National
Kagan denounces ‘Don’t Ask, Don’t Tell’
Supreme Court nominee calls gay ban ‘unwise, unjust’
U.S. Supreme Court nominee Elena Kagan was questioned this week about her handling of issues related to ‘Don’t Ask, Don’t Tell.’ (Washington Blade photo by Michael Key)
The issue of “Don’t Ask, Don’t Tell” and a controversy over allowing the U.S. military to recruit on college campuses emerged as central concerns during U.S. Supreme Court nominee Elena Kagan’s confirmation hearings this week.
The issues emerged Tuesday during the second day of hearings for Kagan — who’s currently serving as U.S. solicitor general — in testimony before the Senate Judiciary Committee, which was expected to continue throughout the week.
Sen. Jeff Sessions (R-Ala.) directed pointed questions at Kagan about the views she expressed as dean of Harvard Law School over military recruitment on campus.
According to media reports, 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’s discriminatory recruitment policy.”
In testimony, Kagan affirmed her opposition to the ban on open service as dean and said she still holds that belief.
“I have repeatedly said that I believe that the ‘Don’t Ask, Don’t Tell’ policy is unwise and unjust,” she said. “I believed it then and I believe it now.”
Kagan said as dean she tried to ensure military recruiters had “full and complete access” while she simultaneously tried to enforce Harvard’s non-discrimination policy that bars discrimination based on sexual orientation.
She said she worked out a compromise as dean that enabled a veterans’ organization to sponsor military recruiters on campus as opposed to the U.S. military itself. Kagan noted that this policy was changed after the Defense Department voiced concerns about not having full access.
Sessions was critical of her efforts and cited examples of actions she took that he said raised doubts about her support for the U.S. military.
The ranking Republican on the Judiciary Committee, Sessions has voiced concerns about the Kagan nomination throughout the confirmation process and is a likely vote against seating her on the Supreme Court.
Sessions said Kagan participated in a campus protest and spoke out against the Solomon Amendment, which allows the U.S. government to withhold federal funding from universities if they restrict military recruitment on campus.
The senator cited a friend-of-the-court brief that Kagan signed as one of 40 Harvard professors in favor a U.S. Third Circuit Court of Appeals ruling in 2004 overturning the Solomon Amendment.
In response, Kagan characterized the brief as an argument that Harvard’s accommodation for military recruiters through a veterans’ group was consistent with the Solomon Amendment.
“We filed an amicus brief not attacking the constitutionality of the Solomon Amendment, but instead saying simply that Harvard policy complied with the Solomon Amendment,” she said.
Kagan noted that in the end, the Supreme Court unanimously rejected the arguments presented by Harvard professors in a 2006 decision upholding the Solomon Amendment.
Sessions accused Kagan of engaging in unscrupulous activity at Harvard by instituting a new policy following the Third Circuit ruling and suggested she shouldn’t have issued a change because the Solomon Amendment remained in effect.
The senator said Kagan’s description of events was “unconnected to reality” and that he was “a little taken aback” by her remarks.
“I know what happened at Harvard,” he said. “I know you’ve been [an] outspoken leader against the military policy. I know you acted — without legal authority — to reverse Harvard’s policy to deny the military equal access to campus until you were threatened by the United States government with the loss of critical funds.”
Sen. Patrick Leahy (D-Vt.), chair of the Judiciary Committee, interrupted Sessions to allow Kagan to respond to Sessions’ remarks.
Noting her father was a military veteran, Kagan said she has “respect” for the military and “one of the great privileges” of her time at Harvard was working with students who were former service members or who wanted to enter the military.
Doug NeJaime, a gay law professor at Loyola Law School, said Kagan “took the position that we expected her to take” in response to Sessions’ questioning by explaining school policy on military recruitment.
“I don’t think this is huge issue because, I think, it’s very much in the mainstream of law schools’ decision-making around ‘Don’t Ask, Don’t Tell’ and the Solomon Amendment,” NeJaime said. “And so, I think she defended the position in a satisfactory way.”
NeJaime said Sessions was trying to make it seem that Kagan was trying to undermine the U.S. military during her tenure as dean, or prevent them having access to students.
“She made it very clear that that’s not what she was doing,” NeJaime said. “The military had access to the students, and students had access to the military, and she had great respect for the military.”
Kagan’s opposition to “Don’t Ask, Don’t Tell” — which she articulated during her confirmation hearings — renews the question of whether she would have to recuse herself if confirmed and the issue came before the high court.
But NeJaime said he didn’t think such statements meant that Kagan wouldn’t be able to take part in a case on “Don’t Ask, Don’t Tell.”
“She’s been pretty clear about speaking about it as a political matter and as an ethical matter,” NeJaime said. “She thinks it’s a bad policy, but I don’t think that that means she can’t fairly adjudicate equal protection or due process claims raised by the ‘Don’t Ask, Don’t Tell’ policy.”
Further questions arose about LGBT cases in which Kagan may have to recuse herself in light of Leahy’s questioning on what matters she believed she would have sit out if they came to the bench.
In response to Leahy’s questioning, Kagan said she would recuse herself in cases that came before the court if she had been a “counsel of record” in any state of the process for litigation.
“I think there are probably about 10 cases that are on the docket next year … in which I have been a counsel of record in a petition for certiorari” or played a similar role, she said.
During her tenure as solicitor general, the Justice Department issued several briefs in defense of “Don’t Ask, Don’t Tell” — as well as the Defense of Marriage Act — in response to legal challenges in federal courts.
But NeJaime said the briefs don’t represent Kagan acting as a counsel of record because they originated under the jurisdiction of U.S. Attorney General Eric Holder.
“She’s in the solicitor general’s office whereas the papers filed in the DOMA cases have been coming from the Justice Department,” NeJaime said. “So she actually hasn’t been counsel of record on any cases implicating the Defense of Marriage Act, so I don’t see any problem there.”
NeJaime added this situation would also apply with respect to Justice Department’s response to legal challenges of “Don’t Ask, Don’t Tell.”
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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