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Time running short for ending ‘Don’t Ask, Don’t Tell’

Activists pressure Senators to end ban during lame duck session

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White House Press Secretary Robert Gibbs rankled LGBT advocates after he failed to mention ‘Don’t Ask, Don’t Tell’ repeal when asked about legislative priorities in the lame duck session of Congress. (Washington Blade photo by Michael Key)

Supporters of “Don’t Ask, Don’t Tell” repeal are pushing the Senate to end the law in the lame duck session of Congress amid questions about whether sufficient support exists to complete the task by year’s end.

One Democratic aide, who spoke on condition of anonymity, told the Blade that Senate passage of major defense budget legislation to which “Don’t Ask, Don’t Tell” repeal is attached would require “all the stars aligning” as well as active support from President Obama and Defense Secretary Robert Gates.

Asked this week whether those elements were coming into alignment as the lame duck session approaches, the aide said, “Hell no. We ain’t anywhere near alignment.”

Senate Armed Services Committee Chair Carl Levin (D-Mich.) told reporters on Tuesday that passing the fiscal year 2011 defense authorization bill with the “Don’t Ask, Don’t Tell” repeal language presents challenges.

“We’re trying to get both things accomplished, and we just don’t know if we can,” Levin said, according to the Grand Rapids Press.

“Republicans have filibustered the whole defense bill because of that [‘Don’t Ask, Don’t Tell’] provision. There’s some people who say that unless the defense bill has that provision, that we shouldn’t pass it,” he continued. “My position is, we should try to get both things done some way or another.”

Media reports circulated this week that Levin was engaged in talks with Sen. John McCain (R-Ariz.) to advance the defense authorization bill after stripping it of the “Don’t Ask, Don’t Tell” repeal language.

But while some see challenges in moving forward with legislative repeal of “Don’t Ask, Don’t Tell,” others see a path forward if certain conditions are met.

Winnie Stachelberg, senior vice president for external relations at the Center for American Progress Action Fund, said Tuesday in a conference call with reporters that advocates are in a “solid position” to see legislative repeal of “Don’t Ask, Don’t Tell” before year’s end.

Stachelberg cited recent public statements from the White House, Senate Majority Leader Harry Reid (D-Nev.) and Gates to back that assertion.

“The administration’s really strong statement [Monday], Sen. Reid’s statement saying they are not going to stand for a defense authorization bill that strips out the repeal measure are really strong signals that people are moving to a phase where it’s about procedures, not about the will to get this done,” Stachelberg said.

In the statement on Monday, Pfeiffer said the White House “opposes any effort to strip ‘Don’t Ask, Don’t Tell’ from the National Defense Authorization Act.”

On Sunday, Gates made news when he told reporters that he supports legislative repeal of “Don’t Ask, Don’t Tell,” but isn’t sure of the likelihood of that happening. Previously, he said waiting for the Pentagon working group report on the issue, due Dec. 1, would be the best approach for congressional action.

“I would like to see the repeal of ‘Don’t Ask, Don’t Tell,’ but I’m not sure what the prospects for that are,” Gates said. “And we’ll just have to see.”

Jim Manley, a Reid spokesperson, said the senator wants to see passage of the defense authorization in lame duck, but added an agreement with Republicans is necessary to move forward.

“Like Defense Secretary Gates, Sen. Reid strongly supports the repeal of ‘Don’t Ask, Don’t Tell’ to help strengthen our volunteer force and is continuing to work toward passing the repeal this year,” Manley said. “He, of course, can’t do it alone. The senator needs Republicans to at least agree to have a debate on this issue — a debate he firmly believes the Senate should have.”

In a joint statement on Tuesday, senators known for supporting repeal of “Don’t Ask, Don’t Tell” called for legislative action before the year’s end. Sens. Joseph Lieberman (I-Conn.), Kirsten Gillibrand (D-N.Y.) and Mark Udall (D-Colo.) said the Senate “should act immediately to debate and pass” the defense authorization bill along the with the repeal language in the lame duck session.

“The Senate has passed a defense bill for forty-eight consecutive years,” the senators said. “We should not fail to meet that responsibility now, especially while our nation is at war. We must also act to put an end to the ‘Don’t Ask, Don’t Tell’ policy that not only discriminates against but also dishonors the service of gay and lesbian service members.”

The senators said a failure to act legislatively on “Don’t Ask, Don’t Tell” repeal could mean “a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts.” Last month, U.S. District Court Judge Virginia Phillips issued an injunction against enforcing “Don’t Ask, Don’t Tell” that confirmed her earlier ruling striking down the statute, but her decision was stayed by a higher court upon appeal.

“It is important that ‘Don’t Ask, Don’t Tell’ be dealt with this year, and it appears that the only way that can happen is if it’s on the defense bill,” the senators concluded.

Influencing moderate senators who may have voted “no” when the defense bill previously came before the Senate in September to change their votes a second time around is seen as essential for moving forward.

On Tuesday, the Human Rights Campaign announced that it deployed field organizers to eight states — Alaska, Arkansas, Indiana, Maine, Massachusetts, Ohio, Virginia and West Virginia — to persuade senators there to vote in favor of the defense authorization bill and “Don’t Ask, Don’t Tell” repeal. According to HRC, the efforts include mobilizing veterans to speak out, holding public events and blanketing local media with pro-repeal messages.

In a statement, Joe Solmonese, HRC’s president, said lawmakers have “one last chance” in the 111th Congress to “follow the advice of the president and top military leaders by sending ‘Don’t Ask, Don’t Tell’ to the dustbin of history.”

“It would be a travesty for a small group of senators to continue to hold hostage a bill with critical military equipment and pay raises just because some senators don’t want to even debate repeal,” Solmonese said.

The time limit for acting on legislative repeal of “Don’t Ask, Don’t Tell” in the lame duck session is among the challenges in getting it passed. Most repeal supporters say the Senate would need two weeks to debate and vote on the defense authorization bill, and more time is needed to conference the legislation with the U.S. House.

One Republican aide, who spoke on condition of anonymity, said the problem with passing the defense authorization bill isn’t having insufficient votes; it’s having insufficient time. The aide said waiting for a vote on defense authorization bill until December would mean repeal won’t happen this year.

“If Reid is serious about bringing this up, he needs to bring it up next week, he needs to cancel Thanksgiving recess and he needs to get it off the floor and into conference that first week of December,” the aide said.

But Stachelberg said she thinks Congress would stay in session for longer than what many Capitol Hill observers are expecting and would have more time to act on the defense authorization bill.

“Congress has to pass a [continuing resolution] and deal with expiring tax cuts,” Stachelberg said. “We anticipate that these issues will take longer than most people anticipate. A longer lame duck increases the likelihood of passing the defense authorization bill with ‘Don’t Ask, Don’t Tell’ in it.”

Even with a longer lame duck session, whether “Don’t Ask, Don’t Tell” is a priority for the administration remains in question.

Last week, White House Press Secretary Robert Gibbs didn’t mention repeal when asked during a news conference about legislative priorities in the lame duck session of Congress. Instead, Gibbs mentioned extending tax cuts to middle-class Americans and ratification of the START treaty, a nuclear arms reduction agreement with Russia.

Alex Nicholson, executive director of Servicemembers United, criticized the remarks and said the administration needs to make clear that it’ll push for repeal during lame duck.

“These omissions stand in stark contrast to what the president and his staff are saying elsewhere,” Nicholson said. “Mr. President, either your administration is with us or it’s against us, and a mediocre level of public advocacy from your White House is not standing with us.”

Stachelberg said she thinks Dan Pfeiffer’s statement on Monday offers a better sense of what the White House is thinking as opposed to Gibbs’ comments.

“Rather than looking earlier in the day from Gibbs’ comments … I would look to the later comments from Dan Pfeiffer showing that the administration really does care that this gets done and that they’ll stand firm on the defense authorization bill in ensuring that it includes ‘Don’t Ask, Don’t Tell’ repeal,” she said.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s “very concerned” Gibbs didn’t list the defense authorization bill as a priority for the lame duck session, but said he doesn’t think in that instance the White House press secretary “was speaking for the president.”

“The president has made it clear to some of us that he wants to get this done in the lame duck and I believe the president will be good on his word on this,” Sarvis said.

Another possible game changer for “Don’t Ask, Don’t Tell” repeal is the completion of the Pentagon working group study on implementing an end to the law. The group has a deadline of Dec. 1 to deliver its report to the defense secretary, but one source said a draft copy is already circulating within the Pentagon.

Sarvis mentioned the circulation of the draft copy and said his understanding is Levin has asked the Pentagon for a report on the status of the Pentagon working group’s recommendations.

“It’s appropriate that he do so when we know that a draft of that report is being circulated and that a draft of that report is in the hands of each one of the service chiefs,” Sarvis said.

Last weekend, Marine Corps Commandant Gen. James Amos, who assumed his position as service chief last month, said now isn’t the time for “Don’t Ask, Don’t Tell” repeal and that he’s trying to determine how to “measure that risk” of ending the law.

On Monday, the general’s comments were rebuked by Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, who said he was “surprised” by Amos’ remarks and surprised he said them publicly.

Sarvis said he thinks what he called Amos’ “tirade” is related to “his being disappointed in what he saw in that report.” Media reports have stated the report will reveal that a majority of U.S. troops don’t care if gays are serving openly in the U.S. armed forces.

Could the report bolster legislative efforts to repeal “Don’t Ask, Don’t Tell”? Stachelberg said the Dec. 1 deadline for the report gives senators ample time to review the findings and take action in lame duck.

“Gates’ comments over the weekend, I think, suggest that this study — in alignment with the legislative process — will be positive,” she said.

The Center for American Progress has identified 10 senators who’ve said they want to see the Pentagon study to help inform their decision on lifting the military’s gay ban.

Among them are Sens. Scott Brown (R-Mass.), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.), McCain, Mark Pryor (D-Ark.), Olympia Snowe (R-Maine), George Voinovich (R-Ohio) and Jim Webb (D-Va.). The newly elected senators who, because of state election laws, are expected to take their seats during lame duck — Mark Kirk of Illinois and Joe Manchin of West Virginia — have also made statements along these lines.

“Some of these had opportunities to vote for or against repeal in either the House or Senate Armed Services Armed Committee, but each of them took the opportunity to say that — notwithstanding their ‘no’ votes — they wanted to see the complete assessment before Congress moves forward,” Stachelberg said. “We believe this gives them an opportunity to do so.”

Sarvis said he thinks the completion of this report, as well as Gates’ comments saying he wants congressional action on “Don’t Ask, Don’t Tell,” will be helpful in moving moderate senators to support repeal.

“I believe the report is going to satisfy a number of those senators who said they didn’t want to vote until that report was finished and they didn’t want to vote until they heard from Secretary Gates,” Sarvis said. “Well, they heard from Secretary Gates and they’re going to have the report shortly.”

The election of Kirk in Illinois has been nettlesome to many supporters of “Don’t Ask, Don’t Tell” because he voted against a repeal measure as a U.S. House member, and, upon taking his seat in lame duck, would replace Sen. Roland Burris (D-Ill.), among the strongest supporters of repeal.

Sarvis said Kirk’s position is “not entirely clear,” but emphasized that the newly elected wouldn’t even be in the Senate if Reid schedules the defense authorization bill for a vote early in the lame session.

“If the Senate moves to lay the bill down the week of the 15th when they come back, and we have the critical vote to proceed in November, Sen. Burris will still be in the Senate,” Sarvis said. “The secretary of state of Illinois has indicated that there will not be any certification [to seat Kirk] until December.”

Among those senators identified by the Center for American Progress, McCain has opposed “Don’t Ask, Don’t Tell” repeal even before the Pentagon announced its intention to end the law. Repeal advocates have said they believe McCain will continue to oppose an end to “Don’t Ask, Don’t Tell” no matter the results of the report.

But Stachelberg said the completion of the report may prompt McCain to at least drop his objection to moving the defense authorization bill as a whole to the Senate floor.

“I think he will continue to vote ‘no’ on repeal,” she said. “I think it’s a question about whether he will obstruct and stand in the way of passage of a defense authorization bill — a bill that he has cared about for years.”

After the completion of the Pentagon study, it’s possible that members of the Senate Armed Services Committee would call for hearings to examine the working group’s findings. Having to wait for hearings could delay congressional action on “Don’t Ask, Don’t Tell.”

But Rudy DeLeon, senior vice president of national security and international policy for the Center for American Progress Action Fund, said the Senate can take action to repeal “Don’t Ask, Don’t Tell” before holding hearings on the issue.

DeLeon noted that the legislation pending before Congress has a 60-day waiting period from the time that repeal is certified to the time that an end to “Don’t Ask, Don’t Tell” is enacted.

“There really is a clock that will give the military a full voice, give the military a seat at the table, so the Joint Chiefs and the combatant commanders will certainly be able to offer their views on the implementation of the repeal,” he said.

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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.

In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.

The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”

In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.

The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.

He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”

Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”

Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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