By Chris Geidner on December 30, 2011
On Jan. 1, 2011, most LGBT legal commentators were ready for a federal appellate court ruling on the constitutionality of Proposition 8 — or at least a decision on whether the initiatives’ proponents had a right to be there in the first place. Challenges to the Defense of Marriage Act were under way on the East Coast — from Massachusetts to Connecticut to New York — but the Proposition 8 challenge looked like it was on the fast track to the Supreme Court.
But, on Jan. 4, the U.S. Court of Appeals for the Ninth Circuit sent a certified question about the legal role of initiative proponents under California law to the California Supreme Court — a move that delayed a Ninth Circuit decision and appears to be keeping people waiting into 2012.
The delay and disappointment of the Ninth Circuit decision might have put a damper on the mood of LGBT legal advocates in 2011 — until Feb. 23.
On Feb. 23, the Department of Justice — in a letter from Attorney General Eric Holder sent to House Speaker John Boehner (R-Ohio) — announced that DOJ, with the agreement of President Obama, had concluded that sexual orientation classifications should be subjected to heightened scrutiny in legal challenges claiming a violation of the Fourteenth and Fifth amendments’ guarantee of equal protection of the laws. As such, Holder told Boehner, Section 3 of DOMA, which defines marriage at the federal level, is unconstitutional. Moreover, because they had made this determination, Holder said DOJ would no longer be defending DOMA’s Section 3 in court challenges.
The change altered the legal landscape — not just in the direct challenges to DOMA, but in cases across the country, on issues from bankruptcy to immigration — and led the House Republican leadership to mount a defense of the 1996 law by hiring former George W. Bush administration solicitor general Paul Clement and his firm (first King & Spalding and, when they ended the representation, then his new firm, Bancroft PLLC) to do so.
Karen Golinski’s attempt to secure equal health insurance benefits for her wife has taken center stage, as DOJ sent one of its senior lawyers to a court hearing in December to join Lambda Legal in arguing why Golinksi’s claim should not be dismissed because DOMA is unconstitutional. In the U.S. Court of Appeals for the First Circuit, briefing is completed in the appeal of the 2010 trial court decision in Gill v. Office of Personnel Management, in which Judge Joseph Tauro found Section 3 of DOMA to be unconstitutional. Gay & Lesbian Advocates & Defenders, which brought the challenge, expects the oral arguments in the appeal to be held in February.
In the military, the challenge to “Don’t Ask, Don’t Tell” that was brought by Log Cabin Republicans had pushed Defense Secretary Robert Gates and others in 2010 to urge legislative action to end DADT, but the lawsuit, despite LCR’s attempts to keep the lawsuit alive to help resolve ongoing issues, found its end in the weeks after the law’s repeal occurred. Soon thereafter, though, Servicemembers Legal Defense Network raised a challenge to the post-DADT military provision of spousal benefits, which does not include same-sex couples — a challenge to DOMA within the military.
In schools, like the military, questions about ongoing discrimination are plenty. In Minnesota, the National Center for Lesbian Rights brought a lawsuit against the Anoka-Hennepin School District to challenge what it called “a frightening and harmful toxic environment for [LGBT] students.” In California, the sentencing of Lawrence King’s killer, Brandon McInerney, to 21 years in prison put some closure on the sad tale of two young lives — one ended, one altered forever — by homophobia. The American Civil Liberties Union brought a lawsuit in Missouri, challenging one school district’s use of web filtering software. In October, the ACLU sought a preliminary injunction to stop the Camdenton R-III School District from censoring web content geared toward LGBT people.
For prisons, ongoing questions about treatment of transgender prisoners were raised in multiple lawsuits. In September, the National Center for Lesbian Rights and GLAD announced that they had reached a settlement with the Federal Bureau of Prisons in the case of Vanessa Adams that would mean that “[t]reatment options [for trans inmates] will not be precluded solely due to level of services received, or lack of services, prior to incarceration.” In the U.S. Court of Appeals for the Fourth Circuit, however, a case is ongoing about Virginia prison system.
Finally, in December, the U.S. Court of Appeals for the Eleventh Circuit, a generally conservative court, sided with Vandy Beth Glenn — the trans woman, represented by Lambda Legal, who has testified before Congress about being fired from her job as an editor in the Georgia General Assembly’s Office of Legislative Counsel because she was transgender — in finding that discrimination on the basis of gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.
As 2011 comes to a close, as when 2010 ended, LGBT legal advocates await action at any moment from the Ninth Circuit on the American Foundation for Equal Rights’s challenge to Proposition 8. But, if 2011 is to serve as a guide, the key insight to preparing for the legal challenges that will be front and center in 2012 is to be prepared for the unexpected.
By John Riley on March 26, 2024 @JRileyMW
Billionaire X CEO Elon Musk said that gay people should have children to ensure the "continuance of civilization."
Musk recently posted a set of political positions he holds, which he claimed were "centrist." They read like a laundry list of conservative views, including opposition to unfettered immigration, large amounts of government spending, and opposition to allowing minors to access gender-affirming medical treatments.
"My positions are centrist," Musk wrote. "Secure borders. Safe & clean cities. Don't bankrupt America with spending. Racism against any race is wrong. No sterilization below age of consent."
By John Riley on April 24, 2024 @JRileyMW
Ohio Republican Attorney General Dave Yost is appealing a judge's decision to block the state from enforcing its ban on gender-affirming care for minors and a ban prohibiting transgender athletes from competing on female-designated sports teams.
Yost filed an emergency motion with the Ohio Supreme Court asking it to overturn a temporary restraining order issued by Franklin County Court of Common Pleas Judge Michael Holbrook, which blocked the law's provisions from taking effect for two weeks.
Holbrook, a Republican appointee, found that two transgender minors and their parents, who sued to challenge the law in court last month, were likely to suffer "immediate" harm, in the form of reduced access to health care providers willing to treat their gender dysphoria, if the law -- which imposes penalties on doctors who prescribe gender-affirming treatments -- were to take effect.
By John Riley on March 28, 2024 @JRileyMW
A Milwaukee school principal has been sued in federal court by a gay couple who allege he bullied, harassed, threatened, and assaulted their son for having two same-sex parents, violating the child's civil rights in the process.
The parents, referred to as M.P. and T.L. in the lawsuit, claim that Kasongo Kalumbula allegedly mistreated their son because of his family's makeup.
The lawsuit, filed last week in the U.S. District Court for the Eastern District of Wisconsin, asks for a jury trial and seeks an undetermined amount in damages.
It alleges that Kalumbula, who served as the assistant principal, and later, acting principal, of the Milwaukee French Immersion School from September 2018 to October 2021, physically and verbally abused the child -- who was in first grade when the harassment started -- and routinely singled him out for discipline.
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