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Despite compromise, advocates celebrate votes to repeal ‘Don’t Ask’

McCain pledges to derail ‘Don’t Ask’ momentum

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U.S. Sen. John McCain (Blade photo by Michael Key)

Gay veterans are celebrating congressional action last week to repeal “Don’t Ask, Don’t Tell,” 17 years after Congress passed a law banning gays from serving openly in the U.S. military.

The House and Senate took separate actions that would lead to an end of the statute. Both chambers approved amendments repealing “Don’t Ask, Don’t Tell” as part of major defense budget legislation known as the fiscal year 2011 defense authorization bill.

On May 27, the House voted 234-194 on the floor in favor of an amendment sponsored by Rep. Patrick Murphy (D-Pa.). The next day, the chamber voted 229-186 in favor of passing the entire defense bill.

Five Republicans voted in the affirmative on the amendment: Reps. Judy Biggert (Ill.), Joseph Cao (La.), Charles Djou (Hawaii), Ron Paul (Texas) and Ileana Ros-Lehtinen (Fla.). Joining other Republicans to vote against the measure were 26 Democrats.

The Senate Armed Services Committee voted 16-12 in favor of an identical repeal measure sponsored by Sen. Joseph Lieberman (I-Conn.).

In that chamber, Sen. Susan Collins (R-Maine) was the only Republican to vote in favor of repeal. The sole Democrat who voted against the amendment was Sen. Jim Webb (D-Va.). He had earlier told media outlets that he sees no need to preempt the Pentagon’s “Don’t Ask, Don’t Tell” study by voting in favor of repeal at this time.

The legislative compromise adopted by both chambers of Congress would repeal “Don’t Ask, Don’t Tell” only after the Defense Department completes its study on the issue, due Dec. 1.

Additionally, President Barack Obama, Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Michael Mullen would have to certify that repeal won’t undermine military readiness — and 60 days would have to pass after this certification before repeal would take effect.

The measure also notably lacks the non-discrimination language for gay, lesbian and bisexual service members that standalone repeal bills contained.

Even with the compromise, though, many gay former service members were delighted with Congress for taking action.

Mike Almy, a gay former Air Force communications officer who was discharged under “Don’t Ask, Don’t Tell” in 2006 and recently testified before the Senate on the issue, witnessed the vote in the House chamber.

“The whole floor and the gallery erupted with a cheer,” he said. “There were quite a few tears of joy and disbelief, including myself. I still get choked up when I think about it.”

Following the vote in the Senate Armed Services Committee, Almy said repeal supporters visited the office of Sen. Ben Nelson (D-Neb.) to thank him for his vote in favor of ending “Don’t Ask, Don’t Tell.”

Nelson told the Blade last month that he wouldn’t vote in favor of a measure repealing “Don’t Ask, Don’t Tell.” But after Sen. Joseph Lieberman (I-Conn.) unveiled his compromise legislation, Nelson signaled he would vote in favor of the measure.

Almy said Nelson’s staffers told repeal supporters that they received 40,000 phone calls in Nebraska for repeal and 1,100 against.

“I was speechless,” Almy said. “I was completely dumbfounded there was that much support in Nebraska for repeal. It was just an incredible week overall.”

Retired Navy Capt. Joan Darrah, a lesbian who retired from service in 2002 because of “Don’t Ask, Don’t Tell,” also said she was pleased with Congress, calling the votes “a tremendous effort and a great result.”

But Darrah, who lives in Alexandria, Va., said she’s “distressed” about Webb’s vote against repeal.

“I’ve met and corresponded with Sen. Webb many times and I’m disappointed,” she said.

Darrah said she’s willing to live with the compromise, though, and didn’t think Mullen would delay certification of repeal once the Pentagon study is complete.

“This approach that they’ve come up with allows the study to conclude — and the study is supposed to be how to implement it, not if we should,” she said. “I think that this is an excellent compromise. We need the Senate to vote on it and then get on with getting rid of this, frankly, un-American and discriminatory law.”

Also expressing excitement about the congressional votes was a gay man from Chesapeake, Va. The active duty Navy sailor, who served in Iraq and Afghanistan, spoke to the Blade on the condition of anonymity to avoid to being outed under “Don’t Ask, Don’t Tell.”

He called the action from Congress “long overdue” and said “it’s been a rough hell” serving in the military for seven of the 17 years since “Don’t Ask, Don’t Tell” was enacted.

He said he’s willing to accept the compromise advanced by Congress because “we’re standing on the right side of history” and didn’t think Obama, Gates or Mullen would delay certification of repeal.

“Adm. Mullen said it best — men and women are serving in an institution where integrity is key, but we’re asking them — asking us — to hide who we are,” said the man. “I don’t think we’ll have any problem at all.”

Following the vote, Obama issued a statement on the “Don’t Ask, Don’t Tell” action. The White House previously said it would support the compromise legislation because it allows the Pentagon to complete its study on the issue.

Obama said he was “pleased” with the outcome while stressing the importance of the Pentagon’s “Don’t Ask, Don’t Tell” study due at year’s end.

“I have long advocated that we repeal ‘Don’t Ask Don’t Tell,’ and I am pleased that both the House of Representatives and the Senate Armed Services Committee took important bipartisan steps toward repeal tonight,” Obama said.

The president said the Pentagon’s review was “key to successful repeal” and that he was grateful the amendments approved by Congress “will ensure that the Department of Defense can complete that comprehensive review that will allow our military and their families the opportunity to inform and shape the implementation process.”

Hurdles remain in repeal process

Even with Congress taking action to end “Don’t Ask, Don’t Tell,” the legislation approved by the House and the Senate committee still has to make its way to the president’s desk and win his signature before it’s enacted.

And a number of obstacles could prevent the bill from reaching the White House or being signed into law. However, supporters of repeal are saying these roadblocks are less numerous than obstacles before the congressional votes on “Don’t Ask, Don’t Tell.”

Alex Nicholson, executive director of Servicemembers United, said the legislation didn’t “have a lot” of possible roadblocks preventing it from being signed by the president.

Still, one problem that supporters of repeal could face is a filibuster of the defense authorization bill when it reaches the Senate floor.

Sen. John McCain (R-Ariz.), ranking Republican on the Senate Armed Services Committee and chief opponent of repeal in the Senate, had pledged to find the 60 votes in the Senate necessary to block the bill from moving forward.

Roll Call newspaper reported May 27 that McCain said he’ll “without a doubt” support a filibuster if the bill goes to the floor with repeal language.

“I’ll do everything in my power,” McCain was quoted as saying. “I’m going to do everything I can to support the men and women of the military and to fight what is clearly a political agenda.”

But mustering 60 votes to filibuster the defense bill could prove a challenge for McCain.

Two senators who voted against the inclusion of “Don’t Ask, Don’t Tell” repeal language in the defense bill — Jim Webb (D-Va.) and Scott Brown (R-Mass.) — later voted in favor of reporting out of committee the defense bill as a whole. Their votes could be seen as signs they wouldn’t support filibustering the legislation on the floor.

Nicholson said he believes Senate Majority Leader Harry Reid (D-Nev.) has the votes to shut down McCain’s filibuster threat on the bill, but added it’s “never a guaranteed thing.”

“I personally think Jim Webb and Scott Brown’s votes are still a little volatile,” Nicholson said. “While they voted to report the bill out of committee, I don’t know that they’re solid allies on this. If McCain figures out a way to try to block this with a filibuster, I wouldn’t count Brown and Webb in our camp 100 percent.”

During a press conference last week, Senate Armed Services Committee Chairman Carl Levin (D-Mich.), hailed as a champion of repeal in the Senate, dismissed the chances of a successful filibuster on the defense authorization bill.

“I think it’s hard to filibuster a defense bill,” Levin said. “There’s so much in here for our troops. The fact that there’s one provision in here that some people don’t like — it seems to me [that] would not be [a] sufficient deal for 41 senators to filibuster a defense bill.”

Levin said he wants to bring the legislation before the full Senate sometime before the August recess.

Nicholson said another threat on the Senate floor could be a strike-and-replace amendment modifying the “Don’t Ask, Don’t Tell” language, such as one that changes the scope of the Pentagon study on the issue.

Conservatives have called for legislation that reconfigures the study so that it would focus on whether repeal of “Don’t Ask, Don’t Tell” would have a significant impact on improving military readiness.

“Something like that could be very appealing, especially if it’s rather moderate in nature,” Nicholson said.

Making the language different in both bills would mean the differences would have to be hashed out by conference committee, which could jeopardize any repeal provision being in the final bill.

An unrelated issue that could preclude Obama from signing the defense bill is funding for an alternate engine program for a next generation military aircraft known as the Joint Strike Fighter.

The House version of the legislation authorizes $485 million in funds for the second engine for the aircraft. Last week, an amendment failed in the House that would have stripped the funding from the legislation. The Senate committee’s version of the legislation authorizes no funding for the program.

In a statement, Obama spoke out against the funds for the alternate engine program in a Statement of Administration Policy on the defense bill as a whole. He subsequently warned Congress he would veto the legislation if it reaches his desk with such funding.

“As the Statement of Administration Policy made clear, our military does not want or need these programs being pushed by the Congress, and should Congress ignore this fact, I will veto any such legislation so that it can be returned to me without those provisions,” Obama said.

The issue of funding for the alternate engine program has perennially been a point of contention between Congress and the White House. According to Reuters, 2010 marks the fourth consecutive year in which the Pentagon has voiced concern about the program.

Nicholson said he didn’t know if the veto threat was “too serious of a problem,” but noted it’s something supporters of repeal should monitor.

He said repeal supporters could either push Congress to take out funding for the alternate engine program or lobby Obama not to veto the bill over the funding.

“In the end, I don’t think that’s going to be a big problem,” Nicholson said. “Even if he did veto it and it went back, I feel certain with the majorities by which we won the House and the way it’s aligned in the Senate, I don’t really fear that the ‘Don’t Ask, Don’t Tell’ language will be threatened or in play.”

Levin, a supporter of funding for the alternate engine program, also said during the press conference last week that Congress and the administration would find a way to work through the disagreement on the issue.

“There’s all kinds of items in this bill,” he said. “It’s difficult for me to believe the president would veto an entire bill over just one provision.”

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National

New LGBTQ+ Archive to save scrubbed federal resources

Trump’s anti-DEI crusade seeks to erase entire communities

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President Trump’s attacks on DEI have led government agencies to scrub their sites of LGBTQ content. A new initiative aims to preserve the information. (Washington Blade file photo by Michael Key)

Generally, when someone says, “The internet is forever,” it is not a positive statement. 

But for Shae Gardner, policy director at LGBT Tech, it has become a lifeline as she and her team have spent the last couple of months tracking down documents removed from government websites.

After a series of anti-DEI and LGBTQ executive orders, thousands of pages across the federal government have been removed or altered—with LGBTQ topics taking a big hit.

The LGBTQ+ Archive, launched by LGBT Tech last month, aims to restore lost resources about the LGBTQ community into a centralized hub. They have tracked down approximately 1,000 documents—all available as downloadable PDFs and sorted by agency—but know that more are missing. Users can submit missing documents or requests for missing documents. 

Archived resources range from the 2023 Equity Action Plans mandated under Biden to HIV resource sheets. 

Sid Gazula, LGBT Tech’s Google Policy Fellow said reviewing the documents scrubbed from the Department of Health and Human Services was striking. “You have these important documents related to people’s health. Health isn’t subjective,” he said, “The fact that an executive order could take away all this information was very eye-opening.”

For Gazula it made an already urgent project more urgent. “We, as a community, need access to these resources,” he said, “The archive presents a mechanism to get that access out there.”

The LGBT community has a long history of engaging in archival work, explained K.J. Rawson, professor at Northeastern University and director of the Digital Transgender Archive, in an email. He described archives as “key avenues for preserving and making accessible queer and trans history.”

Since mainstream archives often erase or misrepresent the LGBTQ community, Rawson pointed out that LGBTQ archives “fight against this trend and wrest control back into LGBTQ+ hands,” citing Cait McKinney’s phrase “information activism.” 

Gardner feels appreciative of the history of LGBTQ preservation, which guided their work: “I want to make it abundantly clear that we are the first or only organization doing this sort of preservation work.” She also mentions the Internet Archive, a non-profit library of web pages, which was invaluable during their research.

When the Blade asked about the LGBT Archive, Rawson described it as “crucial!” He elaborated that, “the overt erasure of LGBTQ+ people––but especially trans people––from federal websites has been a hostile move that’s one part of larger efforts to strip us of our humanity and our history.”

Beyond creating a record for the future, the archive is also useful in fighting for LGBTQ representation today. Gardner explained that numerous journalists and advocacy groups have already been using it. Gazula, who is a student, shared that some of their professors said it was an important resource for academic work. 

To access it, users have to create an account. Gardner said this is not for marketing. Instead, they want to “put a stop gap between us and malicious actors and attacks on the site” and have a basic understanding of who is using the site. She assures users that the data is backed up on servers globally, but encourages folks to download freely from the archive. 

“We decided that we wanted every document and resource on it to be a PDF that they would be able to save it themselves,” said Gardner, “This is not only meant to be very user-friendly, but is also meant to help with those resources being dispersed and being kept.”

“It is the history of our community,” Gardner continued, “we deserve to have continued access to it.”

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U.S. Federal Courts

Meeting the moment: Democracy Forward takes prominent role in fighting Trump regime

Group is involved in cases including some before the Supreme Court that concern LGBTQ rights

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Just weeks before the U.S. Supreme Court is expected to decide a handful of cases with potentially huge implications for LGBTQ rights in America, the Washington Blade spoke with the president of a group that is involved in several of those legal battles and others that have taken center stage in President Donald Trump’s second term.

Since 2021, Skye Perryman has served as president and CEO of Democracy Forward, a legal services and impact litigation group distinguished in part by its focus, “in our organizational hiring, and in our growth, and in our organizational culture,” on “having as many highly talented lawyers full-time, on our staff, as we possibly can.”

The moment requires it. Since the start of the new administration, demand for legal representation has skyrocketed as people and communities, from government workers to university administrators and LGBTQ populations, have been targeted.

Additionally, following his return to the White House Trump has launched an unprecedented assault against lawyers and law firms, which has discouraged attorneys from representing clients and causes that might put them at odds with the administration or with the president himself.

As queer Russian-American journalist and author M. Gessen said recently, “the judiciary is the hardest thing to restore once it has been destroyed. It’s a very, very complicated universe — of courts and lawyers and cultural norms and educational institutions and law firms as institutions that are distinct from individual lawyers — and he’s attacking every one of those elements.”

“We’ve grown substantially in order to be able to meet this moment, which is why we’re able to be in court,” Perryman told the Blade, “because we have lawyers on our staff,” about 50 full-time attorneys right now, which means “we’re not as dependent on pro bono legal services.”

Trump’s attacks on the rule of law have been complicated by the surrender of firms that have struck deals with the president to spare themselves from executive orders that present existential threats to their survival but which others have chosen to fight in court.

Perryman said that as a result of these settlements, “there are less legal services available at a time when the major tool that the American people have right now to defend their rights against their government is the ability to initiate litigation.”

In back-to-back rulings in late March followed by a decision early last month, Judges John Bates, Richard Leon, and Beryl Howell of the U.S. District Court for the District of Columbia struck down Trump’s executive orders against the firms Jenner & Block, WilmerHale, and Perkins Coie, ruling them unconstitutional. (Perryman is an alum of WilmerHale and of Covington & Burling, another top firm that is fighting an order targeting them.)

Nevertheless, “there has been an exponential increase in demand for our work as an organization, for our lawyers, because there has been a reduction in legal services provided by many firms in the private bar,” Perryman said.

She hedged that many firms have continued “doing pro-democracy work” since the start of Trump’s second term, but added there still “has been an overall significant gap in the legal services the private bar has been providing.”

Asked whether she has seen evidence that this has impacted litigation against Trump’s anti-trans executive orders and policies, Perryman declined to address specifics. “What we’ve seen more broadly is just firms not wanting to take on causes that would put them in the crosshairs of the administration,” she said, but noted that “of course, this is an administration that’s already shown that it’s very focused on rolling back the rights of the LGBTQ community.”

Pushing back against attacks on the rule of law

“There’s not a question in these courts’ minds about the constitutionality of what the administration is doing,” Perryman said. “You see very strong language that unequivocally makes it clear that a variety of our constitutional amendments and provisions are threatened and violated with respect to a president that is seeking to retaliate and to engage in these direct attacks on lawyers and law firms.”

Moreover, “These judges have all spent time in their opinions talking about the corrosive effects [of] law firms that have settled their matters, the fact that the administration appears to be have been able to resolve its concerns about a law firm merely if they’re willing to settle,” she said. “They really call that out as a pretext.”

Perryman added that the judges who have ruled in favor of plaintiffs challenging the Trump administration represent a variety of ideological backgrounds, or were nominated for their positions by presidents from both parties, which “really shows that these attacks and the response and our Constitution’s response to these attacks is something that transcends politics and transcends the general way that we look at politics in this country.”

“In the United States, the president cannot retaliate against people just because he doesn’t like who their clients were, and he can’t deprive people of legal representation,” Perryman said. “And I think that you see those themes come through very clearly in the opinions.”

Major victories and what’s on the docket now

“In many instances, we’ve co counseled and developed cases alongside Lambda and other groups specifically and exclusively focused on LGBTQ rights,” Perryman said, referring to Lambda Legal, an LGBTQ focused organization that does a lot of impact litigation.

“Democracy Forward’s expertise is very broad, and we do a lot of work with respect to the federal government and federal agencies and how those agencies work for people,” she added.

Perryman pointed to the successful legal challenge led by Democracy Forward against the Office of Management and Budget’s Jan. 28 memo ordering a nationwide hold on disbursements of federal grants and loans. The order came pursuant to Trump’s executive orders targeting DEI and the trans community, so LGBTQ nonprofits were disproportionately impacted among the groups receiving public funds.

The lawsuit filed on behalf of Democracy Forward’s plaintiffs including SAGE, which provides a variety of critical services for LGBTQ elders, resulted in a preliminary injunction issued by Judge Loren AliKhan of the U.S. District Court for the District of Columbia, which remains in place, protecting organizations that she noted would otherwise have faced “economically catastrophic—and in some circumstances, fatal” consequences.

“That litigation is helping the whole country, not just LGBTQ communities,” Perryman said, noting that in this case as in other cases, LGBTQ people and communities are often disproportionately impacted by litigation that, facially or at first blush, may not seem to directly concern their rights or welfare.

Perryman credited SAGE for suing the administration during its early days when the executive orders targeting lawyers and law firms were new and there was not much appetite for challenging the new Trump regime in court. “Everyone was very scared,” she said “and we’re just so proud of our clients.”

Another example, she noted, is Medina v. Planned Parenthood South Atlantic, which is pending a decision by the Supreme Court. The case is “sort of around an executive order that the governor of South Carolina put in place that removes facilities that provide abortion from the Medicaid provider list,” Perryman said.

She continued, “What that effectively does is it cuts off access, for patients that are using Medicaid, to critical services provided by Planned Parenthood clinics in the state, services that go far beyond just abortion care. Planned Parenthood, of course, provides so many sexual and reproductive health services, including to the LGBTQ community. And so I think that is a case that is also worth mentioning. We filed a brief there on behalf of current and former senior HHS administrators and others.”

Also before the Supreme Court as the June term nears its conclusion are cases like Kennedy v. Braidwood Management, Inc., which could imperil coverage under the Affordable Care Act for a broad swath of preventative health services and medications beyond PrEP, which is used to reduce the risk of transmitting HIV through sex.

Plaintiffs brought the case to challenge a requirement that insurers and group health plans cover the drug regimen, arguing that the mandate “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

The case has been broadened, however, such that cancer screenings, heart disease medications, medications for infants, and several other preventive care services are in jeopardy, LGBTQ and civil rights organizations have argued.

“In the Braidwood case, we filed a brief representing medical groups that outlines the real harms that could result if the court adopts what is, we believe, quite a baseless position,” Perryman said, “and how those harms could extend to all communities, frankly.”

There are others, Perryman noted. “The administration weaponizing the government against the rights of the American people and against LGBTQ people,” which has led Democracy Forward to challenge the firing of federal employees responsible for DEI, and the termination of Jocelyn Samuels from the U.S. Equal Employment Opportunity Commission, where she served as a commissioner and as such enforced anti-discrimination laws in the workplace including rules protecting LGBTQ people.

The organization is also in court fighting the administration’s effort to “prevent federal workers at National Guard facilities from being able to access bathrooms that correspond with their gender and their needs,” Perryman noted.

“Those types of matters that really involve the mechanics of the federal government and how it’s being weaponized against the American people, those are areas where Democracy Forward has had particular expertise and has been a core player,” she said.

The organization is active at the state and local level, too, including on matters that have “significant overlay with the LGBTQ community,” Perryman said. She pointed to lawsuits where, “We’ve sued on the decimation of the library sciences,” on behalf of the Institute of Museum and Library Sciences, important litigation given how state-level censorship has disproportionately targeted LGBTQ books, curricula, and speech.

Stronger together

“What I’m looking forward to as we move forward, I mean, this is a hard time, and it’s a hard time for the country,” Perryman said. “We know there’s a lot of fear.”

Reflecting on the resilience of LGBTQ people and communities specifically during Pride month, Perryman said, “what I’m looking forward to at our work at Democracy Forward is how we get to be alongside the people and communities in this country that even though they are afraid, and even though they are scared, they are making the choice to choose courage and to step forward and say, we can build some community together.”

“We see that happening in our work every day with all of these amazing plaintiffs and groups that we are representing,” she added. “While big, storied institutions are not standing up the way they need to, in this time, the American people really are and at Democracy Forward, we get a front row seat to that, which is a real honor.”

“As I think about the months ahead, which will be challenging, I’m just really looking forward to continuing to have a team that’s able to be there for people that in this time are choosing courage,” Perryman said.

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U.S. Federal Courts

Judge temporarily blocks executive orders targeting LGBTQ, HIV groups

Lambda Legal filed the lawsuit in federal court

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President Donald Trump (Washington Blade photo by Michael Key)

A federal judge on Monday blocked the enforcement of three of President Donald Trump’s executive orders that would have threatened to defund nonprofit organizations providing health care and services for LGBTQ people and those living with HIV.

The preliminary injunction was awarded by Judge Jon Tigar of the U.S. District Court for the Northern District of California in a case, San Francisco AIDS Foundation v. Trump, filed by Lambda Legal and eight other organizations.

Implementation of the executive orders — two aimed at diversity, equity, and inclusion along with one targeting the transgender community — will be halted pending the outcome of the litigation challenging them.

“This is a critical win — not only for the nine organizations we represent, but for LGBTQ communities and people living with HIV across the country,” said Jose Abrigo, Lambda Legal’s HIV Project director and senior counsel on the case. 

“The court blocked anti-equity and anti-LGBTQ executive orders that seek to erase transgender people from public life, dismantle DEI efforts, and silence nonprofits delivering life-saving services,” Abrigo said. “Today’s ruling acknowledges the immense harm these policies inflict on these organizations and the people they serve and stops Trump’s orders in their tracks.”

Tigar wrote, in his 52-page decision, “While the Executive requires some degree of freedom to implement its political agenda, it is still bound by the constitution.”

“And even in the context of federal subsidies, it cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous,” he said.

Without the preliminary injunction, the judge wrote, “Plaintiffs face the imminent loss of federal funding critical to their ability to provide lifesaving healthcare and support services to marginalized LGBTQ populations,” a loss that “not only threatens the survival of critical programs but also forces plaintiffs to choose between their constitutional rights and their continued existence.”

The organizations in the lawsuit are located in California (San Francisco AIDS Foundation, Los Angeles LGBT Center, GLBT Historical Society, and San Francisco Community Health Center), Arizona (Prisma Community Care), New York (The NYC LGBT Community Center), Pennsylvania (Bradbury-Sullivan Community Center), Maryland (Baltimore Safe Haven), and Wisconsin (FORGE).

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