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BREAKING: Obama, Pentagon certify ‘Don’t Ask, Don’t Tell’ repeal

Military’s gay ban will be off the books in 60 days

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President Obama and Pentagon leaders gave the green light on Friday to start the 60-day time period for when “Don’t Ask, Don’t Tell” will be off the books and openly gay Americans will be entirely free to serve in the U.S. military.

After consultation during a Friday meeting at the White House, Obama — along with Defense Secretary Leon Panetta and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen — issued certification to Congress that the armed forces are ready for open service.

“Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality,” Obama said in a statement. “In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011.”

Under the repeal law signed in December, the military’s gay ban will be lifted once the president, the defense secretary and the chairman of the Joint Chiefs of Staff certify the armed forces are ready for open service. Consequently, now that repeal has been certified, “Don’t Ask, Don’t Tell” will be off the books on Sept. 20.

“I believe the U.S. armed forces are ready for the implementation of the repeal of Don’t Ask, Don’t Tell,” Mullen said in a statement. “I conveyed that opinion yesterday to the President and to the secretary of defense, and today we certified this to Congress. My opinion is informed by close consultation with the service chiefs and the combatant commanders over the course of six months of thorough preparation and assessment, to include the training of a substantial majority of our troops.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the “final countdown to repeal begins today” as a result of certification.

“Service members celebrate this historic announcement, and they are ready for this change,” Sarvis said. “Our nation’s top military leaders have testified that commanders see no significant challenges ahead, and now the president, Secretary Panetta, and Chairman Mullen have certified to Congress that the armed forces are prepared for the end of ‘Don’t Ask, Don’t Tell.'”

Alex Nicholson, executive director of Servicemembers United, said certification of repeal means gay service members can “breath a huge sigh of relief.”

“While we still must wait 60 days for this change to formally take effect and for the law to officially be off the books, this step is nothing short of historic,” Nicholson said. “This is the final nail in the coffin for the discriminatory, outdated, and harmful ‘Don’t Ask, Don’t Tell’ law.”

Gay service members who had left the U.S. military because of “Don’t Ask, Don’t Tell” hailed certification for repeal as an important milestone.

Stacey Vasquez, a former Army recruiter who was discharged under “Don’t Ask, Don’t Tell” in 2003, said she finds it hard to believe that the long struggle to end the military’s gay ban is finally coming to an end.

“I think it’s hard for me to put into words because there have been so many steps for me,” Vasquez said. “I went through a court battle for seven years and worked on repeal in my job for a year, and then I’ve lobbied Congress for nine years.”

She continued, “I don’t know if you’ve had one of those moments where you say, ‘Is it really done because you’ve had so many steps and you feel like you move forward and then you move back a step? I’m kind of thinking to myself, ‘Is it really done?'”

Still, Vasquez said she’s “happy” that certification has happened and plans to make an attempt to re-enlist in the Army after “Don’t Ask, Don’t Tell” is off the books.

Brian Fricke, a gay Iraq war veteran who left the Marine Corps in 2005 because of “Don’t Ask, Don’t Tell,” also said certification brings him a sense of relief. and vindication that he thinks is shared by other service members.

“For me, personally, there’s a sense of vindication,” he said. “When I left, I had a partner at the time and I was always afraid of being found out. I couldn’t relax when I was on my R&R away from work because I was fearful of that.

Additionally, Fricke said he thinks other service members will share his feelings following the formal lifting of “Don’t Ask, Don’t Tell.”

“I feel like a lot of the gay and lesbian troops are going to feel a lot of relief immediately, even if they’re not going to come out to people,” he said. “They are going to be able to relax when they’re off duty and be able to go in public to the movies and hold hands and not have to worry about retribution.”

Fricke wasn’t discharged under “Don’t Ask, Don’t Tell,” but opted not to enlist in 2005 because of the burden of serving under the military’s gay ban. He said he doesn’t plan to return to the armed forces.

Although “Don’t Ask, Don’t Tell” will remain on the books until Sept. 20, discharges under the anti-gay law have already been halted. The Pentagon earlier this month put in place a moratorium on separations in response to a court order imposing an injunction against enforcing the anti-gay law.

As a result, gay service members can already serve openly without fear of discharge, although openly gay people are still barred from enlisting in the armed forces.

The injunction — initially issued last year by a California federal district court — was reinstituted earlier this month by the U.S. Ninth Circuit Court of Appeals in the case of Log Cabin Republicans v. United States, pending litigation challenging the constitutionality of the military’s gay ban.

The moratorium on discharges could be lifted — making gay service members vulnerable once again — if the U.S. government succeeds in efforts to convince the court to place a stay on the injunction. On Monday, the Justice Department requested this stay and maintained the Obama administration wants an “orderly process for repealing” the military’s gay ban.

R. Clarke Cooper, Log Cabin’s executive director, issued a statement saying his organization’s lawsuit helped lead to “Don’t Ask, Don’t Tell” repeal certification.

“Log Cabin Republicans are proud to have helped put an end to ‘Don’t Ask, Don’t Tell,'” Cooper said. “It is our hope that the clear precedent established in federal court that will ensure an absolute end to this unconstitutional law.”

Even with “Don’t Ask, Don’t Tell” on its way to being off the books, supporters of open service say more work is necessary to ensure gay and straight service members stand on equal footing.

One option to address this issue is an executive order from the president that would ensure non-discrimination for gay service members. Currently, gay service members have no recourse outside of their chain of command if they feel they’re experiencing discrimination on the job.

Sarvis, who has called for such a directive since February, renewed his call this week for such an executive order on the basis that “every service member deserves equal respect in the work environment.”

“Signing legislation that allows for repeal of ‘Don’t Ask, Don’t Tell’ was necessary, but it is not sufficient for ensuring equality in the military,” Sarvis said. “It’s critical that gay and lesbian service members have the same avenues for recourse as their straight counterparts when it comes to harassment and discrimination.”

Other inequities exist between gay service members with partners or spouses and straight service members in marriages on issues such as living expenses and medical care, travel, housing benefits. Much of this inequity is because of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

LGBT advocates are also expressing concerns about transgender people still being unable to serve openly in the U.S. military. But openly transgender Americans can’t serve openly not because of law, but by regulation — so the change could be implemented administratively.

An executive order prohibiting discrimination against service members based on sexual orientation and gender identity would also stop the separations of service members who come out as transgender.

Mara Keisling, executive director of the National Center for Transgender Equality, issued a reminder on Friday that transgender Americans are still unable to serve openly in the armed forces.

“NCTE rejoices whenever discriminatory laws end and ‘Don’t Ask, Don’t Tell’ was a discriminatory law and it needed to go,” Keisling said. “However, as repeal is certified, transgender servicemembers continue serving in silence. NCTE looks forward to the day when the U.S. armed forces ends discrimination in all its forms.”

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Biden administration to ban discrimination against LGBTQ patients

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The Biden administration announced on Monday it would enforce civil rights protections under Obamacare to prohibit discrimination in health care against patients for being LGBTQ, reversing policy during the Trump years excluding transgender status as a protected characteristic under the law.

The Department of Health & Human Services declared it would enforce Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex, and begin to take up cases of discrimination based on sexual orientation and gender identity.

HHS Secretary Xavier Becerra said in a statement the Supreme Court has “made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

The move is consistent with the executive order President Biden signed on his first day in office directing federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the furthest extent possible. Federal agencies were directed to comply within 100 days of the executive order, which is about now and a short time after Biden’s first 100 days in office.

The announcement with respect to Section 1557 comes on the same day as the hearing took place this morning in Bagly v. HHS, a case before a federal court in Massachusetts challenging Trump’s undoing of transgender protections under the law. An attorney with the U.S. Justice Department announced a new notice of proposed rule-making is coming with respect to Section 1557.

Sharita Gruberg, vice president for the LGBTQ Research and Communications Project at the Center for American Progress, said in a statement the change “assures LGBTQ people that their rights will be upheld at the doctor’s office, vaccine sites, and everywhere else they seek health care and coverage.”

“The administration’s announcement that it will enforce these protections are a critical step toward addressing vaccine hesitancy among LGBTQ people, a population that has been disproportionately impacted by the pandemic and seriously harmed by the previous administration’s attempts to permit discrimination against LGBTQ patients, Gruberg added.

The past three administrations have instituted policy on LGBTQ protections based on their interpretation of Section 1557. Each move had varying implications and directions for LGBTQ patients.

The Obama administration issued a rule in 2016 interpreting Section 1557 to apply to cases of anti-transgender discrimination and discrimination against women who have had abortions, which was consistent with court rulings at the time. However, that move was enjoined by a nationwide court order in Texas as a result of litigation filed by Texas Attorney General Ken Paxton.

The Trump administration, shortly after the Supreme Court’s ruling in Bostock, made final a regulation proposed last year rescinding the Obama administration’s transgender protections under Section 1557. Faced with criticism, the Trump administration defended itself by saying its move was consistent with the court order in Texas, although it seemed to ignore the decision from the higher court.

The new rule from HHS goes above and the beyond the Obama administration by instituting protections based on both sexual orientation and gender identity. It wasn’t immediately clear whether the proposed rule would be a new regulation entirely, or seek to modify the changes that were made in the two previous administrations. The Blade has placed a request seeking comment with HHS.

Susan Bailey, president of the American Medical Association, said in a statement the new HHS rule is a welcome change after the Trump administration rescinded protections for transgender patients.

“It’s unfortunate that such an obvious step had to be taken; the AMA welcomes this common-sense understanding of the law,” Bailey said. “This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections.”

Discrimination in health care is an experience transgender people commonly report. The U.S. Transgender Survey in 2015 found one-third of responders said they had at least one negative experience in health care related to being transgender. Further, 23 percent of responders said they didn’t seek health care because they feared being mistreated and one-third said they didn’t go to a provider because they couldn’t afford it.

A Center for American Progress survey from 2018 had similar findings with respect to transgender people and patients with being gay, lesbian and bisexual or queer. Eight percent of responders said a doctor refused to see them because of their perceived or actual sexual orientation, while 28 percent of providers said a doctor refused to see them because of their actual or perceived sexual orientation.

Hospitals, especially religiously affiliated providers, refusing to provide transition-related care, including gender assignment surgery, is another frequently reported incident for transgender patients. The American Civil Liberties Union, for example, has filed litigation against hospitals under Section 1557 for refusing to perform the procedure.

Rachel Levine, assistant secretary of health and the first openly transgender presidential appointee to obtain Senate confirmation, hailed the HHS rule change in a statement.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

Although the Biden administration’s announcement is a welcome move for LGBTQ advocacy groups, the change is not without critics.

John Banzhaf, a law professor at George Washington University who declares himself a supporter of transgender rights, said the policy could have unintended consequences, which he said has become evident in the British health system.

“[Transgender] individuals with a penis but no vagina are being asked to have medical tests on their non-existent cervices, while [transgender] persons with a vagina and cervix will not be asked, under new guidelines which appear to place lives at risk and encourage a physically impossible medical exam on organs which simply do not exist,” Banzhaf said. “And, carrying this absurdity to its totally illogical conclusion, a patient with a penis and a full beard was offered a cervical test because, despite his clearly masculine appearance and style of dress, he registered himself as being gender neutral.”

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami

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Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)

 

MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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