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Lieberman confident about 60 votes for ‘Don’t Ask’ repeal

Conn. senator says he’s received assurances from Collins, Lugar

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Sen. Joseph Lieberman (I-Conn.) is optimistic about "Don't Ask, Don't Tell" repeal in lame duck. (Blade photo by Michael Key).

Sen. Joseph Lieberman (I-Conn.) on Thursday expressed confidence about having the necessary 60 votes to move forward with legislation containing “Don’t Ask, Don’t Tell” repeal — provided certain conditions are met with the amendment process on the Senate floor.

“I am confident that we have more than 60 votes prepared to take up the defense authorization bill with the repeal of ‘Don’t Ask, Don’t Tell’ if only there will be a guarantee of a fair and open amendment process,” Lieberman said during a news conference. “In other words, whether we’ll take enough time to do it.”

Lieberman makes the remarks after Senate Majority Leader Harry Reid (D-Nev.) said on Wednesday he’s committed to bringing to the floor in the lame duck session the fiscal year 2011 defense authorization bill, which contains language that would repeal “Don’t Ask, Don’t Tell.”

The legislation would likely come up after Dec. 1, when a Pentagon working group is due to deliver a report to Defense Secretary Robert Gates on implementing repeal.

Lieberman said he’s received assurances from GOP senators Susan Collins (R-Maine) and Richard Lugar (R-Ind.) as well as “others privately” that they would be open to moving forward with defense legislation containing “Don’t Ask, Don’t Tell” repeal provided there’s an “open amendment process” in bringing the bill to the floor.

A previous attempt in September at bringing the defense authorization bill to the floor failed when a united GOP caucus — led by Sen. John McCain (R-Ariz.) — successfully filibustered the motion to proceed.

Many senators, including Collins and Lugar, who supported a repeal amendment in committee, said they were voting “no” because of limited amendments that senators would be allowed to submit for the legislation.

In September, Reid said he was permitting three amendments to the defense authorization bill: one to strip the bill of its repeal provision, one to address the “secret holds” that senators can place on presidential nominations and another to amend the defense legislation with the DREAM Act, an immigration-related bill.

Asked during the conference what he perceived as more open amendment process the next time around, Lieberman the exact terms are up for negotiation.

“It’s hard to put a number on it now,” Lieberman said. “That’s what I hope is going to be negotiated. Of course, we’ll do our best to encourage Sen. Reid to reach out to allow and somewhat larger number.”

Lieberman said the two items that are up for negotiation are the number of amendments to be allowed and the time for debate on those amendments.

Reid has since said the DREAM Act would come to the Senate floor during lame duck as a standalone piece of legislation.

Following the news conference, Lieberman said the removal of the DREAM Act as an amendment to the defense authorization bill would “practically speaking” help with building support for moving forward with the military budget legislation.

But Sen. Jeanne Shaheen (D-N.H.), who present at the conference, said opposition to the defense authorization bill and “Don’t Ask, Don’t Tell” repeal is actually for reasons other than “how many amendments are we going to do, or long we’re going to debate.”

“This is about those who oppose this policy wanting to kill it and taking every opportunity they can and using the Senate rules to try and do that,” Shaheen said. “That’s exactly what’s going on here.”

Lieberman also maintained the Senate would have enough time to tackle “Don’t Ask, Don’t Tell” repeal as it addresses other priorities, such as a nuclear arms reduction treaty and the extension of tax cuts.

“We’re just before Thanksgiving,” Lieberman said. “We’ve been told early on that we’d be here at least three weeks. That’s a lot of time into December, so we’ll be here at least until the week before Christmas. It’s just a question of how hard we’re prepared to work to get these things done. They’re all important.”

Lieberman said President Obama “has been active” on this issue and has been in communication with Reid as well as Senate Armed Services Committee Chair Carl Levin (D-Mich.) on moving forward with the defense authorization bill with “Don’t Ask, Don’t Tell” repeal.

“I think he’ll, in my opinion, do everything he can to see that we get this done by the end of this year,” Lieberman said.

The news conference on Thursday was a hot spot for senators who advocate for “Don’t Ask, Don’t Tell.” Among the 13 lawmakers who made an appearance were Sens. Mark Udall (D-Colo.), Kirsten Gillibrand (D-N.Y.), Barbara Boxer (D-Calif.), Al Franken (D-Minn.) and Chris Coons (D-Del.) who recently took his seat after winning election in November.

Udall said Congress needs to take action to end “Don’t Ask, Don’t Tell” this year because further delay could it “could be years” for repeal to happen.

“We’ve reached an unprecedented level of gridlock here in the Senate when legislation that funds our troops provides for our national security and makes sure that we lead the world in the 21st century is blocked from even coming to the floor for debate,” Udall said. “We ought to welcome the debate — we have an idea of how that debate will turn out — but we’re going to have that opportunity to have this vote on the floor if we have courage and are steadfast.”

The senators joked among themselves that they would work through Christmas Eve — or for Lieberman, who’s Jewish, the eighth day of Hanukkah — to finish the effort in repealing”Don’t Ask, Don’t  Tell.”

Sen. Roland Burris, known as a strong voice for repeal during his tenure in the Senate, said he thinks ending “Don’t Ask, Don’t Tell” would be an important victory, but noted the vote in the Senate “may come too late” for show his support.

Because he was appointed to his position in the Senate in 2009, Burris is required by Illinois state law to give up his seat to Republican Senator-elect Mark Kirk during the lame duck session of Congress and may even leave the U.S. Senate this week.

“As a black American, I know what it means to go through discrimination and unfairness, and there’s no way in the world we can have a strong military and deny those persons who are gay and lesbian … an opportunity to serve their country,” Burris said. “I support that wholeheartedly and am just sorry that I may not be here to cast the vote.”

It remains to be seen how Kirk would vote on the legislation in Burris’ stead. As a U.S. House member, Kirk voted against a “Don’t Ask, Don’t Tell” repeal amendment in May that came to the House floor.

Sen. Dianne Feinstein (D-Calif.) went a step further than other senators at the news conference when she said she believes “Don’t Ask, Don’t Tell” is unconstitutional. Some repeal advocates have been asking for President Obama to declare the law unconstitutional so he could discontinue enforcement of the law.

“I’m not a lawyer, but I believe in my heart of hearts that ‘Don’t Ask, Don’t Tell’ is unconstitutional,” Feinstein said. “As a matter of fact, a federal district court has found that that, in fact, is the case, and it’s simple because it treats the same case of people differently.”

Still, not every member of the U.S. Senate is on board with repeal. Asked during the news conference whether he had spoken to Sen. John McCain (R-Ariz.) about getting him to support an end to the law, Lieberman said he has had such conversations, but he has had “no success” in converting the Arizona senator.

Among those present at the news conference were advocates working for repeal of “Don’t Ask, Don’t Tell,” including Joe Solmonese, president of the Human Rights Campaign, Winnie Stachelberg, senior vice president for external affairs for the Center for American Progress, and Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

Lt. Col. Victor Fehrenbach, a gay Air Force pilot who’s served in the military for 19 years, was also present at the conference and told his story about how he’s now facing potential discharge under “Don’t Ask, Don’t Tell.”

“Right now, my ‘Don’t Ask, Don’t Tell’ is somewhere in the Pentagon, and I am fighting back in federal court with SLDN and my legal team to stay in the Air Force,” he said.

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Federal Government

Treasury Department has a gay secretary but LGBTQ staff are under siege

Agency reverses course on LGBTQ inclusion under out Secretary Scott Bessent

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U.S. Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A former Treasury Department employee who led the agency’s LGBTQ employee resource group says the removal of sexual orientation and gender identity (SOGI) from its discrimination complaint forms was merely a formalization of existing policy shifts that had already taken hold following the second inauguration of President Donald Trump and his appointment of Scott Bessent — who is gay — to lead the agency. 

Christen Boas Hayes, who served on the policy team at Treasury’s Financial Crimes Enforcement Network (FinCEN) from 2020 until March of this year, told the Washington Blade during a phone interview last week that the agency had already stopped processing internal Equal Employment Opportunity (EEO) complaints on the basis of anti-LGBTQ discrimination. 

“So the way that the forms are changing is a procedural recognition of something that’s already happening,” said Hayes. “Internally, from speaking to two EEO staff members, the changes are already taking place from an EEO perspective on what kind of cases will be found to have the basis for a complaint.”

The move, they said, comes amid the deterioration of support structures for LGBTQ workers at the agency since the administration’s early rollout of anti-LGBTQ executive orders, which led to “a trickle down effect of how each agency implements those and on what timeline,” decisions “typically made by the assistant secretary of management’s office and then implemented by the appropriate offices.”

At the end of June, a group of U.S. House Democrats including several out LGBTQ members raised alarms after a Federal Register notice disclosed Treasury’s plans to revise its complaint procedures. Through the agency’s Office of Civil Rights and EEO, the agency would eliminate SOGI as protected categories on the forms used by employees to initiate claims of workplace discrimination.

But Hayes’s account reveals that the paperwork change followed months of internal practice, pursuant to a wave of layoffs targeting DEI personnel and a chilling effect on LGBTQ organizing, including through ERGs. 

Hayes joined Treasury’s FinCEN in 2020 as the agency transitioned into the Biden-Harris administration, working primarily on cryptocurrency regulation and emerging technologies until they accepted a “deferred resignation” offer, which was extended to civil servants this year amid drastic staffing cuts. 

“It was two things,” Hayes said. “One was the fact that the policy work that I was very excited about doing was going to change in nature significantly. The second part was that the environment for LGBTQ staff members was increasingly negative after the release of the executive orders,” especially for trans and nonbinary or gender diverse employees. 

“At the same time,” Hayes added, “having been on the job for four years, I also knew this year was the year that I would leave Treasury. I was a good candidate for [deferred resignation], because I was already planning on leaving, but the pressures that emerged following the change in administration really pushed me to accelerate that timeline.”

Some ERGs die by formal edict, others by a thousand cuts 

Hayes became involved with the Treasury LGBTQ ERG shortly after joining the agency in 2020, when they reached out to the group’s then-president — “who also recently took the deferred resignation.”

“She said that because of the pressure that ERGs had faced under the first Trump administration, the group was rebuilding, and I became the president of the group pretty quickly,” Hayes said. “Those pressures have increased in the second Trump administration.”

One of the previous ERG board members had left the agency after encountering what Hayes described as “explicitly transphobic” treatment from supervisors during his gender transition. “His supervisors denied him a promotion,” and, “importantly, he did not have faith in the EEO complaint process” to see the issues with discrimination resolved, Hayes said. “And so he decided to just leave, which was, of course, such a loss for Treasury and our Employee Resource Group and all of our employees at Treasury.”

The umbrella LGBTQ ERG that Hayes led included hundreds of members across the agency, they said, and was complemented by smaller ERGs at sub-agencies like the IRS and FinCEN — several of which, Hayes said, were explicitly told to cease operations under the new administration.

Hayes did not receive any formal directive to shutter Treasury’s ERG, but described an “implicit” messaging campaign meant to shut down the group’s activities without issuing anything in writing.

“The suggestion was to stop emailing about anything related to the employee resource group, to have meetings outside of work hours, to meet off of Treasury’s campus, and things like that,” they said. “So obviously that contributes to essentially not existing functionally. Because whereas we could have previously emailed our members comfortably to announce a happy hour or a training or something like that, now they have to text each other personally to gather, which essentially makes it a defunct group.”

Internal directories scrubbed, gender-neutral restrooms removed

Hayes said the dismantling of DEI staff began almost immediately after the executive orders. Employees whose position descriptions included the terms “diversity, equity, and inclusion” were “on the chopping block,” they said. “That may differ from more statutorily mandated positions in the OMWI office or the EEO office.”

With those staff gone, so went the infrastructure that enabled ERG programming and community-building. “The people that made our employee resource group events possible were DEI staff that were fired. And so, it created an immediate chilling effect on our employee resource group, and it also, of course, put fear into a lot of our members’ hearts over whether or not we would be able to continue gathering as a community or supporting employees in a more practical way going forward. And it was just, really — it was really sad.”

Hayes described efforts to erase the ERGs from internal communication channels and databases. “They also took our information off internal websites so nobody could find us as lawyers went through the agency’s internal systems to scrub DEI language and programs,” they said.

Within a week, Hayes said, the administration had removed gender-neutral restrooms from Main Treasury, removed third-gender markers from internal databases and forms, and made it more difficult for employees with nonbinary IDs to access government buildings.

“[They] made it challenging for people with X gender markers on identification documents to access Treasury or the White House by not recognizing their gender marker on the TWAVES and WAVES forms.”

LGBTQ staff lack support and work amid a climate of isolation 

The changes have left many LGBTQ staff feeling vulnerable — not only because of diminished workplace inclusion, but due to concerns about job security amid the administration’s reductions in force (RIFs).

“Plenty of people are feeling very stressed, not only about retaining their jobs because of the layoffs and pending questions around RIFs, but then also wondering if they will be included in RIF lists because they’re being penalized somehow for being out at work,” Hayes said. “People wonder if their name will be given, not because they’re in a tranche of billets being laid off, but because of their gender identity or sexual orientation.”

In the absence of functional ERGs, Hayes said, LGBTQ employees have been cut off from even informal networks of support.

“Employees [are] feeling like it’s harder to find members of their own community because there’s no email anymore to ask when the next event is or to ask about navigating healthcare or other questions,” they said. “If there is no ERG to go to to ask for support for their specific issue, that contributes to isolation, which contributes to a worse work environment.”

Hayes said they had not interacted directly with Secretary Bessent, but they and others observed a shift from the previous administration. “It is stark to see that our first ‘out’ secretary did not host a Pride event this year,” they said. “For the last three years we’ve flown the rainbow Pride flag above Treasury during Pride. And it was such a celebration among staff and Secretary Yellen and the executive secretary’s office were super supportive.”

“Employees notice changes like that,” they added. “Things like the fact that the Secretary’s official bio says ‘spouse’ instead of ‘husband.’ It makes employees wonder if they too should be fearful of being their full selves at work.”

The Blade contacted the Treasury Department with a request for comment outlining Hayes’s allegations, including the removal of inclusive infrastructure, the discouragement of ERG activity, the pre-formalization of EEO policy changes, and the targeting of DEI personnel. As of publication, the agency has not responded.

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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.

In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.

The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”

In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.

The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.

“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.

He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”

“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”

Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”

Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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