You’ve probably heard by now about yesterday’s fabulous pair of decisions striking down a portion of the so-called (DOMA). I wanted to explain a bit about what the decisions mean and put them in context.
Over a thousand federal statutes create rights and protections that vary depending on whether a person is married or not. Before Congress passed DOMA back in 1996, the federal government simply deferred to the states’ definitions of marriage. Despite the fact that those state marriage definitions varied a decent amount (different age requirements and, for many years, race restrictions), if the state said the marriage was valid, that was good enough for the feds. Under DOMA, the feds still defer to the states’ varied definitions of marriage in every context except where they decide to allow same-sex couples the freedom to marry.
The first of yesterday’s two cases, brought by our friends at , charged that changing the rules just for marriages of gay people violated the U.S. Constitution. Judge Tauro (PDF), concluding that none of the traditional justifications for marriage bans – that keeping us out of marriage is best for kids, that it protects straight marriages, that it safeguards morality, or that it saves resources – could pass muster even under the lowest level of constitutional review. And he dismissed the government’s newest rationale – that the government was entitled to maintain the status quo while the states worked through this new and divisive issue – as a sham excuse.
In the second of yesterday’s cases, , the state sued the federal government, saying that DOMA intruded on the state’s control over marriage, which is within the state’s exclusive authority. Once again, Judge Tauro , striking down the portion of DOMA that prevents the federal government from respecting our marriages.
Big picture, these cases are a strong step forward in our overall plan to move towards marriage nationwide. That plan calls for securing the freedom to marry in as many states as possible, working for federal protection for our relationships wherever possible, and ultimately seeking a federal rule that brings the freedom to marry to the entire country. These cases, if successful, will bring the strongest federal recognition of our relationships yet.
The other federal case in the picture, of course, is the Perry lawsuit brought by Ted Olson and David Boies out in California, where we’re waiting for a decision from the trial court. But there’s a big difference between the Massachusetts cases and Perry: Here, the court isn't ordering any state to marry gay couples, because of course the plaintiffs are already married. The rulings just say that the federal government has to respect those marriages because it has no good reason for not doing so.
In Perry, on the other hand, a ruling for plaintiffs would require at least California once again to marry same-sex couples. Depending on the court's reasoning, the Perry ruling might also require other states (either just a handful or all 50) to marry same-sex couples as well. That difference is huge, and explains why many of us are glad that the Gill and Mass AG cases are in line ahead of Perry in the march towards the U.S. Supreme Court.
Next stop for the Gill and Mass AG cases will be the federal appeals court that covers much of New England. That court usually processes appeals much faster than the federal appeals court that covers California and the West (and to which Perry will head once it’s finished in the trial court), which should mean that these cases stay well ahead of Perry.
Judge Tauro won’t have the last word in these cases, of course, but he’s given the appeals court a great roadmap by recognizing that there’s no real argument on the other side. Our thanks and congratulations to GLAD and for all their work on these cases.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.