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Gates raises bar for ‘Don’t Ask’ discharges

Decision delegated to service secretaries and other Pentagon leaders

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Defense Secretary Robert Gates issued guidance to Pentagon leaders on Thursday raising the rank of officials who can expel service members under “Don’t Ask, Don’t Tell,”  prompting questions about whether the new procedure would bring discharges to a halt.

In a memo dated Oct. 21, Gates said he’s issuing the changes “in light of the legal uncertainty”‘ surrounding “Don’t Ask, Don’t Tell” in the wake of recent court actions striking down and then reinstating the law.

According to memo, discharges can only happen under “Don’t Ask, Don’t Tell” by the personal approval of the military service secretary of the department concern “in coordination” with other Pentagon officials.

“[I]n order to further ensure uniformity and care in the enforcement of the Don’t Ask, Don’t Tell law and policy during this period, effective immediately and until further notice, no military member shall be separated pursuant to 10 USC 654 without the personal approval of the Secretary of the miliary department concerned, in coordination with the Undersecretary of Defense for Personnel and Readiness and the general counsel for the Department of Defense,” Gates writes.

A second memo issued the same day also outlining the changes was sent out by Under Secretary of Defense for Personnel and Readiness Clifford Stanley.

Stanley also advised gay, lesbian and bisexual service members currently in the military to think twice about making their sexual orientation public.

“We note again for Servicemembers, that altering their personal conduct during this period, in reaction to last week’s injunction, may have adverse consequences for themselves or other depending upon the state of the law,” Stanley writes.

On Thursday, members of the media during a news conference questioned a senior Pentagon attorney, who spoke on the condition of anonymity, about whether the change in the process effectively halts discharges under “Don’t Ask, Don’t Tell.”

“I would not try to overinterpret what’s on the paper,” the attorney said. “It’s an effort to further ensure uniformity and care in enforcement of the law during the legally uncertain period.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the new change to appears to be giving all service members the same protections from “Don’t Ask, Don’t Tell” that were previous given to officers.

“All proposed [‘Don’t Ask, Don’t Tell’] discharges, regardless of grade and rank, will be reviewed at the highest civilian levels,” he said. “This can be a major constructive development for gay and lesbian service members.”

Sarvis said the change could “dramatically reduce” discharges, but noted the law remains on the books and service members shouldn’t come out.

“The fact that [‘Don’t Ask, Don’t Tell’] remains law further underscores the urgent need for the full Senate to vote for repeal when it returns to lame-duck session next month,” he said.

Richard Socarides, a gay New York attorney who served as a adviser for President Clinton, said he thinks the changes amounted to a “de facto moratorium” on “Don’t Ask, Don’t Tell.” Still, Socarides questioned why the Obama administration hadn’t taken this action sooner.

“This is what they should have done 20 months ago,” he said.

During the briefing, the Pentagon attorney said the reference in the memo to service secretaries working “in coordination” with the other defense officials to expel someone under “Don’t Ask, Don’t Tell” doesn’t “necessarily” constitute veto power over the discharge by the other officials.

“When the guidance is coordinate with A, B and C, that means you consult with them … and in the legal world, that means providing legal advice,” the attorney said. “Does it constitute the ability to veto? No, not necessarily. It informs the decision.”

The new changes also raises questions about what would happen to openly gay Americans who seek to enlist in the U.S. armed forces and announce their sexual orientation to recruiters. Under previous rules, they would have not been able to enter service.

But the Pentagon attorney expressed uncertainty about how the changes would affect recruiting and said he expects additional guidance later.

“We are complying with the law and there is nothing specific in this guidance about the recruitment situation, but I would expect that it will come together at perhaps the service level or within the recruitment community,” the attorney said. “They’ll develop guidance in reaction to this guidance.”

The Pentagon attorney said he “couldn’t comment” on whether communication took place between Gates and the White House before the new memo was issued.

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District of Columbia

Judy and Dennis Shepard discuss Nex Benedict, anti-LGBTQ laws at DC event

Nonbinary Okla. high school student died last month after fight

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Dennis and Judy Shephard speak at the Raben Group’s D.C. offices on Feb. 29, 2024. (Washington Blade photo by Amber Laenen)

Judy and Dennis Shepard on Thursday reflected on Nex Benedict’s death and the proliferation of anti-LGBTQ laws across the country during a discussion the Raben Group hosted at their D.C. office.

The discussion, which MSNBC host Jonathan Capehart moderated, took place less than a month after Benedict died.

Benedict, who was nonbinary, passed away on Feb. 8 after students at their high school in Owasso, Okla., assaulted them in a bathroom. 

Vice President Kamala Harris, White House Press Secretary Karine Jean-Pierre, House Speaker Emerita Nancy Pelosi (D-Calif.) and Republican Oklahoma Gov. Kevin Stitt are among those who have publicly responded to Benedict’s death, which took place after they endured months of bullying. More than 300 advocacy groups have demanded Oklahoma Superintendent of Public Instruction Ryan Walters’ removal and called for a federal investigation into the Oklahoma Department of Education’s “actions and policies” that have facilitated a “culture where rampant harassment of 2SLGBTQI+ students has been allowed to go unchecked.”

“Parents are doing whatever they can to protect and encourage and support kids, and you have these what I call evil, evil people around the country pushing these laws,” said Dennis Shepard.

He noted lawmakers around the country are pushing anti-LGBTQ laws and other efforts that include the elimination of diversity, equity and inclusion programs. Dennis Shepard also highlighted an effort to defund gender studies programs at the University of Wyoming.

“[It is] the old white male, Christian geezers who want to go back to the days of the 50s when they had that superior arrogant attitude,” he said. “They’re losing it and they don’t want to, so they’re passing everything they can.”

“What happened to Nex is a result of that,” added Dennis Shepard. “They feel like Henderson and McKinney felt when they took Matt out on the prairie.”

Matthew Shepard died on Oct. 12, 1998, after Russell Henderson and Aaron McKinney brutally beat him and left him tied to a fence in Laramie, Wyo. Then-President Barack Obama in 2009 signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which added sexual orientation and gender identity to the federal hate crimes law.

“If you’re considered different, you’re in fear of your life right now because you don’t fit in and it’s got to stop,” said Dennis Shepard.

Judy Shepard echoed her husband, noting this moment is “the last gasp of the fight against the community.” 

“In my heart, I know this is a moment in time, and it’s going to pass. But also in that time, all these young people, everyone in the community is afraid, but young people are being terrorized,” she said. “It just shouldn’t be happening.”

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U.S. Federal Courts

N.Y. AG joins multi-state brief in Colo. anti-trans discrimination case

Letitia James and 18 other attorneys general support plaintiff

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trans health care, gay news, Washington Blade
New York Attorney General Letitia James (Photo public domain)

New York Attorney General Letitia James on Wednesday joined a brief by 18 other Democratic state attorneys general urging the Colorado Supreme Court to uphold a lower court ruling against Masterpiece Cakeshop for anti-trans discrimination.

A customer, Autumn Scardina, sued the business over claims that it refused to provide her a cake upon learning that it was for a celebration of her transition. The case is not the first in which owner Jack Smith has faced claims of anti-LGBTQ discrimination.

In 2012, Masterpiece Cakeshop refused to fulfill an order for a wedding cake for a same-sex couple, which led to the 2018 U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission — and a narrow ruling that did not address core legal questions weighing the constitutionality of First Amendment claims vis-a-vis the government’s enforcement of LGBTQ-inclusive nondiscrimination laws.

“Denying service to someone simply because of who they are is illegal discrimination, plain and simple,” James said in a press release. “Allowing this kind of behavior would undermine our nation’s fundamental values of freedom and equality and set a dangerous precedent.”

She added, “I am proud to stand with my fellow attorneys general against this blatant transphobic discrimination.”

The Colorado Court of Appeals ruled in favor of Scardina, noting that Smith objected to fulfilling her cake order only after learning about her intended use for it “and that Phillips did not believe the cake itself expressed any inherent message.”

The fact pattern in both cases against Masterpiece Cakeshop resembles that of another case that originated in Colorado and was ultimately decided by the Supreme Court last year, 303 Creative LLC v. Elenis.

This time, the justices did not sidestep the question of whether the state’s anti-discrimination law can be enforced against a business owner, Lorie Smith, a website designer who claimed religious protections for her refusal to provide services to a same-sex couple for their nuptials.

The court’s conservative supermajority ruled in favor of Smith, which was widely seen as a blow to LGBTQ rights.

Joining James in her brief are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and D.C.

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U.S. Federal Courts

Fla. man found guilty of threatening George Santos

Gay former NY congressman expelled in December

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Former U.S. Rep. George Santos (R-N.Y.) (Washington Blade photo by Christopher Kane)

On Feb. 22, following a two-day trial, a federal jury in Ft. Lauderdale convicted a man for calling the office of former U.S. Rep. George Santos (R-N.Y.) in D.C. and threatening to kill the member of Congress and another person. 

On Jan. 29, 2023, Frank Stanzione, 53, of Boynton Beach, Fla., made a telephone call from his residence in Boynton Beach to the office of a member of the U.S. House of Representatives. Stanzione left a voice message for the member that stated the following:

“[Victim 1 former Rep. Santos] you fat fucking piece of shit fucker. You better watch your mother fucking back because I’m gonna bash your mother fucking fucker head in with a bat until your brains are splattered across the fucking wall. You lying, disgusting, disgraceful, mother fucking fucker. You mother fucking piece of shit. You’re gonna get fucking murdered you goddamn lying piece of garbage. Watch your back you fat, ugly, piece of shit. You and [Victim 2 Redacted] are dead.”

The congressman’s chief of staff reported the message to the U.S. Capitol Police the next morning. The USCP began investigating the voice message as a threat and determined that it was made from a telephone number assigned to Stanzione. 

On Jan. 31, 2023, USCP special agents went to the address associated with the telephone number and interviewed Stanzione. USCP confirmed that Stanzione had left the voice message for the congressman. Stanzione found the telephone number on an online search engine. 

In a motion to dismiss, lawyers for Stanzione noted in the interview he told federal agents that “he feels offended by Santos and does not want him in his (gay) community.” He said he left the message to make Santos “feel like a piece of shit.”

The court filing described Stanzione as “a long-standing, active advocate for gay rights.”

In the motion to dismiss, Stanzione claimed his prosecution was “retaliatory and vindictive” and “based upon his exercise of political speech related to gay rights.”

“Others who have allegedly committed similar acts,” his attorneys stated in the motion, “have not been prosecuted.” 

U.S. Attorney Markenzy Lapointe for the Southern District of Florida and USCP Chief J. Thomas Manger announced the guilty verdict. The USCP – Threat Assessment Section investigated the case. 

Stanzione will be sentenced in May and faces penalties including up to five years in federal prison, a fine of up to $250,000, or both.

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