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After ‘Don’t Ask’ repeal, what’s next?

‘Our goals have been met’

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Groups that worked to advance “Don’t Ask, Don’t Tell” repeal last year aren’t resting on their laurels as they continue to see work ahead in ensuring that open service is implemented and gays in the military are treated fairly.

In the near term, the main priority for those organizations now that President Obama has signed legislation allowing for “Don’t Ask, Don’t Tell” repeal is to ensure that certification of open service happens swiftly.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said his organization will pursue open service as required by the law signed by the president.

“Dec. 22 was a great day, but the reality is, we don’t have repeal,” Sarvis said. “The reality is ‘Don’t Ask, Don’t Tell’ is still the law. So, our first priority is the first 90, the first 180 days is to get certification.”

Aaron Belkin, director of the Palm Center, a think tank on gays in the military at the University of California, Santa Barbara, said his organization will be in “monitoring mode” for possibly the remainder of the year.

“The finishing line is here, but we haven’t crossed it yet, unless and until we get certification and good regulations,” Belkin said. “Our job at this point is to just make sure that the process continues and that if there’s any foot-dragging at the Pentagon, that we call attention to it.”

Belkin said he anticipates the Palm Center will produce another study about three or six months after certification is issued to determine if implementation was successful.

The measure Obama signed would only enact open service after the president, the defense secretary and the chairman of the Joint Chiefs of Staff certify that the U.S. military is ready for “Don’t Ask, Don’t Tell” repeal.

Further, after certification takes place, a 60-day waiting period for congressional review must pass before gays can serve openly in the U.S. military without fear of discharge.

In the State of the Union address on Tuesday, Obama committed to certifying “Don’t Ask, Don’t Tell” repeal before the year is out. The president said he expects certification to happen in a “matter of months” in an interview last month with The Advocate.

Defense Secretary Robert Gates has said he won’t issue certification for open service until new regulations are drafted and training has been instituted in the armed forces.

Beyond certification, groups working on “Don’t Ask, Don’t Tell” foresee a number of outstanding tasks that will remain, including providing legal services and ensuring that benefits are offered to gay troops.

Sarvis said SLDN will continue to provide legal services to gay service members who are facing discharges or who have questions about coming out while in service.

“I think, as an organization, SLDN will still be here providing legal services, working with Congress on oversight and being a resource to the Pentagon to make open service a reality,” he said.

Sarvis said since the legislation was signed, SLDN has heard from more than 225 service members who’ve called with questions about continuing to serve safely or receiving benefits in the post-repeal military.

Further, Sarvis said ensuring gay service members receive the same benefits afforded to straight service members would be another aim for SLDN.

“The post-repeal focus, in large part, will be parity for LGBT service members — particularly parity with respect to benefits: health benefits, GI benefits across the board,” Sarvis said.

The Pentagon report on “Don’t Ask, Don’t Tell” — published Nov. 30 — states that the Defense of Marriage Act prohibits the U.S. military from affording many benefits to same-sex partners of service members, but other benefits, such as death benefits and hospital visitation access, would still be available.

Sarvis said a combination of DOMA and other regulations prohibit gay service members from receiving the same benefits as their straight counterparts, but there is some leeway.

“There are some instances where the [defense] secretary has some authority with respect to definitional changes for dependents … but for most benefits, particularly involving spouses … DOMA is a big barrier,” Sarvis said.

Belkin also acknowledged that a number of tasks will remain even after certification takes place and open service is implemented — although he said he doesn’t know if the Palm Center would be the best organization to address them.

Among the outstanding jobs that Belkin cited are providing employee resources to liaison between gay troops and the Pentagon; promoting public education on transgender people in the U.S. military; and working with the Department of Veterans Affairs to create programming for gay service members.

Beyond the upcoming year, Belkin said he isn’t sure what tasks the Palm Center will pursue, but added he suspects consultation with other organizations could be on the agenda.

“We’ll be offering advice or pro-bono consulting to any organization that wants to learn some of the lessons that we learned along the way about public education and how to use social science to inform public policy conversations,” Belkin said.

Pro-LGBT groups that took on “Don’t Ask, Don’t Tell” as part of a portfolio that included other issues plan to continue to use resources for other items on the agenda.

Fred Sainz, HRC’s vice president of communications, said his organization last year contributed about $3.5 million to the “Don’t Ask, Don’t Tell” repeal effort. But he cautioned against asking where that money would go this year.

“It’s not necessarily a fair posit to say, ‘You have these resources, which you dedicated to “Don’t Ask, Don’t Tell,” what are you going to do with that pot of money now?'” Sainz said. “Because as you know, the [‘Don’t Ask, Don’t Tell’] issue changed considerably over the course of the year and we don’t yet know either the opportunities or the vulnerabilities that we have going into this coming year.”

One lingering question: What will anti-gay groups dedicated to keeping “Don’t Ask, Don’t Tell” on the books do now that legislative action on repealing the law is complete.

Elaine Donnelly, president of the Michigan-based Center for Military Readiness, was among the leading advocates attempting to stop gays from serving openly in the military. The “forced intimacy” of having gay troops serve with straight service members was among her favorite phrases.

The Center for Military Readiness didn’t respond to multiple requests on what the organization will pursue now that legislation has been passed to repeal “Don’t Ask, Don’t Tell.”

Belkin noted that Donnelly pursued keeping gays out of the military as part of a broader effort that includes preventing women from serving in combat.

“Her broad concern is the feminization of the military,” Belkin said. “So, there are a lot of ways in which she has tried to roll the country back to the 20th or the 19th century, so she has plenty of culture wars left to fight.”

Whether groups that have focused on “Don’t Ask, Don’t Tell” will have reduced resources now that legislative action is complete also remains in question.

Sarvis said “time will tell” what kind of resources SLDN will have as he acknowledged the organization’s board approved in November — and reaffirmed in December — a slightly smaller budget from what it had last year.

According to Sarvis, SLDN’s board approved a budget for 2011 that was around 12.5 percent smaller than it was in 2010. He said it decreased from $2.4 million to $2.2 million.

Belkin said he doesn’t think the Palm Center will have same budget as it had in previous years and said the organization plans to stop fundraising.

“We have endowments that will keep sustaining us at a lower level capacity, but, I think, for the most part, once “Don’t Ask, Don’t Tell” is gone, then the biggest part of our mission will be over, and we’ll be one of those organizations that’s fortunate enough to say, ‘Our goals have been met,'” Belkin said.

Servicemembers United couldn’t be reached for comment on what the organization intends to pursue now that legislative action on “Don’t Ask, Don’t Tell” repeal is complete.

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U.S. Supreme Court

LGBTQ groups commemorate 50th anniversary of Roe v. Wade

Equality Florida staffers attended vice president’s speech in Fla.

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The U.S. Supreme Court on June 24, 2022, overturned the landmark Roe v. Wade decision that had been issued on Jan. 22, 1973. LGBTQ advocacy groups this week commemorated the 50th anniversary of the landmark decision. (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Jan. 22, 1973, issued its Roe v. Wade ruling that ensured the constitutional right to an abortion for all American citizens. The Supreme Court last June overruled this landmark decision.

Fifty years later, LGBTQ activists are among those who have commemorated Roe, despite the fact the Supreme Court has overturned it. The decision, which has since caused tension between liberal and conservative groups, prompted federal and state lawmakers to act upon the sudden revocation of what many consider to be a fundamental right. 

Roe’s legal premise relied heavily upon the right to privacy that the 14th Amendment provided; however, legal experts argued that it was a vague interpretation of the amendment.

Vice President Kamala Harris on Sunday delivered remarks on Roe’s anniversary in Tallahassee, Fla., saying how most “Americans relied on the rights that Roe protected.” 

“The consequences of the Supreme Court’s ruling are not only limited to those who need reproductive care,” said Harris. “Other basic healthcare is at risk.”

The overruling of Roe put into question the security of other long-held precedents, such as Obergefell v. Hodges, the 2015 case that legalized same-sex marriages, and Loving v. Virginia, the 1967 decision that legalized interracial marriages, because they rely on the same right to privacy that upheld Roe.

In that same speech, Harris announced President Joe Biden would issue a presidential memorandum to direct all government departments to ensure access to abortion pills at pharmacies.

“Members of our Cabinet and our administration are now directed, as of the president’s order, to identify barriers to access to prescription medication and to recommend actions to make sure that doctors can legally prescribe, that pharmacies can dispense, and that women can secure safe and effective medication,” Harris affirmed. 

LGBTQ organizations and other human rights groups continue to work to protect reproductive rights.

Human Rights Campaign President Kelley Robinson said she found it intolerable that “an extremist set of judges” had taken away an important right not only for women, but also nonbinary people, trans men, and the entire LGBTQ+ community.

“Because we know that reproductive rights are LGBTQ+ rights, and that so many in our community rely on access to abortion care and other reproductive health services,” said Robinson in regards to Roe’s 50th anniversary. “The ripple effects of this decision will impact the most marginalized among us the most, and we cannot stand for that.”

“Overturning Roe v. Wade was the first time in history that the Supreme Court has taken away rights, and we know that they will not stop there,” added Robinson. “This is a dangerous turning point for our country, and we have to affirmatively defend against this assault.” 

Robinson said HRC is working with coalition partners to fight the roll-back of abortion rights at the state and federal level. 

Christian Fuscarino, executive director of Garden State Equality, a statewide LGBTQ rights group in New Jersey, said his organization is “laser-focused on ensuring that people with trans and nonbinary experiences are experiencing lived equality, which includes bodily autonomy.” 

Equality Florida showed its support of Roe by standing alongside Harris during her Tallahassee speech with several other lawmakers and activists. They also denounced Republican Gov. Ron DeSantis’ antiabortion policies, as well as the Florida legislature. 

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Virginia

Va. Senate approves marriage equality affirmation bill

State Sen. Adam Ebbin sponsored SB 1096

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(Washington Blade photo by Michael Key)

The Virginia Senate on Tuesday approved a bill that would affirm marriage equality in state law.

State Sen. Adam Ebbin (D-Alexandria)’s Senate Bill 1096 passed by a 25-12 vote margin. 

“My bill ensuring that Virginians have the right to marry who they love regardless of their sex, has passed the Senate on a bipartisan vote,” tweeted the openly gay Alexandria Democrat.

The American Civil Liberties Union of Virginia also noted SB 1096 passed with bipartisan support.

“Virginia is for all lovers,” tweeted the ACLU of Virginia. “Our law should reflect our values.”

Ebbin has also reintroduced a resolution to begin the process of repealing a Virginia constitutional amendment that defines marriage as between a man and a woman. The resolution is currently before a Senate subcommittee.

SB 1096 now goes to the Republican-controlled Virginia House of Delegates.

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Washington

Federal court upholds Wash. conversion therapy ban

State lawmakers in 2018 prohibited debunked practice for minors

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The William Kenzo Nakamura U.S. Courthouse for the 9th Circuit in Seattle. (Photo by Joe Mabel)

The U.S. Court of Appeals for the 9th Circuit on Monday rejected a therapist’s request for the court to reconsider its previous decision upholding Washington State’s law protecting minors from so-called conversion therapy by licensed health professionals.

Conversion therapy is a dangerous and discredited practice that attempts to change a minor’s sexual orientation or gender identity.

Washington prohibited licensed mental health professionals from subjecting minors to conversion therapy in 2018, as more than 20 other states have also done.

Last September, the 9th Circuit wrote: “In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add ‘performing conversion therapy on a patient under age eighteen’ to the list of unprofessional conduct for the health professions.”

“The 9th Circuit has affirmed that states can require licensed mental health providers to comply with ethical and professional standards prohibiting the use of unnecessary, ineffective, and harmful treatments on their minor patients,” said National Center for Lesbian Rights Legal Director Shannon Minter. “These are common sense protections that unfortunately are necessary to prevent unethical therapists from defrauding parents and causing severe harm to LGBTQ youth. Every major medical and mental health organization in the country supports these laws, which are supported by decades of research and clear standards of care.”

“We applaud the 9th Circuit for permitting states to protect survivors like myself from the unethical practice of so-called ‘conversion therapy,’ which has wreaked havoc on thousands of LGBTQ youth and their families,” said Mathew Shurka, a conversion therapy survivor and co-founder of Born Perfect. 

In 2018, Washington passed a law prohibiting state-licensed therapists from engaging in conversion therapy with a patient under 18-years-old. Every leading medical and mental health organization in the country has warned that these practices do not work and put young people at risk of serious harm, including depression, substance abuse and suicide. Twenty-five states and more than 100 localities have laws or administrative policies protecting youth from these practices or preventing the expenditure of state funds on conversion therapy.

In 2021, an anti-LGBTQ legal group filed a federal lawsuit challenging the new law on behalf of Brian Tingley, a therapist and advocate of conversion therapy.

Tingley, who is represented by the Scottsdale, Ariz.,-based anti-LGBTQ Alliance Defending Freedom, identifies himself as a “Christian licensed marriage and family therapist” and alleges in the court filings that the provided definition of “conversion therapy” is “vague, content-biased and biased against one perspective or point of view.”

NCLR successfully moved to intervene in the lawsuit on behalf of Equal Rights Washington, the state’s largest LGBTQ civil rights organization and a primary supporter of the law during the legislative process. ERW and Washington State urged the court to uphold the law in light of the overwhelming consensus of medical and mental health professionals that conversion therapy poses a serious risk to the health and well-being of Washington’s youth. In August 2021, the federal district court for the Western District of Washington upheld the law and rejected Tingley’s challenge.

In September 2022, a three-judge panel of the 9th Circuit affirmed the district court’s decision, ruling that state laws protecting minors from conversion therapy by licensed health professionals are constitutional. Tingley then asked the full 9th Circuit to order the September decision to be reconsidered by a larger panel of 9th Circuit judges. Today, the court rejected that request. 

The court’s order means that the September 2022 panel decision upholding the Washington law will be the 9th Circuit’s final decision in the case.

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