National
House defense committee to vote on anti-gay amendments
Measures would disrupt ‘Don’t Ask’ repeal, prevent same-sex marriages on bases
Amendments that could disrupt “Don’t Ask, Don’t Tell” repeal and mandate that marriages on military bases comply with the Defense of Marriage Act are set to see votes on Wednesday when a House defense panel takes up major Pentagon budget legislation.
Rep. Duncan Hunter (R-Calif.), a Marine Corps veteran of Iraq and Afghanistan and opponent of gays in the military, plans to introduce an amendment aimed at derailing “Don’t Ask, Don’t Tell” repeal by expanding the certification requirement to include input from the four military service chiefs.
In a statement Monday, Hunter announced he would introduce the amendment to expand the certification requirement during the House Armed Services Committee’s markup of the fiscal year 2012 defense authorization bill. The measure would interfere with the repeal law that President Obama signed in December, which allows for implementation of open service after 60 days pass following certification from the president, the defense secretary and the chair of the Joint Chiefs of Staff.
“The four military service chiefs are far more closely connected to the day-to-day realities facing each respective service branch than those who are currently required to sign off on the repeal — including the president,” said Hunter said. “The president, the secretary of defense and the chairman of the Joint Chiefs should all take part in the certification process, but excluding the service chiefs is a mistake.”
Hunter, who introduced standalone legislation earlier this year mirroring the planned amendment, added the military service chiefs may agree to enact repeal at the same time as the president, the defense secretary and the chair of the Joint Chiefs of Staff or they “may have other recommendations for implementation and timing.”
The Hunter amendment could be one among several amendments that could be introduced by opponents of gays in the military to disrupt the “Don’t Ask, Don’t Tell” repeal process. Informed sources said other measures could be an outright abrogation of the repeal measure that Congress passed and Obama signed last year as opposed to merely implementing a certification expansion.
Involving the military service chiefs in the “Don’t Ask, Don’t Tell” repeal certification process could disrupt or delay open service in the U.S. military because some uniform leaders of the military — notably Marine Corps Commandant Gen. James Amos — expressed opposition to passing repeal legislation last year. Amos has since said the Marine Corps would work to implement open service.
Despite the qualms that were expressed last year, each of the service chiefs testified in April that the process for enacting “Don’t Ask, Don’t Tell” repeal has been proceeding smoothly. Some service chiefs — including Chief of Naval Operations Adm. Gary Roughead — have said they oppose any effort to expand the certification requirement and they believe the defense secretary would adequately represent their views in the certification process.
Fred Sainz, vice president of communications for the Human Rights Campaign, said he thinks the Hunter amendment is an attempt at a “do over strategy” because Republicans didn’t get what they wanted when the last Congress passed legislation allowing for “Don’t Ask, Don’t Tell” repeal.
“It just seems like they didn’t like the outcome, so now they’re trying to get another bite at the apple,” Sainz said.
R. Clarke Cooper, executive director of Log Cabin Republicans, said those who worked for legislative repeal of “Don’t Ask, Don’t Tell” plan to send a letter in opposition to the Hunter measure and similar amendments before the committee markup.
“We’re simply going to members of the House Armed Services Committee saying don’t allow or take into consideration amendments that would be anything seen as repealing repeal,” Cooper said.
Despite efforts from advocates, if the Hunter amendment is supported in committee along party lines, the measure would likely pass because Republicans enjoy a majority on the panel by a margin of 35-27. After the defense authorization bill is reported to the House floor, a similar vote of approval could be expected on the House floor because Republican have control of the chamber. The bill could see a House floor vote as early as the week of May 23.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he fears the committee has sufficient votes to pass Hunter’s amendment.
“The reality is if the majority in the chamber want to move that amendment they can adopt it successfully,” Sarvis said.
But Cooper said he doesn’t think the support is present in committee to approve the Hunter amendment because defense officials have said the current repeal process is working.
“I don’t think the votes are there,” Cooper said. “I think it would be pretty short-sighted for some of those folks to actually take a vote on something that has had such positive reporting from the [Defense] Department.”
Even if House Republicans are successful in approving the expanded certification measure as part of their defense authorization bill, passing such a provision into law would be challenging because the Senate would agree to it during conference negotiations and Obama would have to sign the measure.
Further, defense officials have testified that certification could happen mid-summer, and the final version of the defense authorization will likely not reach the president’s desk until after that time, rendering Hunter’s provision useless.
Sarvis said the Senate schedule won’t allow for floor consideration of the defense authorization bill until July and the conference committee at the earliest would be in late September or October.
“If we have certification this summer, the 60 days may well have run before the September-October conference,” Sarvis said. “And, I think — the authors of some of these ‘delay-derail’ amendments — they know that.”
Sainz also noted that Republicans are going to have a problem in passing the amendment into law because it runs contrary to the previously stated Republican emphasis on economic issues during the 2010 election.
“This is a complete and total diversion from the American people’s priorities on the economy, jobs and dinner table issues,” Sainz said. “The American public does not believe that this issue needs to be considered once again, and we will make sure the people understand that this is a complete and total disconnect from what the priorities should be.”
Akin plans measure to prevent same-sex marriage at bases
Another planned amendment follows controversy in the wake of new Navy policy guidance stating that “Don’t Ask, Don’t Tell” repeal would enable same-sex marriage ceremonies to take place on military facilities and that Navy chaplains can officiate over these ceremonies.
Steve Taylor, a spokesperson for Rep. Todd Akin (R-Mo.), said his boss intends to introduce a measure that would rollback the new guidance issued by the Navy.
“He intends to offer an amendment Wednesday,” Taylor said. “It would say that marriages [are] allowed to be performed on bases when they comply with DOMA.”
According to the Navy memo, which is dated April 13 and signed by Chief of Navy Chaplains Rear Adm. Mark Tidd, the new guidance was issued after the Navy conducted legal review of the issue of same-sex marriages and questions emerged related to same-sex marriage during the initial course of Navy training for “Don’t Ask, Don’t Tell” repeal.
The guidance states that use of base facilities is “sexual orientation neutral” on the issue using base facilities for same-sex marriage.
“If the base is located in a state where same-sex marriage is legal, then base facilities may normally be used to celebrate the marriage,” the memo states.
Additionally, the memo says Navy chaplains are allowed to perform same-sex marriages in their official capacity if they chose to do so.
“Regarding chaplain participation, consistent with the tenets of his or her religious organization, a chaplain may officiate a same-sex, civil marriage: if it is conducted in accordance with the laws of a state which permits same-sex marriages or union; and if the chaplain is, according to applicable state and local laws, otherwise fully certified to officiate that state’s marriage,” the memo states.
The memo states that the guidance with regarding to having same-sex marriages on base is a change to earlier training, which stated that same-sex marriages aren’t permitted on federal property. According to the memo, the guidance for chaplains is not a change, but “a clearer, more concise and up to date articulation” of policy.
Following the emergence of the letter this week, Akin and 62 other Republican U.S. members wrote to Navy Secretary Ray Mabus in a letter dated May 6 stating the policy change doesn’t comply with DOMA.
“We find it difficult to understand how the military is somehow exempt from abiding by federal law,” the letter states. “Not only does this document imply recognition and support of same-sex marriages, but it also implies that the Navy will now perform these marriages so long as they do not violate state statutes.”
The letter adds that DOMA “protects the sanctity of the bond specifically between a man and a woman” and continues that “as defenders of the institution of marriage we agree with the vast majority of the American people that the preservation of marriage is critical to society’s stability and is in the best interest of American families.”
Despite the letter, several recent polls have found that a majority of the American public now supports marriage rights for same-sex couples. A poll last month from CNN found that 51 percent of American believes marriages between gay and lesbian couples “should be recognized by the law as valid” while 47 percent remain opposed.
Sarvis said the memo is being circulating on Capitol Hill by anti-gay activists seeking to invoke the more controversial debate on same-sex marriage in an attempt to disrupt to “Don’t Ask, Don’t Tell” repeal.
“The operative word in that letter is ‘may,'” Sarvis said. “They ‘may’ use the facilities. The chaplain ‘may’ elect to marry two gay service members on post if marriage is permitted by state law in that state.”
Sarvis added no chaplain is required to marry anyone — regardless of whether the marriage is same-sex or opposite-sex — if the chaplain has an objection to the union. Further, Sarvis said that no language in DOMA speaks to facilities on military installations.
However, Sarvis said the committee would pass the amendment if House Armed Services Committee Chair Buck McKeon (R-Calif.) characterizes it as a party-line vote for Republican committee members.
“If the chairman of the committee positions it as a party-line, then the numbers on the committee would indicate that such an amendment would likely pass by party-line, and, who knows, it could pick up a couple Democrats,” Sarvis said.
U.S. Supreme Court
Trans rights supporters, opponents rally outside Supreme Court as justices consider Tenn. law
Oral arguments in U.S. v. Skrmetti case took place Wednesday
At least 1,000 people rallied outside the U.S. Supreme Court on Wednesday as the justices considered whether a Tennessee law banning gender-affirming medical care for transgender youth is unconstitutional.
Dueling rallies began early in the morning, with protesters supporting trans rights and protesters supporting Tennessee’s ban on gender-affirming care each stationed with podiums on opposite sides.
Trans rights protesters, who significantly outnumbered the other group, held signs reading “Keep hate out of healthcare,” and “Respect family medical decisions.” On the other side, protesters carried signs with messages like “Sex change is fantasy,” and “Stop transing gay kids.”
Ari, a trans person who grew up in Nashville and now lives in D.C., spoke to the Washington Blade about the negative effects of the Tennessee law on the well-being of trans youth.
“I grew up with kids who died because of a lack of trans healthcare, and I am scared of that getting worse,” they said. “All that this bill brings is more dead kids.”
The Tennessee law that is being challenged in U.S. v Skrmetti took effect in 2023 and bans medical providers from prescribing medical treatments such as puberty blockers and hormone therapies to trans youth.
A number of Democratic lawmakers, including U.S. Rep. Mark Takano (D-Calif.), co-chair of the Congressional Equality Caucus, and U.S. Sens. Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.) addressed the crowd in support of trans rights.
In his speech, Merkley said Americans deserved freedom in accessing gender affirming care and criticized the law as political intervention in private medical decisions.
“Americans should have the freedom to make medical decisions in the privacy of their doctor’s office without politicians trying to dictate to them,” he said.
Robert Garofalo, a chief doctor in the division of Adolescent and Young Adult Medicine at a Chicago children’s hospital, emphasized the importance of trans youth having access to gender affirming care.
“We [providers] are seeing patients and families every day, present with crippling fears, added stress and anxiety as they desperately try to locate care where it remains legal to do so,” Garofalo, who is also a professor of pediatrics at Northwestern University, told the crowd. “Transgender children and adolescents deserve health care that is grounded in compassion, science and principles of public health and human rights. They must not be denied life saving medical care — their lives depend on it.”
Major U.S. medical associations, including the American Medical Association and the American Academy of Pediatrics, support gender affirming care.
Research has found gender affirming care improves the mental health and overall well-being of gender diverse children and adolescents. Those who are denied access to gender affirming care are at increased risk for significant mental health challenges.
An unlikely coalition came out to support Tennessee’s ban on gender affirming care. Far-right figures, such as U.S. Rep. Marjorie Taylor Greene (R-Ga.) and Matt Walsh — both of whom have a history of making homophobic statements — were joined by groups such as the LGBT Courage Coalition and Gays Against Groomers.
The groups questioned the quality of the research finding gender-affirming care to have a positive effect on the well-being of trans and gender nonconforming youth and argued that minors cannot consent to medical treatment. Ben Appel, a co-founder of the LGBT Courage Coalition, which he notes was “co-founded by gay, lesbian, bisexual, and trans adults who oppose pediatric gender medicine, which we know to be non-evidence-based and harmful to young gay people,” said gender nonconformity is often part of the lesbian, gay, and bisexual experience and should not be “medicalized.”
“I care about the adult gay detransitioners who have been harmed … by these homophobic practice,” he said “They should have just been told they’re gay.”
Claire, a Maryland resident who attended the rally in favor of the Tennessee law and claims to have detransitioned, described being prescribed testosterone and having a mastectomy at 14, medical treatments she says she was unable to consent to at that age. She doesn’t oppose gender affirming care for adults but is opposed to “medical experimentation on children.”
“I think that adults should be allowed to do whatever they want with their bodies. I think that it is if someone is happy with the decision that they made that’s great,” she said. “I was not able to make that decision. I was a child.”
But trans activists fear that a ruling in favor of Tennessee could pave the way for states to restrict access to gender-affirming care for adults.
“There’s also broader implications for civil rights and trans rights, more broadly, for adults in the future. There are some states that have tried to ban some healthcare for adults — they haven’t yet — but I think that’s something we might also see if the Supreme Court rules that way,” Ethan Rice, a senior attorney at Lambda Legal, one of the legal organizations representing the plaintiffs in U.S. v Skrmetti, said.
In the case, three Tennessee families and a physician are challenging the Tennessee law on the grounds that it violates the Equal Protection Clause in the 14th Amendment by drawing lines based on sex and discriminating against trans people. The statute bans medications for trans children while allowing the same medications to be used when treating minors suffering from other conditions, such as early-onset puberty.
A 2020 Supreme Court decision determined sex-based discrimination includes discrimination based on gender identity or sexual orientation. The key question in U.S. v. Skrmetti is whether this interpretation applies under the Equal Protection Clause.
“We really hope that the Supreme Court recognizes their own precedent on sex discrimination cases and comes out the right way, saying this is sex discrimination by the state of Tennessee and thus is unconstitutional,” Rice said.
Twenty-six states currently have laws or policies restricting minors’ access to gender-affirming care. If the court rules against Tennessee, similar bans in other states would also be unconstitutional, granting trans youth greater access to gender affirming care nationwide.
Edith Guffey, the board chair at PFLAG, expressed doubt the court will strike down the law, citing its sharp ideological turn to the right in recent years. But she said she remains hopeful.
“I hope that the court will … step outside agendas and look at the needs of people and who has the right to say what’s good for their children,” she said.
Chase Strangio, an ACLU attorney representing the families, on Wednesday became the first openly trans lawyer to argue before the Supreme Court. He addressed the trans rights protesters after the hearing.
“Whatever happens, we are the defiance,” Strangio said. “We are collectively a refutation of everything they say about us. And our fight for justice did not begin today, it will not end in June — whatever the court decides.”
U.S. Supreme Court
Supreme Court hears oral arguments in pivotal gender affirming care case
U.S. v. Skrmetti could have far-reaching impacts
The U.S. Supreme Court heard oral arguments in U.S. v. Skrmetti on Wednesday, the case brought by the Biden-Harris administration’s Department of Justice to challenge Tennessee’s ban on gender affirming care for minors.
At issue is whether the law, which proscribes medical, surgical, and pharmacological interventions for purposes of gender transition, abridges the right to due process and equal protection under the 14th Amendment to the U.S. Constitution, as well as Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination.
The petitioners — U.S. Solicitor General Elizabeth Prelogar, who represents the federal government, and Chase Strangio, co-director of the ACLU’s LGBT & HIV Project — argue the Supreme Court should apply heightened scrutiny to laws whose application is based on transgender status rather than the rational basis test that was used by the U.S. Court of Appeals for the 6th Circuit, which is more deferential to decisions by legislators.
Legal experts agree the conservative justices are unlikely to be persuaded even though, as Tennessee Solicitor General J. Matthew Rice made clear on Wednesday, under the state’s statute “If a boy wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition. If a girl wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition.”
Oral arguments delved into a range of related topics, beginning with conservative Justice Samuel Alito’s questions about debates within the global scientific and medical communities about the necessity of these interventions for youth experiencing gender dysphoria and the risks and benefits associated with each treatment.
“Isn’t the purpose of intermediate scrutiny to make sure that we guard against — I’m not intending to insult — but we all have instinctual reactions, whether it’s parents or doctors or legislatures, to things that are wrong or right,” said liberal Justice Sonia Sotomayor.
“For decades, women couldn’t hold licenses as butchers or as lawyers because legislatures thought that we weren’t strong enough to pursue those occupations,” she said. “And some, some people rightly believe that gender dysphoria may cause may be changed by some children, in some children, but the evidence is very clear that there are some children who actually need this treatment. Isn’t there?”
After Prelogar answered in the affirmative, Sotomayor continued, “Some children suffer incredibly with gender dysphoria, don’t they? Some attempt suicide. Drug addiction is very high among some of these children because of their distress. One of the petitioners in this case described going almost mute because of their inability to speak in a voice that they could live with.”
Conservative Justice Brett Kavanaugh focused his initial questions on whether the democratic process should adjudicate questions of science and policy, asserting that both sides have presented compelling arguments for their respective positions.
There are solutions that would allow policymakers to mitigate concerns with gender affirming medical interventions for minor youth without abridging the Equal Protection clause and Section 1557 of the ACA, Prelogar said.
For instance, “West Virginia was thinking about a total ban, like this one, on care for minors,” she said, “but then the Senate Majority Leader in West Virginia, who’s a doctor, looked at the underlying studies that demonstrate sharply reduced associations with suicidal ideation and suicide attempts, and the West Virginia Legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care.”
She continued, “West Virginia requires that two different doctors diagnose the gender dysphoria and find that it’s severe and that the treatment is medically necessary to guard against the risk of self harm. The West Virginia law also requires mental health screening to try to rule out confounding diagnoses. It requires the parents to agree and the primary care physician to agree. And I think a law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest.”
Later, in an exchange with Rice, Sotoyamor said, “I thought that that’s why we had intermediate scrutiny when there are differences based on sex, to ensure that states were not acting on the basis of prejudice.”
She then asked whether a hypothetical law mirroring Tennessee’s that covered adults as well as minor youth would pass the rational basis test. Rice responded, “that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”
“Well, Your Honor, of course, our position is there is no sex based classification. But to finish the answer, that to the extent that along with dealing with adults, would pass rational basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”
“When you’re one percent of the population or less,” said Sotomayor, “it’s very hard to see how the democratic process is going to protect you. Blacks were a much larger percentage of the population and it didn’t protect them. It didn’t protect women for whole centuries.”
National
LGBTQ asylum seekers, migrants brace for second Trump administration
Incoming president has promised ‘mass deportations’
Advocacy groups in the wake of President-elect Donald Trump’s election fear his administration’s proposed immigration policies will place LGBTQ migrants and asylum seekers at increased risk.
“What we are expecting again is that the new administration will continue weaponizing the immigration system to keep igniting resentment,” Abdiel Echevarría-Cabán, an immigration lawyer who is based in Texas’s Rio Grande Valley, told the Washington Blade.
Trump during the campaign pledged a “mass deportation” of undocumented immigrants.
The president-elect in 2019 implemented the Migrant Protection Protocols program — known as the “Remain in Mexico” policy — that forced asylum seekers to pursue their cases in Mexico.
Advocates sharply criticized MPP, in part, because it made LGBTQ asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Matamoros, and other Mexican border cities even more vulnerable to violence and persecution based on their gender identity and sexual orientation.
The State Department currently advises American citizens not to travel to Tamaulipas state in which Matamoros is located because of “crime and kidnapping.” The State Department also urges American citizens to “reconsider travel” to Baja California and Chihuahua states in which Tijuana and Ciudad Juárez are located respectively because of “crime and kidnapping.”
The Biden-Harris administration ended MPP in 2021.
The Centers for Disease Control and Prevention in March 2020 implemented Title 42, which closed the Southern border to most asylum seekers and migrants because of the COVID-19 pandemic. The policy ended in May 2023.
Robert Contreras, president of Bienestar Human Services, a Los Angeles-based organization that works with Latino and LGBTQ communities, in a statement to the Blade noted Project 2025, which “outlines the incoming administration’s agenda, proposes extensive rollbacks of rights and protections for LGBTQ+ individuals.”
“This includes dismantling anti-discrimination protections, restricting access to gender-affirming healthcare, and increasing immigration enforcement,” said Contreras.
Trans woman in Tijuana nervously awaits response to asylum application
A Biden-Harris administration policy that took place in May 2023 says “noncitizens who cross the Southwest land border or adjacent coastal borders without authorization after traveling through another country, and without having (1) availed themselves of an existing lawful process, (2) presented at a port of entry at a pre-scheduled time using the CBP (U.S. Customs and Border Protection) One app, or (3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions.” The exceptions under the regulation include:
- They were provided authorization to travel to the United States pursuant to a DHS-approved parole process;
- They used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or
- They applied for and were denied asylum in a third country en route to the United States.
Biden in June issued an executive order that prohibits migrants from asking for asylum in the U.S. if they “unlawfully” cross the Southern border.
The Organization for Refuge, Asylum and Migration works with LGBTQ migrants and asylum seekers in Tijuana, Mexicali and other Mexican border cities.
ORAM Executive Director Steve Roth is among those who criticized Biden’s executive order. Roth told the Blade the incoming administration’s proposed policies would “leave vulnerable transgender people, gay men, lesbians, and others fleeing life-threatening violence and persecution with little to no opportunity to seek asylum in the U.S. stripped of safe pathways.”
“Many will find themselves stranded in dangerous regions like the Mexico-U.S. border and transit countries around the world where their safety and well-being will be further jeopardized by violence, exploitation, and a lack of support,” he said.
Jennicet Gutiérrez, co-executive director of Familia: TQLM, an organization that advocates on behalf of transgender and gender non-conforming immigrants, noted to the Blade a trans woman who has asked for asylum in the U.S. “has been patiently waiting in Tijuana” for more than six months “for her CBP One application response.”
“Now she feels uncertain if she will ever get the chance to cross to the United States,” said Gutiérrez.
She added Trump’s election “is going to be devastating for LGBTQ+ asylum seekers.”
“Transgender migrants are concerned about the future of their cases,” said Gutiérrez. “The upcoming administration is not going to prioritize or protect our communities. Instead, they will prioritize mass deportations and incarceration.”
TransLatin@ Coalition President Bamby Salcedo echoed Gutiérrez.
“Trans people who are immigrants are getting the double whammy with the new administration,” Salcedo told the Blade. “As it is, trans people have been political targets throughout this election. Now, with the specific target against immigrants, trans immigrants will be greatly impacted.”
‘We’re ready to keep fighting’
Trans Queer Pueblo is a Phoenix-based organization that provides health care and other services to undocumented LGBTQ immigrants and migrants of color. The group, among other things, also advocates on behalf of those who are in U.S. Immigration and Customs Enforcement detention centers.
“We refuse to wait for politicians to change systems that were designed to hurt us,” Trans Queer Pueblo told the Blade in a statement. “The elections saw both political parties using our trans and migrant identities as political pawns.”
Trans Queer Pueblo acknowledged concerns over the incoming administration’s immigration policies. It added, however, Arizona’s Proposition 314 is “our biggest battle.”
Arizona voters last month approved Proposition 314, which is also known as the Secure the Border Act.
Trans Queer Pueblo notes it “makes it a crime for undocumented people to exist anywhere, with arrests possible anywhere, including schools and hospitals.” The group pointed out Proposition 314 also applies to asylum seekers.
“We are building a future where LGBTQ+ migrants of color can live free, healthy, and secure, deciding our own destiny without fear,” Trans Queer Pueblo told the Blade. “This new administration will not change our mission — we’re ready to keep fighting.”
Contreras stressed Bienestar “remains committed to advocate for the rights and safety of all migrants and asylum seekers.” Gutiérrez added it is “crucial for LGBTQ+ migrants to know that they are not alone.”
“We will continue to organize and mobilize,” she said. “We must resist unjust treatments and laws.”
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