National
Pentagon working with gay groups on ‘Don’t Ask’ review
Defense officials seek advice, are ‘open and inclusive’
Defense Secretary Robert Gates and Admiral Mike Mullen (Blade photo by Michael Key)
Gay organizations working to end “Don’t Ask, Don’t Tell” are enjoying an open relationship with the Pentagon working group reviewing the law as they continue to express concerns about the study deviating from its purpose.
Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Michael Mullen established the working group following a Feb. 2 hearing on Capitol Hill as a way to examine how to implement an end to “Don’t Ask, Don’t Tell,” should Congress repeal the law. The work is expected to be completed Dec. 1.
Alex Nicholson, executive director of Servicemembers United, said his organization has had a positive engagement with the working group since its inception.
“They brought us in — in the very beginning — to initially brief us on what they were planning to do, to answer any questions we had,” he said. “They were very open and inclusive, but not only to us. They were that way with our opposition as well.”
In one such conversation, Nicholson said the working group held a conference call to answer questions about the new regulations that were instituted last month to relax the implementation of “Don’t Ask, Don’t Tell.”
“There was a little bit of a worry, I think, in the beginning that maybe them bringing us in, being so open in answering questions, was a one-time, token gesture,” Nicholson said. “I’m pleased to say now it’s my impression that those worries, at least so far, have been unfounded. The working group has a primary point of contact for us within the Department of Defense, and that point of contact has been extremely open and extremely available.”
Nicholson said Servicemembers United first spoke with someone at the working group to express concern about the group’s mandate and noted it would set a bad precedent to poll the force on potential policy changes.
“The working group responded to that by telling us that the terms of reference have been issued, they are what they are and they don’t have control over them,” he said.
In a second round of suggestions, Nicholson said Servicemembers United passed along some ideas for the methodology the working group could institute to examine how to implement repeal. Some of the recommendations, he noted, were to advise against town hall meetings and focus groups to poll the force.
“Focus groups are a bad idea because of the phenomena of group think and posturing,” he said. “On any perceived controversial issue, you’re going to get a much a different set of answers if you ask people about it in a group rather than asking them one on one.”
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, also said his organization’s staff have had weekly conversations and meetings with the working group.
“I think it’s been positive, ongoing,” he said. “It’s not a process that we asked for, or that we think is needed, but we’re dealing with the reality that it’s in place and we’re going to do everything that we can to make it work and have a positive contribution.”
In these conversations, Sarvis said SLDN has been recommending voices and organizations that work to end the ban on open service.
Another organization that has engaged with the working group is the Palm Center, a think tank on gays in the military at the University of California, Santa Barbara. Nathaniel Frank, a Palm Center research fellow, said he’s had a “good relationship” with the Pentagon working group.
“They’ve reached out to us consistently and they’ve been responsive to us and I’m impressed by that,” he said. “The question will be, obviously, what are the results of the study and how are they expressed. So that proof will be in the pudding.”
Frank said the working group has asked the Palm Center to make recommendations on a litany of issues, including how to identify the costs to the military of “Don’t Ask, Don’t Tell.”
“That doesn’t mean just financial costs,” he said. “It means a litany of costs to morale, recruitment, cohesion, the impact on GLB service members, and Palm is coming out with a memo that I’m finalizing now that tries to convey all of those costs.”
Frank said the working group also asked about the pitfalls of using focus groups; how to measure the views of military families; and how to empirically assess the impact of lifting the ban on unit cohesion.
Another item that Frank said he was asked about was getting the views of gay service members for the study without putting them at risk for discharge under “Don’t Ask, Don’t Tell.”
This challenge has been repeatedly discussed in hearings on Capitol Hill and among those seeking repeal. In a statement released last week, Army Secretary John McHugh said the Pentagon is “likely” to employ a third party to solicit those views.
Sarvis said his understanding is the Pentagon is considering the use of a professional consultant or pollsters who have worked with the Pentagon before on manpower issues.
“In addition, I think they’re also looking to the RAND Corp. as part of that engagement,” he said.
But the decision on how the Defense Department will obtain these views is apparently not yet final. Cynthia Smith, a Pentagon spokesperson, said in a statement to DC Agenda on April 9 that the working group is still considering the best way to incorporate gay service members into the study.
“Getting the views of gay and lesbian service members is very important to the working group,” she said. “We are still in the process of developing the proper instrument to obtain this information from gay and lesbian service members currently serving.”
Frank said he would take issue with any decision from the Pentagon to use a third party to solicit the views of gay service members because it would create a situation where service members generally would speak to one group, and gay, lesbian and bisexual service members would talk to another.
“Uniform personnel … would be consulting service members generally and then they would employ civilians or a third party only to speak to known gays and lesbians,” he said. “There’s an unfairness there in having the military speak directly to straight service members and not to gay service members.”
A better solution, Frank said, would be for the Pentagon to issue new regulations that would enable all service members to speak to the working group without fear of being discharged under “Don’t Ask, Don’t Tell.”
“The only consistent way to do it is to apply that uniformly to all people and not have separate standards, which is obviously the problem with the policy as it is,” he said.
Even with the openness between these groups and Pentagon officials, some repeal advocates say they have concerns about the working group’s direction.
Gates has repeatedly said the purpose of the group will be to examine how to implement an end to the ban should Congress repeal the law during the Senate hearing in February. But some repeal advocates say there’s a lack of clarity.
Nicholson said he has “big concerns” about the direction the group is heading, recalling testimony that Jeh Johnson, head of the Pentagon’s Office of General Counsel and co-chair of the group, gave before the House in March in which the results of the working group would inform how Congress would proceed on the issue.
“And that, I think, was very dangerous and was a new twist,” he said. “If the mission of the working group is to simply come up with an effective implementation management plan for after repeal takes effect, then there really should be no reason why Congress should need to wait for the outcome of the working group.”
Frank also acknowledged “some confusion” about whether the purpose of the working group is to study how to lift the ban or whether to lift the ban.
“I think the reason for that confusion is while the group says it’s studying how to lift the ban, given the strategic intention of the president, whether the ban is actually lifted is in the hands of the Congress,” Frank said. “So if the group comes out with a study that exaggerates the risks to cohesion, or other risks associated with lifting the ban, obviously, that will make it easier for obstructionists in Congress to try to block repeal.”
Frank called on leaders handling the group to “make it more clear that they are assessing how best to lift the ban” and note that the only reason they’re evaluating repeal is to determine how to mitigate any harm.
“It’s important to say that years and years of research across the board make clear that that impact will be negligible or non-existent, and most of us already know that,” he said.
Nicholson was particularly critical of the White House and said he thinks it’s “extremely concerning” President Obama hasn’t come out and clarified the study’s purpose. Nicholson noted that he’s been asking for clarification from the White House for several weeks now and hasn’t received a response.
“I just felt like with the working group, they’ve been very much great in communicating with us, been very receptive, I do get the impression that they’re honestly considering the suggestions we give to them,” he said. “The White House, on the other hand, it’s felt like we’ve been throwing suggestions down a black hole.”
Nicholson said he doesn’t think that White House officials are seriously considering his organization’s input and that “they ignore a lot of us for weeks at a time sometimes.”
“Unfortunately, the White House is not only not listening to or considering our suggestions and communicating with us, but they haven’t given any indication that they intend to clarify the position of the working group or curtail the expansion of its scope,” he said.
Shin Inouye, a White House spokesperson, disputed the notion that the White House wasn’t engaged with the Servicemembers United.
“The White House is actively engaged with Servicemembers United and other groups on many issues of interest to the LGBT community, including ‘Don’t Ask, Don’t Tell,'” he said in a statement.
But Sarvis said he thinks the group will stay on track with its mission as long as it adheres to its mandate and stays focused on implementing open service.
“If they move away from their mandate, if they get into polling on if or whether, or seeking the personal opinions of service members, then, yes,” he said, “I think we have a problem.”
Federal Government
Two very different views of the State of the Union
As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.
As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.
Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.
Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.
But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.
Transgender youth
In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:
“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.
“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.
“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.
“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”
The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.
Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:
“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.
“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.
“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”
For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.
Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.
Immigration and fear
Immigration dominated both events as well.
Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.
Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:
“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”
Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.
Queer leadership
After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.
Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.
“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”
He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.
“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”
Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.
“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”
A boycott — and a warning
The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.
For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.
While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.
U.S. Military/Pentagon
4th Circuit rules against discharged service members with HIV
Judges overturned lower court ruling
A federal appeals court on Wednesday reversed a lower court ruling that struck down the Pentagon’s ban on people with HIV enlisting in the military.
The conservative three-judge panel on the 4th U.S. Circuit Court of Appeals overturned a 2024 ruling that had declared the Defense Department and Army policies barring all people living with HIV from military service unconstitutional.
The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, held that the military has a “rational basis” for maintaining medical standards that categorically exclude people living with HIV from enlisting, even those with undetectable viral loads — meaning their viral levels are so low that they cannot transmit the virus and can perform all duties without health limitations.
This decision could have implications for other federal circuits dealing with HIV discrimination cases, as well as for nationwide military policy.
The case, Wilkins v. Hegseth, was filed in November 2022 by Lambda Legal and other HIV advocacy groups on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status, as well as the organizational plaintiff Minority Veterans of America.
The plaintiffs include a transgender woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America.
Isaiah Wilkins, the gay man, was separated from the Army Reserves and disenrolled from the U.S. Military Academy Preparatory School after testing positive for HIV. His legal counsel argued that the military’s policy violates his equal protection rights under the Fifth Amendment’s Due Process Clause.
In August 2024, a U.S. District Court sided with Wilkins, forcing the military to remove the policy barring all people living with HIV from joining the U.S. Armed Services. The court cited that this policy — and ones like it that discriminate based on HIV status — are “irrational, arbitrary, and capricious” and “contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”
The Pentagon appealed the decision, seeking to reinstate the ban, and succeeded with Wednesday’s court ruling.
Judge Paul V. Niemeyer, one of the three-judge panel nominated to the 4th Circuit by President George H. W. Bush, wrote in his judicial opinion that the military is “a specialized society separate from civilian society,” and that the military’s “professional judgments in this case [are] reasonably related to its military mission,” and thus “we conclude that the plaintiffs’ claims fail as a matter of law.”
“We are deeply disappointed that the 4th Circuit has chosen to uphold discrimination over medical reality,” said Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”
“As both the 4th Circuit and the district court previously held, deference to the military does not extend to irrational decision-making,” said Scott Schoettes, who argued the case on appeal. “Today, servicemembers living with HIV are performing all kinds of roles in the military and are fully deployable into combat. Denying others the opportunity to join their ranks is just as irrational as the military’s former policy.”
New York
Lawsuit to restore Stonewall Pride flag filed
Lambda Legal, Washington Litigation Group brought case in federal court
Lambda Legal and Washington Litigation Group filed a lawsuit on Tuesday, challenging the Trump-Vance administration’s removal of the Pride flag from the Stonewall National Monument in New York earlier this month.
The suit, filed in the U.S. District Court for the Southern District of New York, asks the court to rule the removal of the Pride flag at the Stonewall National Monument is unconstitutional under the Administrative Procedures Act — and demands it be restored.
The National Park Service issued a memorandum on Jan. 21 restricting the flags that are allowed to fly at National Parks. The directive was signed by Trump-appointed National Park Service Acting Director Jessica Bowron.
“Current Department of the Interior policy provides that the National Park Service may only fly the U.S. flag, Department of the Interior flags, and the Prisoner of War/Missing in Action flag on flagpoles and public display points,” the letter from the National Park Service reads. “The policy allows limited exceptions, permitting non-agency flags when they serve an official purpose.”
That “official purpose” is the grounds on which Lambda Legal and the Washington Litigation Group are hoping a judge will agree with them — that the Pride flag at the Stonewall National Monument, the birthplace of LGBTQ rights movement in the U.S., is justified to fly there.
The plaintiffs include the Gilbert Baker Foundation, Charles Beal, Village Preservation, and Equality New York.
The defendants include Interior Secretary Doug Burgum; Bowron; and Amy Sebring, the Superintendent of Manhattan Sites for the National Park Service.
“The government’s decision is deeply disturbing and is just the latest example of the Trump administration targeting the LGBTQ+ community. The Park Service’s policies permit flying flags that provide historical context at monuments,” said Alexander Kristofcak, a lawyer with the Washington Litigation Group, which is lead counsel for plaintiffs. “That is precisely what the Pride flag does. It provides important context for a monument that honors a watershed moment in LGBTQ+ history. At best, the government misread its regulations. At worst, the government singled out the LGBTQ+ community. Either way, its actions are unlawful.”
“Stonewall is the birthplace of the modern LGBTQ+ rights movement,” said Beal, the president of the Gilbert Baker Foundation. The foundation’s mission is to protect and extend the legacy of Gilbert Baker, the creator of the Pride flag.
“The Pride flag is recognized globally as a symbol of hope and liberation for the LGBTQ+ community, whose efforts and resistance define this monument. Removing it would, in fact, erase its history and the voices Stonewall honors,” Beal added.
The APA was first enacted in 1946 following President Franklin D. Roosevelt’s creation of multiple new government agencies under the New Deal. As these agencies began to find their footing, Congress grew increasingly worried that the expanding powers these autonomous federal agencies possessed might grow too large without regulation.
The 79th Congress passed legislation to minimize the scope of these new agencies — and to give them guardrails for their work. In the APA, there are four outlined goals: 1) to require agencies to keep the public informed of their organization, procedures, and rules; 2) to provide for public participation in the rule-making process, for instance through public commenting; 3) to establish uniform standards for the conduct of formal rule-making and adjudication; and 4) to define the scope of judicial review.
In layman’s terms, the APA was designed “to avoid dictatorship and central planning,” as George Shepherd wrote in the Northwestern Law Review in 1996, explaining its function.
Lambda Legal and the Washington Litigation Group are arguing that not only is the flag justified to fly at the Stonewall National Monument, making the directive obsolete, but also that the National Park Service violated the APA by bypassing the second element outlined in the law.
“The Pride flag at the Stonewall National Monument honors the history of the fight for LGBTQ+ liberation. It is an integral part of the story this site was created to tell,” said Lambda Legal Chief Legal Advocacy Officer Douglas F. Curtis in a statement. “Its removal continues the Trump administration’s disregard for what the law actually requires in their endless campaign to target our community for erasure and we will not let it stand.”
The Washington Blade reached out to the NPS for comment, and received no response.
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