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Lawsuit challenges ‘Don’t Ask’ separation pay

ACLU files class-action litigation

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Mike Almy, a former Air Force officer, is among those who received half separation pay as a result of his discharge under "Don't Ask, Don't Tell." (Blade photo by Michael Key)

A new lawsuit filed over the halved separation pay given to some U.S. service members discharged under “Don’t Ask, Don’t Tell” is raising questions about why the Defense Department hasn’t taken action to resolve the issue.

Last week, the American Civil Liberties Union and ACLU of New Mexico filed a lawsuit in the U.S. Court of Federal Claims over administration policy cutting in half the severance pay that discharged troops who serve for at least six years in the armed forces would normally receive if they were separated for a reason other than homosexual conduct.

The policy was implemented in 1991, two years before Congress enacted the “Don’t Ask, Don’t Tell” statute, and could be changed by implementing new regulations without action from lawmakers or the courts.

Joshua Block, staff attorney for the ACLU’s lesbian, gay, bisexual and transgender project, said his organization filed the class action lawsuit, known as Collins v. United States, as a result of this severance pay inequity.

“Basically, if you’re discharged under ‘Don’t Ask, Don’t Tell’ [and serve for at least six years], under the policy there’s virtually no way you can qualify for full separation pay,” Block said.

The issue only affects service members separated under “Don’t Ask, Don’t Tell” who received honorable discharges and who have served for at least six years because only under those conditions do troops qualify for severance pay.

Further, because of the statute of limitations, the lawsuit would only affect service members who’ve been discharged under “Don’t Ask, Don’t Tell” within the last six years.

Block said the litigation was brought on behalf of all service members involuntarily discharged in the past six years and estimated that at least 100 discharged service members will qualify as part of the class of plaintiffs in the lawsuit.

The lead plaintiff in the litigation is Richard Collins, a former staff sergeant who was in the Air Force for nine years before he was discharged under “Don’t Ask, Don’t Tell.”

“After nine years of honorable service, it’s not fair that I should be deprived of the same benefits given to other dedicated service members who are adjusting to civilian life,” Collins said in a statement.

Another discharged service member who was affected by the pay inequity is Mike Almy, a gay former Air Force communications officer who testified earlier this year before the Senate about being discharged under “Don’t Ask, Don’t Tell” in 2006.

“I think it’s absolutely ridiculous,” Almy said. “It’s pouring salt on the wound. ‘Don’t Ask, Don’t Tell’ is horrendous enough as it is already. And then, when gays are thrown out the door, they’re even discriminated against once again in the severance pay that they receive.”

Almy said he received separation pay of $40,000 upon his discharge from the Air Force when he would otherwise have been entitled to $80,000.

The lawsuit was filed after the ACLU engaged with the Defense Department in November 2009 to change the policy in efforts that were ultimately unsuccessful. Correspondence had continued until as recently as August, when the ACLU threatened to sue the Pentagon over the lack of action.

Block said he’s hopeful the Pentagon would drop the policy as a result of the lawsuit and pay discharged troops they compensation they would normally receive.

“From our perspective, the litigation shouldn’t have been necessary in the first place, so we obviously hope that the government will do the right thing and pay these people the separation pay that they earned,” he said.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said SLDN and the National Gay & Lesbian Task Force identified the issue more than a year ago as something that the administration could resolve with a policy change.

“In this case, [Defense] Secretary [Robert] Gates has the authority to stop this practice, and he should,” Sarvis said. “Not only should they stop it, we’ll also be seeking — as we have in the past — restitution on their back pay.”

Although the lawsuit has been filed, Sarvis noted “litigation is always protracted” and said the lawsuit could take years to resolve. Consequently, Sarvis said SLDN plans to continue pressing Gates to change the policy administratively and was set this week to meet with Pentagon officials to discuss the matter.

But why does the adminstration continue the policy when President Obama has said he wants to repeal “Don’t Ask, Don’t Tell” and the issue could be resolved with a stroke of a pen?

Eileen Lainez, a Pentagon spokesperson, said in a statement that department policy authorizes half separation payments to members who are “not fully qualified to continue to serve” and who are being involuntarily separated under honorable conditions.

“Currently, members being discharged for [‘Don’t Ask, Don’t Tell’] … receive half separation pay, because the law says they are not qualified to continue in service,” she added.

Almy said he has “no idea” why the Pentagon continues this policy and said the rationale for upholding the policy is similarly unknown to others.

“From the personnel people that I’ve been able to talk to at the Pentagon, no one really knows what the reason for that was,” Almy said.

Block also said he’s unsure why the adminstration hasn’t changed this policy as he noted the administration has a stated goal of wanting to repeal “Don’t Ask, Don’t Tell” through legislative action.

“They have to get that through Congress, and we understand they’re working on that, but this was a regulation that was passed before ‘Don’t Ask, Don’t Tell’ even came into existence,” Block said. “The administration can get rid of it anytime it wants without needing congressional approval to do so.”

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LGBTQ+ community calls out Radio Korea over host’s homophobic comments; station acknowledges but skirts accountability

On Nov. 3rd, Radio Korea host Julie An claimed that “gay people began the spread of AIDS” on a talk show broadcast by the station.

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On Nov. 21st, Radio Korea CEO Michael Kim made an official video statement addressing the Nov. 3rd program. (Screen capture via Radio Korea/YouTube)

On Monday, Nov. 3rd, Radio Korea aired its regular morning talk show program, where one of its hosts, Julie An, discussed her lack of support for the LGBTQ+ community, citing her religious beliefs. She also went on to comment that gay people spread HIV and AIDS, and that conversation therapy — which has been linked to PTSD, suicidality, and depression — is a viable practice. Clips of this have since been taken down.

Radio Korea offers Korean language programming to engage local Korean American and Korean immigrant community members. Its reach is broad, as Los Angeles is home to the largest Korean population in the U.S, with over 300,000 residents. As An’s words echoed through the station’s airwaves, queer Korean community members took to social media to voice their concern, hurt, and anger.  

In a now-deleted Instagram post, attorney, activist, and former congressional candidate David Yung Ho Kim demanded accountability from the station. Writer and entertainer Nathan Ramos-Park made videos calling out Radio Korea and An, stating that her comments “embolden” people with misinformation, which has the ability to perpetuate “violence against queer people.”

Community health professional Gavin Kwon also worries about how comments like An’s increase stigma within the Korean immigrant community, which could lead to increased discrimination against queer people and their willingness to seek health care.  

Kwon, who works at a local clinic in Koreatown, told the Blade that comments like An’s prescribe being gay or queer as a “moral failure,” and that this commonly-held belief within the Korean immigrant community, particularly in older generations, strengthens the reticence and avoidance clients hold onto when asked about their gender or sexual orientation. 

“When you stigmatize a group, people don’t avoid the disease — they avoid care,” Kwon explained. “They avoid getting tested, avoid disclosing their status, and avoid talking openly with providers. Stigma pushes people into silence, and silence is the worst possible environment for managing any infectious disease.”

For weeks, Radio Korea did not offer a direct response to the public criticism. Its Instagram feed continued to be updated with shorts, featuring clips of its various hosts — including An. 

On Friday, Radio Korea CEO Michael Kim released an official statement on the station’s YouTube page. In this video, Kim stated that An’s comments “included factual inaccuracies” and that the station “does not endorse or share the personal opinions expressed by individual hosts.” Kim also stated that Radio Korea “welcomes members of the LGBT community to share their perspectives” in order to deepen understanding through dialogue. 

Afterwards, Kim continued that though he acknowledges the “pain” felt by queer community members, he concluded: “I don’t think Radio Korea needs to apologize for what was said any more than Netflix should apologize for what Dave Chappelle says, or any more than Instagram or TikTok should apologize for what people say on their platforms.” 

Kim then offered a justification that An’s statements were “not part of a news report,” and that he was “disappointed” that David Yung Ho Kim, specifically, had been vocal about An’s comments. Kim stated that he was the first person to interview David in 2020 during his congressional campaign, and that he had provided the candidate a platform and opportunity to educate listeners about politics. 

“After all these years, the support Radio Korea has given him,” said Kim, “the support I personally gave him, even the support from other Radio Korea members who donated or even volunteered for him — he dishonestly tried to portray Radio Korea as being an anti-gay organization.”

Kim went on to criticize David’s purported “hurry to condemn others,” and also questioned if David has disowned his father, who he states is a pastor. “What kind of person is David Kim, and is this the kind of person we want in Congress?” Kim asked viewers, noting that Koreatown is “only about three miles from Hollywood, and some people just like to perform.” 

At the end of the video, Kim stated that his duty is to guard the legacy of the station. “My responsibility is to protect what was built before me and ensure that Radio Korea continues serving this community long after today’s momentary controversies disappear,” Kim said. 

For community members and advocates, this response was unsatisfactory. “The overall tone of the statement felt more defensive than accountable,” Kwon wrote to the Blade. “Instead of a sincere apology to the LGBTQ+ community that was harmed, the message shifts into personal grievances, political dynamics, and side explanations that don’t belong in an official response.”

Kim’s portrayal of the criticism and calls to action by community members as a “momentary controversy” paints a clearer picture of the station’s stance — that the hurt felt and expressed by its queer community members is something that will simply pass until it is forgotten. An continues to be platformed at Radio Korea, and was posted on the station’s social media channels as recently as yesterday. The station has not outlined any other action since Kim’s statement. 

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U.S. Military/Pentagon

Pentagon moves to break with Boy Scouts over LGBTQ and gender inclusion

Leaked memo shows Hegseth rejecting Scouting America’s shift toward broader inclusion

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Scouts for Equality march in the 2015 Capital Pride Parade. (Washington Blade file photo by Michael Key)

The Pentagon is preparing to sever its longstanding partnership with the Boy Scouts of America, now known as Scouting America.

In a draft memo to Congress obtained by NPR, Defense Secretary Pete Hegseth criticizes the organization for being “genderless” and for promoting diversity, equity, and inclusion.

“The organization once endorsed by President Theodore Roosevelt no longer supports the future of American boys,” Hegseth wrote, according to Defense Department sources.

Girls have been eligible to join Cub Scouts (grades K–5) since 2018, and since 2019 they have been able to join Scouts BSA troops and earn the organization’s highest rank of Eagle Scout.

A statement on the Scouting America website says the shift toward including girls stemmed from “an expanding demand to join the Boy Scouts” and a commitment to inclusivity. “Throughout the late 20th and early 21st centuries, it has undergone significant changes to become more inclusive of the adult staff and volunteers that drive its programming as well as of scouts and their families,” the organization says.

Part of that broader push included lifting its ban on openly gay members in 2014 and on openly gay adult leaders in 2015.

Once the Pentagon finalizes the break, the U.S. military will no longer provide medical and logistical support to the National Jamboree, the massive annual gathering of scouts in West Virginia that typically draws about 20,000 participants. The memo also states that the military will no longer allow scout troops to meet on U.S. or overseas installations, where many bases host active scout programs.

Hegseth’s memo outlines several justifications for the decision, arguing that Scouting America has strayed from its original mission to “cultivate masculine values” by fostering “gender confusion.” It also cites global conflicts and tightening defense budgets, claiming that deploying troops, doctors and vehicles to a 10-day youth event would “harm national security” by diverting resources from border operations and homeland defense.

“Scouting America has undergone a significant transformation,” the memo states. “It is no longer a meritocracy which holds its members accountable to meet high standards.”

The Pentagon declined NPR’s request for comment. A “War Department official” told the outlet that the memo was a “leaked document that we cannot authenticate and that may be pre-decisional.”

The leaked memo comes roughly one month after nearly every major journalism organization walked out of the Pentagon in protest of new rules requiring reporters to publish only “official” documents released by the department — effectively banning the use of leaked or unpublished materials.

President Donald Trump, who serves as the honorary head of Scouting America by virtue of his office, praised the Jamboree audience during his 2017 visit to West Virginia. “The United States has no better citizens than its Boy Scouts. No better,” he said, noting that 10 members of his Cabinet were former Scouts.

Hegseth was never a scout. He has said he grew up in a church-based youth group focused on memorizing Bible verses. As a Fox News host last year, he criticized the Scouts for changing their name and admitting girls.

“The Boy Scouts has been cratering itself for quite some time,” Hegseth said. “This is an institution the left didn’t control. They didn’t want to improve it. They wanted to destroy it or dilute it into something that stood for nothing.”

NBC News first reported in April that the Pentagon was considering ending the partnership, citing sources familiar with the discussions. In a statement to NBC at the time, Pentagon spokesman Sean Parnell said, “Secretary Hegseth and his Public Affairs team thoroughly review partnerships and engagements to ensure they align with the President’s agenda and advance our mission.”

The Scouting America organization has has long played a role in military recruiting. According to numbers provided by Scouting America, many as 20 percent of cadets and midshipmen at the various service academies are Eagle Scouts. Enlistees who have earned the Eagle rank also receive advanced entry-level rank and higher pay — a practice that would end under the proposed changes.

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The White House

Trans workers take White House to court over bathroom policy

Federal lawsuit filed Thursday

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Protesters outside of House Speaker Mike Johnson's (R-La.) office in the Cannon House Office Building last year protesting a similar bathroom ban. (Washington Blade photo by Christopher Kane)

Democracy Forward and the American Civil Liberties Union, two organizations focused on protecting Americans’ constitutional rights, filed a class-action lawsuit Thursday in federal court challenging the Trump-Vance administration’s bathroom ban policies.

The lawsuit, filed on behalf of LeAnne Withrow, a civilian employee of the Illinois National Guard, challenges the administration’s policy prohibiting transgender and intersex federal employees from using restrooms aligned with their gender. The policy claims that allowing trans people in bathrooms would “deprive [women assigned female at birth] of their dignity, safety, and well-being.”

The lawsuit responds to the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” signed by President Donald Trump on his first day in office. It alleges that the order and its implementation violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In 2020, the U.S. Supreme Court ruled 6-3 that Title VII protects trans workers from discrimination based on sex.

Since its issuance, the executive order has faced widespread backlash from constitutional rights and LGBTQ advocacy groups for discriminating against trans and intersex people.

The lawsuit asserts that Withrow, along with numerous other trans and intersex federal employees, is forced to choose between performing her duties and being allowed to use the restroom safely.

“There is no credible evidence that allowing transgender people access to restrooms aligning with their gender identity jeopardizes the safety or privacy of non-transgender users,” the lawsuit states, directly challenging claims of safety risks.

Withrow detailed the daily impact of the policy in her statement included in the lawsuit.

“I want to help soldiers, families, veterans — and then I want to go home at the end of the day. At some point in between, I will probably need to use the bathroom,” she said.

The filing notes that Withrow takes extreme measures to avoid using the restroom, which the Cleveland Clinic reports most people need to use anywhere from 1–15 times per day depending on hydration.

“Ms. Withrow almost never eats breakfast, rarely eats lunch, and drinks less than the equivalent of one 17 oz. bottle of water at work on most days.”

In addition to withholding food and water, the policy subjects her to ongoing stress and fear:

“Ms. Withrow would feel unsafe, humiliated, and degraded using a men’s restroom … Individuals seeing her enter the men’s restroom might try to prevent her from doing so or physically harm her,” the lawsuit states. “The actions of defendants have caused Ms. Withrow to suffer physical and emotional distress and have limited her ability to effectively perform her job.”

“No one should have to choose between their career in service and their own dignity,” Withrow added. “I bring respect and honor to the work I do to support military families, and I hope the court will restore dignity to transgender people like me who serve this country every day.”

Withrow is a lead Military and Family Readiness Specialist and civilian employee of the Illinois National Guard. Previously, she served as a staff sergeant and has received multiple commendations, including the Illinois National Guard Abraham Lincoln Medal of Freedom.

The lawsuit cites the American Medical Association, the largest national association of physicians, which has stated that policies excluding trans individuals from facilities consistent with their gender identity have harmful effects on health, safety, and well-being.

“Policies excluding transgender individuals from facilities consistent with their gender identity have detrimental effects on the health, safety and well-being of those individuals,” the lawsuit states on page 32.

Advocates have condemned the policy since its signing in January and continue to push back against the administration. Leaders from ACLU-D.C., ACLU of Illinois, and Democracy Forward all provided comments on the lawsuit and the ongoing fight for trans rights.

“We cannot let the Trump administration target transgender people in the federal government or in public life,” said ACLU-D.C. Senior Staff Attorney Michael Perloff. “An executive order micromanaging which bathroom civil servants use is discrimination, plain and simple, and must be stopped.”

“It is absurd that in her home state of Illinois, LeAnne can use any other restroom consistent with her gender — other than the ones controlled by the federal government,” said Michelle Garcia, deputy legal director at the ACLU of Illinois. “The Trump administration’s reckless policies are discriminatory and must be reversed.”

“This policy is hateful bigotry aimed at denying hardworking federal employees their basic dignity simply because they are transgender,” said Kaitlyn Golden, senior counsel at Democracy Forward. “It is only because of brave individuals like LeAnne that we can push back against this injustice. Democracy Forward is honored to work with our partners in this case and is eager to defeat this insidious effort to discriminate against transgender federal workers.”

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