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Choi, others begin to re-enlist

Court denies stay of injunction; Pentagon halts enforcement of ‘Don’t Ask’

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The struggle to end “Don’t Ask, Don’t Tell” received renewed national attention this week as the Pentagon announced it would halt enforcement of the policy and a California federal court rejected the Obama administration’s request for a stay of the injunction against the law.

The Pentagon announced that it would discontinue enforcement of “Don’t Ask, Don’t Tell” after U.S. District Judge Virginia Phillips last week issued an injunction prohibiting the enforcement of the law that confirmed her September ruling striking down the statute.

On Wednesday, the U.S. Justice Department sought an emergency stay with the U.S. Ninth Circuit Court of Appeals. A decision from the court wasn’t handed down by Blade deadline. Check the Blade’s website for updates on the injunction.

Cynthia Smith, a Defense Department spokesperson, said the Pentagon would adhere to the court injunction and stop discharges of gay, lesbian and bisexual service members.

“The Department of Defense will of course obey the law,” she said. “The Department will abide by the terms of the court’s order, effective as of the time and date of the injunction, unless and until the injunction is stayed or vacated.”

Smith said on Oct. 15, the Pentagon issued guidance to military recruiters saying they could no longer dismiss openly gay people who are interested in joining the U.S. armed forces.

“Recruiters are reminded to set the applicants’ expectations by informing them that a reversal in the court’s decision of the ‘Don’t Ask, Don’t Tell’ law/policy may occur,” she said.

News that the Pentagon is no longer enforcing “Don’t Ask, Don’t Tell” prompted Dan Choi, a discharged former Army officer who gained notoriety by chaining himself to the White House gates in protest over the policy, to seek re-enlistment in the U.S. armed forces.

On Tuesday, Choi reportedly re-enlisted in the Army at a recruiting station in Times Square in New York City. He reportedly said Tuesday recruiters were processing his request and that he initially sought to re-enlist as a Marine, but was told he was too old to enter the service.

Other out gays had sought to re-enlist this week in other places throughout the country. Will Rodriguez-Kennedy, president of the San Diego chapter of Log Cabin Republicans, reportedly tried to re-enlist with the Marines, but was told that prior-service quotas were full right now.

Even with the injunction in place, the Servicemembers Legal Defense Network is warning gay, lesbian and bisexual troops to maintain keeping their sexual orientation a secret if they serve in the U.S. armed forces.

In a statement, Aubrey Sarvis, SLDN’s executive director, urged caution among service members because he said the injunction could be reversed “very soon.”

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up,” Sarvis said. “A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon.”

As the Pentagon has discontinued enforcement of “Don’t Ask, Don’t Tell” the Obama administration has sought to reverse the injunction. The Justice Department last week sought a stay in Phillips’ decision to bar enforcement of the law while appealing her ruling to the Ninth Circuit.

But Phillips denied the request in a notice issued Tuesday. The judge explains that she denied a stay of the injunction because the U.S. government has provided inadequate reasons for her to take such action.

“Having considered the papers filed in support of, and in opposition to, the Application, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Application for the following reasons as well as those set forth on the record at the hearing,” she writes.

Many legal experts had expected that Phillips would deny the stay. On Monday, she tentatively denied the stay as she heard arguments from attorneys.

In the Tuesday notice, Phillips said she denied the stay because, among other reasons, the injunction wouldn’t impede the U.S. military’s stated goals of having to amend policies and develop education and training programs to adjust to an end to “Don’t Ask, Don’t Tell.” Under Secretary of Defense for Personnel and Readiness Clifford Stanley issued a memo last week outlining this concern.

“Though the Stanley Declaration identifies some general categories of regulations – housing, benefits, re-accession, military equal opportunity, anti-harassment, standards of conduct, and rights and obligations of the chaplain corps – it fails to identify the specific policies and regulations or why they must be changed in light of the Court’s injunction,” Phillips writes.

Phillips also denies that a stay on the “Don’t Ask, Don’t Tell” injunction would serve the public interest because she says evidence at trial demonstrated the law “harms military readiness and unit cohesion, and irreparably injures service members by violating their fundamental rights.”

R. Clarke Cooper, executive director of the Log Cabin Republicans, which filed the lawsuit in 2004, said Phillips is “right to stand with service members by rejecting President Obama’s request to continue this discriminatory policy.”

“It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen,” Cooper said. ”With recruiters accepting gay and lesbian applicants and a week having passed without incident, it is clear that our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom.”

Cooper criticized Obama for previously saying at a town hall that “Don’t Ask, Don’t Tell” would end on his watch while defending the statute in court.

“As commander in chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security,” Cooper said.

During a news conference on Tuesday, White House Press Secretary Robert Gibbs emphasized the president’s commitment to repealing “Don’t Ask, Don’t Tell” through legislative means while saying the Justice Department is monitoring what’s happening in the courts.

“The president believes that the policy will end under his watch precisely because in the defense authorization bill pending in the Senate is a provision that would repeal what the president believes is unjust, what the president believes is discriminatory,” Gibbs said. ”It’s passed the House. The president will push for defense authorization to be passed containing that provision when the Senate comes back for the lame duck.”

But whether the Senate would be able to push through “Don’t Ask, Don’t Tell” after Election Day is questionable at best — especially considering Democrats are poised take huge losses and will likely lose control of the U.S. House.

Jim Manley, a spokesperson for Senate Majority Leader Harry Reid (D-Nev.), said in a statement that Republican support would be needed to move forward with major defense budget legislation to which “Don’t Ask, Don’t Tell” repeal language is attached.

“In light of the recent court decision, Republicans will hopefully drop their opposition to [‘Don’t Ask, Don’t Tell] and allow us to pass the [defense] authorization in the lame duck,” Manley said.

The Republican who successfully led a filibuster that derailed the “Don’t Ask, Don’t Tell” repeal legislation in the Senate last month pledged on Sunday to continue his opposition after Election Day.

Sen. John McCain (R-Ariz.) said during a TV interview with the NBC affiliate in Phoenix, Ariz., that he would attempt to block the legislation if a motion to bring the measure to the Senate floor came up during the lame duck.

“I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness,” he said.

A Pentagon working group is set to deliver a report to Defense Secretary Robert Gates on the way forward with implementing “Don’t Ask, Don’t Tell” repeal by Dec. 1, although McCain has previously suggested the scope of the study is too limited.

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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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