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Gay advocates assail Obama’s Justice Department

Claim administration misrepresented views in ‘Don’t Ask’ brief



Experts on “Don’t Ask, Don’t Tell” are lambasting the Justice Department, claiming the administration misrepresented their views in a legal brief aimed at thwarting a court challenge to the ban on open service.

Nathaniel Frank, a senior fellow at the Palm Center, a think tank at the University of California, Santa Barbara, said the Obama administration mischaracterized his views on the impact that open service would have on privacy issues.

“The way they portrayed me is preposterous and I’m not sure that any person in good faith hearing what I had to say could conclude what the [Department of Justice] concluded in their [request for] summary judgment,” he said. “I specifically said having a concern about privacy is not irrational, but using that privacy concern as an argument for the need to ban gays is irrational.”

Aaron Belkin, director of the Palm Center, similarly claimed the Justice Department misrepresented what he said in depositions about privacy arguments, and even went so far as to say the Obama administration lawyers weren’t being truthful.

“They completely misrepresented my statement in the deposition,” Belkin said. “They were not being truthful about my statement because they said that I claimed that there is a rational basis for the privacy arguments, and I claimed no such thing.”

In a request for summary judgment released earlier this week, the Justice Department names Frank and Belkin as among the experts on “Don’t Ask, Don’t Tell” who gave depositions in the case of Log Cabin v. United States. The lawsuit seeks to overturn the ban on the basis that it infringes upon the First Amendment rights of LGBT service members.

Both Frank and Belkin were questioned during deposition about whether privacy concerns for service members constituted a rational basis for the enactment of “Don’t Ask, Don’t Tell” in 1993.

The brief says Frank “acknowledged” during his deposition that “privacy concerns such as those on which Congress relied were not irrational.” But Frank disputed this characterization, pointing to his remarks during deposition.

According to an excerpt of the deposition obtained by DC Agenda, Frank was asked about privacy issues in the context of whether former Chairman of the Joint Chiefs of Staff Gen. Colin Powell’s statement in 1993 that service members “are required to live in communal settings that force intimacy and provide little privacy” was based on professional military judgment.

Frank replied that Powell — whose position has since evolved to endorse the Pentagon’s process for repealing the law — may have had concerns with privacy as a general matter based on professional judgment, but said Powell’s statement doesn’t “constitute an argument for keeping out open homosexuals.”

“Because what he says here is that service members are required to serve with very little privacy, so it doesn’t make any sense to me to conclude from that that there is a justification to exclude open homosexuals since he’s just acknowledged that part of being in the military means sacrificing privacy,” Frank said in his deposition.

It’s for this reason that Frank is now saying the Justice Department misrepresented his views in the brief against the lawsuit.

“So I really said the opposite of what the DOJ motion claims,” he said. “I made very clear that I would not call those feelings [about privacy] irrational, but nor would I call it rational to use that feeling as a legitimate basis for excluding a whole group of people. And that’s all there in the record.”

Belkin similarly cried foul, claiming the Justice Department mischaracterized his deposition in the brief. The administration says that Belkin testified that “the privacy basis is rational in circumstances such as combat where private accommodations are not possible.”

“Dr. Belkin studied the experience of the Israeli military and found that heterosexual concern about privacy necessitated, in certain instances, separate accommodations or work arrangements for heterosexual service members,” says the brief. “Dr. Belkin also acknowledged similar findings with respect to Congress’ concern regarding sexual tension within the military.”

According to the brief, Belkin also “pointedly admitted” people in the military have sex with each other, and some service members have “sex with other members of the same sex.”

But Belkin said the Justice Department’s account of his deposition and his alleged acknowledgement of a rational basis for privacy concerns was completely off the mark.

“People who defend ‘Don’t Ask, Don’t Tell’ for almost 20 years have been confusing up with down and left with right,” he said. “If the Obama administration lawyers think that my remarks in any way constitute an acknowledgement of the rational basis for the privacy rationale, then they need a new legal team.”

Belkin said the Justice Department neglected to mention major points about his deposition. He said he brought up men having sex with other men because he believes straight men would be having sex with men in the military regardless of the ban.

“Think for a minute about prisons,” he said. “It’s not exactly the same, but the point is not that gays are responsible for gay sex, but a lot of people have same-sex sex in the military and the privacy rationale does not take that into account. The privacy rationale is premised on the assumption that it’s only gays who having sex, so you have to get rid of the gays if you want to get rid of that kind of thing.”

Belkin also said the Justice Department misconstrued his take on there being a rational basis for “Don’t Ask, Don’t Tell” because some straight service members are uncomfortable around gay service members.

“It’s absolutely true that some heterosexual service members are uncomfortable in front of gay service members, but that in no way constitutes a rational basis for the privacy rationale because gays and lesbians are already serving with straight service members — and the conditions in the barracks and the showers are not going to change after the repeal of the ban,” he said.

The Justice Department didn’t respond to a request for comment on Frank and Belkin’s assertions that they were mischaracterized in the brief.

Frank also took issue with the Justice Department’s repeated references to experts on “Don’t Ask, Don’t Tell” with the use of quotation marks.

For example, the brief says in a footnote that “LCR’s ‘experts’ ultimately seek to challenge the wisdom of the DADT policy, a challenge that is irrelevant under rational basis review.”

Frank said the repeated reference to experts in quotation marks is “highly unusual” for the Justice Department and “may have gone too far.”

“That’s a favorite tactic of the religious right to polish their anti-intellectual credentials, and make it seem like there’s no such things as a homosexual, so they’ll put homosexual in quotes,” he said.

The Obama administration defense of the “Don’t Ask, Don’t Tell” statute against the challenge from Log Cabin is causing consternation among advocacy groups seeking to repeal the law.

Joe Solmonese, president of the Human Rights Campaign, said “we took a step backward” with the Justice Department brief in the move to repeal “Don’t Ask, Don’t Tell” and that the brief “relies on arguments that were debunked and discredited in 1993, and even more so now.”

Solmonese also called on the administration to “show leadership, move the debate forward, and work with Congress to get repeal done” this year.

“While the Pentagon undertakes its review of how to implement repeal, Congress can and must move forward in repealing DADT in the same bill that put it into law more than 17 years ago — the defense authorization act,” he said. “And the president can and must provide the leadership necessary to get the law passed this year.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, expressed similar disappointment in a statement responding to the brief.

“SLDN understands the Justice Department’s role in defending the constitutionality of federal laws, even ones with which its leaders do not agree,” Sarvis said. “However, there continues to be a big and unnecessary disconnect between what DOJ files in court and what the president says on Capitol Hill and to his top [Department of Defense] leadership team.”

Sarvis said he wants the White House to make clear to Congress that “Don’t Ask, Don’t Tell” is a priority this year for President Obama and for the president to include repeal language in budget language headed to Capitol Hill in the coming weeks.

“The president’s defense budget repeal language should mirror the words in his State of the Union speech to Congress and the American people,” Sarvis said.

In a statement, Tracy Schmaler, spokesperson for the Justice Department, said the administration is defending “Don’t Ask, Don’t Tell” as “it traditionally does when acts of Congress are challenged.”

“The department does not pick and choose which federal laws it will defend based on any one administration’s policy preferences,” she said.

Schmaler said Obama disagrees with the underlying judgments Congress used to pass “Don’t Ask, Don’t Tell,” and noted that the president “believes and has repeatedly affirmed that [‘Don’t Ask, Don’t Tell’] is a bad policy that harms our national security and undermines our military effectiveness.”

“The president and his administration are working with the military leadership and Congress to repeal this discriminatory [law],” she said.



Kemp signs Georgia’s healthcare ban targeting trans and nonbinary youth

LGBTQ, legal, and civil rights groups condemn the healthcare ban



Georgia State Capitol (Washington Blade photo by Michael K. Lavers)

Georgia’s Republican Gov. Brian Kemp on Thursday signed a ban on guideline-directed gender-affirming healthcare for transgender and nonbinary youth that was passed earlier this week by the GOP-controlled state legislature.

The law threatens to revoke the medical licenses of physicians who administer treatments for gender dysphoria in minor patients that are overwhelmingly considered safe, effective, and medically necessary by every scientific and medical society with relevant clinical expertise.

A previous version of S.B. 140 applied exclusively to surgical interventions, but the version signed into law Thursday also prohibits hormone replacement therapies, although treatment with puberty blockers is still allowed.

The move by GOP legislators to expand the healthcare interventions covered by the legislation follows pressure from conservatives like far-right U.S. Rep. Marjorie Taylor Greene, who represents Georgia’s 14th Congressional District in the House and urged the state’s lawmakers last week to make the bill more restrictive.

At the time, Greene also objected to the draft bill’s “limited exceptions” carved out for cases where patients are treated for conditions other than gender dysphoria, including those diagnosed with “a medically verifiable disorder of sex development,” provided the physician can attest they are medically necessary.

These provisions were kept intact in the bill’s final iteration, which contains additional exceptions for the treatment of partial androgen insensitivity syndrome and in circumstances where the minor patient was being treated with hormone replacement therapies prior to July 1 2023.

A chorus of objections to and condemnations of the legislation have come from LGBTQ groups, along with legal and civil rights advocacy organizations and medical societies, clinicians, and scientists, including the Georgia Psychological Association.

The Human Rights Campaign, America’s largest LGBTQ advocacy group, issued a statement shortly after Kemp signed the bill Thursday, declaring that Georgia had become “the largest state to legislatively enact such a discriminatory ban.”

“Governor Kemp should be ashamed of himself — taking life-saving care away from vulnerable youth is a disgusting and indefensible act,” Human Rights Campaign State Legislative Director and Senior Counsel Cathryn Oakley said in the statement. “This law harms transgender youth and terrorizes their families, but helps no one.”

Despite the wave of legislation across the country barring access to or criminalizing gender affirming care, in most cases for minor patients, the group noted in Thursday’s release that “polling by Patinkin Research Strategies released this month shows that only 26 percent of likely November 2024 voters in Georgia supported the legislation, while 66 percent opposed it” including 63 percent of independent and 59 percent of likely Republican voters.

According to the findings of a Human Rights Campaign study that were announced Wednesday, “more than half (50.4%) of transgender youth (ages 13-17) have lost or are at risk of losing access to age appropriate, medically necessary gender-affirming care in their state” – care, the group stressed, that “can be lifesaving.”

Following the Georgia legislature’s passage of the S.B. 140 earlier this week, the ACLU warned it would “[interfere] with the rights of Georgia parents to get life-saving medical treatment for their children” and prevent “physicians from properly caring for their patients.”

The Southern Poverty Law Center released a statement by Beth Littrell, the organization’s senior supervising attorney for its LGBTQ and Special Litigation Practice Group, calling the bill a “cynical partisan attack on transgender youth, medical autonomy, and parental rights” and urging Kemp to “leave personal healthcare decisions in the capable hands of parents, children, and their doctors.”

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U.S. Federal Courts

Families with trans kids sue Florida over trans youth healthcare ban

Ban stands ‘in direct contrast to evidence & science’



Florida's Governor Ron DeSantis & Surgeon General, Dr. Joseph Ladapo (Screenshot/YouTube WTXL ABC 7 Tallahassee)

A lawsuit on behalf of four families with transgender children was filed Thursday in U.S. District Court for the Northern District of Florida, challenging the state’s Boards of Medicine and Osteopathic Medicine’s ban on gender affirming healthcare for minors.

The legal groups representing the four families, GLBTQ Legal Advocates & Defenders (GLAD), the National Center for Lesbian Rights (NCLR), the Human Rights Campaign and the Southern Legal Counsel, Inc. (SLC) noted in the suit that the bans contradict guidelines established through years of clinical research and recommended by every major medical association including the American Academy of Pediatrics, the American Medical Association, and the American Academy of Child and Adolescent Psychiatry.

The lawsuit also spells out that the policies unlawfully strips parents of the right to make informed decisions about their children’s medical treatment and violates the equal protection rights of transgender youth by denying them medically necessary, doctor-recommended healthcare to treat their gender dysphoria. 

The enactment of Florida’s transgender healthcare ban, which went into effect on March 16, 2023, has faced considerable scrutiny as a politically-motivated process instigated at the urging of the governor and ignoring established medical and scientific consensus on medical care for transgender youth. 

Statewide LGBTQ Equality rights advocacy group Equality Florida has decried the ban saying it was little more than a cultural war maneuver by Republican Governor Ron DeSantis who is widely expected to announce a run for the presidency in 2024.

In the summer of 2022, Florida Surgeon General Joseph Ladapo and the Department of Health asked the state Boards of Medicine and Osteopathic Medicine to adopt a categorical ban on all treatment of gender dysphoria for people under eighteen years of age.

In February and March of 2023, respectively, the Boards adopted formal rules prohibiting all access to safe, effective medical treatments for transgender youth who have received a gender dysphoria diagnosis but who have not yet begun puberty delaying medication or hormone treatments. Surgeon General Ladapo and all members of the Florida Boards of Medicine and Osteopathic Medicine are defendants in the families’ suit challenging the ban.

“This policy came about through a political process with a predetermined conclusion, and it stands in direct contrast to the overwhelming weight of the evidence and science,” said Simone Chriss, Director of Transgender Rights Initiative, Southern Legal Counsel. “There is an unbelievable degree of hypocrisy when a state that holds itself out as being deeply concerned with protecting ‘parents’ rights’ strips parents of their right to ensure their children receive appropriate medical care. I have worked with families and their healthcare providers in Florida for many years. They work tirelessly every day to ensure the best health outcomes for their kids and patients, and they are worried sick about the devastating impacts that this ban will have.”

“The Florida Boards of Medicine chose to ignore the evidence and science in front of them and instead put families in the unthinkable position of not being able to provide essential healthcare for their kids,” said Jennifer Levi, Senior Director of Transgender and Queer Rights, GLBTQ Legal Advocates & Defenders.

“Parents, not the government, should make healthcare decisions for their children,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “This policy crosses a dangerous line and should concern anyone who cares about family privacy or the ability of doctors to do their jobs without undue government interference.”    

“It’s alarming to see such a concerted, top-down effort to target a small and vulnerable population,” said Sarah Warbelow, Human Rights Campaign Legal Director. “The Florida Surgeon General, Department of Health and Boards of Medicine should be focused on the real and serious public health issues Florida faces, not on putting transgender kids and their families in harm’s way.”

In a press statement by the legal teams representing them, the four families also weighed in:

“Like most parents, my husband and I want nothing more than for our daughter to be healthy, happy, and safe,” said Jane Doe speaking about her 11-year-old daughter, Susan. “Being able to consult with our team of doctors to understand what our daughter is experiencing and make the best, most informed decisions about her care has been critically important for our family. She is a happy, confident child, but this ban takes away our right to provide her with the next step in her recommended treatment when she reaches puberty. The military doctors we work with understand the importance of providing that evidence-based, individualized care. We’re proud to serve our country, but we are being treated differently than other military families because of a decision by politicians in the state where we are stationed. We have no choice but to fight this ban to protect our daughter’s physical and mental health.”

“This ban puts me and other Florida parents in the nightmare position of not being able to help our child when they need us most,” said Brenda Boe, who is challenging the ban on behalf of herself and her fourteen-year-old son, Bennett Boe. “My son has a right to receive appropriate, evidence-based medical care. He was finally getting to a place where he felt hopeful, where being prescribed testosterone was on the horizon and he could see a future for himself in his own body. That has been ripped away by this cruel and discriminatory rule.” 

“Working with our healthcare team to understand what my daughter is experiencing and learning there are established, effective treatments that are already helping her to thrive has been an incredible relief,” said Fiona Foe, who is challenging the ban on behalf of herself and her ten-year-old daughter, Freya Foe. “I know everyone may not understand what it means to have a transgender child, but taking away our opportunity to help our daughter live a healthy and happy life is cruel and unfair.”

“Our daughter has been saying she is a girl since she was three – it hasn’t gone away,” said Carla Coe, a plaintiff in the lawsuit along with her nine-year-old daughter, Christina Coe. “Since she started being able to live as a girl she has been so much happier and better adjusted. Having the resources and support to make the best decisions for her wellbeing has been so important for our family. I’m scared this ban will take away the essential medical care she may need when she gets older. We just want to do what’s right for our kid.”

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DeSantis eyes expansion of anti-LGBTQ “Don’t Say Gay” law

White House Press Secretary Karine Jean-Pierre condemned the move Wednesday



Florida Gov. Ron DeSantis (R) (Photo credit: office of the Governor)

Florida’s Republican Gov. Ron DeSantis is aiming to expand the state’s controversial “Don’t Say Gay” law, officially known as the Parental Rights in Education Act, such that it would apply to public school classrooms from pre-K through grade 12.

The existing law, which was enacted last year, prohibits discussion or classroom instruction on sexual orientation and gender identity for public school students from kindergarten through third grade.

The Orlando Sentinel first reported the proposal to expand the statute, which was made at the behest of Florida’s DeSantis appointed and avowedly anti-LGBTQ Education Commissioner Manny Diaz Jr.

Exemptions are carved out in cases where otherwise prohibited materials are included in existing state standards or constitute part of reproductive health instruction, provided that parents or students are able to opt-out.

Asked for a reaction to DeSantis’s proposed expansion of the “Don’t Say Gay” law during a press briefing Wednesday, White House Press Secretary Karine Jean-Pierre spoke out against the move by the Florida Governor:

“Yeah.  It’s wrong.  It’s completely, utterly wrong.  And we’ve been crystal clear about that, when it comes to the ‘Don’t Say Gay’ bill and other — other actions that this governor has taken in the state of Florida.”

But make no mistake, this is a part of a disturbing and dangerous trend that we’re seeing across the country of legislations that are anti-LGBTQI+, anti-trans, anti the community in a way that we have not seen it in some time. And so — and it’s not just the LGBTQI+ community.  We’re talking about students.  We’re talking about educators.  We’re talking about, just, individuals.”

The President has been very clear, this administration has been very clear: We will continue to fight for the dignity of — of Americans, for the dignity and respect of the community, of opportunity that should be given to students and families in Florida and across the country.”

So, again, this is just plain wrong, and we’re going to continue to speak against — speak out against it,” Jean-Pierre said.

Brandon Wolf, Press Secretary for Equality Florida, the largest state-wide LGBTQ+ equality rights and advocacy organization, released the following statement:

“After a year’s worth of gaslighting and assurances that the Don’t Say LGBTQ law was narrowly focused, the DeSantis Administration is now saying the quiet part out loud: they believe that it is never appropriate to acknowledge the existence of LGBTQ people, or our contributions to society, in schools. This time, the governor is placing the crosshairs squarely on individual educators, threatening their professional licenses for making mention of the LGBTQ community in any grade level.

The Board of Education’s proposed rule would see more books with LGBTQ characters ripped from school shelves, more discussion of diverse families muzzled, and further character assassination of hardworking teachers in Florida. Free states don’t ban books. Free states don’t censor communities out of classrooms. Free states don’t copy/paste their political agendas from the likes of Vladimir Putin.”

This proposed rule is yet more government power being perverted to serve Ron DeSantis’ desperation to run for President. And its consequences will weigh most heavily on those who have already been forced to bear the brunt of his insatiable lust for power.“

Equality Florida also noted that while the DeSantis Administration has rejected requests to clarify the law’s vague, unconstitutional language, its proposal would add legal liability for individual educators, threatening their professional licenses for violations. The proposed rule is scheduled for a vote by the State Board of Education at their meeting on April 19 in Tallahassee.

DeSantis is considering a run for the presidency and has made culture war issues the forefront of his administration’s policies.

Former openly gay Florida Democratic State Rep. Carlos Guillermo Smith tweeted: “It was never, ever, ever, ever about kindergarten thru 3rd grade. It was always about demonizing us and censoring LGBTQ people out of existence in our schools.”

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