A federal judge in Maryland on Wednesday said the State Department must recognize the U.S. citizenship of a gay couple’s daughter who was born in Canada via surrogate.
U.S. District Judge Theodore D. Chuang ruled in favor of Roee Kiviti and Adiel Kiviti of Chevy Chase, Md., who were legally married in California in 2013. Their daughter, Kessem Kiviti, was born in February 2019.
A lawsuit the couple filed in the U.S. District Court of Maryland last September notes the Kivitis were both American citizens when their daughter was born. The lawsuit also notes Section 301(c) of the Immigration and Nationality Act states “a baby born abroad to married parents is a U.S. citizen at birth when both parents are U.S. citizens and one of them has resided in the United States at any point prior to the baby’s birth.”
Lambda Legal; Immigration Equality and Morgan Lewis, a private law firm, represent the Kivitis.
“We are tremendously relieved that the court recognized what we always knew: that our daughter was a U.S. citizen by birth,” said Roee and Adiel Kiviti in a statement that Lambda Legal and Immigration Equality released. “We are proud we taught our little girl to stand up for what’s right even before she could crawl. No child should be denied her rights because her parents are LGBT, and no family should have to endure the indignity we did.”
Lambda Legal Senior Staff Attorney Omar Gonzalez-Pagan, one of the lawyers who represents the Kivitis, in a statement noted the judge ruled in their favor two days after the U.S. Supreme Court issued its decision that said Title VII of the Civil Rights Act of 1964 bans employment discrimination based on sexual orientation and gender identity.
“After this week’s Supreme Court victory affirming that LGBT people cannot be carved out from laws prohibiting discrimination in employment, today’s victory confirms once again that married same-sex couples cannot be carved-out from laws tied to marriage, as is the Immigration and Nationality Act,” said Gonzalez-Pagan. “The Immigration and Nationality Act does not distinguish between the marital children of same-sex and different-sex couples. As the court noted, to do so would violate the clear terms of the law and raise grave constitutional concerns.”
“The law provides for the recognition of citizenship to the children born abroad of married couples who are U.S. citizens,” he added. “This provision applies equally to all couples regardless of whether the parents have a biological relationship with their children. It was callous and discriminatory for the State Department to refuse to recognize baby Kessem as the U.S. citizen she is. Today’s victory shows how unlawful the Department of State’s actions really were.”
An official with the State Department on Wednesday told the Washington Blade it is “aware of the court’s ruling and is reviewing the decision with the Department of Justice.”
“We have no further comment at this time,” said the official.
The U.S. Supreme Court issued a landmark ruling this week in terms of the immediate protections it granted LGBTQ people in the workplace, but the decision may soon provide more victories by forcing President Trump to retreat on much of his administration’s anti-LGBTQ policies.
After all, many of the Trump administration rule changes in enforcement of civil rights law to exclude LGBTQ people rested on the idea the definition of “sex” didn’t include them. That has been undisputedly rejected in the ruling in Bostock v. Clayton County, which determined firing workers like Gerald Bostock for being gay or workers like Aimee Stephens for being transgender violates the ban on sex discrimination under Title VII of the Civil Rights Act of 1964.
On issues ranging from housing and health care to transgender kids’ access to school restrooms, the Trump administration may be forced to roll back many of its anti-LGBTQ policy changes. If the Trump administration fails to reverse these policy moves, the U.S. government could be subject to costly lawsuits.
Shannon Minter, national legal director of the National Center for Lesbian Rights, said the decision is “bound to have far-reaching implications in the full range of other sex discrimination cases involving LGBTQ people.”
“Those include pending challenges to the transgender military ban, a Fair Housing Act case on behalf of a lesbian couple excluded from a retirement community in Missouri that has been stayed in the Eight Circuit pending the resolution of the Title VII cases, a number of Affordable Care Act cases challenging denials of care to LGBTQ individuals, and every policy that the Trump administration has promulgated that is based on the false view that sex discrimination laws do not protect LGBTQ people,” Minter said.
Ironically, that would be because of a decision written by U.S. Associate Justice Neil Gorsuch, a Trump appointee and textualist conservative judge whose confirmation LGBTQ rights advocates vigorously opposed.
Omar Gonzales-Pagan, senior attorney for the LGBTQ legal group Lambda Legal, said in an interview with the Blade “so many administrative pronouncements” would be subject to reversal as a result of the Bostock decision.
“All of these are situations in which the administration relied on a cramped reading of sex discrimination and should be directly impacted by the decision, aside from the countless other cases laid out in the great roadmap by Justice Alito,” Gonzales-Pagan said.
Top of the list for reversal is former U.S. Attorney General Jeff Sessions’ memo in 2017 declaring the U.S. Justice Department won’t apply Title VII to cases of anti-transgender discrimination in the workforce. That memo on its face is in conflict with the law now that the Supreme Court has explicitly determined anti-transgender discrimination is prohibited under Title VII.
Also on the list are policies explicitly interpreting laws against sex discrimination other than Title VII to exclude transgender people, such as the Affordable Care Act, the Fair Housing Act and Title IX of the Education Amendments of 1972.
The most high-profile of these actions is the rule the Department of Health & Human Services made final just last week undoing Obama-era regulations determining Section 1557 of the Affordable Care Act applies to cases of anti-transgender discrimination of sex stereotyping.
Although a federal court had already enjoined the U.S. government from enforcing the Obama-era rule, the Trump administration by reversing the regulations in the back end effectively enabled health care providers to refuse services to transgender people, including transition-related care and gender reassignment surgery.
Now that the Supreme Court has determined anti-trans discrimination is a form of sex discrimination, the framework of the HHS policy is contrary to the law.
Minter said the reasoning the behind the HHS rule change can’t hold up in the wake of the Supreme Court’s determination in the Bostock case.
“The ruling is also an extremely forceful rebuke to the lengthy analysis published by HHS Friday, in conjunction with issuing its new rule attempting to strip protections from LGBTQ people under the Affordable Care Act, which argued that sex discrimination does not protect ether LGB or transgender people,” Minter said. “The Court’s opinion eviscerates that analysis.”
Anti-trans policies from the Department of Education, which were made by interpreting Title IX to exclude transgender people, are also poised for reversal in the aftermath of the Bostock decision.
One is the policy of refusing to take up cases from transgender kids in school that are refusing them access to the restroom consistent with their gender identity, which is based on a narrow interpretation of Title IX. Secretary of Education Betsy DeVos has said — publicly and reportedly in private meetings — the policy would continue until Congress or the Supreme Court says otherwise.
Eliza Byard, executive director of the LGBTQ student group GLSEN, said DeVos told her the policy was dependent on the courts during a March 2017 meeting, so now the time has to come to make a change.
“Secretary DeVos must immediately reverse her attacks on transgender students’ rights, which began with her very first official actions in 2017,” Byard said. “Now, she can no longer hide behind the claim of waiting for the courts. Trans girls are girls. Trans boys are boys. And the law protects them from discrimination ‘on the basis of sex.’ Like all children, they deserve to learn and grow free from fear and in community with their peers.”
Also legally suspect now is the recent determination from the Department of Education based on Title IX against the participation of transgender girls in school sports, which was made as a result of a complaint from Connecticut girls who lost to transgender athletes in a track event.
The Department of Education came down on the side of the girls who said the victory of the transgender athletes unfairly pitted males against females in a system designed to separate athletes by gender, but that reasoning is at odds with the Bostock decision.
Trickier are other anti-LGBTQ rules from the Trump administration that weren’t based on narrow interpretations of the definition of sex, but the inherent powers of the U.S. government.
Among them is the Department of Housing & Urban Development’s proposal to carve out an Obama-era rule prohibiting homeless shelters from turning away transgender people based on the ban on sex discrimination in the Fair Housing Act.
The reversal under HUD Secretary Ben Carson, which isn’t yet final, allows homeless shelters to refuse to let transgender people stay consistent with their gender identity based on various factors, including, privacy, safety, practical concerns and religious beliefs.
Also in this category is the rule change from various departments undoing an Obama-era regulation issued in December 2016 days before Trump took office barring federal grantees from discriminating on the basis of sexual orientation and gender identity.
Because the Obama-era policy was based on the inherent power of the U.S. government, the Trump administration invoked the same authority to reverse it, not any interpretation of “sex” under the law.
Gonzales-Pagan, nonetheless, said the Bostock decision could provide fuel for legal challenges to the HUD proposal and rollback of non-discrimination requirement for federal grantees.
“Their cramped reading of sex is the same cramped reading that they try to use here and they tried to use in Section 1557,” Gonzales-Pagan said. “Obviously, the court, not just by it words but by its actions in treating with the respect that she deserves Aimee Stephens and referring to her with her chosen pronouns and talking about transgender status and sex are inextricably linked to the lack of thinking they put into these proposed rules.”
Trump’s transgender military ban is another anti-trans policy, although legal framework for contesting the ban based on the Bostock is more complex.
Because no law prohibits discrimination on the basis of sex in the military, one might say the Bostock decision wouldn’t have any impact on Trump’s transgender military ban. However, according to U.S. legal jurisprudence, laws related to sex discrimination must be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional, by the courts under the guarantee of due process and equal protection under the Fifth Amendment.
If anti-transgender discrimination is a form of sex discrimination as it pertains to Title VII, that could very well be the case for the Fifth Amendment, which forms the basis of legal challenges currently underway against the transgender military ban. The Bostock decision clearly identifying anti-trans discrimination as sex discrimination, therefore, gives attorneys challenging the policy a boost to their argument.
Gonzales-Pagan, whose organization Lambda Legal is behind litigation against the ban percolating in the Ninth Circuit, said that logic should apply to the transgender ban.
“The same analysis and thinking applies,” Gonzales-Pagan said. “Granted they are different provisions, but if the analysis is that you cannot discriminate based on transgender status without discriminating based on sex, then yes. And so, really an implication of this decision is that in some ways, heightened scrutiny now theoretically applies across the country both as to sexual orientation and transgender status.”
But if the Trump administration is preparing to reverse its anti-LGBTQ policy in the aftermath of the Bostock ruling, it doesn’t appear to be in a hurry. Each of the departments contacted by the Blade on whether they plan to change anything after the ruling said at most they were reviewing the decision.
Neither the Justice Department nor the White House responded to the Blade’s request for comment on the way the Trump administration intends to implement the ruling.
One factor that could be holding them up is the upcoming decision from the Supreme Court in the cases of Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel, which will determine whether religious schools are entitled to a wider religious exemption from non-discrimination laws, including Title VII, in terms of hiring practices.
If the Supreme Court rules in favor of the religious schools, it would undercut the decision it just issued on Title VII, and likely factor into new regulations coming from the Trump administration on the Bostock ruling.
Another caveat could come from the Supreme Court during its next term as a result of its forthcoming decision in Fulton v. Philadelphia. In that litigation, Catholic adoption agencies are seeking a First Amendment right to refuse child placement into LGBTQ homes. A ruling in favor of Catholic Social Services could undercut the Supreme Court’s ruling in the Title VII cases.
Minter said the decision in the Catholic school cases “applies only in employment,” but the upcoming decision from the Supreme Court in the Fulton case is another story and “could potentially have a much broader impact.”
“Depending on how the court rules, Fulton could create new religious exemptions that apply in virtually any context, federally funded social service agencies of all kinds, not just adoption agencies, and potentially even in for-profit workplaces,” Minter said.
Friday marks four years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
“Four years have now passed, but our community’s commitment to honoring the 49 angels and supporting the survivors, families of the victims and first responders remains strong,” tweeted Orlando Mayor Buddy Dyer, who was in office on June 12, 2016, when the massacre took place.
The onePULSE Foundation, a group founded by Pulse owner Barbara Poma that is planning to build a permanent memorial, on Friday will hold a virtual ceremony to honor the massacre’s victims. The coronavirus pandemic prompted organizers not to hold an in-person commemoration this year.
“We are grateful for the tremendous support of the community and would love nothing more than to have our community members join us in remembering our 49 Angels, and honoring our survivors and first responders, but we must prioritize the health and safety of the public, the Pulse community, and our employees,” said Poma in a statement. “We ask the community to join together again, in a different way this year, as a symbol of strength and solidarity in the face of tragedy, forever proving: We will not let hate win.”
Nearly half of the massacre’s victims were LGBTQ Puerto Ricans.
San Juan Mayor Carmen Yulín Cruz has ordered flags in her city to be lowered to half-mast. Pedro Julio Serrano, founder of Puerto Rico Para Tod@s, a Puerto Rican LGBTQ advocacy group, on Friday visited a memorial in a San Juan park that honors the victims.
“Love always wins — always,” said Serrano in a tweet that shows him visiting the memorial.
Visitando el primer monumento LGBTTIQ+ de Puerto Rico que el Municipio de San Juan erigió en honor a las vidas de 49 seres humanos —24 boricuas— que murieron a causa del odio en la tragedia de Pulse en Orlando.
An interim memorial has opened at the nightclub, which is less than two miles from downtown Orlando.
Scott Bowman of the onePulse Foundation on Thursday said $19 million has been raised for the permanent memorial that will have three components: The National Pulse Memorial, the Museum and Education Center and the Orlando Health Survivors Walk. Bowman told the Washington Blade the Orlando Health Survivors Walk’s groundbreaking will take place next April.
The Orlando Sentinel on Friday reportedU.S. Rep. Darren Soto (D-Fla.), who represents portions of Orlando, has introduced a bill that would designate Pulse as a national memorial. Republican Florida Gov. Ron DeSantis designated Friday as “Pulse Remembrance Day” and ordered flags in the state lowered to half-staff.
The massacre at the time was the deadliest mass shooting in modern U.S. history, and it renewed calls for gun control in this country.
Equality Florida — along with the Human Rights Campaign, Everytown for Gun Safety Support Fund and Giffords Law Center — on Friday issued a report that documents gun violence’s impact on LGBTQ people. The report, among other things, notes nearly 80 percent of Black transgender women who have been killed since 2013 were shot to death.
“Gun safety is an LGBTQ issue, plain and simple,” said HRC President Alphonso David in a statement.
This year’s commemorations of the massacre are taking place amid continued protests against police brutality in the wake of George Floyd’s death in Minneapolis. President Trump is also running for re-election.
Equality Florida has announced it plans to target 500,000 “pro-equality voters in the state of Florida with the goal of ensuring they have updated registrations, resources to educate themselves on where candidates stand on equality, and sign up to receive their ballots by mail.”
“When we set out on this journey four years ago, Equality Florida promised to do the work of uprooting hate and violence,” said Equality Florida Senior Political Director Joe Saunders in a press release. “Dismantling systems of racism and homophobia requires that pro-equality voters make our voices heard and ensure our votes shape who represents us and what policies they champion.”
“We live in the most important political real estate in the country and pro-equality voters are positioned to make the difference between a state that will be won or lost by 100,000 votes,” he added. “In 2020 we’re going to leave it all on the field.”
Democratic National Committee Chair Tom Pérez and Earl Fowlkes, who chairs the DNC’s LGBTQ Caucus, on Friday issued a statement that acknowledged the massacre’s fourth anniversary.
Trump in the days after the massacre reiterated his calls that the U.S. should temporarily ban Muslims from entering the country. Pérez and Fowlkes in their statement said Trump “took advantage of the tragedy at Pulse to attack immigrants and Muslims, as he has continued to throughout his presidency.”
“Instead of advocating for commonsense gun reform or equal rights, he sought to divide Americans during a crisis — as he has during today’s twin public health crises of coronavirus and systemic racism,” added Pérez and Fowlkes. “Throughout his presidency, Trump has uprooted LGBTQ+ rights, attacked our access to health care, separated families, and fanned the flames of bigotry and hate. We need Joe Biden as president to unite Americans and continue our long march toward a more equal country.”
Deputy White House Press Secretary Judd Deere in a statement to the Blade acknowledged the massacre’s anniversary.
“The horrible attack on the LGBT community at the Pulse nightclub four years ago is just one of many reasons why President Trump has made it a top priority to root out radical Islamic extremists wherever they hide,” said Deere. “As the president has said, we will never forget the 49 individuals who were senselessly murdered that night.”
Lesbian athletes Billie Jean King and Megan Rapinoe are calling on the National Collegiate Athletics Association to move a major basketball competition from Idaho in the wake of the state enacting a law barring transgender girls from playing in school sports.
In a letter dated June 10, the athletes ask to “move all NCAA championship events in 2021 out of Idaho,” which is currently set to host the 2021 Men’s Basketball Championship that year.
“As the unifying governing body of college athletics, the NCAA has tremendous power in setting the standard for how values of diversity and inclusion can be reflected in policies and practices, and inspiring athletes, teams, schools and other institutions to do the same,” the letter says. “This is the time for the NCAA to stand with us on the right side of history, in support of the rights of all athletes in Idaho to compete in the sports they love.”
Nearly 50 professional, Olympic and Paralympic athletes signed the letter, including Jason Collins, the first openly gay man to play men’s professional basketball, and Chris Mosier, a transgender advocate and triathlete.
Separate letters from advocacy groups and more than 400 college student-athletes were made public Wednesday also denouncing House Bill 500, an anti-trans measure quietly signed into law by Idaho Gov. Brad Little at the height of the coronavirus crisis, and they call on the NCAA to move sports events out of the state.
The law requires college and public school sports teams to be designed as male, female and co-ed — and any female athletic team “shall not be open to students of the male sex.”
In the event of a dispute, a student may be required to produce a physician’s statement to affirm her biological sex based on reproductive anatomy, normal endogenously produced levels of testosterone and an analysis of the student’s genetic makeup.
That would effectively ban transgender athletes from participating in sports. Although similar measures had been percolating in state legislatures, Idaho is the first state to enact such a law.
Hudson Taylor, executive director of LGBTQ group Athlete Ally, said in a statement the athletes against House Bill 500 “took a powerful stand in support of trans athletes having equal access and opportunity in sport.”
“With one unified voice, professional athletes, student athletes and advocacy groups are demanding the NCAA stand on the right side of history by reaffirming their commitment to ensuring sport is safe and welcoming for all, and that trans athletes are able to be fully who they are on and off the playing field,” Taylor said.
Prior to the enactment of House Bill 500, Idaho High School Activities Association already had in its rules a requirement that transgender girls “complete one year of hormone treatment related to the gender transition before competing on a girls team.”
According to the Idaho Statesman, IHSAA says as of March 2020 it had “received just a couple of inquiries about Idaho’s policy and has fielded occasional calls about potential transgender athletes over the past five or six years, but so far, Idaho has not had an athlete use the policy.”
Although the NCAA hasn’t yet indicated it would move sports events from Idaho over enactment of House Bill 500, the organization did issue a statement against the law, according to advocacy groups.
Rodrigo Heng-Lehtinen, deputy executive director for policy and action with the National Center for Transgender Equality, said in a statement the sports league should back up its earlier stated opposition with action.
“Transgender athletes deserve the same dignity and respect entitled to all NCAA athletes. Because of HB 500, that simply isn’t possible in Idaho,” Heng-Lehtinen said. “We applaud the NCAA for speaking out against HB 500 and now encourage them to back up their words with action.”
If the NCAA decides to move sports events from Idaho over the law, it wouldn’t be the first time the league has taken such action over an anti-trans measure.
When North Carolina passed House Bill 2, which prohibited transgender people from using restrooms in government buildings consistent with their gender identity, the NCAA joined other sports leagues and businesses in cancelling events in the state.
Former North Carolina Gov. Pat McCrory, who signed House Bill 2, lost re-election to now-Gov. Roy Cooper, who worked with the legislature to enact a compromise measure loosening the anti-trans restrictions under the law (although transgender advocates still objected to it).
Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement “full participation in school sports is fundamentally a civil and human rights issue.”
“Anti-transgender discrimination has no place in any of our institutions, including school athletics,” Gupta said. “The NCAA must uphold its own non-discrimination policy, and we urge them to relocate games from Idaho while HB 500 is law.”
Meanwhile, litigation against House Bill 500, which was filed in April by the American Civil Liberties Union, the ACLU of Idaho, Legal Voice, and Cooley LLP, remains pending in federal court.
Arli Christian, campaign strategist for the ACLU, said in a statement “transgender people belong everywhere — and that includes in sports and in Idaho.”
“While the lawsuit against the state of Idaho moves through the courts, it is important for everyone to speak out so that Idaho — and the rest of the country — sees how misguided and dangerous this law is,” Christian said.
The Washington Blade has placed a request with the NCAA seeking comment on whether the organization will move events from Idaho over the anti-trans law.
The nephew of Harvey Milk on Thursday expressed his support for those who are protesting against police brutality in the wake of George Floyd’s death.
“I’m inspired by the protests,” Stuart Milk told the Washington Blade during a brief interview at a Fort Lauderdale restaurant. “I am really hopeful that maybe we can create some systemic change.”
Milk spoke with the Blade less than two weeks after Floyd died after then-Minneapolis police officer Derek Chauvin kneeled on his neck.
Minnesota prosecutors have charged Chauvin with second-degree murder in connection with Floyd’s death. The Associated Press notes the three other now former police officers who were with Chauvin face charges of aiding and abetting second-degree murder and second-degree manslaughter.
Christopher Street West, the group that organizes Los Angeles’ annual Pride parade, has announced it will hold a march “in response to racial injustice, systematic racism and all forms of oppression.” Milk told the Blade he “would like to see more of that and hopefully one day we can do that on our global scale.”
“It’s been nine days … sometimes we see these things really light up and then fizzle out and then we move on to something else,” he said. “It’s my hope and desire that we don’t move on and that we as an LGBTQ community keep that fire burning.”
“Unless there is justice for everyone in the United States there is justice for no one,” added Milk.
Milk on Thursday also talked about the Trump administration’s campaign to encourage countries to decriminalize consensual same-sex relations.
The White House last year tapped outgoing U.S. Ambassador to Germany Richard Grenell to spearhead the initiative.
The U.S. Embassy in Germany last summer hosted a group of LGBTQ rights activists from around the world. Grenell and U.S. Ambassador to the U.N. Kelly Knight Craft late last year organized an event on the sidelines of a U.N. Security Council meeting that focused on efforts to decriminalize homosexuality around the world.
“The campaign has had some deep back door discussions that I think are important,” Milk told the Blade. “It’s important that we keep global LGBT rights moving forward.”
Milk added “its just totally unacceptable that we have over 70 countries where it’s still illegal and criminalized to be LGBT.”
Police in St. Paul, Minn. are urging a 21-year-old transgender woman who was attacked and beaten on June 1 by more than dozen men at a St. Paul convenience store that was captured on video to report the incident to police, who are eager to apprehend the attackers.
According to St. Paul police spokesperson Steve Linders, the victim, who identifies herself on Facebook as Iyanna Dior, never contacted police about the incident. Linders told the Washington Blade that he is unaware of either an employee or another customer at Sana’s Market convenience store at 1541 Maryland Avenue East in St. Paul having called police about the incident.
Most social media accounts of the incident incorrectly reported it took place in the neighboring city of Minneapolis and that it occurred at a gas station. Linders said there is no gas station located at the site of the convenience store where the incident took place.
A video that captured the incident and which has gone viral shows at least a dozen if not many more mostly men and one or two women punching and kicking Dior inside a store while shouting and screaming at her. One or two people who appear to be store employees standing behind a counter appear on the video to be trying to help Dior by separating her from the attackers.
Although unconfirmed reports on social media have said the incident started after a “fender-bender” car accident at or near the convenience store, Linders said police have yet to determine what triggered the attack.
“Our investigators are doing everything they can to find her,” said Linders. “So hopefully we can reach her and hopefully she wants to make a complaint and then we can move forward with the investigation,” he said.
“What was shown in that video is beyond troubling,” Linders told the Blade. “And we want to do everything we can to first make sure that she’s OK and second find the people who assaulted her and hold them accountable. And we’re working many different angles to make that happen.”
The Blade sent Dior a Facebook message asking to speak with her to get her first-hand account of what happened. She had not replied as of Friday afternoon.
The attack against Dior occurred at a time when protests, some of which have become violent, erupted in the Minneapolis-St. Paul area and across the country over the death of African American Minneapolis resident George Floyd at the hands of a Minneapolis police officer. A video capturing that incident shows the officer kneeling on Floyd’s neck as Floyd shouted that he could not breathe.
Prosecutors in Minneapolis have charged the police officer who placed his weight on Floyd’s neck, essentially choking him to death, according to authorities, with second-degree murder. Three other officers on the scene have been charged with accessory to a murder.
Linders said St. Paul Police would not speculate on who it was that committed the attack until they compile the evidence they need to make an arrest.
“I don’t want to do a disservice to her by speculating on how this happened until we talk to her and find the people responsible,” he said. “So I don’t want to speculate on what people heard online. We need to talk to her to find out with precision why this happened and make sure she’s OK first and foremost.”
Out Front Minnesota, a statewide LGBTQ rights organization, issued a statement on June 3 condemning the attack and assault on Iyanna Dior, calling it yet another in a long list of attacks on transgender women of color in recent years.
“In 2019, at least 26 transgender people were murdered in the United States, and the vast majority of those killed were Black transgender women,” the statement says. The statement identifies by name each of the trans people killed in 2019, including two black trans women who were shot to death in Prince George’s County, Md., just across the D.C. line – Ashanti Carmon and Zoe Spears.
“This violence has got to stop,” said Tori Cooper, director of community engagement for the Human Rights Campaign’s Transgender Justice Initiative, in an interview with Rolling Stone. “Black lives matter and that includes trans, nonbinary, queer, cis and straight black lives,” Cooper told Rolling Stone.
“All of our hearts should hurt watching the video of this young trans woman being hit by a group of people,” she said.
In the latest example of the Trump administration seeking to enable legal discrimination against LGBTQ people, the Justice Department is calling on the U.S. Supreme Court to allow religious-affiliated adoption agencies to refuse child placement into LGBTQ homes.
In a 35-page brief, U.S. Solicitor General Noel Francisco and other Justice Department attorneys maintain the City of Philadelphia has “impermissibly discriminated against religious exercise” under the First Amendment by requiring Catholic Social Services to abide by a contract requiring LGBTQ non-discrimination practices in child placement.
“Governmental action tainted by hostility to religion fails strict scrutiny almost by definition,” the brief says. “This court has never recognized even a legitimate governmental interest — much less a compelling one — that justifies hostility toward religion.”
The U.S. government isn’t a party to the case, known as Fulton v. City of Philadelphia, so the brief is completely voluntary. In justifying the brief before the Supreme Court, the filing makes the case the Justice Department has a compelling interest to intervene.
“This case concerns the application of the Free Exercise Clause of the First Amendment to the City of Philadelphia’s termination of a contract allowing Catholic Social Services to help place children in the City with foster parents, on the basis of Catholic Social Services’ unwillingness to endorse same-sex couples as foster parents,” the brief says. “The United States has a substantial interest in the preservation of the free exercise of religion. It also has a substantial interest in the enforcement of rules prohibiting discrimination by government contractors.”
The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, was refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBTQ discrimination.
When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.
A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith.
After the Becket Fund for Religious Liberty, which is representing Catholic Social Services, filed a petition for certiorari before the Supreme Court, justices in February agreed to take up the case.
Although the case involves Catholic Social Services refusing to abide by the terms of its contract, the Justice Department framing of the litigation makes it seem like the City of Philadelphia is an aggressor and unfairly targeting Catholic Social Services, asserting the municipality is allowing for exemptions in some cases, but not religious-affiliated adoption agencies.
“The City impermissibly targeted religious organizations for enforcement of its newly articulated policies,” the brief says. “Commissioner Figueroa testified that, in determining whether foster-care agencies were complying with the anti-discrimination requirements of their contracts, the city focused only on religious agencies, making just a single inquiry to a secular foster-care agency…City officials made no effort to determine whether other secular agencies perform home studies for everyone who requests them, or show preference for or against individuals who fall within particular groups.”
Although one question before the court is whether Employment Division v. Smith, which determined states can impose neutral laws on religious groups, should be overturned, the Justice Department writes it isn’t necessary for the Supreme Court to go that far.
“While the petition for a writ of certiorari raises the question whether to overrule Employment Division v. Smith… this Court need not decide that question here,” the brief says. “Even under Smith, governmental actions that substantially burden religious exercise are subject to strict scrutiny unless they are carried out under neutral and generally applicable laws, free from hostility toward religious beliefs. Philadelphia’s actions do not satisfy those requirements.”
The brief also makes heavy use of the Supreme Court’s decision in the Masterpiece Cakeshop case, which determined the Colorado Civil Rights Commission held anti-religion bias in adjudicating the case of Colorado baker Jack Philips refusing to make a custom-made wedding case for a same-sex couple. Although legal observers have said the narrow ruling for Phillips was based on the facts of that particular case, the Justice Department says it weighs heavily in the Fulton litigation.
Leslie Cooper, deputy director with the American Civil Liberties Union LGBT & HIV Project, said in a statement if the Trump administration gets its way, the decision would impact more than LGBTQ families.
“While this case involves rejecting LGBTQ families, if the court accepts the claims made in this case, not only will this hurt children in foster care by reducing the number of families to care for them, but anyone who depends on a wide range of government services will be at risk of discrimination based on their sexual orientation, religion or any other characteristic that fails a provider’s religious litmus test,” Cooper said.
The ACLU signaled it will respond to the government’s brief in a filing due before the Supreme Court on Aug. 13.
The U.S. Supreme Court is set to hear the Fulton case at the same time as any day now it is expected to issue a decision in a trio of cases — Zarda v. Altitude Express, Harris Funeral Homes v. EEOC and Bostock v. Clayton County — that will determine whether anti-LGBTQ discrimination is a form of sex discrimination, therefore illegal in the workplace under Title VII of the Civil Rights Act of 1964.
In those cases, the Justice Department took the side of employers wishing to be able to discriminate against LGBTQ workers under the law, submitting briefs and arguing before justices Title VII doesn’t apply to LGBTQ workers.
If the court rules in favor of LGBTQ workers in those cases, but rules in favor of Catholic Social Services to discriminate in the Fulton case, it would likely dramatically undermine any affirmation of LGBTQ workplace protections under the law, allowing employers to claim a First Amendment right to discriminate.
Joseph Biden issued a statement on Monday recognizing June as Pride Month, saying “much work remains” to advance LGBTQ people despite the progress made after the first Pride 50 years ago in memorial of the Stonewall riots.
“Despite our progress, much work remains,” Biden wrote. “As our nation grapples with the uncomfortable truths of systemic racism, a devastating pandemic that’s claimed more than 100,000 lives in the United States and left more than 40 million people filing for unemployment, and a president that’s waged an all-out assault on the rights of our most vulnerable, including LGBTQ+ people, we are reminded of why those first brave souls took to the streets to march 50 years ago.”
Meanwhile, President Trump as of this posting has issued no statement or proclamation recognizing June as Pride Month. Last year, Trump in a tweet became the first Republican U.S. president to recognize Pride, but said nothing in his first two years in office.
Biden issues the Pride statement as the nation is gripped in horror over police brutality that killed George Floyd, a black man in Minneapolis. Protests followed in the days afterwards, but also violent riots damaging to U.S. monuments and privatE property throughout the country.
“Pride has come to be recognized as a global movement of love, self-expression, and community — resilient in the face of oppression and fear and hopeful for a better future,” Biden wrote. “This month, let us recommit to those principles of Pride and remain steadfast in the fight for justice and equality.”
Biden also invoked the memories of LGBTQ activists who have died in recent weeks: Larry Kramer, a gay rights pioneer and AIDS activist who founded ACT Up; Aimee Stephens, a transgender plaintiff in lawsuit before the Supreme Court that will decide whether federal civil rights law applies to LGBTQ people; and Lorena Borjas, a transgender immigrant activist.
Biden also cites the anti-LGBTQ policies of the Trump administration, such as the transgender military ban, as well as condemning Trump and Vice President Mike Pence for having “given safe harbor to white supremacists and other forms of hate.”
In contrast, Biden expresses commitment to LGBTQ legislation known as the Equality Act pending before Congress and says he’ll take “swift action to reverse” the Trump administration’s anti-LGBTQ policies.
The White House hasn’t responded to repeated requests from the Washington Blade to comment why Trump hasn’t issued any statement recognizing Pride Month.
Last week, the White House issued five proclamations from Trump designating June as Great Outdoors Month, African-American Music Appreciation Month, National Homeownership Month, National Ocean Month and National Caribbean-American Heritage Month, but nothing on Pride Month.
Alphonso David, president of the Human Rights Campaign, slammed Trump in a statement for ignoring Pride Month.
“This June, the Trump-Pence administration has yet again failed to recognize Pride Month to honor the history of the LGBTQ community and acknowledge the ongoing movement toward full equality,” David said. “In a global pandemic and national crisis highlighting ongoing racial violence and police brutality across the country — violence that particularly targets Black lives — Trump and his administration have stoked division, hate, and anger with continued attacks on LGBTQ people, people of color, immigrants, and other vulnerable communities.”
Rep. Adam Schifff (D-Calif.) is leading a group of Democratic lawmakers in the introduction of a resolution calling for an end to the gay blood ban in favor of new guidance based on individual risk assessment.
“There is a large contingent of healthy people that are able and willing to donate blood and plasma, but antiquated regulations prevent them from doing so,” Schiff said in a statement. “This resolution calls for a repeal of discriminatory guidelines against members of the LGBTQ community, and encourages them to be replaced with science-based criteria for individual-risk assessment. It’s long past time these changes were made, especially during the current global crisis.”
The resolution calls for a blood donation policy grounded in science with minimal deferral periods. Further, the resolution should be based on individual risk factors, not unfairly single out any group of individuals and allow donations by all those who can safely do so.
Joining Schiff in introducing the resolution is Reps. Carolyn Maloney (D-N.Y.), Alexandria Ocasio-Cortez (D-N.Y.), Chris Pappas (D-N.H.), Mike Quigley (D-Ill.), Barbara Lee (D-Calif.), Deb Haaland (D-N.M.), and Katherine Clark (D-Mass.).
Amid the blood supply shortage during the coronavirus crisis, the Food & Drug Administration eased the restrictions on blood donors, including donations from men who have sex with men. The previous policy, established in 2015, required gay men to be abstinent for 12 months before making a donation, but the FDA eased the policy to require a shorter period of 3 months without having sex.
The FDA has placed restrictions on gay blood donors since the height of the AIDS crisis in 1983, when a lifetime ban on donations from men who have sex with men was implemented. The 2015 policy under the Obama administration eased that ban to require the 12-month period of abstinence.
Although the Trump administration eased the ban even further, LGBTQ rights advocates have said the change isn’t enough and remains discriminatory against gay and bisexual men. Instead of a broad-based ban, they call for screening based on individual risk practices, such having multiple sex partners or engaging in unsafe sex practices.
Scott Schoettes, counsel and HIV project director at Lambda Legal, commended the lawmakers in a statement for introducing the resolution, calling a policy applying to all people with a shorter deferral period.
“A shorter deferral period applied to all people engaged in certain risk behaviors, regardless of sexual orientation or gender identity, will create a truly nondiscriminatory policy,” Schoettes said.
The Food & Drug Administration has announced it has begun a pilot study to evaluate whether the current policy on gay blood donors should be dropped in favor of an individual risk policy. The results of that study, which is in its early stages, remains to be seen.
The Blade has placed a request with Schiff’s office seeking comment on whether Democratic leadership has indicated the resolution would receive a floor vote.
Amid the national horror following the police killing of George Floyd in Minnesota, LGBTQ and civil rights groups have issued a joint statement declaring anti-racism and an end to white supremacy must be “integral to the objective of full equality for LGBTQ people.”
Anger over the death of Floyd, a black man who appears on video to have been choked to death at the hands of white police officers as he pled to breathe, sparked riots in Minnesota and prompted the governor to call in the National Guard. Tensions were increased after police arrested CNN reporter Omar Jimenez and his crew on air as he was reporting on the riots.
“Many of our organizations have made progress in adopting intersectionality as a core value and have committed to be more diverse, equitable, and inclusive,” the statement says. “But this moment requires that we go further — that we make explicit commitments to embrace anti racism and end white supremacy, not as necessary corollaries to our mission, but as integral to the objective of full equality for LGBTQ people.”
The statement, which was spearheaded by the Human Rights Campaign, was signed by 75 groups, issues the call “Black Lives Matter” and enumerates the names of several black people who have been victims of racism and violence in the past year alone.
Human Rights Campaign President Alphonso David, who’s black, echoed in a statement words by Archbishop Desmond Tutu 30 years ago: “If you are neutral in situations of injustice, you have chosen the side of the oppressor.”
“The racist violence that has filled our television, computer and phone screens this spring is a stark reminder of how far we still must go to ensure that the promise of America is not dependent on the color of one’s skin,”David said. “When we see injustice, we must speak out as strongly as we can. Otherwise, we are complicit in oppression.”
Among the incidents cited are Floyd’s death as well as the killing of Ahmaud Arbery in Georgia; the death of Breonna Taylor in a shooting with police in Louisville; a white woman in New York City calling the police on Christian Cooper a black gay man who told her to obey the rules in Central Park and leash her dog; and the killings of at least 12 transgender people so far in this year alone.
“All of these incidents are stark reminders of why we must speak out when hate, violence, and systemic racism claim — too often with impunity — Black Lives,” the statement says.
As onlookers recoil from the images of riots in Minnesota, the letter invoked the Stonewall riots of 1969 in New York City, which is considered the birth of the modern LGBTQ movement.
“The LGBTQ community knows about the work of resisting police brutality and violence,” the statement says. “We celebrate June as Pride Month, because it commemorates, in part, our resisting police harassment and brutality at Stonewall in New York City, and earlier in California, when such violence was common and expected. We remember it as a breakthrough moment when we refused to accept humiliation and fear as the price of living fully, freely, and authentically.”
Signers of the letter include the American Civil Liberties Union, the Trevor Project as well as state LGBTQ groups, such as Equality Arizona, Equality California and Equality Florida.