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Pentagon officials outline scope for ‘Don’t Ask’ study

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Officials leading the Pentagon study examining “Don’t Ask, Don’t Tell” outlined for lawmakers the general scope of their work Wednesday, but offered limited details and were tight-lipped on their personal views of the law.

Both co-chairs of the Pentagon working group testified before the House Armed Services personnel subcommittee. Jeh Johnson, general counsel for the Defense Department, and Gen. Carter Ham, commanding general of U.S. Army Europe, discussed how their work would build on President Obama’s call to end the 1993 law barring gays, lesbians and bisexuals from serving openly in the U.S. military.

The hearing marked the first time the House heard testimony on gays in the military since a similar committee hearing took place in 2008.

Also present was Clifford Stanley, undersecretary of defense for personnel and readiness. He would oversee the implementation of repeal at the Pentagon should Congress overturn “Don’t Ask, Don’t Tell.”

Witnesses said the study underway at the Pentagon, due for completion Dec. 1, would identify the effects of repeal on military readiness, unit cohesion, recruiting, retention and military families.

Johnson and Ham also noted that the working group has been broken down into four teams: a survey team; a legislative, regulatory and legal team; a policy development team; and an education and training team. Ham said the working group intends to gather information with “wide outreach to get a wide variety of views.”

“That survey must be enriched by personal contact — focus groups, if you will — some of them specifically targeted to specialized groups and families within the Department of Defense, active reserve and guard,” Ham said.

Ham said he anticipates outreach through “social media” so that information can be gathered from the widest possible pool.

“A wide variety of individuals — both within the Department of Defense and without — who will have views on this matter will have an opportunity for their voice to be heard,” he said.

Still, the witnesses said the working group is in its early stages and there was little information to share at this point.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the hearing was “largely process driven,” but it affirmed that there’s still an opportunity for repeal to happen this year.

“Clearly Congressman Patrick Murphy and other members of the subcommittee underscored to [Defense Department] General Counsel Johnson and Gen. Ham that repeal can get done this year as the working group does its job,” he said.

A number of lawmakers at the hearing asked whether Congress should take legislative action against “Don’t Ask, Don’t Tell” before the working group’s study is complete.

Murphy, a Pennsylvania Democrat who’s sponsoring the House repeal bill, said if lawmakers were pass repeal as part of the upcoming defense authorization bill, it would likely not be signed until October, which he said would give the Pentagon time to review the process for implementation.

But Johnson said he wasn’t inclined to endorse legislative action on “Don’t Ask, Don’t Tell” before the working group had a chance to complete its study.

“The secretary of defense believes that we should go about repeal in a careful methodical way, and first study … all of the impacts of repeal on the current policy,” Johnson said. “I would think that the Congress would like to hear from us first before undertaking to consider repeal.”

Still, Johnson said he wouldn’t advise Congress what action they should take on “Don’t Ask, Don’t Tell” this year.

“I’m not here to oppose or support any congressional action,” he said. “We’re here to do an exhaustive, thorough, comprehensive review of the impact of repeal of the policy.”

Rep. Joe Wilson (R-S.C.), ranking Republican on the subcommittee, said he maintained some reservations regarding the study given its scope.

Wilson said he wants to the working group to examine whether “Don’t Ask, Don’t Tell” as it stands undermines readiness and whether repeal would contribute to military effectiveness “in measureable ways.”

“If the study does not address these issues, then its overall credibility and usefulness for the Congressional decision-making process will be significantly undermined,” he said.

Questioning the need for repealing “Don’t Ask, Don’t Tell,” Wilson said 8,300 service members were discharged under the law from fiscal years 1999 and 2008. The lawmaker said this number was infinitesimally small given that the military separated about 1.9 million people during that time.

“That’s about 800 people discharged per year, and unless you contradict me, it’s not a significant loss from an overall [Defense Department] manpower perspective,” Wilson said.

Rep. Susan Davis (D-Calif.), chair of the subcommittee, asked about the possibility of changing the implementation of current law so that third parties couldn’t out and discharge gay service members.

Defense Secretary Robert Gates has tasked Johnson with finding out whether this “more humane” approach to “Don’t Ask, Don’t Tell” was possible within the confines of the law 45 days from the start of the working group.

Johnson said this task was running “separate and apart” from the study’s work and said he expected to have recommendations around March 19.

“We’re getting comprehensive input from the services on that topic, and I expect that we will meet our 45-day timeline,” he said.

Lawmakers on the panel also asked the witnesses about plans for allowing for gays in the military to contribute to the study without being discharged under “Don’t Ask, Don’t Tell.”

Ham said the working group is working on ways to get their input, and the use of social media could play a role, but such plans aren’t yet final.

“We share with you the concern — the absolute necessity — to reach out and hear from homosexuals who are today serving in the force,” he said. “We don’t yet know how to do that, but my pledge to you is that we will find a way and we will do that.”

Ham said the working group has an opportunity to hear from service members who have already been separated under “Don’t Ask, Don’t Tell” and noted that information “will be instructive to us.”

At one point, Rep. Niki Tsongas (D-Mass.) asked the witnesses about their personal views on gays in the military. The witnesses were tight-lipped on their opinions, though, saying that want to remain objective as they complete the study.

Johnson noted he’s part of the Obama administration and the president has expressed his desire to move toward repeal. He added that his assignment “is to do an objective, comprehensive review of the implications of repeal of the policy.”

“I’m trying very hard to approach this in an objective, thorough, comprehensive fashion and create an environment conducive to others within the force telling us what they think the impact of repeal would be,” Johnson said.

The issue of whether a moratorium should be instituted to prevent discharges as the Pentagon undertakes its study was also raised during the hearing. Senate Armed Services Committee Chairman Carl Levin (D-Mich.) floated the possibility of a legislative moratorium if there are not enough votes this year for outright repeal.

Tsongas spoke favorably about a moratorium during the hearing as a way to allow gays in the military to voice their opinions to the working group without being discharged.

“As you talk about the hoops that you’re going to have to jump through to solicit their opinion … it just seems to be a more appropriate way to go forward is to institutionalize a moratorium,” she said.

Davis also said during her opening statement that a moratorium on discharges would be an appropriate measure for the Pentagon as it conducts it study.

“I believe there is a way to stem the tide of these painful and unnecessary discharges, especially those instigated by third parties, and avoid subjecting the force to confusion about the direction of the policy,” she said. “A moratorium on discharges would be an appropriate action to take while the department decides how to implement repeal.”

Davis later told DC Agenda that she wasn’t necessarily referring to a legislative moratorium as Levin has suggested, but an administrative moratorium instituted by the Defense Department.

“We might want to do something in the authorization bill; I’m not sure,” she said. “But they can do that on their own.”

Following the hearing, Murphy reiterated to reporters his belief that Congress would fully repeal “Don’t Ask, Don’t Tell” this year.

“We could pass that in the national defense authorization act, or any other piece of legislation, or other vehicle,” he said. “This will be changed this year.”

Lawmakers are expecting to hear more the Pentagon working group before its study is complete. Davis told DC Agenda she’d like to hear from officials “at least once or twice before the reports are done.”

Asked whether he would like to hear any more information from the working group, Murphy replied, “No, I think other countries, like Canada, they did this and they had absolutely no problems.”

“The implementation of this will go much [more] smoothly than anything that some questions from the other side were [suggesting] today,” Murphy said.

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Federal Government

Two very different views of the State of the Union

As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.

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President Donald Trump speaks at the State of the Union address at the U.S. Capitol on Feb. 24. (Washington Blade photo by Michael Key)

As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.

Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.

Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.

But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.

Transgender youth

In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:

“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.

“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.

“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.

“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”

The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.

Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:

“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.

“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.

“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”

For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.

Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.

Immigration and fear

Immigration dominated both events as well.

Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.

Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:

“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”

Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.

Queer leadership

Rep. Robert Garcia (D-Calif.) speaks at the People’s State of the Union on the Mall on Feb. 24. (Photo by Andrei Nasonov)

After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.

Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.

“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”

He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.

“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”

Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.

“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”

A boycott — and a warning

The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.

For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.

While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.

(Washington Blade photo by Michael Key)
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U.S. Military/Pentagon

4th Circuit rules against discharged service members with HIV

Judges overturned lower court ruling

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The Pentagon (Photo by icholakov/Bigstock)

A federal appeals court on Wednesday reversed a lower court ruling that struck down the Pentagon’s ban on people with HIV enlisting in the military.

The conservative three-judge panel on the 4th U.S. Circuit Court of Appeals overturned a 2024 ruling that had declared the Defense Department and Army policies barring all people living with HIV from military service unconstitutional.

The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, held that the military has a “rational basis” for maintaining medical standards that categorically exclude people living with HIV from enlisting, even those with undetectable viral loads — meaning their viral levels are so low that they cannot transmit the virus and can perform all duties without health limitations.

This decision could have implications for other federal circuits dealing with HIV discrimination cases, as well as for nationwide military policy.

The case, Wilkins v. Hegseth, was filed in November 2022 by Lambda Legal and other HIV advocacy groups on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status, as well as the organizational plaintiff Minority Veterans of America.

The plaintiffs include a transgender woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America.

Isaiah Wilkins, the gay man, was separated from the Army Reserves and disenrolled from the U.S. Military Academy Preparatory School after testing positive for HIV. His legal counsel argued that the military’s policy violates his equal protection rights under the Fifth Amendment’s Due Process Clause.

In August 2024, a U.S. District Court sided with Wilkins, forcing the military to remove the policy barring all people living with HIV from joining the U.S. Armed Services. The court cited that this policy — and ones like it that discriminate based on HIV status — are “irrational, arbitrary, and capricious” and “contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

The Pentagon appealed the decision, seeking to reinstate the ban, and succeeded with Wednesday’s court ruling.

Judge Paul V. Niemeyer, one of the three-judge panel nominated to the 4th Circuit by President George H. W. Bush, wrote in his judicial opinion that the military is “a specialized society separate from civilian society,” and that the military’s “professional judgments in this case [are] reasonably related to its military mission,” and thus “we conclude that the plaintiffs’ claims fail as a matter of law.”

“We are deeply disappointed that the 4th Circuit has chosen to uphold discrimination over medical reality,” said Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”

“As both the 4th Circuit and the district court previously held, deference to the military does not extend to irrational decision-making,” said Scott Schoettes, who argued the case on appeal. “Today, servicemembers living with HIV are performing all kinds of roles in the military and are fully deployable into combat. Denying others the opportunity to join their ranks is just as irrational as the military’s former policy.”

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New York

Lawsuit to restore Stonewall Pride flag filed

Lambda Legal, Washington Litigation Group brought case in federal court

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The Pride flag in question that once flew at the Stonewall National Monument. (Photo from National Park Service)

Lambda Legal and Washington Litigation Group filed a lawsuit on Tuesday, challenging the Trump-Vance administration’s removal of the Pride flag from the Stonewall National Monument in New York earlier this month.

The suit, filed in the U.S. District Court for the Southern District of New York, asks the court to rule the removal of the Pride flag at the Stonewall National Monument is unconstitutional under the Administrative Procedures Act — and demands it be restored.

The National Park Service issued a memorandum on Jan. 21 restricting the flags that are allowed to fly at National Parks. The directive was signed by Trump-appointed National Park Service Acting Director Jessica Bowron.

“Current Department of the Interior policy provides that the National Park Service may only fly the U.S. flag, Department of the Interior flags, and the Prisoner of War/Missing in Action flag on flagpoles and public display points,” the letter from the National Park Service reads. “The policy allows limited exceptions, permitting non-agency flags when they serve an official purpose.”

That “official purpose” is the grounds on which Lambda Legal and the Washington Litigation Group are hoping a judge will agree with them — that the Pride flag at the Stonewall National Monument, the birthplace of LGBTQ rights movement in the U.S., is justified to fly there.

The plaintiffs include the Gilbert Baker Foundation, Charles Beal, Village Preservation, and Equality New York.

The defendants include Interior Secretary Doug Burgum; Bowron; and Amy Sebring, the Superintendent of Manhattan Sites for the National Park Service.

“The government’s decision is deeply disturbing and is just the latest example of the Trump administration targeting the LGBTQ+ community. The Park Service’s policies permit flying flags that provide historical context at monuments,” said Alexander Kristofcak, a lawyer with the Washington Litigation Group, which is lead counsel for plaintiffs. “That is precisely what the Pride flag does. It provides important context for a monument that honors a watershed moment in LGBTQ+ history. At best, the government misread its regulations. At worst, the government singled out the LGBTQ+ community. Either way, its actions are unlawful.”

“Stonewall is the birthplace of the modern LGBTQ+ rights movement,” said Beal, the president of the Gilbert Baker Foundation. The foundation’s mission is to protect and extend the legacy of Gilbert Baker, the creator of the Pride flag.

“The Pride flag is recognized globally as a symbol of hope and liberation for the LGBTQ+ community, whose efforts and resistance define this monument. Removing it would, in fact, erase its history and the voices Stonewall honors,” Beal added.

The APA was first enacted in 1946 following President Franklin D. Roosevelt’s creation of multiple new government agencies under the New Deal. As these agencies began to find their footing, Congress grew increasingly worried that the expanding powers these autonomous federal agencies possessed might grow too large without regulation.

The 79th Congress passed legislation to minimize the scope of these new agencies — and to give them guardrails for their work. In the APA, there are four outlined goals: 1) to require agencies to keep the public informed of their organization, procedures, and rules; 2) to provide for public participation in the rule-making process, for instance through public commenting; 3) to establish uniform standards for the conduct of formal rule-making and adjudication; and 4) to define the scope of judicial review.

In layman’s terms, the APA was designed “to avoid dictatorship and central planning,” as George Shepherd wrote in the Northwestern Law Review in 1996, explaining its function.

Lambda Legal and the Washington Litigation Group are arguing that not only is the flag justified to fly at the Stonewall National Monument, making the directive obsolete, but also that the National Park Service violated the APA by bypassing the second element outlined in the law.

“The Pride flag at the Stonewall National Monument honors the history of the fight for LGBTQ+ liberation. It is an integral part of the story this site was created to tell,” said Lambda Legal Chief Legal Advocacy Officer Douglas F. Curtis in a statement. “Its removal continues the Trump administration’s disregard for what the law actually requires in their endless campaign to target our community for erasure and we will not let it stand.”

The Washington Blade reached out to the NPS for comment, and received no response.

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