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Kagan denounces ‘Don’t Ask, Don’t Tell’

Supreme Court nominee calls gay ban ‘unwise, unjust’

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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.”

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Texas

Texas governor signs bill banning transgender youth healthcare

Senate Bill 14 to take effect on Sept. 1

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Landon Richie, a 21-year-old political science major and a leading transgender activist, protesting at the Texas Capitol in May. (Photo courtesy of Landon Richie)

By Alex Nguyen and William Melhado | Gov. Greg Abbott signed into law Friday a bill that bars transgender kids from getting puberty blockers and hormone therapies, though the new law could face legal challenges before it takes effect on Sept. 1.

Senate Bill 14’s passage brings to the finish line a legislative priority for the Republican Party of Texas, which opposes any efforts to validate transgender identities. Trans kids, their parents and LGBTQ advocacy groups fiercely oppose the law, and some have vowed to stop it from going into effect.

Texas — home to one of the largest trans communities in the U.S. — is now one of over a dozen states that restrict transition-related care for trans minors.

“Cruelty has always been the point,” said Emmett Schelling, executive director of the Transgender Education Network of Texas. “It’s not shocking that this governor would sign SB14 right at the beginning of Pride [month]; however this will not stop trans people from continuing to exist with authenticity — as we always have.”

Authored by New Braunfels Republican state Sen. Donna Campbell, the law bars trans kids from getting puberty blockers and hormone therapies, treatments many medical groups support. Children already receiving these treatments will have to be “weaned off” in a “medically appropriate” manner. The law also bans transition-related surgeries for kids, though those are rarely performed on minors.

Those who support the law claim that health care providers have capitalized on a “social contagion” to misguide parents and push life-altering treatments on kids who may later regret their decisions. SB 14’s supporters have also disputed the science and research behind transition-related care.

But trans kids, their parents and major medical groups say these medical treatments are important to protecting the mental health of an already vulnerable population, which faces a higher risk of depression and suicide than their cisgender peers. At the same time, doctors say cutting off these treatments — gradually or abruptly — could bring both physical discomfort and psychological distress to trans youth, some of whom have called it forced detransitioning.

In response, the American Civil Liberties Union, the ACLU of Texas, Lambda Legal and the Transgender Law Center pledged on May 18 to fight SB 14 in court. They have yet to file a lawsuit.

“Transgender people have always been here and will always be here,” Ash Hall, policy and advocacy strategist at the ACLU of Texas, said Friday. “Our trans youth deserve a world where they can shine alongside their peers, and we will keep advocating for that world in and out of the courts.”

This legal threat is not new; some of these groups have sued several other states over their restrictions. Earlier this year, the Department of Justice also joined the legal fight against Tennessee’s ban.

While the lawsuits are tailored to each state, Sasha Buchert, a senior attorney at Lambda Legal and the director of its Nonbinary and Transgender Rights Project, told the Texas Tribune last month that a major common challenge to the laws hinges on the 14th Amendment’s Equal Protection Clause and the argument that these laws are stopping trans kids from accessing the same medical treatments that are still available to their cisgender peers.

Buchert added that the lawsuits’ immediate goal is generally to get a preliminary injunction to stop these laws from taking effect, a tactic that has seen some success.

“It’s one thing to see some of the things that state legislators do, but it’s a completely different thing when you’re under the white-hot spotlight of judicial scrutiny,” she said.

And prior to SB 14, the ACLU and Lambda Legal successfully sued Texas last year to halt state-ordered child abuse investigations of parents who provide their trans kids with access to transition-related care. Impeached Attorney General Ken Paxton later appealed the decision in March, but the 3rd Court of Appeals has yet to issue a ruling on it.

“It’s a privilege to be able to fight,” Buchert said about the ongoing court challenges that Lambda Legal is involved in.

Editor’s note:

In a late Friday evening phone call, Landon Richie, with the Transgender Education Network of Texas, told the Washington Blade:

“Today Governor Abbott signed cruelty into law. Legislation that purports to ‘protect youth’ while stripping them of the life-saving, life-giving care that they receive will cost lives, and that’s not an exaggeration. Trans kids deserve not only to exist, but to thrive as their authentic selves in every facet of their lives, and we will never stop fighting to to actualize a world where that is undisputed. Despite efforts by our state, trans people will always exist in Texas, as we always have, and we will continue to exist brilliantly and boldly, and with endless care for one another.”

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The preceding article was previously published by The Texas Tribune and is republished by permission.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues. 

Disclosure: The ACLU of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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U.S. Federal Courts

Federal judge rules Tenn. drag ban is unconstitutional

Law was to have taken effect April 1

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(Bigstock photo)

U. S. District Court Judge Thomas L. Parker of the U. S. District Court for the Western District of Tennessee declared Tennessee’s anti-drag Adult Entertainment Act to be unconstitutional.

Parker’s ruling comes after a two-day trial last month. A Shelby County-based LGBTQ theatre company, Friends of George’s, had sued the state of Tennessee, claiming the law unconstitutional under the First Amendment.

Parker ordered a temporary injunction halting the just enacted Tennessee law that criminalizes some drag performances, hours before it was set to take effect April 1. In his 15 page ruling ordering the temporary injunction Parker wrote:

“If Tennessee wishes to exercise its police power in restricting speech it considers obscene, it must do so within the constraints and framework of the United States Constitution. […] The court finds that, as it stands, the record here suggests that when the legislature passed this statute, it missed the mark.”

Attorneys for the theatre company had argued that drag performances were an artform and protected speech under the first amendment.

In his 70 page ruling Friday, Parker wrote:

“After considering the briefs and evidence presented at trial, the court finds that — despite
Tennessee’s compelling interest in protecting the psychological and physical wellbeing of
children — the Adult Entertainment Act (“AEA”) is an UNCONSTITUTIONAL restriction on
the freedom of speech.”

“The court concludes that the AEA is both unconstitutionally vague and substantially
overbroad. The AEA’s ‘harmful to minors’ standard applies to minors of all ages, so it fails to
provide fair notice of what is prohibited, and it encourages discriminatory enforcement. The
AEA is substantially overbroad because it applies to public property or ‘anywhere’ a minor
could be present.”

Read the entire ruling:

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National

LGBTQ literature advocacy org to host celebrity panel

Discussion to be moderated by writer Sa’iyda Shabazz, ‘Glee’ actor Chris Colfer

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‘Glee’ actor Chris Colfer will be one of four panelists at a virtual event hosted by Pride and Less Prejudice on Saturday, June 3. (Photo by Kathclick/Bigstock)

Affectionately known by fans of the show as the “fashionable soprano,” Chris Colfer’s character in “Glee” came out as gay to his father in the fourth episode of the Golden Globe-winning musical drama series. Colfer paused in between fragments of sentences to catch his breath as his pupils, set atop his recognizable rosy cheeks, dilated.

“Being a part of…the glee club and football has really shown me that I can be anything,” he said. “And what I am is…I’m gay.”

Colfer, who is also author of young adult fiction series “The Land of Stories,” will be one of four panelists at a virtual event hosted by LGBTQ organization Pride and Less Prejudice (PLP) on Saturday, June 3. At the event, panelists will discuss queer visibility in authorship and the importance of queer people telling queer stories. 

“We selected [them] because we’re trying to look at the intersection between TV, film, podcasts, [and] books because it’s all media and it’s all really great avenues for queer people telling their own story,” said Rebecca Damante, co-founder and outreach coordinator of the organization.

PLP began in 2019 when Damante had conversations with her mother about her experiences as a queer person and how she came to terms with her sexuality in high school. Although she watched shows such as “Glee” and “Pretty Little Liars” that had great queer representation, she knew that “it would’ve made a huge difference” if she had seen this as a kid.

“I was a huge reader as a kid and my mom had a lot of great books in our library about interfaith families and adoption,” said Damante. “I come from an interfaith family and have family members who are adopted, so she had diverse books in that way but never really had LGBTQ inclusive books.”

This motivated the mother-daughter duo to start an organization that donates LGBTQ-inclusive books to classrooms from pre-K to third grade.

They posted a Google form to social media that was reposted by GLAAD, where Damante had interned, and amplified by LGBTQ activist Kristin Russo. Teachers would put in requests for books and this allowed PLP to start an email chain that they could also use to solicit donations. 

It wasn’t until Damante posted to Pantsuit Nation, a Facebook group that rallied Hillary Clinton supporters during her 2016 presidential run, that PLP garnered interest from hundreds of teachers. This led to a celebrity campaign video where actors Nicole Maines, Theo Germaine, and Darryl Stephens, among others, emphasized the importance of LGBTQ literature in classrooms. 

Since 2019, the organization has raised more than $140,000 in grants and donations and donated over 8,000 books. 

Dylan Moss, a kindergarten teacher in Albany, N.Y., is among those who have benefitted from PLP’s efforts. 

During a quest for more diverse and inclusive books for his classroom, he stumbled upon PLP’s website between 2020 and 2021 and reached out to the organization. Since then, he has been actively involved in PLP’s efforts and is now a member of the advisory committee that helps to create lesson plans that accompany the books.

“Biases start to get formed [in kindergarten], so I like to help [my students] create better narratives,” said Moss in a Zoom interview. “It’s easier to learn it now than to take away all the negative biases they have from everyday society, family, and just being around other humans.”

Moss also added, over email, that when discussing diverse topics in the classroom, conversations are aligned with social studies standards. 

“I’d rather [my students] understand that people are different and that there’s a reason we’re different and that we should love that we’re different,” he said on Zoom. “You don’t have to go deep into the ideas necessarily. You can just give them the basis of what you’re saying and kind of let them take it from there.” 

For Lisa Forman, Damante’s mom and co-founder and executive director of PLP, approaching education this way is not only a form of allyship and advocacy, it’s “standing up for what’s right.”

The first half of the 2022-2023 school year saw 1,477 attempts to ban 874 individual book titles, 26% of which had LGBTQ characters or themes, according to data from Pen America, an organization that advances human rights and literature causes in the United States and worldwide. 

In 2022, the Washington Blade reported that a Loudoun County, Va., school board voted to remove “Gender Queer: A Memoir,” an illustrated autobiography by non-binary author Maia Kobabe that contains descriptions and comic book style drawings of sexual acts that Kobabe uses to tell the story of the journey and struggle in discovering the author’s gender identity.

“As much as these books are for the queer kids in the classroom, they’re for every kid,” said Forman. “We’re doing this not just for the queer kids…we want to normalize the idea of being queer in the classroom.”

Looking to the upcoming celebrity panel, Damante wants to leave attendees feeling inspired enough to own their narratives, whether they identify as queer or not. 

“If teachers are able to see the impact of these queer stories then they’ll understand why it’s important for them to share the books,” she said. 

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