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House votes again to repeal ‘Don’t Ask’

Will the Senate follow suit before time is up?

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Rep. Barney Frank (D-Mass.) speaks at a press conference in the U.S. Capitol on Dec. 15. (Washington Blade photo by Michael Key)

The U.S. House today approved by a 75-vote margin a measure that would repeal “Don’t Ask, Don’t Tell” as eyes shift once again to the Senate to see if the chamber will act to lift the military’s gay ban.

The measure to repeal “Don’t Ask, Don’t Tell” passed by a vote of 250-175 after more than an hour of floor debate in which lawmakers engaged in often passionate discourse both in favor and in opposition to the 1993 law.

After lawmakers cast their votes, Rep. Barney Frank (D-Mass.), the longest-serving openly gay lawmaker, banged the gavel at the podium and declared the final vote tally for the legislation.

During debate, those who spoke in favor of the repeal said lifting “Don’t Ask, Don’t Tell” would end a discriminatory policy, while opponents of repeal said open service would jeopardize military effectiveness.

U.S. House Speaker Nancy Pelosi (D-Calif.) said the vote to repeal “Don’t Ask, Don’t Tell” represented an opportunity to “close the door on a fundamental unfairness in our nation.”

“Repealing the discriminatory ‘Don’t Ask, Don’t Tell’ policy will honor the service and sacrifice of all who dedicated their lives to protecting the American people,” she said.

Rep. Patrick Murphy (D-Pa.), the sponsor of repeal legislation in the House, said the vote for repeal was necessary to protect U.S. service members in the battlefield.

“Our troops are the best of the best, and they deserve a Congress that puts their safety ā€” and our collective national security ā€” over rigid partisan interests and a close-minded ideology,” Murphy said.

The Pennsylvania lawmaker noted the Chairman of the Joint Chiefs of Staff Adm. Mike Mullen has said open service should be implemented to protect the integrity of the U.S. military.

“Well, this is also about the integrity of this institution ā€” of this Congress,” Murphy said. “This vote is about whether we’re going to continue telling people willing to die for our freedoms that they need to lie in order to do so.”

The vote marks the second time this year that the House has approved a “Don’t Ask, Don’t Tell” repeal bill. In May, the chamber passed a repeal measure on the floor as an amendment to the fiscal year 2011 defense authorization bill by a vote of 234-194.Ā The “Don’t Ask, Don’tĀ Tell”-inclusive defense legislationĀ failed to pass in the Senate.

Opposition this time around came from many Republicans, including Rep. W. Todd Akin (R-Mo.), who said the vote on repeal represented an attempt fto impose a “social agenda” on the U.S. military during wartime as operations continue in Iraq and Afghanistan.

Akin blamed House leadership for failing to pass a defense authorization bill ā€” which he called an “eclipse of reason” because it has consistently passed in Congress for the past 48 years ā€” and said Congress should pass funds for troops through the defense legislation before moving to “Don’t Ask, Don’t Tell.”

Rep. Buck McKeon (R-Calif.), ranking member of the House Armed Services Committee, was also critical of Pelosi for bringing the repeal measure to the floor at this time and said the timing wasn’t right Congress to act on “Don’t Ask, Don’t Tell.”

“The speaker has decided once more to subvert regular order … and bring to the floor [a measure] to repeal ‘Don’t Ask, Don’t Tell,” McKeon said.

Among other things, McKeon was critical of how the House was holding a vote on “Don’t Ask, Don’t Tell” before House committees had heard testimony on the Pentagon report on lifting the gay ban. Two days of hearings have already taken place earlier this month in the Senate on the report.

In response to Republicans’ assertions, Frank disputed that proper procedure hasn’t been followed on moving to “Don’t Ask, Don’t Tell” and noted that Republicans were responsible for filibustering the defense authorization bill in the Senate.

Frank noted the repeal measure had already passed in May by the full House and the Senate Armed Services Committee and said the notion that the committees of jurisdiction have been deprived on the issue was “delusional.”

“We’ve gone through triple regular order,” he said.

Among the 175 who voted against the repeal measure were 15 members of the Democratic caucus. They include House Armed Services Committee Chair Ike Skelton (D-Mo.), as well as Reps. Solomon Ortiz (D-Texas) and Dan Boren (D-Okla.).

Republicans who voted in favor of passing the legislation tallied out at 15 ā€” which was 10 more Republicans than those who voted in May in favor of the “Don’t Ask, Don’t Tell” amendment.

Among the Republicans voting for repeal for the first time were Reps. Mary Bono Mack (D-Calif.), David Dreier (R-Calif.) and Dave Reichert (R-Wash.).

Passage of “Don’t Ask, Don’t Tell” repeal in the House first enables the chamber to send the legislation to the Senate as as “privileged” legislation.

The maneuver means the Senate won’t need 60 votes for the motion to proceed on the legislation, taking off the 30 hours of waiting time that would have been necessary were cloture filed on the measure. That’s significant as time is running out in the lame duck session.

Still, even though the first round 60 votes for the motion to proceed won’t be necessary, 60 votes would still be necessary in the Senate to move to final passage of the bill. Sens. Joe Lieberman (I-Conn.), Susan Collins (R-Maine) and Mark Udall (D-Colo.) this week pledged commitment to a stand-alone Senate repeal bill.

In a statement, President Obama praised the House for approving ā€” with what he called “bipartisan support” ā€”the “Don’t Ask, Don’t Tell” repeal legislation.

“Moving forward with the repeal is not only the right thing to do, it will also give our military the clarity and certainty it deserves,” Obama said. “We must ensure that Americans who are willing to risk their lives for their country are treated fairly and equally by their country.”

Geoff Morrell, a Pentagon spokeperson, also said Defense Secretary Robert Gates is “pleased” the House has approved a standalone “Don’t Ask, Don’t Tell” repeal measure.

“He encourages the Senate to pass the legislation this session, enabling the Department of Defense to carefully and responsibly manage a change in this policy instead of risking an abrupt change resulting from a decision in the courts,” Morrell said.

LGBT rights groups heralded the House passage of the “Don’t Ask, Don’t Tell” repeal and encouraged the Senate to follow suit to pass the legislation and send it to Obama’s desk.

Joe Solmonese, president of Human Rights Campaign, commended the House for approving the measure to repeal “Don’t Ask, Don’t Tell.”

“Today the U.S. House of Representatives said, for the second time, what military leaders, the majority of our troops and 80 percent of the American public have been saying all along ā€” the only thing that matters on the battlefield is the ability to do the job.” Solmonese said.

Solmonese was referring to a Washington Post/ABC News poll published Wednesday, which found that 77 percent of Americans support allowing openly gay people to serve in the armed forces.

The director of the OutServe, a group for gay active duty service members, also praised the House vote and called on the Senate to act.

“Our ability to live and work with integrity and honesty is on the line,” said the director, who goes by the acronym J.D Smith. “It now falls to the Senate to follow the House’s example and the Pentagon report’s recommendations, and right the wrong that is being done to thousands of us currently serving.”

Will the Senate act before year’s end?

Now that the House has passed the measure, eyes will turn again to the Senate to see if Senate Majority Leader Harry Reid (D-Nev.) will schedule a vote on “Don’t Ask, Don’t Tell” repeal and if 60 votes are present in the chamber for passage.

Anxiety over whether the Senate will address “Don’t Ask, Don’t Tell” as the limited time remaining the legislative session dwindles continues to be a concern for those who are working to end the military’s gay ban.

In a statement to the Blade, Regan Lachapelle, a Reid spokesperson, said the majority leader intends to introduce the legislation sometime before the end of the year, but didn’t offer further details on when the Senate would take up the legislation.

Moving to “Don’t Ask, Don’t Tell” repeal seemed unlikely this week. After finishing work on extension of the Bush-era tax cuts, the Senate proceeded to debate on the START Treaty, a nuclear arms reduction agreement.

The Senate, for the remainder of the week, was expected to tag between debate on the treaty and a continuing resolution for funding for the U.S. government.

One LGBT rights advocate, who spoke on the condition of anonymity, said opposition to these measures from Republicans could sap away time that would be needed to address “Don’t Ask, Don’t Tell.”

“Both bills have hit procedural/political/substantive snags with Republican senators threatening to have them read out loud,” the activist said. “Whether or not this is a ploy to run out the clock is not known.”

After the START Treaty and the continuing resolution, “Don’t Ask, Don’t Tell” repeal would remain on the legislative calendar as well as passage of the DREAM Act, an immigration-related bill, and legislation to provide benefits to workers who helped at Ground Zero during the Sept. 11, 2001, terrorist attacks.

“There is no word on when or in what order those bills would be considered,” the activist said. “There is no commitment from Senator Reid to bring [‘Don’t Ask, Don’t Tell’] to the floor but the privileged message from the House creates momentum and pressure for its consideration prior to adjournment.”

In a news conference on Tuesday, Reid had threatened to keep the Senate in session until Jan. 4 to take up measures such as the DREAM Act and “Don’t Ask, Don’t Tell.”

“Christmas is a week from Saturday,” Reid said. “I understand that. Ā But I hope the Republicans understand it also, because we are going to complete our work, no matter how long it takes, in this Congress. We have to do the work of the American people.”

But the advocate said this pledge from Reid “is largely useless” because senators whose votes would be needed for repeal of “Don’t Ask, Don’t Tell” would still leave before the session is over.

“He would likely lose senators like [Blanche] Lincoln and [Evan] Bayh who are not returning,” the advocate said. “If the Senate does not work this weekend, they will largely be done.”

Following the House vote, House Majority Leader Steny Hoyer (D-MD.) said during a news conference he doesn’t know when Reid will schedule the vote ā€” even as he acknowledged that talks between House and Senate leadership have taken place.

“I have had conversations with Sen. Reid which indicated that we were going to take this action, and so he anticipated this action,” Hoyer said.

Despite these anxieties, other signs show that sufficient support exists to repeal “Don’t Ask, Don’t Tell” if the legislation moves to the Senate floor.

Multiple sources have told the Blade that 60 votes are present in the Senate to repeal “Don’t Ask, Don’t Tell” now that other legislative items such tax cuts have cleared the table.

At the news conference, Hoyer said he’s spoken many senators about “Don’t Ask, Don’t Tell,” which has led him to believe that sufficient support exists for passage repeal.

“I’ve also had conversations with a number of members of the United States Senate ā€” Republican members,” Hoyer said. “My belief is that there are the requisite number of votes in the United States both to effect cloture and passage of the legislation.”

Several Republicans senators ā€” such as Scott Brown (R-Mass.), Richard Lugar (R-Ind.) and Lisa Murkowki (R-Alaska) ā€” have come out in favor of repeal following the release of the Pentagon report.

On Wednesday, Sen. Olympia Snowe (R-Maine) added her name to the list of senators who have come out in favor of “Don’t Ask, Don’t Tell” repeal.

“After careful analysis of the comprehensive report compiled by the Department of Defense and thorough consideration of the testimony provided by the secretary of defense, the chairman of the Joint Chiefs of Staff and the service chiefs, I support repeal of the ‘Don’t Ask, Don’t Tell’ law,” Snowe said in a statement.

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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 ā€œderisive, 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 ā€œit 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 ā€œtext, 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.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther 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.ā€ 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.Ā 

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.Ā 

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

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™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 ā€œineffective, haphazard, and dangerous.ā€ 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 DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™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 driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™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.

ā€œAs 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.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ 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 toĀ 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.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile 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.ā€

Courthouse News reportedĀ that after Virginiaā€™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.Ā Ā 

ā€œWe 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,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

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

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ 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 EUā€™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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