National
‘Don’t Ask, Don’t Tell’ is dead
Calif. court ruling means gays can serve openly
DADT training at Quantico, VA. (Blade photo by Michael Key)
A federal appellate court in California on Wednesday overturned a stay on an injunction that had barred the U.S. government from enforcing “Don’t Ask, Don’t Tell,” allowing gay service members to start serving openly in the armed forces.
In the case of Log Cabin Republicans v. United States, a three-judge panel of the U.S. Ninth Circuit Court of Appeals granted the plaintiffs’ request to lift the stay of the injunction that was put in place last year by a U.S. district judge.
“Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted,” the decision states.
The decision to lift the stay on the “Don’t Ask, Don’t Tell” injunction comes from a three-judge panel within the Ninth Circuit made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez.
After ruling in September that “Don’t Ask, Don’t Tell” was unconstitutional, U.S. District Judge Virginia Phillips put an injunction in place to halt the enforcement of the military’s gay ban. The injunction lasted for eight days until the Ninth Circuit placed a stay on the order upon request from the Justice Department, making gays once again unable to serve openly in the military.
The ruling on Wednesday reverses this decision and once again allows for open service. The Ninth Circuit must still decide on the constitutionality of “Don’t Ask, Don’t Tell,” but until it does, the anti-gay law will no longer be enforced.
Cynthia Smith, a Defense Department spokesperson, said the Pentagon is studying the decision with the Justice Department, but will comply with the court order and take “immediate steps to inform the field of this order.”
“In the meantime, implementation of the [‘Don’t Ask, Don’t Tell’] repeal voted by the Congress and signed into law by the president last December is proceeding smoothly, is well underway, and certification is just weeks away,” Smith added.
The panel’s decision, dated July 6, notes that the U.S. government never asserted “Don’t Ask, Don’t Tell” was constitutional in briefs seeking to uphold the statute. Further, the appellate court notes U.S. Attorney General Eric Holder’s announcement in February that the Obama administration determined that the Defense of Marriage Act — and laws related to sexual orientation — are unconstitutional.
“Appellants/cross-appellees state that the process of repealing [‘Don’t Ask, Don’t Tell’] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer,” the decision states. “The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.”
R. Clarke Cooper, executive director of the Log Cabin Republicans (Washington Blade photo by Michael Key)
R. Clarke Cooper, executive director of Log Cabin Republicans, which brought the case to court, said the Ninth Circuit’s decision to lift the stay “removes all uncertainty” for gay service members who are “no longer under threat of discharge as the repeal implementation process goes forward.”
“As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step,” Cooper said. “Log Cabin Republicans are proud of our role in ending this unconstitutional and un-American policy once and for all.”
Alex Nicholson, executive director of Servicemembers United and the sole military veteran plaintiff in the lawsuit, praised the decision for bringing about an end to “Don’t Ask, Don’t Tell” at a time when certification is still outstanding to end the military’s gay ban legislatively.
“With the wait for certification dragging out beyond a reasonable time frame, the court has once again stepped in to require the Pentagon to stop enforcing ‘Don’t Ask, Don’t Tell,’ and this time it very well may be for good,” Nicholson said. “I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law.”
Under the repeal law signed in December, “Don’t Ask, Don’t Tell” won’t be off the books until 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staff certify the military for open service. Although training throughout the military has been underway since February, certification has yet to take place.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the lifting of the stay is “most welcomed” and could have been avoided if the president and defense leaders had certified repeal at an earlier time.
Aubrey Sarvis, executive director of SLDN (Washington Blade file photo by Michael Key)
“It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department,” Sarvis said. “In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the confusion for all service members, and put a final end to this misguided policy.”
Dan Woods, an attorney with White & Case LLC who’s handling the case for Log Cabin, said the Justice Department can appeal the lifting of the stay to either the full Ninth Circuit or the Supreme Court.
“I have no idea what the government’s going to do,” Woods said. “And really they shouldn’t have appealed in the first place and they shouldn’t take this any further. They just should acknowledge, once and for all, that ‘Don’t Ask, Don’t Tell’ is dead.”
A White House spokesperson deferred comment on the Ninth Circuit decision to the Justice Department and the Pentagon.
Woods warned gay service members not to come out until the government makes an announcement and whether or not it plans to appeal the decision to lift the stay on the injunction.
“I’m urging people to sort of wait and see what the government does before people come out, but people should stayed tuned and see what the government’s next move is and maybe people will be free to serve openly in the armed forces very soon,” Woods said.
In addition to lifting the stay, the appellate court also grants the plaintiff’s request to expedite oral arguments in the case and states the case should be calendared for the week of Aug. 29.
Woods said the continued oral arguments — even with the injunction in place — are necessary because the litigation in the Log Cabin lawsuit is still ongoing.
“The only thing that’s really been decided is that the stay of the injunction,” Woods said. “The government is still arguing in its appeal that the injunction. It’s arguing that Log Cabin doesn’t have standing to bring the case and things like that, and we wanted to put these issues to bed once and for all and so we asked the court for an expedited hearing on all these other issues.”
NOTE: This post has been updated.
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
National
Glisten’s 30th annual Day of Silence to take place April 10
Campaign began as student-led protests against anti-LGBTQ bullying, discrimination
Glisten’s 30th annual Day of Silence will take place on April 10.
The annual Day of Silence began as a student-led protest in response to bullying and discrimination that LGBTQ students face. It is now a national campaign for the LGBTQ community and their allies to come together for LGBTQ youth.
It takes place annually and has multiple ways for supporters to get involved in the movement.
Glisten, originally GLSEN, champions LGBTQ issues in schools, grades K-12. Glisten’s mission is to create more inclusive and accepting environments for LGBTQ students through curriculum, supportive measures, education campaigns, and engagement, such as the Day of Silence.
There are three main ways for the community to get involved in the Day of Silence.
Glisten has a Day of Silence frame, a series of pictures used as profile photos across social media that feature individuals holding signs. The signs allow for personalization, by providing a space to put the individual’s name, followed by filling in the prompt “ … and I am ENDING the silence by…”
Participants are encouraged to post the photo on social media and use it as a profile picture. The templates can be found on Google Drive through this link.
Using #DayOfSilence and #NSCS, as well as tagging Glisten’s official Page @glistencommunity, is another way to participate in the Day of Silence.
Glisten also encourages participants to tag creators, friends, family and use a call to action in their caption, to call attention to the facts and stories behind the Day of Silence.
“Today’s administration in the U.S. wants us to stay silent, submit to their biased and hurtful conformity, and stop fighting for our right to be authentically ourselves,” said Glisten CEO Melanie Willingham-Jaggers. “We urge supporters to use their social platforms and check in with local chapters to be boots on the ground to help LGBTQ+ students feel seen, heard, supported, and less alone. By participating in the ‘Day of Silence,’ you are showing solidarity with young people as they navigate identity, safety, and belonging. Our voices matter.”
South Carolina
Man faces first S.C. ‘hate intimidation’ charge
Timothy Truett allegedly shot at gay club in Myrtle Beach on April 1
A South Carolina man remains in custody on a more than $300,000 bond after he allegedly opened fire at a Myrtle Beach nightclub on April 1, according to WMBF.
Reports say 37-year-old Timothy James Truett Jr., of Clover, S.C., was detained by the Myrtle Beach Police Department after the April 1 incident outside Pulse Ultra Club. He was later arrested and charged with possession of a weapon during a violent crime, discharging a firearm into a dwelling, discharging a firearm within city limits, malicious injury to real property valued over $5,000, and assault or intimidation due to political opinions or the exercise of civil rights.
At 10:57 a.m. on April 1, officers responded to a call about a possible shooting at Pulse Ultra Club, located in the 2700 block of South Kings Highway.
In an affidavit released later, the club’s owner, Ken Phillips, said he was doing paperwork that morning when he heard “five or six” gunshots. He went outside and found a window and the windshield of his SUV shattered by bullets. An SUV with blue plastic covering one window was left at the scene.
Police later reviewed footage that showed a silver vehicle stopping in the middle of the road. The video appeared to capture muzzle flashes coming from the passenger-side window.
According to the affidavit, an officer later pulled over a vehicle driven by Truett and found spent shell casings in the back seat, along with a gun.
Documents do not detail why Truett was ultimately charged under the state law covering assault or intimidation tied to political opinions or the exercise of civil rights.
As of April 1, records show Truett is being held in Horry County on a combined bond of more than $312,000.
WMBF spoke with Phillips after the incident and asked whether there was any prior conflict that might have led to the shooting.
“I don’t know if it’s personal, I don’t know if it’s related to being gay, I don’t know if it’s related to the bar issues,” Phillips told WMBF. “Anybody with a mindset of pulling out a weapon in broad daylight is not right.”
“My primary concern has and always will be the safety of my community and my customers,” he added. “It’s given me great concern … as to how far people will go.”
WMBF also spoke with Adam Hayes, vice chair of Myrtle Beach’s Human Rights Coalition, who was involved in pushing for the ordinance. He said that while the incident itself is troubling, it shows the policy is being put to use.
The ordinance is intended to deter “crimes that are motivated by bias or hate towards any person or persons, in whole or in part, because of the actual or perceived” identity, in the absence of a statewide hate crime law.
“It’s nice to see that something we put into policy is not just a piece of paper, that it’s actually being used,” said Hayes.
He said the shooting underscores the need for a statewide hate crime law in South Carolina and added that the incident has left the local LGBTQ community shaken.
South Carolina and Wyoming are the only two states in the U.S. without a comprehensive statewide hate crime law.
Truett remains in jail as of publication.
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