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Kagan’s record, sexual orientation draw scrutiny

LGBT groups mixed on Supreme Court nominee

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Solicitor General Elena Kagan, a U.S. Supreme Court nominee, could be asked to address past comments on ‘Don’t Ask, Don’t Tell’ and same-sex marriage during her confirmation hearings. (Photo by Lawrence Jackson; courtesy of White House)

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is inspiring varied reactions, ranging from excitement to caution, as questions linger about her record on LGBT issues.

Many LGBT advocacy groups are pleased that Kagan opposed military recruitment on Harvard’s campus because “Don’t Ask, Don’t Tell” violates university non-discrimination policies, but others are waiting for her to clarify her positions on LGBT issues in congressional testimony before the Senate.

Meanwhile, questions about Kagan’s sexual orientation distracted attention from her record this week, as some anti-gay conservatives — along with more than a few LGBT bloggers — speculated that she is a lesbian.

Obama nominated Kagan to fill the seat that will be vacated at the end of the term by retiring Associate Justice John Paul Stevens. If the Senate confirms her to the position, there would be three women sitting on the Supreme Court, the most women the bench has seen in its history.

Prior to her tenure as solicitor general, in which she defended federal law before the Supreme Court, Kagan was a clerk for former Associate Justice Thurgood Marshall, an associate White House counsel for former President Bill Clinton and dean of Harvard law school.

In a statement, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the Senate would consider Kagan’s nomination this summer and should confirm her nomination before the August recess.

Joe Solmonese, president of the Human Rights Campaign, in a statement, praised Obama for selecting Kagan to serve on the bench.

“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” Solmonese said. “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”

Doug NeJaime, a gay associate law professor at Loyola Law School, expressed similar excitement over the nomination of Kagan, whom he called a “fantastic” choice to serve on the bench.

In 2008, NeJaime said he attended a Harvard gay and lesbian caucus conference where Kagan moderated a panel with sexual orientation law scholars. He noted that Kagan “was clearly really knowledgeable about these issues.”

“I think she’ll do a good job in dealing with them and hopefully having conversations with other justices — getting them more on board with what LGBT legal issues entail,” NeJaime said.

But Hayley Gorenberg, deputy legal director for Lambda Legal, was more cautious about embracing Kagan’s nomination and said she was awaiting the Senate confirmation process.

“She’s just been nominated, and we are studying everything that we can on her,” she said. “We’re looking toward the confirmation hearings so that we can learn more about her positions on legal areas that are core to the right of LGBT people and people with HIV.”

In particular, Gorenberg said she’s looking to see whether Kagan will separate herself from the Justice Department’s legal briefs defending challenges to the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” which occurred under her watch during the Obama administration.

“Those briefings give us concern, and we certainly voiced it with the Obama administration,” Gorenberg said. “So, what we need to see now is her views apart from an institutional position, and that’s what we’re looking toward in confirmation hearings.”

‘Don’t Ask’ stance
could be obstacle

One potential obstacle that Kagan may encounter on her path to confirmation — despite the favor it may win her among LGBT supporters — is her opposition as dean of Harvard law school to military recruiting on campus because of “Don’t Ask, Don’t Tell.”

In October 2003, Kagan wrote in an e-mail to students that military recruiting on campus caused her “deep distress” and that she “abhor[s] the military discriminatory recruitment policy,” according to a recent report in the Washington Post.

She was quoted as calling the recruitment policy in the U.S. military “a profound wrong — a moral injustice of the first order.”

In 2005, Kagan was also one of 40 Harvard professors who signed a friend-of-the-court brief in favor of an appellate court ruling overturning the Solomon Amendment, which would have allowed colleges to limit the military’s presence at campus recruiting events. The Supreme Court unanimously disagreed with the lower court ruling.

Conservative senators could pounce on Kagan’s views on military recruitment on campus as dean of Harvard law school as reason to vote against her confirmation.

Sen. Jeff Sessions (R-Ala.), ranking Republican on the Senate Judiciary Committee, said in a statement published shortly after her nomination that Kagan’s position is “deserving review.”

“This is a significant issue for me since I worked hard for the passage of the Solomon Amendment,” Sessions said. “Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.”

Sen. James Inhofe (R-Okla.) said Monday he plans to vote against Kagan’s confirmation — making him the first senator to commit to a “no” vote — because of her position on campus military recruitment.

But NeJaime said he didn’t think Kagan’s position would be problematic because it’s “very much in the mainstream of the legal academic community,” and other law schools besides Harvard have challenged the constitutionality of the Solomon Amendment in court.

“It’s not like she was even completely out in front on that issue,” NeJaime said. “I also think public sentiment against ‘Don’t Ask, Don’t Tell’ is pretty high, and so it’s not a non-mainstream position.”

But Gorenberg said Senate opposition to Kagan’s confirmation because of her position on military recruitment is already apparent.

“We can already see that the positions that she promoted as dean that were targeted against discrimination against LGBT people — that those positions are already the subject of potshots from anti-gay extremists,” Gorenberg said. “We saw that instantly upon her nomination, if not before.”

Kagan’s views on military recruitment also raise the question of whether she would be asked to recuse herself in the event a “Don’t Ask, Don’t Tell” case came before the Supreme Court while she’s on the bench.

Gorenberg said “it’s not clear” that Kagan would need to seek recusal in such a situation based on her comments as dean of Harvard law.

The Servicemembers Legal Defense Network didn’t immediately respond to the Blade’s request to comment on Kagan’s statements on military recruitment or whether she would have to recuse herself if a “Don’t Ask, Don’t Tell” case reached the high court.

Same-sex marriage
a potential issue

Another topic that may come up during Kagan’s confirmation hearings is her position on same-sex marriage and whether she thinks the U.S. Constitution provides for marriage rights for same-sex couples. Such a position would be especially important for LGBT people because cases on same-sex marriage could be on their way to the Supreme Court.

Kagan previously denied that the U.S. Constitution grants a right to same-sex marriage in a questionnaire answer prior to her confirmation hearings to become solicitor general.

“There is no federal constitutional right to same-sex marriage,” she wrote in a response to a question on the issue.

In response to a subsequent question, she added that she doesn’t believe she expressed an opinion on the question before that time.

Kagan’s response could be troubling for organizations behind federal lawsuits seeking to overturn the Defense of Marriage Act or bans on same-sex marriage within states.

The American Federation for Equal Rights, the organization behind the Perry v. Schwarzenegger case seeking to overturn California’s Proposition 8, didn’t respond to the Blade’s request to comment on the Kagan nomination.

A spokesperson for the Gay & Lesbian Advocates & Defenders — which is behind Gill v. Office of Personnel Management, a case seeking to overturn part of DOMA that prohibits federal recognition same-sex marriage — said her organization isn’t commenting on the Kagan nomination because the lawsuit could go to the Supreme Court.

On the Perry case, NeJaime said Kagan’s comment on same-sex marriage could be relevant depending on whether the court takes up the case as a broad question about constitutional rights to same-sex marriage or, more simply, California’s legitimate interest in passing Proposition 8.

“I also think we don’t really know what her position will be on an issue like that until the issue is briefed and until it’s actually at the court,” he said. “I’m pretty confident that she is at least open-minded to LGBT claims under the federal Constitution.”

Gorenberg said she’s “not sure” whether Kagan’s comments would be a predictor of how the nominee would rule if marriage cases came before the Supreme Court.

She said the remarks raise the question of what Kagan meant in her questionnaire answer, but noted that it’s unknown whether Kagan’s position would become more clear during confirmation hearings.

“We would always like to know what would happen in the future on a specific issue, but it’s not surprising to us — for any nominee — that we don’t get a specific forecast on a case because it’s just not standard that the nominees ever give them to us,” Gorenberg said.

Still another issue surrounding the nomination is whether Kagan, who’s unmarried, is a lesbian.

In a deleted CBS News posting published prior to the announcement of Kagan’s nomination, conservative blogger Ben Domenech wrote that confirmation of Kagan would make her the “first openly gay justice.”

The White House disputed Domenech’s characterization of Kagan as an out lesbian and said he was making false charges. After the posting was deleted, Domenech maintained that he heard discussion about her sexual orientation.

In a later posting on the Huffington Post, Domenech wrote that he “erroneously believed” Kagan was an out lesbian because “it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.”

Sessions’ office didn’t respond to the Blade’s request to comment on whether the matter was of concern to the senator or whether he would expect questions on the issue to come up during the confirmation hearings.

NeJaime said he didn’t anticipate discussions of Kagan’s sexual orientation to arise during her confirmation hearings, but said it would be “sad commentary” if the matter became a stumbling block for her.

“We don’t know about her sexual orientation one way or the other, and I don’t really anticipate it being an issue that anyone takes up,” he said.

Gorenberg said she didn’t have any information on Kagan’s sexual orientation and didn’t know how lawmakers would respond to speculation that she’s a lesbian.

“There are a lot of senators out there and I don’t know [who] may or may not be inclined to go after any nominee based on their sexual orientation,” Gorenberg said.

She said one of Lambda’s central tenets is that people shouldn’t face discrimination based on sexual orientation and noted that principle could be applied in Senate confirmation hearings.

A friend of Kagan’s told Politico this week that Kagan is not a lesbian.

“I’ve known her for most of her adult life and I know she’s straight,” Sarah Walzer, Kagan’s law school roommate, told Politico. “She dated men when we were in law school, we talked about men … She definitely dated when she was in D.C. after law school … and she just didn’t find the right person.”

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Federal Government

RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth

‘Discredited junk science’ — GLAAD

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HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.

The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.

“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”

While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.

The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”

Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.

“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”

GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”

Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.

“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.

“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.

“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”

“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”

“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.” 

Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.

“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”




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The White House

Trump nominates Mike Waltz to become next UN ambassador

Former Fla. congressman had been national security advisor

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U.N. headquarters in New York (Washington Blade photo by Michael K. Lavers)

President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.

Waltz, a former Florida congressman, had been the national security advisor.

Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.

“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”

Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”

“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.

Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.

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U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

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Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order.  The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.

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