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Will Obama drop gov’t defense of ‘Don’t Ask?’

Court orders administration to announce its intent within 10 days

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A federal appellate court on Monday directed the Obama administration to announce within 10 days whether or not it will continue to defend “Don’t Ask, Don’t Tell” in court in the wake of its decision to no longer litigate on behalf of the Defense of Marriage Act.

In an order dated July 11, the U.S. Ninth Circuit Court of Appeals states that the Justice Department must announce if it will continue to defend “Don’t Ask, Don’t Tell,” or, as was the case with DOMA, allow Congress to intervene to take up defense of the military’s gay ban.

“The Government is hereby ordered to advise the court whether it intends to submit a report to Congress … outlining its decision to refrain from defending [‘Don’t Ask, Don’t Tell’],” the order states. “The Government is further ordered, if such a report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding.”

The order states that this notification must be submitted within 10 days and take the form of letters to the court no longer than 10 pages or 2,800 words in length. A Justice Department spokesperson didn’t immediately respond to the Washington Blade’s request for comment on the issue.

The executive branch of the U.S. government has the authority to refrain from defending laws in court it believes are unconstitutional, but must notify Congress to provide that body the opportunity to take up defense of such laws.

That’s the situation that played out with DOMA. On Feb. 23, U.S. Attorney General Eric Holder notified Congress the Justice Department would no longer defend DOMA because the Obama administration determined the anti-gay law was unconstitutional. Following a party-line vote from the Bipartisan Legal Advisory Group, U.S. House Speaker John Boehner (R-Ohio) directed House general counsel to defend the anti-gay law and hired private attorney and former U.S. solicitor general Paul Clement to assist in the defense.

Holder says in the letter the administration came to the conclusion that DOMA was unconstitutional because all laws related to sexual orientation — not just DOMA — should be subject to heightened scrutiny under the law. “Don’t Ask, Don’t Tell” would fall under this category.

In the wake of this determination for laws related to sexual orientation, the Ninth Circuit directs the government to clarify whether it will continue to defend “Don’t Ask, Don’t Tell.”

Dan Woods, an attorney with White & Case LLC who’s representing Log Cabin in the lawsuit, said the order in the case is “a really good thing” for opponents of “Don’t Ask, Don’t Tell.”

“It’s a really good thing that they’ve asked the government to decide whether they’re going to defend the constitutionality of ‘Don’t Ask, Don’t Tell’ or not,” Woods said. “They’re trying to have to both ways, and the Ninth Circuit is now forcing them to take an official position on that.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, also praised the Ninth Circuit for directing the U.S. government to make its position clear on “Don’t Ask, Don’t Tell.”

“The Court of Appeals for the Ninth Circuit is correctly pressing the Department of Justice and Department of Defense on whether or not they intend to defend the constitutionality of ‘Don’t Ask, Don’t Tell,'” Sarvis said. “It is our hope they will not continue to do so, and we will soon have finality with certification and repeal.”

In the order, the Ninth Circuit also notes that the U.S. government hasn’t asserted “Don’t Ask, Don’t Tell” in its most recent legal briefs defending the statute and observes that the gay ban is active despite the repeal law that was signed last year.

“Therefore, the central issue this court must address on appeal is whether the district court properly held that [‘Don’t Ask, Don’t Tell’] is unconstitutional,” the order states. “No party to this appeal has indicated an intention to defend the constitutionality of [‘Don’t Ask, Don’t Tell’] or to argue that the constitutionality holding of the district court should be reversed.”

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 Staffs certify the military is ready for open service. Troops have been undertaking training to prepare for “Don’t Ask, Don’t Tell,” but certification has yet to take place.

In addition to ordering the U.S. government to declare whether it will continue defending “Don’t Ask, Don’t Tell,” the Ninth Circuit directs both parties in the case — plaintiffs and defendants — to explain why the case shouldn’t be considered moot in the wake of passage of repeal legislation.

Woods said he’s prepared to refile briefs explaining why the litigation should remain ongoing to comply with the court order.

“We’re happy to brief this again and we don’t think the case is going to be moot, we don’t think it should be dismissed because, among other things, there’s still this talk about repealing the repeal [in Congress],” Woods said. “There’s a bill pending to repeal the repeal. That should make it clear that this case shouldn’t be dismissed.”

The order comes after a three-judge panel on the Ninth Circuit on Wednesday reinstituted an injunction prohibiting the federal government from enforcing “Don’t Ask, Don’t Tell” as a result of the case, known as Log Cabin Republicans v. United States. On Friday, the Pentagon issued a moratorium on discharges under the gay ban to comply with this court order.

Observers are still awaiting the decision from the Justice Department on whether it will appeal the decision to reinstate the injunction.

“We don’t know that,” Woods said. “They haven’t decided that yet. We haven’t heard from the government one way or the other whether they’re going to seek some further review of last week’s Ninth Circuit order.”

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U.S. Supreme Court

Supreme Court to consider bans on trans athletes in school sports

27 states have passed laws limiting participation in athletics programs

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

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

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

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

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

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

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

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

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

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

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

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Federal Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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