National
Gay sex remains a crime under military law
‘Don’t Ask, Don’t Tell’ repeal leaves sodomy ban unchanged

Aubrey Sarvis, executive director of SLDN, said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal of ‘Don’t Ask, Don’t Tell.’ (Washington Blade file photo by Michael Key)
Much of the nation was riveted over the drama surrounding the congressional vote last month to repeal the “Don’t Ask, Don’t Tell” law barring gays from serving openly in the military.
But in a little-noticed development, Capitol Hill observers say Congress is in no mood to take a follow-up action recommended by Pentagon officials — the repeal of a longstanding military law that classifies consensual sodomy among both gay and straight service members as a crime.
Gay rights attorneys and experts in military law say the sodomy law provision known as Article 125 of the Uniform Code of Military Justice has been rarely enforced in recent years in cases where sexual activity has been consensual and “fraternization” between officers and lower ranking members has not be a factor.
And the experts say a 2004 decision known as U.S. v. Marcum by the U.S. Court of Appeals for the Armed Services placed limits on the enforcement of Article 125 based on a U.S. Supreme Court decision one year earlier that declared state sodomy laws unconstitutional.
Yet because the military court did not overturn Article 125, its characterization of gay sex as criminal acts punishable by court martial will remain on the books until Congress repeals the statute, leaving in place what some activists say is an unfair stigma associated with gays and lesbians in the military.
Gay rights attorneys have said the Supreme Court could overturn the military sodomy law by affirming that the Lawrence v. Texas decision fully covers the military. But it could take years before a new military case reaches the high court.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has led efforts to repeal “Don’t Ask, Don’t Tell,” said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal.
The repeal law passed by Congress and signed by President Obama in December doesn’t allow full repeal to take effect until the president, the Secretary of Defense and chair of the military’s Joint Chiefs of Staff determine troops and commanders are fully prepared for the change.
“So I would say no, that our top priority for this Congress is not the repeal of Article 125,” Sarvis told the Blade. “Do I think it should be repealed? Yes. Has SLDN been working over the last several years for repeal? Yes.”
Among those agreeing with Sarvis’ assessment is gay U.S. Rep. Barney Frank (D-Mass.).
“I’m skeptical and frankly at this point I don’t think it’s a good idea to press ahead with that one,” Frank said Tuesday, noting that gay rights opponents would likely use a debate on sodomy repeal in the military to push “hidden agendas.”
Sarvis summarized the views of other LGBT advocates when he said the Republican-controlled House would almost certainly refuse to even consider a bill to repeal Article 125. He said the need for pushing other LGBT-related issues in the military and other areas outweighs expending resources on Article 125.
Although Article 125 applies to gays and straights alike, gay rights advocates have said military authorities used it to target gay and lesbian service members in the past, especially in the years prior to “Don’t Ask, Don’t Tell.” If it remains on the books, some wonder whether a future president less supportive of LGBT rights might reinstate its full enforcement.
Longtime D.C. gay rights leader Frank Kameny, who assisted gay service members in the 1970s and 1980s, long before SLDN and other LGBT rights groups existed, said military investigators waged what he and other activists called “witch hunts” to identify and discharge gays on grounds that they violated Article 125.
Under Article 125, “any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense,” the article states.
Under the 2008 version of the military’s official manual for courts martial, unnatural carnal copulation under Article 125 is defined as a person taking into his or her “mouth or anus the sexual organ of another person or of an animal…or to have carnal copulation in any opening of the body, except the sexual parts, with another person.”
Sarvis and Aaron Belkin, director of the Palm Center, an arm of the University of Southern California that studies issues related to gays in the military, each said they know of almost no cases in recent times where service members, gay or straight, have been prosecuted under Article 125 for engaging in consensual sex in private.
The two noted that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.
The latter category of cases, known as fraternization, is considered a strong breach of military rules because sexual relations between an officer and a subordinate are believed to harm the system of order and discipline deemed important in the military.
Bridget Wilson, a San Diego attorney in private practice who has represented gay and lesbian service members for more than 20 years, said she agrees with Sarvis and Belkin’s assessment about the infrequency of Article 125 enforcement in recent years for consensual sex.
But Wilson said the pressure that “Don’t Ask, Don’t Tell” has placed on gay and lesbian service members to conceal their sexual orientation during the 17 years it has been in effect has led to many cases where service members “fabricate” a non-consenting allegation to protect themselves from being thrown out of the service.
If a service member ensnared in an investigation over alleged acts of sodomy admitted to having consented to such acts, Wilson said, it was equivalent to an admission to being gay and grounds for an automatic discharge under “Don’t Ask, Don’t Tell.”
“What I do see is false accusations of assaults,” she said in describing some cases faced by her clients. “You get a lot of, ‘I was so drunk last night I don’t remember a thing’ after he gets busted for having sex with another man.”
According to Wilson, some military prosecutors have interpreted impairment on the part of a service member due to alcohol consumption as a sign that the service member could not give true “consent” to a sexual act.
“So the problem with ‘I was so drunk that I don’t remember a thing’ is it could convert from [consensual] sodomy into forced sodomy with very serious consequences in the criminal courts,” she said.
With the repeal of “Don’t Ask, Don’t Tell,” Wilson said she is hopeful that the perceived need by frightened service members to fabricate a non-consenting sex allegation to avoid being discharged from the service will become a thing of the past.
She said military authorities notoriously handled similar cases with straight couples engaging in alleged sodomy differently because there is no “straight” version of “Don’t Ask, Don’t Tell.”
“They might find themselves punished by losing a stripe or losing leave time—that sort of thing,” Wilson said. “For my same-sex clients, before ‘Don’t Ask, Don’t Tell’ goes away, they’re out. They’re gone. And they’re probably facing administrative separation with an other-than-honorable discharge.”
In its widely publicized Nov. 30 report, the Pentagon’s Joint Service’s Committee consisting of top military leaders — which recommended the repeal of ‘Don’t Ask, Don’t Tell’ — also called on Congress to repeal Article 125.
The committee report points to both the U.S. v. Marcum decision, which limits the enforcement of Article 125, and the Lawrence v. Texas ruling that declared state sodomy laws unconstitutional as they pertain to consenting adults in the privacy of the home.
“In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation,” the report says.
“The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be ‘service discrediting’ (i.e., in public or between a superior and subordinate), should remain on the books,” the report says.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said HRC favors a prompt repeal by Congress of Article 125. He said the group also disagrees with the military court decision upholding Article 125 under some circumstances and feels the Supreme Court’s Lawrence decision, which overturned state sodomy laws, should also cover the military in its entirety.
“HRC expects that post-DADT repeal, Article 125 would only be used in circumstances involving non-consensual acts, so there should be no negative impact on gay and lesbian service members,” Cole-Schwartz said.
Former Army Lt. Dan Choi, who emerged as one of the nation’s most visible opponents of “Don’t Ask, Don’t Tell” after being discharged under the statute, said he recognizes that Congress is unlikely to repeal Article 125 any time soon. But he criticized SLDN and other LGBT groups for not being more aggressive in pushing for its repeal at the present time.
“Leaders [should] do what is important and difficult and lead,” he said.
Bryan Thomas, a spokesperson for Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, said Senate Democratic leaders were reviewing the Pentagon report’s call for Congress to repeal Article 125. He said a Senate repeal measure would most likely be introduced as an amendment to the National Defense Authorization Bill, but he had no further details by press time on whether or when such a measure would be introduced.
“We expect the administration to submit a legislative proposal for repeal or revision of Article 125 of the UCMJ, and such a proposal would certainly be carefully considered by the committee,” Thomas said.
Spokespersons for Republican and Democratic leaders in the House and Republican leaders in the Senate could not be immediately reached.
U.S. Military/Pentagon
Serving America, facing expulsion: Fight for trans inclusion continues on Veterans Day
Advocates sue to reverse Trump ban while service members cope with new struggles
President Trump signed EO 14183, titled “Prioritizing Military Excellence and Readiness,” on Jan. 27, directing the Department of Defense (DoD) to adopt policies that would prohibit transgender, nonbinary, and gender-nonconforming people from serving in the military.
The Trump-Vance administration’s policy shift redefines the qualifications for military service, asserting that transgender people are inherently incapable of meeting the military’s “high standards of readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” citing a history or signs of gender dysphoria. According to the DoD, this creates “medical, surgical, and mental health constraints on [an] individual.” Regardless of their physical or intellectual capabilities, transgender applicants are now considered less qualified than their cisgender peers.
On Jan. 28, 2025, GLBTQ Legal Advocates and Defenders (GLAD) Law and the National Center for LGBTQ Rights (NCLR) filed Talbott v. Trump, a federal lawsuit in the U.S. District Court for the District of Columbia challenging the executive order. Originally filed on equal protection grounds on behalf of six active service members and two individuals seeking enlistment, the case has since grown to include 12 additional plaintiffs.
The Washington Blade spoke exclusively with Second Lt. Nicolas (Nic) Talbott, U.S. Army, a plaintiff in the case, and with Jennifer Levi, Senior Director of Transgender and Queer Rights at GLAD Law, who is leading the litigation.
For Talbott, serving in the military has been a lifelong aspiration, one he pursued despite the barriers posed by discriminatory policies.
“Being transgender posed quite the obstacle to me achieving that dream,” Talbott told the Blade. “Not because it [being trans] had any bearing on my ability to become a soldier and meet the requirements of a United States soldier, but simply because of the policy changes that we’ve been facing as transgender service members throughout the course of the past decade… My being transgender had nothing to do with anything that I was doing as a soldier.”
This drive was fueled by early life experiences, including the impact of the Sept. 11 terrorist attacks, which shaped his desire to protect his country.
“Even for an eight-year-old kid, [9/11] has a tremendous amount of impact… I remember thinking, you know, this is a terrible thing. Me, and when I grow up, I want to make sure nothing like this ever happens again,” he said. “I’ve still tried to gear my life in a way that I can be preparing myself to eventually help accomplish that mission of keeping America safe from anything like that ever happening again.”
The attacks inspired countless Americans to enlist; according to the New York City government, 181,510 joined active duty and 72,908 enlisted in the reserves in the year following 9/11. Although Talbott was too young to serve at the time, the events deeply influenced his educational and career path.
“For me, [9/11] just kind of helped shape my future and set me on the path that I’m currently on today,” he added. “It ignited my passion for the field, and it’s something that you know, I’ve carried with me into my adult life, into my professional life, and that I hope to have a career in the future.”
Talbott holds a master’s degree in criminology with a focus on counterterrorism and global security, and while completing his degree, he gained practical experience working with the Transportation Security Administration.
Despite the public scrutiny surrounding the lawsuit and the ongoing uncertainty of his military future, Talbott remains grounded in the values that define military service.
“Being so public about my involvement with this lawsuit grants me the very unique opportunity to continue to exemplify those values,” Talbott said. “I’m in a very privileged spot where I can speak relatively openly about this experience and what I’m doing. It’s very empowering to be able to stand up, not only for myself, but for the other transgender service members out there who have done nothing but serve with honor and dignity and bravery.”
The ban has created significant uncertainty for transgender service members, who now face the possibility of separation solely because of their gender identity.
“With this ban… we are all [trans military members] on track to be separated from the military. So it’s such a great deal of uncertainty… I’m stuck waiting, not knowing what tomorrow might bring. I could receive a phone call any day stating that the separation process has been initiated.”
While the Department of Defense specifies that most service members will receive an honorable discharge, the policy allows for a lower characterization if a review deems it warranted. Compensation and benefits differ depending on whether service members opt for voluntary or involuntary separation. Voluntary separation comes with full separation pay and no obligation to repay bonuses, while involuntary separation carries lower pay, potential repayment of bonuses, and uncertain success in discharge review processes.
Healthcare coverage through TRICARE continues for 180 days post-discharge, but reduced benefits, including VA eligibility, remain a concern. Those with 18–20 years of service may qualify for early retirement, though even this is not guaranteed under the policy.
Talbott emphasized the personal and professional toll of the ban, reflecting on the fairness and capability of transgender service members.
“Quite frankly, the evidence that we have at hand points in the complete opposite direction… there are no documented cases that I’m aware of of a transgender person having a negative impact on unit cohesion simply by being transgender… Being transgender is just another one of those walks of life.”
“When we’re losing thousands of those qualified, experienced individuals… those are seats that are not just going to be able to be filled by anybody … military training that’s not going to be able to be replaced for years and years to come.”
Talbott also highlighted the unique discipline, dedication, and value of diversity that transgender service members bring—especially in identifying problems and finding solutions, regardless of what others think or say. That, he explained, was part of his journey of self-discovery and a key reason he wants to continue serving despite harsh words of disapproval from the men leading the executive branch.
“Being transgender is not some sad thing that people go through… This is something that has taken years and years and years of dedication and discipline and research and ups and downs to get to the point where I am today… my ability to transition was essential to getting me to that point where I am today.”
He sees that as an asset rather than a liability. By having a more diverse, well-rounded group of people, the military can view challenges from perspectives that would otherwise be overlooked. That ability to look at things in a fresh way, he explained, can transform a good service member into a great one.
“I think the more diverse our military is, the stronger our military is… We need people from all different experiences and all different perspectives, because somebody is going to see that challenge or that problem in a way that I would never even think of… and that is what we need more of in the U.S. military.”
Beyond operational effectiveness, Talbott emphasized the social impact of visibility and leadership within the ranks. Fellow soldiers often approached him for guidance, seeing him as a trusted resource because of his transgender status.
“I can think of several instances in which I have been approached by fellow soldiers… I feel like you are a person I can come to if I have a problem with X, Y or Z… some people take my transgender status and designate me as a safe person, so to speak.”
With the arrival of Veterans Day, the Blade asked what he wishes the public knew about the sacrifices of transgender service members. His answer was modest.
“Every person who puts on the uniform is expected to make a tremendous amount of sacrifice,” Talbott said. “Who I am under this uniform should have no bearing on that… We shouldn’t be picking and choosing which veterans are worthy of our thanks on that day.”
Jennifer Levi, GLAD Law’s Senior Director of Transgender and Queer Rights, also spoke with the Blade and outlined the legal and human consequences of the ban. This is not Levi’s first time challenging the executive branch on transgender rights; she led the legal fight against the first Trump administration’s military ban in both Doe v. Trump and Stockman v. Trump.
Levi characterized the policy as overtly cruel and legally indefensible.
“This policy and its rollout is even more cruel than the first in a number of ways,” Levi explained. “For one, the policy itself says that transgender people are dishonest, untrustworthy and undisciplined, which is deeply offensive and degrading and demeaning.”
She highlighted procedural abuses and punitive measures embedded in the policy compared to the 2017 ban.
“In the first round the military allowed transgender people to continue to serve… In this round the military policy purge seeks to purge every transgender person from military service, and it also proposes to do it in a very cruel and brutal way, which is to put people through a process… traditionally reserved for kicking people out of the military who engaged in misconduct.”
Levi cited multiple examples of discrimination, including the revocation of authorized retirements and administrative barriers to hearings.
She also explained that the administration’s cost argument is flawed, as removing and replacing transgender service members is more expensive than retaining them.
“There’s no legitimate justification relating to cost… it is far more expensive to both purge the military of people who are serving and also to replace people… than to provide the minuscule amount of costs for medications other service members routinely get.”
On legal grounds, Levi noted the ban violates the Equal Protection Clause.
“The Equal Protection Clause prevents laws that are intended to harm a group of people… The doctrine is rooted in animus, which means a bare desire to harm a group is not even a legitimate governmental justification.”
When asked what she wishes people knew about Talbott and other targeted transgender military members, Levi emphasized their extraordinary service.
“The plaintiffs that I represent are extraordinary… They have 260 years of committed service to this country… I have confidence that ultimately, this baseless ban should not be able to legally survive.”
Other organizations have weighed in on Talbott v. Trump and similar lawsuits targeting transgender service members.
Human Rights Campaign Foundation President Kelley Robinson criticized the ban’s impact on military readiness and highlighted the counterintuitive nature of removing some of the country’s most qualified service members.
“Transgender servicemembers serve their country valiantly, with the same commitment, the same adherence to military standards and the same love of country as any of their counterparts,” Robinson said. “This ban by the Trump administration, which has already stripped transgender servicemembers of their jobs, is cruel, unpatriotic, and compromises the unity and quality of our armed forces.”
Lambda Legal Senior Counsel Sasha Buchert echoed the legal and moral imperative to reverse the policy.
“Every day this discriminatory ban remains in effect, qualified patriots face the threat of being kicked out of the military,” she said. “The evidence is overwhelming that this policy is driven by animus rather than military necessity… We are confident the court will see through this discriminatory ban and restore the injunction that should never have been lifted.”
The White House
Trump targets LGBTQ workers in new loan forgiveness restrictions
A new Trump policy attempts to limit loan forgiveness for federal workers working with LGBTQ issues.
The Trump-Vance administration is moving forward with plans to restrict federal workers from using the Public Service Loan Forgiveness (PSLF) program if their work involves issues related to LGBTQ individuals, immigrants, or transgender children.
Lawsuits were filed last week in more than 20 cities — including Albuquerque, N.M., Boston, Chicago, and San Francisco — challenging the administration’s efforts to withhold loan forgiveness from organizations that oppose the president and his party’s political agenda.
Created by Congress in 2007 and signed into law by then-President George W. Bush, PSLF cancels the federal student loan debts of borrowers who spend a decade or more working in public service. The program covers teachers, nurses, law enforcement officers (including members of the military), and employees of tax-exempt organizations under Section 501(c)(3). Many of those who work to support LGBTQ rights are employed by such organizations — meaning they stand to lose eligibility under the new policy.
As of 2024, more than 1 million Americans have benefited from PSLF, helping erase an estimated $74 billion in student loan debt, according to a Biden-era estimate.
Under the new rule, which takes effect July 1, 2026, the Department of Education will be able to deny loan forgiveness to workers whose government or nonprofit employers engage in activities deemed to have a “substantial illegal purpose.” The power to define that term will rest not with the courts, but with the education secretary.
The rule grants the secretary authority to exclude groups from the program if they participate in activities such as trafficking, illegal immigration, or what it calls the “chemical castration” of children — defined as the use of hormone therapy or puberty-blocking drugs, a form of gender-affirming care sometimes provided to transgender children and teens.
Under Secretary of Education Nicholas Kent defended the change, arguing that the new rule would better serve the American people, despite every major American physician organization research showing gender-affirming care helps more than it harms.
“It is unconscionable that the plaintiffs are standing up for criminal activity,” Kent said in a statement to NPR. “This is a commonsense reform that will stop taxpayer dollars from subsidizing organizations involved in terrorism, child trafficking, and transgender procedures that are doing irreversible harm to children.”
The Williams Institute, a leading research center on sexual orientation and gender identity law and public policy, warned that this — along with other restrictions on federal loan forgiveness — would disproportionately harm LGBTQ Americans. The institute found that more than one-third (35%) of LGBTQ adults aged 18 to 40 — an estimated 2.9 million people — hold over $93.2 billion in federal student loans. About half (51%) of transgender adults, 36% of cisgender LBQ women, and 28% of cisgender GBQ men have federal student loans.
“The proposed restrictions on student loans will particularly affect the nearly one-quarter of LGBTQ adults employed in the public or nonprofit sectors, which qualify for the Public Student Loan Forgiveness program,” said Brad Sears, Distinguished Senior Scholar of Law and Policy at the Williams Institute, who authored a brief on how the proposed changes could impact LGBTQ borrowers. “A recent executive order could potentially disqualify anyone working for an organization involved in gender-affirming care, or possibly those serving transgender individuals more broadly, from the PSLF program.”
U.S. Supreme Court
Supreme Court rejects Kim Davis’s effort to overturn landmark marriage ruling
Justices declined to revisit the Obergefell decision
The U.S. Supreme Court has declined to hear an appeal from Kim Davis, the former Rowan County, Ky., clerk best known for refusing to issue marriage licenses to same-sex couples after the landmark 2015 Obergefell v. Hodges decision legalized same-sex marriage nationwide.
Following the Obergefell ruling, Davis stopped issuing marriage licenses altogether and has since filed multiple appeals seeking to challenge same-sex marriage protections. The court once again rejected her efforts on Monday.
In this latest appeal, Davis sought to overturn a $100,000 monetary award she was ordered to pay to David Moore and David Ermold, a same-sex couple to whom she denied a marriage license. Her petition also urged the court to use the case as a vehicle to revisit the constitutional right to same-sex marriage.
The petition, along with the couple’s brief in opposition, was submitted to the Supreme Court on Oct. 22 and considered during the justices’ private conference on Nov. 7. Davis needed at least four votes for the court to take up her case, but Monday’s order shows she fell short.
Cathy Renna, the director of communications for the National LGBTQ Task Force, a non-profit organization that works towards supporting the LGBQ community through grassroots organizing told the Washington Blade:
“Today’s decision is not surprising given the longshot status of Davis’s claim, but it’s a relief that the Supreme Court will not hear it, given the current make up of the court itself. We hope that this settles the matter and marriage equality remains the law of the land for same-sex couples.”
Human Rights Campaign President Kelley Robinson released the following statement:
“Today, love won again. When public officials take an oath to serve their communities, that promise extends to everyone — including LGBTQ+ people. The Supreme Court made clear today that refusing to respect the constitutional rights of others does not come without consequences.
Thanks to the hard work of HRC and so many, marriage equality remains the law of the land through Obergefell v. Hodges and the Respect for Marriage Act. Even so, we must remain vigilant.
It’s no secret that there are many in power right now working to undermine our freedoms — including marriage equality — and attack the dignity of our community any chance they get. Last week, voters rejected the politics of fear, division, and hate, and chose leaders who believe in fairness, freedom, and the future. In race after race, the American people rejected anti-transgender attacks and made history electing pro-equality candidates up and down the ballot.
And from California to Virginia to New Jersey to New York City, LGBTQ+ voters and Equality Voters made the winning difference. We will never relent and will not stop fighting until all of us are free.”
The Log Cabin Republicans, a organization dedicated to conservative LGBTQ people, praising the Court’s decision.
“After months of hand-wringing and fear-mongering by Gay Inc., Democrats, and the media, the conservative majority on the Supreme Court sided with the American people and common sense and declined to revisit marriage equality,” Interim Executive Director Ed Williams said in a statement. “Just like Justice Amy Coney Barrett hinted at earlier this year, Obergefell is settled. Marriage equality has been, and will continue to be, the law of the land.”
This story is developing and will be updated as more information becomes available.
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