freedom, and business.”
“It is inappropriate for the state to paint drag as ‘adult content’ when drag is as varied as theater and movies and can be for audiences of all ages,” said Jason Rocha (he/him), The Woodlands Pride President. “If people do not like drag, no one is forcing them to watch it. This temporary decision gives us hope that the court will allow LGBTQIA+ Texans to keep expressing ourselves and supporting each other through drag shows and Pride festivals.”
“We thank the court for carefully considering how this law targets free expression and threatens to banish LGBTQIA+ artistry from public life,” said Gavyn Hardegree (they/them), Abilene Pride Alliance President. “Gov. Abbott and his political allies want to use scare tactics and bigotry to erase LGBTQIA+ identities, especially Black and Brown nonbinary and trans Texans. Our organization works to create a safe space where every person has the freedom to express themselves free from government censorship, no matter our race and gender.”
“Drag events have increasingly been targeted and threatened here in Texas,” said Kerry Lynn (she/her), Founder and Creative Services Director of Extragrams. “The restrictions that S.B. 12 threatens to impose on us will decimate small businesses like ours across the state and cost local economies millions of dollars by deterring artists who perform in music festivals, concerts, and touring plays to skip the state to avoid defying the law if their performance was arbitrarily deemed ‘sexual’. Nobody should face intimidation or violence for hosting, performing in or supporting an event that celebrates drag.”
Texas LGBTQ+ Organizations aliso weighed in on the ruling.
“Texans have real problems that need real solutions,” said Ricardo Martinez (he/him), CEO at Equality Texas. “Lawmaker’s obsession with an art form they don’t understand, animus against a business owner they’ve never met, and fear of a community that just wants to be left alone isn’t solving any problems. If you don’t like drag, stay home.”
“The goal of this law is to chip away at our freedoms and eventually erase queer and trans existence from the public sphere,” said Andrea Segovia (she/her), senior field and policy advisor with Transgender Education Network of Texas (TENT). “Our community and our art will not be silenced or erased. Our community has fought too long to exist to let a drag ban stop us from challenging gender norms, celebrating our identities, and preserving queer culture. We applaud the tenacity and grit of the suit’s plaintiffs. The plaintiffs of this case demonstrate true Texas values by standing strong for queer and trans rights. We’re supporting them every step along the way.”
“Drag can be a source of healing for those who observe and those who participate,” said Verniss McFarland III (she/they), founder and executive director of The Mahogany Project. “Drag provides economic opportunities and a creative outlet to those who have endured life’s adversities, systematic oppression, and denial of our nation’s inalienable rights. Drag is also about reducing harm, preventing suicide, and preserving art. Drag offers a sustainable source of income for many LGBTQIA+ Texans as performers and small business owners. The truth is that drag is so many different things to so many different people. To take something away that manifests itself in the lives of many Texans in various ways could cause us unanticipated economic and personal damage.”
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