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.”
National
Medical groups file lawsuit over Trump deletion of health information
Crucial datasets included LGBTQ, HIV resources
Nine private medical and public health advocacy organizations, including two from D.C., filed a lawsuit on May 20 in federal court in Seattle challenging what it calls the U.S. Department of Health and Human Services’s illegal deletion of dozens or more of its webpages containing health related information, including HIV information.
The lawsuit, filed in the United States District Court for the Western District of Washington, names as defendants Robert F. Kennedy Jr., secretary of the Department of Health and Human Services (HHS) and HHS itself, and several agencies operating under HHS and its directors, including the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration.
“This action challenges the widespread deletion of public health resources from federal agencies,” the lawsuit states. “Dozens (if not more) of taxpayer-funded webpages, databases, and other crucial resources have vanished since January 20, 2025, leaving doctors, nurses, researchers, and the public scrambling for information,” it says.
“These actions have undermined the longstanding, congressionally mandated regime; irreparably harmed Plaintiffs and others who rely on these federal resources; and put the nation’s public health infrastructure in unnecessary jeopardy,” the lawsuit continues.
It adds, “The removal of public health resources was apparently prompted by two recent executive orders – one focused on ‘gender ideology’ and the other targeting diversity, equity, and inclusion (‘DEI’) programs. Defendants implemented these executive orders in a haphazard manner that resulted in the deletion (inadvertent or otherwise) of health-related websites and databases, including information related to pregnancy risks, public health datasets, information about opioid-use disorder, and many other valuable resources.”
The lawsuit does not mention that it was President Donald Trump who issued the two executive orders in question.
A White House spokesperson couldn’t immediately be reached for comment on the lawsuit.
While not mentioning Trump by name, the lawsuit names as defendants in addition to HHS Secretary Robert Kennedy Jr., Matthew Buzzelli, acting director of the Centers for Disease Control and Prevention; Jay Bhattacharya, director of the National Institutes of Health; Martin Makary, commissioner of the Food and Drug Administration; Thomas Engels, administrator of the Health Resources and Services Administration; and Charles Ezell, acting director of the Office of Personnel Management.
The 44-page lawsuit complaint includes an addendum with a chart showing the titles or descriptions of 49 “affected resource” website pages that it says were deleted because of the executive orders. The chart shows that just four of the sites were restored after initially being deleted.
Of the 49 sites, 15 addressed LGBTQ-related health issues and six others addressed HIV issues, according to the chart.
“The unannounced and unprecedented deletion of these federal webpages and datasets came as a shock to the medical and scientific communities, which had come to rely on them to monitor and respond to disease outbreaks, assist physicians and other clinicians in daily care, and inform the public about a wide range of healthcare issues,” the lawsuit states.
“Health professionals, nonprofit organizations, and state and local authorities used the websites and datasets daily in care for their patients, to provide resources to their communities, and promote public health,” it says.
Jose Zuniga, president and CEO of the International Association of Providers of AIDS Care (IAPAC), one of the organizations that signed on as a plaintiff in the lawsuit, said in a statement that the deleted information from the HHS websites “includes essential information about LGBTQ+ health, gender and reproductive rights, clinical trial data, Mpox and other vaccine guidance and HIV prevention resources.”
Zuniga added, “IAPAC champions evidence-based, data-informed HIV responses and we reject ideologically driven efforts that undermine public health and erase marginalized communities.”
Lisa Amore, a spokesperson for Whitman-Walker Health, D.C.’s largest LGBTQ supportive health services provider, also expressed concern about the potential impact of the HHS website deletions.
“As the region’s leader in HIV care and prevention, Whitman-Walker Health relies on scientific data to help us drive our resources and measure our successes,” Amore said in response to a request for comment from the Washington Blade.
“The District of Columbia has made great strides in the fight against HIV,” Amore said. “But the removal of public facing information from the HHS website makes our collective work much harder and will set HIV care and prevention backward,” she said.
The lawsuit calls on the court to issue a declaratory judgement that the “deletion of public health webpages and resources is unlawful and invalid” and to issue a preliminary or permanent injunction ordering government officials named as defendants in the lawsuit “to restore the public health webpages and resources that have been deleted and to maintain their web domains in accordance with their statutory duties.”
It also calls on the court to require defendant government officials to “file a status report with the Court within twenty-four hours of entry of a preliminary injunction, and at regular intervals, thereafter, confirming compliance with these orders.”
The health organizations that joined the lawsuit as plaintiffs include the Washington State Medical Association, Washington State Nurses Association, Washington Chapter of the American Academy of Pediatrics, Academy Health, Association of Nurses in AIDS Care, Fast-Track Cities Institute, International Association of Providers of AIDS Care, National LGBT Cancer Network, and Vermont Medical Society.
The Fast-Track Cities Institute and International Association of Providers of AIDS Care are based in D.C.
U.S. Federal Courts
Federal judge scraps trans-inclusive workplace discrimination protections
Ruling appears to contradict US Supreme Court precedent
Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas has struck down guidelines by the U.S. Equal Employment Opportunity Commission designed to protect against workplace harassment based on gender identity and sexual orientation.
The EEOC in April 2024 updated its guidelines to comply with the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), which determined that discrimination against transgender people constituted sex-based discrimination as proscribed under Title VII of the Civil Rights Act of 1964.
To ensure compliance with the law, the agency recommended that employers honor their employees’ preferred pronouns while granting them access to bathrooms and allowing them to wear dress code-compliant clothing that aligns with their gender identities.
While the the guidelines are not legally binding, Kacsmaryk ruled that their issuance created “mandatory standards” exceeding the EEOC’s statutory authority that were “inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
“Title VII does not require employers or courts to blind themselves to the biological differences between men and women,” he wrote in the opinion.
The case, which was brought by the conservative think tank behind Project 2025, the Heritage Foundation, presents the greatest setback for LGBTQ inclusive workplace protections since President Donald Trump’s issuance of an executive order on the first day of his second term directing U.S. federal agencies to recognize only two genders as determined by birth sex.
Last month, top Democrats from both chambers of Congress reintroduced the Equality Act, which would codify LGBTQ-inclusive protections against discrimination into federal law, covering employment as well as areas like housing and jury service.
The White House
Trump travels to Middle East countries with death penalty for homosexuality
President traveled to Saudi Arabia, Qatar, and United Arab Emirates
Homosexuality remains punishable by death in two of the three Middle East countries that President Donald Trump visited last week.
Saudi Arabia and Qatar are among the handful of countries in which anyone found guilty of engaging in consensual same-sex sexual relations could face the death penalty.
Trump was in Saudi Arabia from May 13-14. He traveled to Qatar on May 14.
“The law prohibited consensual same-sex sexual conduct between men but did not explicitly prohibit same-sex sexual relations between women,” notes the State Department’s 2023 human rights report, referring specifically to Qatar’s criminalization law. “The law was not systematically enforced. A man convicted of having consensual same-sex sexual relations could receive a sentence of seven years in prison. Under sharia, homosexuality was punishable by death; there were no reports of executions for this reason.”
Trump on May 15 arrived in Abu Dhabi, the capital of the United Arab Emirates.
The State Department’s 2023 human rights report notes the “penalty for individuals who engaged in ‘consensual sodomy with a man'” in the country “was a minimum prison sentence of six months if the individual’s partner or guardian filed a complaint.”
“There were no known reports of arrests or prosecutions for consensual same-sex sexual conduct. LGBTQI+ identity, real or perceived, could be deemed an act against ‘decency or public morality,’ but there were no reports during the year of persons prosecuted under these provisions,” reads the report.
The report notes Emirati law also criminalizes “men who dressed as women or entered a place designated for women while ‘disguised’ as a woman.” Anyone found guilty could face up to a year in prison and a fine of up to 10,000 dirhams ($2,722.60.)
Trump returned to the U.S. on May 16.
The White House notes Trump during the trip secured more than $2 trillion “in investment agreements with Middle Eastern nations ($200 billion with the United Arab Emirates, $600 billion with Saudi Arabia, and $1.2 trillion with Qatar) for a more safe and prosperous future.”
Former President Joe Biden traveled to Saudi Arabia in 2022.
Saudi Arabia is scheduled to host the 2034 World Cup. The 2022 World Cup took place in Qatar.
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