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Holder won’t defend laws barring benefits for gay troops

Att’y Gen’l deems Title 38 provisions unconstitutional in letter to Congress

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U.S. Attorney General Eric Holder announced on Friday in a letter to Congress that the administration would no longer defend in court laws barring married gay troops from receiving spousal benefits.

The statute in question, Title 38, governs employment rights for U.S. service members. Language in the law denies partner benefits to service members and veterans if they’re married to someone of the same-sex, including disability benefits and death compensation.

“The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married spouses of veterans,” Holder writes. “Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.”

In the letter, Holder says he determined that Title 38, as it pertains to same-sex couples married under state law, violates the equal protection component of the Fifth Amendment and said he’s instructed his attorneys to no longer defend the law. Holder writes he’ll give Congress the opportunity to defend the law in court and keep enforcing the statute as litigation continues.

The letter is similar to one Holder sent to Congress in February 2011 notifying lawmakers that the administration would no longer defend the Defense of Marriage Act in court. After the House Bipartisan Legal Advisory Group voted along party-line to take up defense of DOMA, U.S. House Speaker John Boeher directed House General Counsel Kerry Kircher to defend the anti-gay statute.

Michael Steele, a spokesperson for Boehner, deferred questions about the letter — including whether the speaker will take up defense of Title 38 — to counsel. Kircher didn’t immediately respond to a request to comment.

Holder said he reached the conclusion that portions of Title 38 are unconstitutional in response to a lawsuit known as McLaughlin v. Panetta filed by Servicemembers Legal Defense Network in October on behalf of gay troops against Title 38 and DOMA. The letter also indicates that the Justice Department won’t defend DOMA in the SLDN lawsuit, just hasn’t been defending in other lawsuits.

Aubrey Sarvis, SLDN’s executive director, praised Holder for the letter and called it an important development in the case.

“We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts,” Sarvis said. “We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”

An SLDN spokesperson deferred questions on whether the organization expects Boehner to take up defense of Title 38 to the speaker’s office.

Shin Inouye, a White House spokesperson, said Holder’s decision that portions of Title 38 are unconstitutional is line with President Obama’s earlier determination that DOMA is runs contrary to the U.S. Constitution.

“The Department of Justice’s notification to Congress today is consistent with the president’s earlier determination that section 3 of DOMA is unconstitutional,” Inouye said. “I would point you to the department for further information on today’s letter.”

On Feb. 15, the court in the McLaughlin case agreed to stay the lawsuit for 60 days. The House has until April 28 to decide if it will defend Title 38 against the lawsuit.

Holder’s decision is likely to have a bearing on another lawsuit challenging Title 38 and DOMA,  Cooper Harris v. United States. The lawsuit was filed by the Southern Poverty Law Center earlier this month on behalf of Tracey Cooper-Harris, an Iraq and Afghanistan veteran who’s seeking disability benefits for her spouse.

Christine Sun, SPLC’s deputy legal director, said she believes the Holder letter applies to her organization’s lawsuit in addition to the SLDN litigation.

“There’s absolutely no reason why it wouldn’t apply to our case,” Sun said. “I believe that it was sent in connection to the McLaughlin case because there was the recent stipulation between SLDN and DOJ to extend the deadline for the government to respond to SLDN’s summary judgment case, but we’re certainly interpreting the letter to say that the Department of Justice won’t be defending Title 38 in our case either.”

But Sun added she expects Boehner to take up defense of Title 38 in the administration’s stead.

“I wish our taxpayer money was being used for better purposes, but I do expect that Congress will be intervening to defend Title 38 and Section 3 of DOMA in our lawsuit,” Sun said.

Still, Sun said she thinks the administration’s decision not to defend portions of Title 38 would help her organization’s lawsuit succeed.

“You can never predict these things, but it’s very helpful having the government confirm our position that there absolutely is no justification for treating veterans in same-sex marriages differently than their heterosexual counterparts,” Sun said. “It will hopefully be very persuasive to the court.”

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State Department

State Department releases annual human rights report

Antony Blinken reiterates criticism of Uganda’s Anti-Homosexuality Act

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(Photo courtesy of the Library of Congress)

Secretary of State Antony Blinken on Monday once again reiterated his criticism of Uganda’s Anti-Homosexuality Act upon release of the State Department’s annual human rights report.

“This year’s report also captures human rights abuses against members of vulnerable communities,” he told reporters. “In Afghanistan, the Taliban have limited work opportunities for women, shuttered institutions found educating girls, and increasing floggings for women and men accused of, quote, ‘immoral behavior,’ end quote. Uganda passed a draconian and discriminatory Anti-Homosexuality Act, threatening LGBTQI+ individuals with life imprisonment, even death, simply for being with the person they loved.”

Ugandan President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Uganda’s Constitutional Court earlier this month refused to “nullify the Anti-Homosexuality Act in its totality.” More than a dozen Ugandan LGBTQ activists have appealed the ruling.

Clare Byarugaba of Chapter Four Uganda, a Ugandan LGBTQ rights group, on Monday met with National Security Council Chief-of-Staff Curtis Ried. Jay Gilliam, the senior LGBTQI+ coordinator for the U.S. Agency for International Development, in February traveled to Uganda and met with LGBTQ activists who discussed the Anti-Homosexuality Act’s impact. 

“LGBTQI+ activists reported police arrested numerous individuals on the basis of their sexual orientation or gender identity and subjected many to forced anal exams, a medically discredited practice with no evidentiary value that was considered a form of cruel, inhuman, and degrading treatment and could amount to torture,” reads the human rights report.

The report, among other things, also notes Ugandan human rights activists “reported numerous instances of state and non-state actor violence and harassment against LGBTQI+ persons and noted authorities did not adequately investigate the cases.”

Report highlights anti-LGBTQ crackdowns in Ghana, Hungary, Russia

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The country’s president, Nana Akufo-Addo, has said he will not sign the measure until the Ghanaian Supreme Court rules on whether it is constitutional or not.

The human rights report notes “laws criminalizing consensual same-sex sexual conduct between adults” and “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons” are among the “significant human rights issues” in Ghana. 

The report documents Hungarian Prime Minister Viktor Orbán and members of his right-wing Fidesz party’s continued rhetoric against “gender ideology.” It also notes Russia’s ongoing crackdown against LGBTQ people that includes reports of “state actors committed violence against LGBTQI+ individuals based on their sexual orientation or gender identity, particularly in Chechnya.”

The report specifically notes Russian President Vladimir Putin on July 24 signed a law that bans “legal gender recognition, medical interventions aimed at changing the sex of a person, and gender-affirming care.” It also points out Papua New Guinea is among the countries in which consensual same-sex sexual relations remain criminalized.

The Hungarian Parliament on April 4, 2024. Prime Minister Viktor Orbán and his right-wing Fidesz party in 2023 continued their anti-LGBTQ crackdown. (Washington Blade photo by Michael K. Lavers)

The Cook Islands and Mauritius in decriminalized homosexuality in 2023.

The report notes the Namibia Supreme Court last May ruled the country must recognize same-sex marriages legally performed outside the country. The report also highlights the Indian Supreme Court’s ruling against marriage equality that it issued last October. (It later announced it would consider an appeal of the decision.)

Congress requires the State Department to release a human rights report each year. 

The Biden-Harris administration in 2021 released a memorandum that committed the U.S. to promoting LGBTQ+ and intersex rights abroad.

The full report can be read here.

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National

Same-sex couples vulnerable to adverse effects of climate change

Williams Institute report based on Census, federal agencies

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Beach erosion in Fire Island Pines, N.Y. (Photo courtesy of Savannah Farrell / Actum)

A new report by the Williams Institute at the UCLA School of Law finds that same-sex couples are at greater risk of experiencing the adverse effects of climate change compared to different-sex couples.

LGBTQ people in same-sex couple households disproportionately live in coastal areas and cities and areas with poorer infrastructure and less access to resources, making them more vulnerable to climate hazards.

Using U.S. Census data and climate risk assessment data from NASA and the Federal Emergency Management Agency, researchers conducted a geographic analysis to assess the climate risk impacting same-sex couples. NASA’s risk assessment focuses on changes to meteorological patterns, infrastructure and built environment, and the presence of at-risk populations. FEMA’s assessment focuses on changes in the occurrence of severe weather events, accounting for at-risk populations, the availability of services, and access to resources.

Results show counties with a higher proportion of same-sex couples are, on average, at increased risk from environmental, infrastructure, and social vulnerabilities due to climate change.

“Given the disparate impact of climate change on LGBTQ populations, climate change policies, including disaster preparedness, response, and recovery plans, must address the specific needs and vulnerabilities facing LGBTQ people,” said study co-author Ari Shaw, senior fellow and director of international programs at the Williams Institute. “Policies should focus on mitigating discriminatory housing and urban development practices, making shelters safe spaces for LGBT people, and ensuring that relief aid reaches displaced LGBTQ individuals and families.”

“Factors underlying the geographic vulnerability are crucial to understanding why same-sex couples are threatened by climate change and whether the findings in our study apply to the broader LGBTQ population,” said study co-author Lindsay Mahowald, research data analyst at the Williams Institute. “More research is needed to examine how disparities in housing, employment, and health care among LGBT people compound the geographic vulnerabilities to climate change.”

Read the report

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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