National
Anti-gay bias found in Pentagon ‘Don’t Ask’ survey
Activists divided over whether gay troops should participate
A recently issued Pentagon survey asking service members about their thoughts on repealing “Don’t Ask, Don’t Tell” is inspiring consternation among LGBT advocates who say the questions have an anti-gay bias.
The survey was issued last week and is intended to gather perspectives from 400,000 non-deployed active duty service members on lifting “Don’t Ask, Don’t Tell.” The results of the survey are aimed to help inform a Pentagon working group that’s developing a plan to implement repeal of the 1993 law banning gays, lesbians and bisexuals from serving openly in the U.S. military. The group’s work is due Dec. 1.
The survey was created and administered by the research firm Westat in conjunction with the Pentagon Working Group, and, according to Servicemembers United, came at a cost to taxpayers of $4.4 million.
A copy of the survey obtained by the Blade and other media outlets is 32 pages. The survey uses the term “homosexual” interchangeably with the term “gay or lesbian” in its questioning.
One question asks responders if they “currently serve with a male or female” service member that they believe to be gay or lesbian.
Other questions address “If Don’t Ask, Don’t Tell is repealed, how, if at all, would the way your family feels about your military service be affected?” and “Have you shared a room, berth or field tent with a Service member you believed to be homosexual?”
Another question asks service members how they would respond if they were assigned to share bathroom facilities or an open bay shower with an openly gay or lesbian person. Possible responses include “take no action,” “use the shower at a different time than the Service member I thought to be gay or lesbian,” “discuss how we expect each other to behave and conduct ourselves” or “talk to a chaplain, mentor or leader about how to handle the situation.”
No question on the survey asks service members about their sexual orientation or asks them whether they think “Don’t Ask, Don’t Tell” should be repealed.
In a statement, Alex Nicholson, executive director for Servicemembers United, said imaging a survey with “such derogatory and insulting wording, assumptions, and insinuations” on any other minority group is impossible.
“Unfortunately, this expensive survey stokes the fires of homophobia by its very design and will only make the Pentagon’s responsibility to subdue homophobia as part of this inevitable policy change even harder,” he said. “The Defense Department just shot itself in the foot by releasing such a flawed survey to 400,000 servicemembers and it did so at an outrageous cost to taxpayers.”
Nicholson cited as among the flawed aspects of the survey the use of the term “homosexual” and a focus on potential negative aspects of repeal, with little attention to potential positive aspects.
He also noted what he called a “repeated and unusual suggestion” that a service member may need to talk to military comrades and leaders about appropriate behavior and conduct.
Michael Cole, a Human Rights Campaign spokesperson, also expressed concern about the questions, but said the survey is important for the Pentagon working group to complete its examination on implementing “Don’t Ask, Don’t Tell” repeal.
“While surveying the troops on the issue like this is problematic from the start and the questions exhibit clear bias, the fact remains that this study exists,” Cole said. “We urge the [Defense] Department to analyze the results with an understanding of the inherent bias in the questions and use it as a tool to implement open service quickly and smoothly.”
According to Reuters, Geoff Morrell, a Pentagon spokesperson, addressed the notion that the survey had anti-gay bias at a press conference last week, saying he “absolutely, unequivocally” rejects the accusations as “nonsense.”
“We think it would be irresponsible to conduct a survey that didn’t address these kinds of [privacy-related] questions,” Morrell said.
Morrell reportedly added that more training, education or facility adjustments may be needed required to prepare the U.S. military if “Don’t Ask, Don’t Tell” is repealed.
One LGBT advocate familiar with the working group, who spoke on the condition of anonymity, said the Pentagon doesn’t intend to make the results of the survey public once they are compiled. Still, the advocate noted that the Defense Department expects they will be leaked or known through the Freedom of Information Act.
Aaron Belkin, director of the Palm Center, said the survey is sending a “complicated mixed message” with regard to “Don’t Ask, Don’t Tell.”
On one hand, Belkin said, the survey is “is part of an education process” in which the Defense Departmant is “just starting to talk with the troops and hear from the troops” about the impact of repeal. Still, Belkin noted that the Pentagon is asking questions about LGBT people that wouldn’t be asked about other minority groups.
“You would never ask a survey question [such as] what would it be like to share a tent with a Chinese soldier, or would you take orders from a Catholic officer, or how would your husband or wife feel if you lived on post next to a Jewish family?” Belkin said. “And the reason we don’t ask questions like that is because those questions, by their very nature, constitute the group you’re asking about as a second-class citizen.”
Belkin said he didn’t think male service members bunking with female troops would be an appropriate analogy for the survey questions because that isn’t as germane as serving with people of different racial or ethnic backgrounds.
“The troops are already living next to and serving with and showering with and sharing tents with and doing everything with gays,” he said. “This is not a change that is any different from civilian society. It would be a change if we were asking them to shower with and share tents with women.”
Belkin said that advocates shouldn’t be focusing on the survey, but on an upcoming “leadership moment” in which the president and defense leaders would have to certify that repeal should happen.
“The question is not, ‘Does the survey say 46 percent will share a tent or 42 percent will share a tent?’” Belkin said. “That’s not what this moment is about. This moment is about whether leadership steps up and certifies that it’s time for repeal and implements non-discrimination — that’s what we should be focusing on.”
SLDN to LGBT troops:
Don’t take this survey
Also sparking debate among advocates is whether LGBT service members would be at risk of being outed under “Don’t Ask, Don’t Tell” if they participated in the survey.
Servicemembers Legal Defense Network issued a statement July 8 warning LGBT service members about a potential risk if they participate in a Pentagon survey over “Don’t Ask, Don’t Tell.”
Aubrey Sarvis, SLDN’s executive director, said his organization “cannot recommend” that LGBT service members “participate in any survey being administered by the Department of Defense, the Pentagon Working Group, or any third-party contractors.”
“While the surveys are apparently designed to protect the individual’s privacy, there is no guarantee of privacy and DOD has not agreed to provide immunity to service members whose privacy may be inadvertently violated or who inadvertently outs himself or herself,” he said.
The statement says SLDN asked the Pentagon working group for information about the survey, including the survey texts, possible certificates of confidentiality, and whether the Pentagon could guarantee immunity for people inadvertently outed by the surveys. According to SLDN, the Pentagon was unable to satisfy this request.
Sarvis advised LGBT service members who participate should do so in a way that doesn’t identify their sexual orientation.
In contrast to SLDN, Nicholson issued a statement encouraging LGBT service members to take part in the study.
“Servicemembers United encourages all gay and lesbian active duty troops who received the survey to take this important opportunity to provide their views,” Nicholson said.
Nicholson added his organization is “satisfied” sufficient safeguards are in place to “protect the confidentiality of any gay and lesbian servicemember who would like to fully and honestly participate in this survey.”
Cole said HRC likewise is encouraging LGBT service members to take part in the survey.
“It is critical that voices of lesbian and gay service members are included in this study and we feel that the privacy safeguards are sufficient to maintain anonymity,” he said.
Nicholson told the Blade that as part of its contract, Westat has to “strip out information about survey respondents” before the company delivers the information to the Defense Department and “destroy” any personally identifying information.
“They cannot contractually give DOD any personally identifying information about any of the survey respondents,” Nicholson said.
At a press briefing last week, Defense Secretary Robert Gates also maintained that LGBT service members wouldn’t be in danger of discharge if they participated in the study.
“I strongly encourage gays and lesbians who are in the military to fill out these forms,” he said. “We’ve organized this in a way to protect their privacy and the confidentiality of their responses through a third party, and it’s important that we hear from them as well as everybody else.”
The LGBT advocate familiar with the Pentagon study, who spoke on the condition of anonymity, said a member of the Defense Department working group found SLDN’s response “jaw-dropping.”
“He has complete faith that the agreement they have with their third-party vendor, which is administering the survey, the anonymous drop-box option, and the other pieces of the survey that are designed to protect the anonymity of respondents are pretty air-tight,” he said.
The advocate said he was told if gay or lesbian troops don’t respond, it would remove a significant number of service members from the sample who would respond favorably to repeal.
On the other side, the advocate said, the Marine Corps and religious groups are “really making a major effort” to get anti-repeal comments to the Pentagon working group.
“The responses that they’ve gotten thus far have been overwhelmingly anti-repeal, and the attempt by SLDN to keep gay service members from responding is not going to help,” he said.
Belkin said the Palm Center is deferring to SLDN on whether taking the survey would be safe for LGBT service members and he had no recommendation for service members. Still, he noted that the Palm Center has an assessment of the risks.
“On the one hand, we think the Pentagon has actually been pretty careful about dividing privacy protections, and so we think that the risk of participation is minimal, but at the same, we don’t think it’s zero,” Belkin said.
U.S. Supreme Court
Competing rallies draw hundreds to Supreme Court
Activists, politicians gather during oral arguments over trans youth participation in sports
Hundreds of supporters and opponents of trans rights gathered outside of the United States Supreme Court during oral arguments for Little v. Hecox and West Virginia v. B.P.J. on Tuesday. Two competing rallies were held next to each other, with politicians and opposing movement leaders at each.
“Trans rights are human rights!” proclaimed U.S. Sen. Ed Markey (D-Mass.) to the crowd of LGBTQ rights supporters. “I am here today because trans kids deserve more than to be debated on cable news. They deserve joy. They deserve support. They deserve to grow up knowing that their country has their back.”
“And I am here today because we have been down this hateful road before,” Markey continued. “We have seen time and time again what happens when the courts are asked to uphold discrimination. History eventually corrects those mistakes, but only after the real harm is done to human beings.”
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U.S. Education Secretary Linda McMahon spoke at the other podium set up a few feet away surrounded by signs, “Two Sexes. One Truth.” and “Reality Matters. Biology Matters.”
“In just four years, the Biden administration reversed decades of progress,” said McMahon. “twisting the law to urge that sex is not defined by objective biological reality, but by subjective notion of gender identity. We’ve seen the consequences of the Biden administration’s advocacy of transgender agendas.”
U.S. Rep. Mark Takano (D-Calif.), chair of the Congressional Equality Caucus, was introduced on the opposing podium during McMahon’s remarks.
“This court, whose building that we stand before this morning, did something quite remarkable six years ago.” Takano said. “It did the humanely decent thing, and legally correct thing. In the Bostock decision, the Supreme Court said that trans employees exist. It said that trans employees matter. It said that Title VII of the Civil Rights Act protects employees from discrimination based on sex, and that discrimination based on sex includes discrimination based on gender identity and sexual orientation. It recognizes that trans people have workplace rights and that their livelihoods cannot be denied to them, because of who they are as trans people.”
“Today, we ask this court to be consistent,” Takano continued. “If trans employees exist, surely trans teenagers exist. If trans teenagers exist, surely trans children exist. If trans employees have a right not to be discriminated against in the workplace, trans kids have a right to a free and equal education in school.”
Takano then turned and pointed his finger toward McMahon.
“Did you hear that, Secretary McMahon?” Takano addressed McMahon. “Trans kids have a right to a free and equal education! Restore the Office of Civil Rights! Did you hear me Secretary McMahon? You will not speak louder or speak over me or over these people.”
Both politicians continued their remarks from opposing podiums.
“I end with a message to trans youth who need to know that there are adults who reject the political weaponization of hate and bigotry,” Takano said. “To you, I say: you matter. You are not alone. Discrimination has no place in our schools. It has no place in our laws, and it has no place in America.”
U.S. Supreme Court
Supreme Court hears arguments in two critical cases on trans sports bans
Justices considered whether laws unconstitutional under Title IX.
The Supreme Court heard two cases today that could change how the Equal Protection Clause and Title IX are enforced.
The cases, Little v. Hecox and West Virginia v. B.P.J., ask the court to determine whether state laws blocking transgender girls from participating on girls’ teams at publicly funded schools violates the 14th Amendment’s Equal Protection Clause and Title IX. Once decided, the rulings could reshape how laws addressing sex discrimination are interpreted nationwide.
Chief Justice John Roberts raised questions about whether Bostock v. Clayton County — the landmark case holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity — applies in the context of athletics. He questioned whether transgender girls should be considered girls under the law, noting that they were assigned male at birth.
“I think the basic focus of the discussion up until now, which is, as I see it anyway, whether or not we should view your position as a challenge to the distinction between boys and girls on the basis of sex or whether or not you are perfectly comfortable with the distinction between boys and girls, you just want an exception to the biological definition of girls.”
“How we approach the situation of looking at it not as boys versus girls but whether or not there should be an exception with respect to the definition of girls,” Roberts added, suggesting the implications could extend beyond athletics. “That would — if we adopted that, that would have to apply across the board and not simply to the area of athletics.”
Justice Clarence Thomas echoed Roberts’ concerns, questioning how sex-based classifications function under Title IX and what would happen if Idaho’s ban were struck down.
“Does a — the justification for a classification as you have in Title IX, male/female sports, let’s take, for example, an individual male who is not a good athlete, say, a lousy tennis player, and does not make the women’s — and wants to try out for the women’s tennis team, and he said there is no way I’m better than the women’s tennis players. How is that different from what you’re being required to do here?”
Justice Samuel Alito addressed what many in the courtroom seemed reluctant to state directly: the legal definition of sex.
“Under Title IX, what does the term ‘sex’ mean?” Alito asked Principal Deputy Solicitor General Hashim Mooppan, who was arguing in support of Idaho’s law. Mooppan maintained that sex should be defined at birth.
“We think it’s properly interpreted pursuant to its ordinary traditional definition of biological sex and think probably given the time it was enacted, reproductive biology is probably the best way of understanding that,” Mooppan said.
Justice Sonia Sotomayor pushed back, questioning how that definition did not amount to sex discrimination against Lindsay Hecox under Idaho law. If Hecox’s sex is legally defined as male, Sotomayor argued, the exclusion still creates discrimination.
“It’s still an exception,” Sotomayor said. “It’s a subclass of people who are covered by the law and others are not.”
Justice Elena Kagan highlighted the broader implications of the cases, asking whether a ruling for the states would impose a single definition of sex on the 23 states that currently have different laws and standards. The parties acknowledged that scientific research does not yet offer a clear consensus on sex.
“I think the one thing we definitely want to have is complete findings. So that’s why we really were urging to have a full record developed before there were a final judgment of scientific uncertainty,” said Kathleen Harnett, Hecox’s legal representative. “Maybe on a later record, that would come out differently — but I don’t think that—”
“Just play it out a little bit, if there were scientific uncertainty,” Kagan responded.
Justice Brett Kavanaugh focused on the impact such policies could have on cisgender girls, arguing that allowing transgender girls to compete could undermine Title IX’s original purpose.
“For the individual girl who does not make the team or doesn’t get on the stand for the medal or doesn’t make all league, there’s a — there’s a harm there,” Kavanaugh said. “I think we can’t sweep that aside.”
Justice Amy Coney Barrett questioned whether Idaho’s law discriminated based on transgender status or sex.
“Since trans boys can play on boys’ teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?”
Harnett responded, “I think that might be relevant to a, for example, animus point, right, that we’re not a complete exclusion of transgender people. There was an exclusion of transgender women.”
Justice Ketanji Brown Jackson challenged the notion that explicitly excluding transgender people was not discrimination.
“I guess I’m struggling to understand how you can say that this law doesn’t discriminate on the basis of transgender status. The law expressly aims to ensure that transgender women can’t play on women’s sports teams… it treats transgender women different than — than cis-women, doesn’t it?”
Idaho Solicitor General Alan Hurst urged the court to uphold his state’s ban, arguing that allowing participation based on gender identity — regardless of medical intervention — would deny opportunities to girls protected under federal law.
Hurst emphasized that biological “sex is what matters in sports,” not gender identity, citing scientific evidence that people assigned male at birth are predisposed to athletic advantages.
Joshua Block, representing B.P.J., was asked whether a ruling in their favor would redefine sex under federal law.
“I don’t think the purpose of Title IX is to have an accurate definition of sex,” Block said. “I think the purpose is to make sure sex isn’t being used to deny opportunities.”
Becky Pepper-Jackson, identified as plaintiff B.P.J., the 15-year-old also spoke out.
“I play for my school for the same reason other kids on my track team do — to make friends, have fun, and challenge myself through practice and teamwork,” said Pepper-Jackson. “And all I’ve ever wanted was the same opportunities as my peers. But in 2021, politicians in my state passed a law banning me — the only transgender student athlete in the entire state — from playing as who I really am. This is unfair to me and every transgender kid who just wants the freedom to be themselves.”
Outside the court, advocates echoed those concerns as the justices deliberated.
“Becky simply wants to be with her teammates on the track and field team, to experience the camaraderie and many documented benefits of participating in team sports,” said Sasha Buchert, counsel and Nonbinary & Transgender Rights Project director at Lambda Legal. “It has been amply proven that participating in team sports equips youth with a myriad of skills — in leadership, teamwork, confidence, and health. On the other hand, denying a student the ability to participate is not only discriminatory but harmful to a student’s self-esteem, sending a message that they are not good enough and deserve to be excluded. That is the argument we made today and that we hope resonated with the justices of the Supreme Court.”
“This case is about the ability of transgender youth like Becky to participate in our schools and communities,” said Joshua Block, senior counsel for the ACLU’s LGBTQ & HIV Project. “School athletics are fundamentally educational programs, but West Virginia’s law completely excluded Becky from her school’s entire athletic program even when there is no connection to alleged concerns about fairness or safety. As the lower court recognized, forcing Becky to either give up sports or play on the boys’ team — in contradiction of who she is at school, at home, and across her life — is really no choice at all. We are glad to stand with her and her family to defend her rights, and the rights of every young person, to be included as a member of their school community, at the Supreme Court.”
The Supreme Court is expected to issue rulings in both cases by the end of June.
U.S. Supreme Court
As Supreme Court weighs trans sports bans, advocate and former athlete speaks out
PFLAG staffer Diego Sanchez competed at University of Georgia in 1970s
The U.S. Supreme Court will hear two cases Tuesday addressing the legality of banning transgender women and girls from participating in sports under the 14th Amendment.
Though the two cases differ slightly in their fact patterns, they ultimately pose the same constitutional question: whether laws that limit participation in women’s sports to only cisgender women and girls violate the Equal Protection Clause of the 14th Amendment.
In both cases — Little v. Hecox and West Virginia v. B.P.J. — trans girls filed lawsuits against their respective states, Idaho and West Virginia, arguing that the bans violate their right to equal protection under the law by subjecting them to different standards than cisgender girls.
Lindsay Hecox, now 24, filed her lawsuit in 2020 while attending Boise State University. That same year, Idaho enacted the “Fairness in Women’s Sports Act,” which barred trans women from participating in any sport in public schools, from kindergarten through college. Although Hecox underwent hormone therapy that significantly lowered her testosterone levels, she was still excluded under the law when she attempted to try out for the women’s track and cross-country teams.
The second case centers on B.P.J., a 15-year-old trans girl who has identified as female since third grade and has been on puberty blockers since the onset of puberty. In 2021, West Virginia enacted the “Save Women’s Sports Act,” which requires sports teams to be designated by “biological sex” rather than gender identity. B.P.J.’s mother filed suit on her behalf after her daughter was barred from participating on her school’s girls’ cross-country and track teams.
A key distinction between the two cases is that attorneys for B.P.J. have argued that because puberty blockers were part of her development, her body is more aligned with that of a cisgender girl than a cisgender boy. Despite these differences, both cases raise the same constitutional issue: whether it is lawful to bar someone from participation in sports based on sex assigned at birth.
The Washington Blade spoke with PFLAG Vice President of Policy and Government Affairs Diego Sanchez.
Sanchez is a trans elder with firsthand experience as a college athlete at the University of Georgia and later became the first openly trans legislative staff member on Capitol Hill.
His dual experience — as a former athlete and a longtime policy expert deeply familiar with constitutional law — gives him a unique perspective on the questions now before the Supreme Court. Sanchez will also be one of the featured speakers at a rally on the steps of the court as the justices hear arguments.
When asked how attitudes toward trans athletes differ from when he competed at the University of Georgia from 1976-1980 to today — when 27 states have passed laws restricting trans participation in sports — Sanchez said the contrast is stark.
“I had the good experience of being supported by my teammates and my coach,” Sanchez said. “The thing that’s so different today is that these [trans] kids are able to go home and get kisses and hugs from their parents, being lauded in the stands by their families, and then being told that who they are doesn’t necessarily fit with who they’re allowed to be in their expression at the moment, and that to me, seems a terrible injustice.”
Sanchez emphasized that sports offer lessons that extend far beyond competition.
“When you’re an athlete, you learn an awful lot of things about life,” he said. “You learn about leadership, but you also learn that your best effort becomes part of a team effort … how you feel as an individual contributor is affected by what ends up being part of how you live your life as an adult.”
After his time as an athlete, Sanchez began working in government, eventually serving as senior policy advisor to then-U.S. Rep. Barney Frank (D-Mass.) until Frank’s retirement in 2013. Sanchez said that one of the most important aspects of his role was simply being visible as a trans person in spaces where many lawmakers had never knowingly met one before.
“My job was to make sure that no one, no legislator, could say that they had never met a trans person,” Sanchez said.
Sanchez also addressed the broader implications the Supreme Court’s decision could have on how gender is treated within institutional systems.
“I don’t think it affects how people perceive their own gender or express their own gender, but I do think that it could create barriers if it doesn’t welcome the way that community and society actually are,” he said. “The most important thing for people to know … is to remember that every person is an individual, and that the right to contribute to society should be something that is supported by the government, not hindered.”
He added that the court’s role must be understood within the framework of checks and balances established by the Constitution.
“The risk, of course, here is always remembering that we have three branches of government, so that this action by the judiciary branch may or may not have implications on whether or how things can be perceived or executed at other branches,” Sanchez said. “I would hope that our government is interested in letting the future generations and current generations be the best that they can be as well.”
“Do people get to live their lives as they are, or is the government an obstruction or a support?”
When asked what message he would share with young trans athletes watching the Supreme Court take up these cases, Sanchez said community support remains critical, regardless of how the justices rule.
“Make sure that the environment that you put yourself in is something that honors who you know you are and supports you becoming the best person you can be, and that anything that takes away from that is purely dissonance,” he said.
“What we do with dissonance is what distinguishes us as whether we excel or doubt.”
That same sense of community, Sanchez said, is what rallies — like the one planned outside the Supreme Court — are meant to reinforce, even as decisions are made inside the building.
“Rallies, including tomorrow’s, are about people knowing they’re not alone, and hearing from other people who support who they are,” he said. “There is support across the country … I wish that I had had someone my age now that I could have looked to, but I am the role model, but I didn’t have any.”
Looking ahead to the possibility that the court could uphold bans on trans athletes, Sanchez said the immediate challenge will be ensuring that families and communities continue to affirm trans youth amid legal uncertainty.
“Having the endorsement of being supported who you are, it helps you so much,” he said. “You cannot put the issue of rights back into the genie’s bottle once people experience what freedom and welcoming is.”
For Sanchez, whose life has spanned decades of change in both sports and government, the cases before the Supreme Court represent a pivotal moment — not just legally, but culturally.
“Living your life, for me, does not require bravery,” he said. “It’s just taking one step and then another.”
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