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Does a potential overturn of Roe imperil LGBTQ rights?

Some fear that Obergefell marriage decision could fall

Published

3 years ago

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Protests outside the U.S. Supreme Court on Dec. 1. (Photo by Cathy Renna)

The oral arguments before the justices of the United States Supreme Court had barely ended in the case brought by the state of Mississippi defending its law banning abortion after 15 weeks, Dobbs v. Jackson Women’s Health Organization, when alarms were set off in legal circles as some argued that Obergefell v. Hodges — the same-sex marriage decision — would be in danger should the high court rule to overturn Roe v. Wade.

Florida State University law professor Mary Ziegler, appearing on NPR’s ‘Heard on All Things Considered,’ told host Mary Louise Kelly that there was a basis for concern over whether the court would actually overrule its precedents in other cases based on the questions and statements raised during the hearing by the conservative members of the court.

Asked by Kelly if she saw a legal door opening Ziegler affirmed that she did. Kelly then asked her, “Them taking up cases to do with that. What about same-sex marriage?”

Ziegler answered, “Yeah, same-sex marriage is definitely a candidate. Justices Alito and Thomas have in passing mentioned in dicta that they think it might be worth revisiting Obergefell v. Hodges – the same-sex marriage decision.

“And I think it’s fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was.

“I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell, particularly knowing that they have a few justices potentially willing to go there with them.”

As almost if to underscore the point raised by Ziegler during the hearing, Associate U.S. Supreme Court Justice Sonia M. Sotomayor pointed out that the high court has taken and “discerned” certain rights in cases from the Constitution.

Along with abortion, the court has “recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home if they choose,” Sotomayor said. “We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.”

In following up the cases cited by Justice Sotomayor, Associate U.S. Supreme Court Justice Amy Coney Barrett asked Mississippi Solicitor General Scott Stewart, who was defending the state’s abortion law, whether a decision in his favor would affect the legal precedents in those cases cited by Justice Sotomayor.

In his answer to Justice Barrett, the state’s Solicitor General said cases involving contraception, same-sex marriage and sodomy wouldn’t be called into question because they involve “clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out.”

However, Lambda Legal Chief Strategy Officer and Legal Director, Sharon McGowan had a different take and interpreted remarks by Associate U.S. Supreme Court Justice Brett Kavanaugh to mean that the decisions in Lawrence v. Texas, which decriminalized private sexual intimacy between same-sex couples, and Obergefell v. Hodges, which struck down remaining bans on the freedom of same-sex couples to marry, would actually justify overturning Roe v. Wade.

In a publicly released media statement McGowan noted: “During today’s argument, Justice Kavanaugh suggested that two key Supreme Court decisions protecting LGBTQ civil rights—Lawrence v. Texas and Obergefell v. Hodges—support overruling Roe v. Wade and Planned Parenthood v. Casey.

‘To that we say, NOT IN OUR NAME. LGBTQ people need abortions. Just as important, those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite. They reflected the growing societal understanding of our common humanity and equality under law.

“Just as the Supreme Court in Brown v. Board of Education rejected the lie of ‘separate but equal,’ the Supreme Court’s decisions in Lawrence and Obergefell appropriately overruled precedent where it was clear that, as was true with regard to race, our ancestors failed properly to acknowledge that gender and sexual orientation must not be barriers to our ability to live, love, and thrive free of governmental oppression. … 

“These landmark LGBTQ cases, which Lambda Legal litigated and won, and on which we rely today to protect our community’s civil rights, were built directly on the foundation of Casey and Roe. Our interests in equal dignity, autonomy, and liberty are shared, intertwined, and fundamental.” 

On Sunday, the Blade spoke with Shannon Minter, legal director for the National Center for Lesbian Rights, a national LGBTQ+ legal organization that represented three same-sex couples from Tennessee, whose case was heard by the U.S. Supreme Court along with Obergefell and two other cases.

Minter is urging caution in how people interpret the court arguments and remarks made by the justices.

“We should be cautious about taking the bait from anti-LGBTQ groups who falsely argue that if the Supreme Court reverses or undermines Roe v. Wade, they are likely to reverse or undermine Obergefell or Lawrence. In fact, that is highly unlikely, as the argument in Dobbs itself showed,” he said.

“The only reason Justice Kavanaugh mentioned Obergefell and Lawrence, along with Brown v. Board of Education, was to cite them as examples of cases in which the Supreme Court clearly did the right thing. All of those decisions rely at least as strongly on equal protection as on fundamental rights, and even this extremely conservative Supreme Court has not questioned the foundational role of equal protection in our nation’s constitutional law,” Minter stressed.

During an interview with Bloomberg magazine, David Cortman, of the Scottsdale, Ariz.-based anti-LGBTQ legal group Alliance Defending Freedom, which has been listed by the Southern Poverty Law Center as an extremist hate group, said “two things in particular distinguish abortion from those other privacy rights: the right to life and the states’ interest in protecting a child.”

Cortman, whose group urged the justices to allow states to ban same-sex marriages, said those other rights may be just as wrong as the right to an abortion. “But the fundamental interest in life that’s at issue in abortion means those other rights are probably not in any real danger of being overturned.”

But Cortman is of the opinion that there is little impetus among the court’s conservatives to take up challenges to those cases.

However, the fact that the six to three makeup of the high court with a conservative majority has progressives clamoring for the public to pay closer attention and be more proactively engaged.

Kierra Johnson, executive director of the National LGBTQ Task Force, in an emailed statement to the Blade underscored those concerns:

“Reports and analysis coming out of Wednesday’s Supreme Court hearing on Dobbs v. Jackson Women’s Health Organization are extremely disturbing and represent a threat to our individual constitutional rights to privacy and autonomy. There is no ‘middle ground’ on what the Constitution guarantees and what was decided decades ago with the Roe v Wade decision. 

“This is about liberty, equality, and the rule of law, not the political or partisan views of those sitting on the bench. The unprecedented decision to remove a constitutional right recognized by the Supreme Court 50 years ago would set back civil rights by decades. ….

“Abortion access is essential, and a fundamental right under the U.S. Constitution. Bans on abortion are deeply racist and profoundly sexist – the harshest impacts fall on Black and Brown women and pregnant people and on our families and communities.

“If you think this decision will not affect you, think again: a wrong decision by the Supreme Court means you, too, will lose your bodily autonomy, your ability to own your own personal and community power. This is not just about abortion; it is about controlling bodies based on someone else determining your worthiness. This is a racial justice issue. This is a women’s issue. It is an LGBTQ issue. It is a civil rights issue. These are our fundamental rights that are at stake.”

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California

DOJ launches investigation into Calif. trans student-athlete policy

State AG vows to defend Golden State laws

Published

2 days ago

on

May 30, 2025

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Justice Department (Bigstock photo)

One day after President Donald Trump threatened to strip California of “large scale federal funding” over its policy on transgender student-athletes, his Justice Department announced it is investigating the state for potentially violating Title IX.

“The investigation is to determine whether California, its senior legal, educational, and athletic organizations, and the school district are engaging in a pattern or practice of discrimination on the basis of sex,” the DOJ said in a statement. 

The DOJ said it notified State Attorney General Rob Bonta, State Superintendent of Public Instruction Tony Thurmond, the Jurupa Unified School District, and the California Interscholastic Federation of its investigation. 

AB Hernandez, 16, is an out trans female student-athlete at Jurupa Valley High School who qualified for this weekend’s state track and field championship. As the Washington Blade reported earlier this week, the CIF announced a change in the rules at the finals to accommodate girls who were displaced by Hernandez, including giving medals to cisgender competitors who earn a podium spot should Hernandez place ahead of them.

“We remain committed to defending and upholding California laws and all additional laws which ensure the rights of students, including transgender students, to be free from discrimination and harassment,” said Bonta in a statement. “We will continue to closely monitor the Trump administration’s actions in this space.”

As KTLA reported, California is one of 22 states that allow trans student-athletes to participate in sports consistent with their gender identity. Former Gov. Jerry Brown signed that policy into law in 2013.

The DOJ announced it is also now supporting a federal lawsuit targeting Bonta and the state Department of Education, claiming that California law and CIF policy discriminate against cisgender girls by allowing trans female athletes to compete according to their gender identity. 

The lawsuit was filed by a conservative law group, Advocates for Faith and Freedom, representing the families of two girls at Martin Luther King High School in Riverside. Their suit claims the school’s cross-country team dropped one athlete from her varsity spot in favor of a trans athlete and that school administrators compared their “Save Girls Sports” T-shirts to swastikas.

Officials in Washington also weighed-in, referring to trans girls and women as “males.” 

“Title IX exists to protect women and girls in education,” said Assistant U.S. Attorney General for Civil Rights Harmeet K. Dhillon. “It is perverse to allow males to compete against girls, invade their private spaces, and take their trophies.”

“The law is clear: Discrimination on the basis of sex is illegal and immoral,” said U.S. Attorney Bill Essayli. “My office and the rest of the Department of Justice will work tirelessly to protect girls’ sports and stop anyone — public officials included — from violating women’s civil rights.”

According to Gov. Gavin Newsom’s office, out of the 5.8 million students in California’s K-12 public school system, the number of active trans student-athletes is estimated to be in the single digits.

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U.S. Federal Courts

Immigration judge dismisses Andry Hernández Romero’s asylum case

Gay makeup artist from Venezuela ‘forcibly removed’ to El Salvador in March

Published

3 days ago

on

May 29, 2025

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Andry Hernández Romero (Photo courtesy of the Immigrant Defenders Law Center)

An immigration judge on Tuesday dismissed the asylum case of a gay makeup artist from Venezuela who the U.S. “forcibly removed” to El Salvador.

The Immigrant Defenders Law Center represents Andry Hernández Romero.

The Los Angeles-based organization in a press release notes Immigration Judge Paula Dixon in San Diego granted the Department of Homeland Security’s motion to dismiss Hernández’s case. A hearing had been scheduled to take place on Wednesday.

Hernández asked for asylum because of persecution he said he suffered in Venezuela because of his sexual orientation and political beliefs. NBC News reported Hernández pursued his case while at the Otay Mesa Detention Center in San Diego.

The Trump-Vance administration in March “forcibly removed” Hernández and other Venezuelans from the U.S. and sent them to El Salvador.

The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.”

President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.” Hernández is one of the lead plaintiffs in a lawsuit that seeks to force the U.S. to return those sent to El Salvador under the 18th century law.

The Immigrant Defenders Law Center says officials with U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection claimed Hernández is a Tren de Aragua member because of his tattoos. Hernández and hundreds of other Venezuelans who the Trump-Vance administration “forcibly removed” from the U.S. remain at El Salvador’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT.

Homeland Security Secretary Kristi Noem earlier this month told gay U.S. Rep. Robert Garcia (D-Calif.) during a House Homeland Security Committee hearing that Hernández “is in El Salvador” and questions about his well-being “would be best made to the president and to the government of El Salvador.” Garcia, along with U.S. Reps. Maxwell Alejandro Frost (D-Fla.), Maxine Dexter (D-Ore.), and Yassamin Ansari (D-Ariz.), were unable to meet with Hernández last month when they traveled to the Central American country.

“DHS is doing everything it can to erase the fact that Andry came to the United States seeking asylum and he was denied due process as required by our Constitution,” said Immigrant Defenders Law Center President Lindsay Toczylowski on Thursday in the press release her organization released. “We should all be incredibly alarmed at what has happened in Andry’s case. The idea that the government can disappear you because of your tattoos, and never even give you a day in court, should send a chill down the spine of every American. If this can happen to Andry, it can happen to any one of us.”

Toczylowski said the Immigrant Defenders Law Center will appeal Dixon’s decision to the Board of Immigration Appeals, which the Justice Department oversees.

The Immigrant Defenders Law Center, the Human Rights Campaign, and other groups on June 6 plan to hold a rally for Hernández outside the U.S. Supreme Court. Protesters in Venezuela have also called for his release.

“Having tattoos does not make you a delinquent,” reads one of the banners that protesters held.

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California

Calif. governor ‘encouraged’ by new state guidelines for trans student-athletes

Gavin Newsom responded to California Interscholastic Federation announcement

Published

5 days ago

on

May 28, 2025

By

California Gov. Gavin Newsom, center, at the 2024 Democratic National Convention in Milwaukee. (Washington Blade photo by Michael Key)

Governor Gavin Newsom is “encouraged” by a new policy announced Tuesday by the California Interscholastic Federation which critics say basically erases the concept that finishing first matters. 

The CIF’s “pilot entry process” will give high school girls who lost to a transgender student-athlete at last weekend’s qualifying meet an invitation to compete at the state championship next weekend.

“CIF’s proposed pilot is a reasonable, respectful way to navigate a complex issue without compromising competitive fairness,” said Newsom spokesperson Izzy Gardon in a statement. “The governor is encouraged by this thoughtful approach.”

The change came hours after President Donald Trump threatened to pull “large scale federal funding” from the state if officials allowed trans athletes to compete according to their gender identity. 

The CIF statement did not address Trump’s comments or whether the pilot entry process was in response to his social media post. 

KCRA quoted a source as saying the policy had been in the works for weeks. The station also reported judges will score trans athletes separately from cisgender competitors, so there will ultimately be three winners: a cisgender male winner, a cisgender female winner, and a trans student-athlete winner. 

“The CIF believes this pilot entry process achieves the participation opportunities we seek to afford our student-athletes,” the statement by CIF said.

CIF did not clarify if this pilot entry process will continue beyond this year’s championship, or how judges will determine whether an athlete is trans. A spokesperson for CIF did not immediately respond to these questions by the news media.

The trans athlete in question, AB Hernandez, 16, qualified to advance to the May 30-31 finals in Clovis, Calif., by winning regional competitions in long jump and triple jump on May 15. Now, she also will be competing against those same cisgender student-athletes she already beat. 

In an interview with the California news outlet Capital & Main earlier this month, Hernandez refuted claims that she has an unfair advantage because she was presumed to be male at birth. She finished eighth in the high jump and third in the long jump at a recent meet. 

“All I thought was, I don’t think you understand that this puts your idiotic claims to trash,” Hernandez told the paper. Of her critics, who booed so loudly at a recent meet they caused a false start at one event, Hernandez said, she said she pays them no mind. 

“There’s nothing I can do about people’s actions, just focus on my own,” Hernandez told Capital & Main. “I’m still a child, you’re an adult, and for you to act like a child shows how you are as a person.”

The paper reported two of her most stringent opponents confronted the teen’s mother at a recent meet. “What a coward of a woman you are, allowing that,” said local superintendent candidate Sonja Shaw to Nereyda Hernandez. “How embarrassing!”

Shaw was at a meet with Jessica Tapia, an ex-gym teacher who was fired by Hernandez’s high school for refusing to respect trans and nonbinary students’ pronouns. They are part of the Save Girls Sports association that opposes inclusion of transgender female students in girls’ and women’s sports.

As of press time, Trump has not responded on social media to CIF’s announcement. 

Podcaster and anti-trans inclusion activist Riley Gaines, a former college swimmer who tied for fifth place with a trans athlete in a 2022 national championship meet, denounced the CIF’s new policy, claiming “boys would still be competing against girls.”

For his part, Newsom has already gone on the record against trans female athletes participating in girls’ and women’s sports, calling it an “issue of fairness.” That statement drew the ire of advocacy organizations, including Human Rights Campaign. Although Trump said he planned to speak to the governor, Newsom’s office did not say whether Newsom and the president had spoken.

As Politico reported, Republican lawmakers across California denounced the CIF’s new policy, some claiming it did not go far enough to “safeguard the interests of all female athletes.” 

A spokesperson for the Jurupa Unified School District, where the trans student attends school, noted that the athlete is competing fairly and in accordance with the law.

“Both state law and CIF policy currently require that students be permitted to participate in athletic teams and competitions consistent with their gender identity, irrespective of the gender listed on the pupil’s records,” said spokesperson Jacquie Paul. 

“We remain committed to following the law as written and ensuring that all students are granted the rights afforded to them in a safe and welcoming environment.”

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