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Mission accomplished or another setback?

‘Don’t Ask, Don’t Tell’ compromise draws mixed reactions

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President Barack Obama's administration endorsed Monday a path to repeal the law that prohibits gays, lesbians and bisexuals from serving openly in the U.S. armed forces. (Photo by Pete Souza, courtesy of White House))

The legislative compromise that “Don’t Ask, Don’t Tell” repeal supporters in Congress unveiled this week has inspired mixed reactions and led LGBT leaders to advocate for its passage even as some expressed disappointment over its shortcomings.

Among those expressing displeasure was Lt. Dan Choi, a gay U.S. Army infantry soldier who was arrested twice for chaining himself to the White House fence in protest of “Don’t Ask, Don’t Tell.”

In an interview with the Blade on Monday, Choi said the proposal requires LGBT people to compromise themselves without getting much in return.

“In a compromise, it’s insinuated that both sides have given something, and I don’t see that,” he said. “So it’s too generous to call it that. It’s a delay and it’s asking us to further put our political agenda before the needs of the soldiers, and that’s who’s getting compromised.”

Despite his disappointment in the compromise language, Choi said he didn’t want the measure to fail this week when it came before Congress. He noted that “it’s only one step” in the path for non-discrimination in the U.S. military and people should keep fighting.

The measure in the Senate was made public Monday by Sen. Joseph Lieberman (I-Conn.), the sponsor of standalone legislation for repeal in the Senate. On Tuesday, Rep. Patrick Murphy (D-Pa.), champion of standalone repeal legislation in the House, unveiled an identically worded companion bill.

The Senate Armed Services Committee and the full House were expected to vote on the “Don’t Ask, Don’t Tell” measures this week during consideration of Pentagon budget legislation known as the fiscal year 2011 defense authorization bill. Neither vote occurred before Blade deadline.

The measures presented by Lieberman and Murphy would repeal the “Don’t Ask, Don’t Tell” statute mandating that openly gay, lesbian and bisexual people be discharged from the U.S. armed forces.

However, the law would only be repealed after the Pentagon completes its study — due Dec. 1 — on how to implement repeal in the U.S. military.

Further, President Barack Obama, Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Michael Mullen would have to certify that the U.S. military is ready for the transition and that the change “is consistent with the standards of military readiness, military effectiveness, unit cohesion and recruiting and retention.”

The legislation doesn’t give a timeline when the president, the defense secretary and the chairman of the Joint Chiefs of Staff would have to issue the certification. On Monday, the Associated Press reported that meeting those conditions for repeal would allow the Pentagon “perhaps even years” to prepare for repeal.

Notably, the legislation also lacks non-discrimination language and would return authority on discharging LGBT service members to the Pentagon.

Choi said the provisions in the legislation are “essentially compromising the integrity of the soldiers until a time to be determined” and compared the lack of a deadline for certification to a military commander issuing an order without a timeline.

“It’s devastating to the soldiers who don’t know and it leaves a lot of questions out there,” Choi said. “My question back to the president is how long are we going to force our soldiers to lie? Nobody can answer the question when.”

But Choi said “what bothers” him the most is the absence of the non-discrimination language that was contained in the standalone version of the bill.

“I thought the most heinous part of ‘Don’t Ask, Don’t Tell’ was that it enforced discrimination, and now it just says that’s altogether not as important,” Choi said. “I think it’s within everybody’s mandate to get rid of discrimination where it exists.”

Choi said as a result of the compromise, LGBT soldiers could be subject to a policy that’s “turbulent and precarious.”

Also expressing disappointment about the lack of non-discrimination language was Alex Nicholson, executive director of Servicemembers United, who said removal of the non-discrimination language was “unnecessary” to get more support for repeal.

“I think we would have been in the same position had we not made three concessions and only made two,” he said. “Other minority groups have not received statutory non-discrimination protection in the military — this would have been something extra — but it was something we were on track to secure.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s not sure who initiated the idea of omitting non-discrimination language, but said those supporting repeal thought such a move would improve its chances of passage.

“It’s not anything that SLDN volunteered to give up,” Sarvis said. “I think at the end of the day, we all realized that we would have to live with this new compromise.”

The idea of removing non-discrimination language and returning authority on discharges to the Pentagon was advanced previously by the Palm Center, a think tank on gays in the military. Earlier this month, the Blade reported that the Palm Center had been asking other LGBT groups to support such a move.

But Aaron Belkin, director of the Palm Center, said he didn’t know why the non-discrimination language was removed and noted that Palm wasn’t active in pushing for such a move as part of the compromise measure.

“This was news to me when I was told,” he said. “I was actually in bed when I was told and I promise you we had nothing to do with it.”

Still, Belkin said passing legislation with non-discrimination language is “not politically realistic” and the compromise measure advanced earlier this week is “what we can get.”

But Nicholson said the Palm Center pushed hard to have the non-discrimination language removed from the legislation, noting recent reports in which Belkin advocated the proposal.

Nicholson said Belkin was responsible for Saturday’s opinion piece in the Washington Post in which former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili advocated for a return of authority to the Pentagon.

“There’s been no secret about that fact that the Palm Center has lobbied hard to take out the non-discrimination language, including the [Shalikashvili] op-ed and several other pieces of media that the Palm Center has done,” Nicholson said.

Compromise brought White House support

While the compromise fell short of what repeal supporters initially sought, the conditions set forth in the proposal brought support from the White House, which opponents of “Don’t Ask, Don’t Tell” had long sought.

In a letter published Monday, Peter Orzag, director of the Office of Management & Budget, writes the repeal measure adheres to the Pentagon’s request to finish its study on the issue at the end of the year and therefore is supported by the Obama administration.

Orzag says that the Pentagon review would be “ideally” completed before Congress takes action on the issue, but notes the administration “understands that Congress has chosen to move forward with the legislation now and seeks the administration’s views on the proposed amendment.”

In the letter, Orzag says he understands the amendment would ensure implementation of repeal is consistent with “standards of military readiness, effectiveness, unit cohesion, recruiting and retention.”

“The administration therefore supports the proposed amendment,” Orzag writes.

Geoff Morrell, a Pentagon spokesperson, issued a statement Tuesday saying Gates supports the measure, although he still believes Congress should hold off on tackling the issue until after the Pentagon completes its study.

“Secretary Gates continues to believe that ideally the [Defense Department] review should be completed before there is any legislation to repeal the ‘Don’t Ask, Don’t Tell’ law,” he said. “With Congress having indicated that is not possible, the secretary can accept the language in the proposed amendment.”

Having earned support from the administration, Sarvis said the amendment is “a path to repeal” and predicted that its passage could lead to open service “by the end of the first quarter of next year.”

After the review is complete and certification happens, Sarvis said the Pentagon “would then be free” to implement regulations for open service and Obama could issue an executive order for non-discrimination in the U.S. military.

“In fact, all of the federal policies of non-discrimination have been issued by executive order since 1948,” Sarvis said, referring to the order that President Truman issued to end racial segregation in the armed forces.

Sarvis said he didn’t think a future administration would tamper with such an executive order or “try to tinker with this and make it a political football.”

“For instance, the four executive orders that I’ve referred to since 1948 have not been undone by new administrations,” Sarvis said. “I think that if the president issues an executive order after ‘Don’t Ask, Don’t Tell’ is eliminated — I don’t see a new Congress or a new administration trying to undo an executive order.”

But Choi said he doesn’t want supporters of “Don’t Ask, Don’t Tell” repeal mistaking the Orzag letter in support of the proposal as Obama taking action on the issue. He noted the president could have transmitted repeal language to Congress for the defense budget legislation.

“Obviously, if he would have put the defense authorization bill language through to include the repeal legislation, then we wouldn’t be in this situation where he’s trying to get us to celebrate a win,” Choi said.

To follow-up on his earlier arrests at the White House and put more pressure on the president, Choi said he plans to take part in new acts of civil disobedience to draw attention to the issue of LGBT service members serving openly in the U.S. military.

“I not only plan to, but I encourage everybody else to,” Choi said. “The fact of the matter is so long as telling the truth is considered civil disobedience, we need to be committing civil disobedience every single day.”

Mission accomplished?

Several major LGBT organizations issued statements this week praising the “Don’t Ask, Don’t Tell” compromise shortly after it was announced.

In a statement, Human Rights Campaign President Joe Solmonese said Monday the new support from the administration means people rallying against “Don’t Ask, Don’t Tell” are “on the brink of historic action to both strengthen our military and respect the service of lesbian and gay troops.”

“Today’s announcement paves the path to fulfill the president’s call to end ‘Don’t Ask, Don’t Tell’ this year and puts us one step closer to removing this stain from the laws of our nation,” Solmonese said.

Nicholson of Servicemembers United said in a statement that Monday’s letter was “long awaited, much needed, and immensely helpful.”

Choi said the organizations apparently had their statements “all set up” to celebrate the compromise regardless of the deal’s content.

“Just from my military perspective, it seems very much like they’re putting a ‘mission accomplished’ banner on top of a carrier, and saying our part is done and we have fulfilled our mission,” Choi said. “For people to revel in this kind of celebration instead of encouraging people to demand the fullness of repeal of ‘Don’t Ask, Don’t Tell’ is certainly a misstep.”

Other LGBT groups that advocate for “Don’t Ask, Don’t Tell” repeal as one issue in their portfolios indicated support for the compromise measure, although they acknowledged some shortcomings.

In a statement to the Blade, Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization was “encouraged” that Congress and the administration was “taking a step” to address the legal discrimination of “Don’t Ask, Don’t Tell.”

“This presents a path that could end in men and women being able to serve openly, honestly and to great benefit of our country, but it falls short of providing clear assurances of protection and a specific timeline for implementation,” she said. “The important action this week is to ensure passage of this step toward full repeal.”

In another statement, Kate Kendell, executive director of the National Center for Lesbian Rights, offered a similarly lukewarm statement on the compromise measure.

“The amendment and compromise fall short of an outright repeal, which was what we had all been hoping for,” she said. “While we are cautiously optimistic that this agreement will lead to a full repeal, it is not yet time to celebrate the end of this appalling and shameful law.”

Among the organizations to strongly support the White House’s endorsement of the compromise was SLDN. In a statement, Sarvis called the agreement a “dramatic breakthrough.”

In response to Choi’s criticism of the statements of support for reaching an agreement with the White House, Sarvis said he respects Choi’s service and commitment to overturning “Don’t Ask, Don’t Tell.”

“His view of the legislative process and the strategy is not a view that I share,” Sarvis said. “On this one, in terms of legislative strategy and timing, I have a different view and my view is I want to get what’s realistic and I want to get something that will ensure that service members can serve openly as soon as possible.”

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.

The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.

When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.

The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows “derisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”

The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that “it is not clearly established that all drag shows are inherently expressive.”

Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on “text, history and tradition.”

Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.

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Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

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U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.

Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.

Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.

Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.” 

“I really wanted to meet with community members and understand the impacts on them,” he said.

Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.” 

The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.

“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.

“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.

Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.

“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.

Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.

Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.  

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.S imposed visa restrictions on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announced the suspension of new loans to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act “further increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.” The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act. 

Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.

Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act. 

Gilliam noted authorities have arrested and charged Ugandans under the law. 

Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.

The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.

“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”

The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.” 

“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.” 

Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.

“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.

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Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

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Washingtonporn Blade graphic

Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.

Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography. 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional. 

“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the three judge panel of the 5th Circuit explained. “Therefore, the age-verification requirement does not violate the First Amendment.”

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower court’s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements. 

Texas users are greeted with this notice.

The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as “ineffective, haphazard, and dangerous.” The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.

Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.

The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMV’s Wallet app, which contains a mobile driver’s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the state’s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driver’s licenses or other methods.

The Associated Press reported this past October that an adult entertainment group’s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.

Texas users are greeted with this notice.

Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.

“As you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.”

“Mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,” the statement continues. “As we’ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.”

“Until a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]” the message ends with.

The company previously blocked Utah on May 7, 2023. CNN reported at the time:

Affected users are shown a message expressing opposition to Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.

“As you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,” the message said. “While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.”

Courthouse News reported that after Virginia’s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.  

“We passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,” Lucas said on X, formerly Twitter. “We will continue our work to keep pornography out of the hands of minors … but we will also work to ensure that this Governor’s error does not put the privacy of Virginians at further risk.”

Beyond the U.S. in the European Union, Pornhub and two more of the world’s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EU’s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as “very large online platforms” subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EU’s executive branch.

They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.

In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.

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